Madras High Court
U.H.Shahani vs / on 25 October, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.Nos.9703 and 8678 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :21.10.2024
Pronounced on :25.10.2024
Coram:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.Nos.9703 and 8678 of 2023
and
Crl.M.P.Nos.6342, 6343, 5544 and 5543 of 2023
Crl.O.P.No.9703 of 2023:
1.U.H.Shahani
2.Shyam Shahani .. Petitioners/1st and 2nd Accused
/versus/
Dr.D.N.Harilal
S/o Atmaram Harilal,
No.12, Damodhar Moorthy Road,
Kilpauk, Chennai 600 010.
Represented by his Power of Attorney,
Mr.Ravi Subramaniam,
S/o G.S.Mani,
No.3, Aziz Mulk 6th Street,
Thousand Lights,
Chennai 600 006. .. Respondent/
Complainant
1/18
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
Criminal Original Petition has been filed under Section 482 of
Cr.P.C., to call for the records in C.C.No.218 of 2021 before the learned
Judicial Magistrate, Alandur and quash the same.
For Petitioners :Mr.G.Mohan
For Respondent :Mr.M.Suresh
Crl.O.P.No.8678 of 2023:
1.Mrs.Nausheen Khan ..1st Petitioner/4th
Accused
2.Mr.Mohammed Yazdaan Khan.M, .. 2nd Petitioner/5th
Accused
3.Mrs.Mariam Khan.F, ..3rd Petitioner/6th
Accused
4.Ms.Maria Khan.F. ..4th Petitioner/7th
Accused
/versus/
Dr.A.N.Harilal
Represented by his power of attorney,
Mr.Ravi Subramaniam,
No.13, Damodhar Moorthy Road,
Kilpauk, Chennai 600 010. .. Respondent/
Complainant
Criminal Original Petition has been filed under Section 482 of
Cr.P.C., to quash the criminal proceedings in C.C.No.218 of 2021 on the
file of Judicial Magistrate-II of Alandur, Chennai and pass such order or
orders as this Court may deem fit and proper in the interest of justice.
2/18
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
For Petitioners :M/s S.V.Pravin Rathinam
For Respondent :Mr.M.Suresh
------
COMMON ORDER
The private complaint by Dr.A.N.Harilal, through his Power of
Attorney Mr.Ravi Subramaniam, was taken cognizance by the Judicial
Magistrate No.II, Alandur against the petitioners in Crl.O.P.No.9703 of
2023 and Crl.O.P.No.8678 of 2023 for the offence under Sections 143,
447, 448, 453, 454, 427, 506(i), 406 and 420 r/w 120(B) of IPC.
2. The petitioners in Crl.O.P.No.9703 of 2023 are the first and
second accused. The petitioners in Crl.O.P.No. 8678 of 2023 are the
fourth to seventh accused.
3. Sum and substance of the complaint is that on 26.02.2001,
the petitioners in Crl.O.P.No.9703 of 2023 entered into a 90 years lease
agreement with the complainant and received Rs.3,00,000/- as advance.
The lease rent was fixed as Rs.2,000/- per month. As per the terms of
the lease, after expiry of 10 years period, the complainant is vested with
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
right of option to purchase the property. In the leasehold land measuring
to an extent of one acre, the complainant has constructed a farm house by
spending about Rs.70 lakhs and had obtained electricity service
connection in his name. Exercising his option to purchase the land, a
sum of Rs.30,00,000/- was paid by cash to the first accused on various
dates and ready to pay the balance consideration. While so, the first
accused stating that the property tax imposed is over and above the rent
fixed, sought for a letter from the complainant indicating cancellation of
the 90 years lease agreement. Accordingly, the complainant gave a letter
to facilitate the first accused to get tax reduction. Taking advantage of
the said letter, the first accused and his henchmen tried to dispossess the
complainant, which has led to filing of suit for permanent injunction
before the District Munsif Court, Alanthur in the month of August 2019
and the suit was numbered as O.S.No.410 of 2019. While so, on
08.11.2019 the first and second accused along with 15 persons came to
the property, illegally entered into it, broke open the farm house lock and
thrown out all the articles kept inside the house and forcibly took the
possession. In this connection, when the complainant went to the J-12
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
Kaanathur Police Station, to give complaint, the Police were busy with
Ayodhya Verdict Meeting and the complaint was not received by the
police.
