Madras High Court
R.Muthulakshmi vs S.P.Sudhan Nayakraj on 16 April, 2025
Crl.R.C.(MD).No.1396 of 2024
'BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 24.03.2025
PRONOUNCED ON :16.04.2025
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.1396 of 2024
R.Muthulakshmi ... Petitioner/Complainant
Vs.
1.S.P.Sudhan Nayakraj
2.M.Arunraj .... Respondents 1 and 2/Accused
3.State of Tamil Nadu,
represented by the Inspector of Police,
Srivilliputtur Town Police Station,
Srivilliputtur,
Virudhunagar District. ... Respondent No.3/Defendant No.3
PRAYER: Criminal Revision Petition has been filed under Section 438 r/w 442
of BNSS, 2023, to call for the records relating to the order dated 30.10.2024,
passed by the learned Judicial Magistrate Court No.II, Srivilliputhur in
Crl.M.P.No.1411 of 2024 and set aside the same.
1/10
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Crl.R.C.(MD).No.1396 of 2024
For Petitioner : Mr.C.Susikumar
For Respondents : Mr.M.Prabhakaran
for R.1 and R.2
:Mrs.M.Aasha
Government Advocate (Crl.Side)
for R.3
ORDER
This Criminal Revision is directed against the order passed in Crl.M.P.No.
1411 of 2024, dated 30.10.2024, on the file of the Judicial Magistrate Court
No.II, Srivilliputtur, dismissing the petition filed under Section 156(3) Cr.P.C.
2. The case of the petitioner is that the petitioner had engaged the
respondents 1 and 2 who are the proprietors of M/s Olive Green Construction at
Coimbatore for construction of commercial building in her land situated at
Gopuram Street, Srivilliputtur, that both parties have entered into the
construction agreement on 15.05.2023 wherein the petitioner had paid
Rs.4,00,000/- as advance amount, that the respondents 1 and 2 had also made
arrangement for constructions, that in the meanwhile there arose some disputes
between the petitioner and her adjacent land owner due to which the petitioner
and her husband approached the respondents 1 and 2 for cancellation of the
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Crl.R.C.(MD).No.1396 of 2024
construction agreement, that the respondents 1 and 2 had agreed to return the
advance amount, that though they have paid Rs.50,000/- through cheque on
02.02.2024, agreed to pay the balance amount in two instalments within
01.04.2024, that though the petitioner had demanded the return of balance
amount, the respondents 1 and 2 had been postponing the same on some pretext
or the other, that when the petitioner had demanded the amount on 15.03.2024,
that they have informed that the advance amount was used and also sent a tax
invoice dated 09.02.2024, that the petitioner has then come to know that the
respondents 1 and 2 had cheated several peoples in a similar fashion, that the
petitioner lodged a complaint before the third respondent on 23.04.2024 and
since there was no action, the petitioner sent complaint through registered post to
the third respondent on 27.03.2024 and as there was no action, she was forced to
send a complaint to the District Superintendent of Police, Virudhunagar on
23.07.2024 and that since the same was also of no use, she was constrained to
file a petition under Section 156(3) Cr.P.C., before the jurisdictional Magistrate
Court for registration of F.I.R., and for investigation.
3. The learned Magistrate, taking the petition filed under Section 156(3)
Cr.P.C., on file in Crl.M.P.No.1411 of 2024 and upon perusing the petitioner's
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Crl.R.C.(MD).No.1396 of 2024
affidavit, petition and other records, has passed the impugned order dated
30.10.2024, by holding that the dispute is of civil in nature, dismissed the
petition.
4. Before entering into further discussion, it is necessary to refer the
judgment of the Hon'ble Supreme Court in M/S Indian Oil Corporation vs M/S
NEPC India Ltd., and Others, in Crl.A.No.834 of 2002, dated 20.07.2002,
wherein, the Hon'ble Apex Court has deprecated the practice of attempting to
settle the civil disputes by applying pressure through criminal prosecution and
the relevant passage is extracted hereunder:
“10. While on this issue, it is necessary to take notice of a
growing tendency in business circles to convert purely civil
disputes into criminal cases. This is obviously on account of a
prevalent impression that civil law remedies are time consuming
and do not adequately protect the interests of lenders/creditors.
Such a tendency is seen in several family disputes also, leading
to irretrievable break down of marriages/families. There is also
an impression that if a person could somehow be entangled in a
criminal prosecution, there is a likelihood of imminent
settlement. Any effort to settle civil disputes and claims, which do
not involve any criminal offence, by applying pressure though
criminal prosecution should be deprecated and discouraged. In
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Crl.R.C.(MD).No.1396 of 2024
G. Sagar Suri vs. State of UP [2000 (2) SCC 636], this Court
observed :
"It is to be seen if a matter, which is essentially
of civil nature, has been given a cloak of criminal
offence. Criminal proceedings are not a short cut of
other remedies available in law. Before issuing process
a criminal court has to exercise a great deal of
caution. For the accused it is a serious matter. This
Court has laid certain principles on the basis of which
High Court is to exercise its jurisdiction under Section
482 of the Code. Jurisdiction under this Section has to
be exercised to prevent abuse of the process of any
court or otherwise to secure the ends of justice."