4. Thereafter, on 10.11.2019, the complaint was received by
Kaanathur Police and C.S.R.No.312 of 2019 was issued and he was put
in possession on the intervention of the police. However, on the next
day, the third accused Mr.T.A.S.Sundar claimed that he had purchased the
property from the first and second accused and the sale deed got duly
registered on 07.11.2019. On the next day i.e. on 13.11.2019 the third
accused damaged the compound wall of the property and also damaged
the properties kept in the premises. The swimming pool has been filled
with sand and the name board of the complainant affixed outside the
compound wall was removed. From verification with the SRO, the
complainant had come to know that the first accused had sold the
property to the accused 4 to 7 including the building constructed by the
complainant. The complainant apart from filing the suit for injunction,
sought for police protection and registered his complaint by way of a
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
petition under Section 482 of Cr.P.C. before the High Court.
5. The learned Government Advocate (Crl.Side) reported to the
Court that C.S.No. 312 of 2019 registered on the complaint given by
Dr.Harilal (complainant) been closed. Recording the said submission,
the High Court granted liberty to the complainant to file private
complaint in the manner known to law. Alleging that the first and second
accused after leasing out the property by collecting advance of
Rs.3,00,000/- had illegally sold the farm house constructed by the
complainant contrary to the terms of the lease agreement. The purchasers
of the property are the accused 4 to 7. They are the petitioners in
Crl.O.P.No. 8678 of 2023. Knowing well about the agreement between
the first accused and the complainant, they had created a sale deed in
their favour and damaged the property constructed by the complainant.
6. The quash petitions filed by the first and second accused on
the ground that the unregistered lease agreement for 90 years dated
26.02.2001 was breached by the complainant and his power of attorney
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
by submitting the property for short term rental. The negotiation to sell
the properties to the complainant did not fructified and therefore, the
lease deed dated 26.02.2001 between the first accused and the
complainant was terminated and duly acknowledged by the complainant.
Thereafter, the first accused sold the property to the accused 4 to 7 vide
sale deed dated 07.11.2019 for consideration and possession was handed
over to the buyers. The frivolous complaint given by Dr.Harilal through
his representative was closed by the police after due enquiry. To harass
the owners of the property and the lawful buyers, the complainant
suppressing certain vital facts has filed the private complaint, which is
absolutely abuse of process of law and Court. The complaint lacks
bonafide and proof of material to disclose commission of any cognizable
offence.
7. The learned Senior Counsel appearing for the purchasers
who are arrayed as A4 to A7 and the petitioners in Crl.O.P.No.8678 of
2023 in their quash petition has contended that they purchased the
property from the first accused under registered sale deed dated
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
07.11.2019 for a sale consideration of Rs.6 crores. Since its purchase,
they are the absolute owner of the property and diligently paying all the
revenues payable to the Government. They are the bona fide purchasers
for value and they are not aware of the prior unregistered lease agreement
by the vendor with the complainant. The Encumbrance Certificate
reflects Nil Encumbrance. The petitioners being bonafide purchasers,
they cannot be arrayed as an accused in the private complaint for the
offence under Section 420 of IPC, since there is no element of cheating
on the part of the petitioners. The specific complaint against the
purchasers is that they with knowledge and in connivance with the first
and the second accused had created a sale deed in their favour and made
forcible attempt to evict the complainant from his lawful possession. If at
all there is any breach of terms of the lease agreement, the complainant's
remedy is to approach the civil Court for enforcement of the terms of the
agreement. Since the said lease agreement is for 90 years, an unregistered
document has no legal value to enforce. Based on the unenforceable
document, the complainant cannot cloak his grievance with criminality of
cheating as against the bona fide purchasers.