While no one with a legitimate cause or grievance should be
prevented from seeking remedies available in criminal law, a
complainant who initiates or persists with a prosecution, being
fully aware that the criminal proceedings are unwarranted and
his remedy lies only in civil law, should himself be made
accountable, at the end of such misconceived criminal
proceedings, in accordance with law. One positive step that can
be taken by the courts, to curb unnecessary prosecutions and
harassment of innocent parties, is to exercise their power under
section 250 Cr.P.C. more frequently, where they discern malice or
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Crl.R.C.(MD).No.1396 of 2024
frivolousness or ulterior motives on the part of the complainant.
Be that as it may.”
5. In Mitesh Kumar J Sha vs The State Of Karnataka (Crl.A.No.1285 of
2021, dated 26.10.2021), the Hon'ble Supreme Court has reiterated that cloaking
a civil dispute with a criminal nature in order to get quicker relief is an abuse of
process of law which must be discouraged. Bearing the above legal position on
mind, let us consider the case on hand.
6. The main contention of the petitioner is that herself and the respondents
1 and 2 had entered into the agreement whereunder the respondents 1 and 2 had
agreed to put up constructions in the land owned by the petitioner and received
the advance amount of Rs.4,00,000/-, that subsequently some disputes had arisen
between the petitioner and her adjacent land owner and hence, the petitioner had
decided to cancell the construction agreement and accordingly, the agreement
was cancelled and that though the respondents 1 and 2 had repaid Rs.50,000/-,
despite repeated requests, they have not chosen to pay the balance amount.
7. As rightly contended by the learned Government Advocate(Crl.Side),
the agreement came to be cancelled only at the instance of the petitioner and
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Crl.R.C.(MD).No.1396 of 2024
even according to them, the respondents had paid Rs.50,000/- and according to
the respondents 1 and 2, they had already spent the advance amount for which
they had sent the tax invoice. The learned Government Advocate (Crl.Side)
would submit that the petitioner has alleged that the tax invoice is a forged and
fabricated document, but that cannot be gone into by the police authorities.
8. As rightly observed by the learned Magistrate, there existed disputes
with regard to the contract entered into between the parties and the course open
to the petitioner is to approach the competent civil Court for getting the advance
amount, but the petitioner, by lodging the complaint has been attempting to give
the civil dispute a criminal colour.
9. The learned counsel appearing for the petitioner would submit that since
their petition under Section 156(3) Cr.P.C., discloses the commission of
cognizable offence, the Judicial Magistrate is duty bound to forward the
complaint to the concerned police for registering an FIR and that he has no
power or jurisdiction to dismiss the same by himself. The above contention of
the learned counsel appearing for the petitioner is absolutely devoid of merit as
the complainant does not have an unqualified right to demand a police
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Crl.R.C.(MD).No.1396 of 2024
investigation in all circumstances and moreover, it is not mandatory on the part
of the Judicial Magistrate to refer the complaint to the concerned police for
registration of the case. But it is pertinent to note that it is always open to the
petitioner to file a private complaint and proceed to prosecute the accused even if
the Judicial Magistrate refuses to exercise the power under Section 156(3)
Cr.P.C. It is settled law that the Judicial Magistrate, while exercising power
under Section 156(3) Cr.P.C., cannot act as a post office and is duty bound to
consider the nature of the accusation or the offences alleged and to decide about
the course of action to be taken and it cannot be said that the order of Judicial
Magistrate refusing to direct the police to register an F.I.R., completely shut out
all the opportunities for the complainant. If the petitioner is having necessary
particulars and materials to show a prima facie case against the proposed
accused, he can very well file a private complaint under Section 200 Cr.P.C., and
there is absolutely no bar or prohibition for filing a private complaint on the
ground that the petition filed under Section 156(3) Cr.P.C., was dismissed by the
Magistrate.
10. Considering the petitioner's affidavit and other records available, this
Court has no hesitation to hold that the petitioner is trying to cloak the civil
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Crl.R.C.(MD).No.1396 of 2024
dispute with criminality and as such, the impugned order dismissing the petition
filed under Section 156(3) Cr.P.C, by the learned Judicial Magistrate cannot be
found fault with. Consequently, this Court concludes that the revision is devoid
of merit and the same is liable to be dismissed.
10. In the result, the Criminal Revision Case is dismissed.
16.04.2025
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
SSL
To
1. The Judicial Magistrate Court No.II, Srivilliputhur.
2. The Inspector of Police,
Srivilliputtur Town Police Station,
Srivilliputtur,
Virudhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C.(MD).No.1396 of 2024
K.MURALI SHANKAR, J.
SSL
Pre-Delivery order made in
16.04.2025
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