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
8. The learned counsel appearing for the petitioners in
Crl.O.P.No.8678 of 2023, on relying upon series of judgments,
emphasised that it is a case which is purely civil in nature given criminal
colour and as far as the purchasers who arrayed as A4 to A7 have no
criminal intention to cheat the complainant.
9. The lease of the property to the complainant is admitted by
the first accused. Both the complainant and the first accused claims that
the farm house in the disputed property was constructed by them. While
the complainant rely upon the electricity service connection and the
complaint in C.S.R.No. 312 of 2019 and O.S.No.410 of 2019 on the file
of the District Munsif Court, Alanthur to support his case of possession
of the building and the land, the first accused refer to the planning
permission granted by the local body in the year 2019 and also rely upon
the service connection obtained in his name. It is contended by the first
accused that the advance of Rs.3,00,000/- received from the complainant
was returned to the complainant before selling the property to the
accused 4 to 7.
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
10. The perusal of the documents relied by the complainant and
the accused persons indicates that the first accused Shahani had
purchased 1 acre of agricultural land comprised in S.No.2/2A2 and 3/1B
Uthandi Village from one V.V.Venkatanarayanan under a duly registered
sale deed dated 05.06.1989. He has entered into unregistered 90 years
lease agreement with the complainant Dr.A.N.Harilal, and his wife
Mayahairlal on 26.02.2001 with right to carry out activity of
reconstruction in the property described in schedule B. While schedule
'A' is extent of one acre, the land in S.No.2/2A2 and 3/1B. Scheduled 'B'
is described as half of the undivided share in 'A' schedule property. The
first accused rely upon the communication of the complainant
Dr.A.N.Hari Lal dated 10.11.2018 wherein the complainant and his wife
had informed the first accused that they are about to vacate the property
with immediate effect since they are not able to use the property any
more and had requested to treat the lease deed dated 26.02.2001 as
cancelled and requested the first accused U.H.Shahani to return the
deposit amount at an earliest date. While the petitioners/accused rely
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
upon this letter as a proof of termination of lease, the complainant states
that this letter at the request of the accused was given only to avoid
excessive tax on the property.
11. The other facts reveals that this letter has not been acted
upon. Neither the complainant vacated the place nor the first accused
repaid the advance amount. This could be seen from the letter of the
complainant dated 05.10.2019 wherein the demand draft of Rs.3,00,000/-
drawn in favour of the complainant and sent to the complainant returned
back to the accused. So apparently the first accused has admitted to repay
the advance money to the complainant only during the month of October
2019. However, relying upon the letter of the complainant dated
10.11.2018 which was after 11 months of the alleged cancellation of
lease, the first accused has come forward to return the advance money
which has been returned back by the complainant stating that the letter of
cancellation of lease was obtained by deceit and having constructed the
building in 5000 sq.ft. by spending Rs.70 lakhs, he cannot vacate the
building contrary to the terms of the lease agreement. On the same line,
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
the complainant has presented his plaint before the District Munsif Court,
Alanthur and pending in O.S.No. 410 of 2019.
12. The gravamen of the complaint is that the enforceable
attempt to vacate and demolition of the building constructed by the
complainant. The purchasers of the property i.e. accused 4 to 7 may got
the title with bonafide intention and may be for valuable consideration,
however, the petitioners involvement in illegal eviction and demolition of
the building put up by the complainant is the sum and substance of the
complaint which carries all the ingredients of commission of offence
attracting Section 143, 447, 448, 453, 454, 427, 506(i), 406 and 420 r/w
120(B) of IPC.
13. As far as the first and second accused are concerned,
material disclose that without proper termination of their unregistered
lease with the complainant, the petitioners have not only sold the
property to the accused 4 to 7, but also participated in the forcible
eviction of the complainant and caused damage to the property. The
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
service connection relied by the complainant is from the year 2018 and it
stands in the name of the complainant bearing No.328:001:710. The
service connection relied by the first accused bearing service connection
No.09328001139 is for the month of June 2019 and thereafter. It is for
the respective parties to prove in the course of the trial about the
premises for which the service connection provided.
14. As far as the petition to quash the criminal complaint, the
test should be the parameter laid down by the Hon'ble Supreme Court in
Neeharika Infrastructure Pvt Ltd., Vs. State of Maharashtra and
Others reported in [2021 SCC Online SC 315].
15. From the material placed before this Court, it cannot be
simply rule out as a civil dispute and no element of criminality for the
parties to settle the dispute before the Civil Court. The building
apparently constructed by the complainant on the strength of the terms of
unregistered lease agreement, which has now been damaged and the
complainant been thrown out of possession. To protect his possession, he
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
has approached the civil Court by way of suit for permanent injunction.
For the damages caused and the illegal dispossession by force, his
remedy is only before the Criminal Court. Since the respondent police
has failed to consider criminality involved in this case and closed the
complaint, the private complaint been filed. However, the Magistrate
after considering the materials available has taken cognizance only for
the offence under Section 420 of IPC.
16. The attempt of the complainant seeking direction from the
High Court for including the other offences got disposed of by an order
of this Court dated 12.08.2022 giving liberty to the complainant to
invoke Section 216 and 319 of Cr.P.C., if necessary, at the relevant point
of time. Thus, the accused persons presently facing trial for the offence
under Section 420 of IPC.
17. As on date, the Judicial Magistrate has taken cognizance
against the petitioners for the offence under Section 420 of IPC.
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
18. Section 420 reads as below:-
Section 420 - Cheating and dishonestly
inducing delivery of property:- Whoever cheats and
thereby dishonestly induces the person deceived to
deliver any property to any person, or to make, alter or
destroy the whole or any part of a valuable security, or
anything which is signed or sealed, and which is
capable of being converted into a valuable security,
shall be punished with imprisonment of either
description for a term which may extend to seven
years, and shall also be liable to fine.
19. To attract offence under Section 420 of IPC, there must be
element of deception at inception. In this case, the complaint indicates
that the first accused has induced the complainant to give a letter dated
10.11.2018 as if, he is ready to vacate the premises and cancel the lease
deed. On the strength of this letter dated 10.11.2018, the first accused
has sold the property to the accused 4 to 7. It is unbelievable to accept the
plea of the purchasers that they are the bonafide purchasers of the
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
property for valuable consideration. They have purchased the property
knowing fully well about the existence of the building and the same been
in occupation of the complainant. Through their henchmen they have
tried to evict the complainant forcible which has led to filing of the civil
suit seeking permanent injunction. The sale of valuable property does not
happen overnight. The purchasers cannot feign ignorance of the
possession and enjoyment of the property by the complainant and take
umbrage pleading, they are the bonafide purchasers for value.
20. The deceptive intention to get the property and disturb the
lawful possession of the complainant by illegal means is explicitly
narrated in the complaint and the complainant, who on apprehension of
illegal dispossession had presented the plaint before the Civil Court
much before the sale transaction. Therefore, the petitioners in
Crl.O.P.No.8678 of 2023 cannot sustain the plea that there is no element
of deception at inception of the transaction.
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
21. In the result, these two Criminal Original Petitions to
quash the private complaint in C.C.No. 218 of 2021 before the
Judicial Magistrate No.II, Alandur, stands dismissed. Consequently,
connected Miscellaneous Petitions are closed.
25.10.2024
Index:yes
Internet:yes/no
Speaking order/non speaking order
Neutral citation:yes/no
ari
To:
1.The Judicial Magistrate-II of Alandur, Chennai
2.The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.9703 and 8678 of 2023
Dr.G.JAYACHANDRAN,J.
ari
delivery Common Order made in
Crl.O.P.Nos.9703 and 8678 of 2023
and
Crl.M.P.Nos.6342, 6343,
5544 and 5543 of 2023
25.10.2024
https://www.mhc.tn.gov.in/judis
