Madras High Court
Devaraj @ Kolipitchai Devaraj vs The Inspector Of Police on 28 April, 2025
Crl.O.P.(MD)No.2465 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.04.2025
CORAM
THE HON'BLE MR.JUSTICE P.DHANABAL
Crl.O.P.(MD)No.2465 of 2025
and
Crl.M.P(MD) Nos.1682 and 1683 of 2025
1. Devaraj @ Kolipitchai Devaraj
2. Raja jothi .. Petitioners
Vs.
1. The Inspector of Police
City Crime Branch(CCB) Police Station
Tirunelveli City
2. Anantha Jothi Balan .. Respondents
PRAYER : Criminal Original Petition filed under Section 528 of BNSS,
to call for the records in CC No.1432 of 2024 on the file of the learned
Judicial Magistrate No.I, Tirunelveli and quash the same.
For Petitioners : Mr.T.A.Ebenezer
For Respondents : Mr.M.Sakthi Kumar
No.1 Government Advocate(Crl.Side)
No.2 : Mr. R. Jegadeeshwaran
1/15
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Crl.O.P.(MD)No.2465 of 2025
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in CC No.1432 of 2024 on the file of the learned Judicial
Magistrate No.I, Tirunelveli.
2. The case of the prosecution is that the property situated in Town
No.3, Block-2, Town Survey No.112,113 and S.Nos.112/1, 112/2, 112/3,
112/4, 113 in Military line, Vallavan Street, Palayamkotti belongs to
Appadurai Nadar and his wife Selvamani who died without issues on
13.05.1987 and 14.03.1975 respectively. The said Appadurai Nadar had
one brother Enoch and one sister Diraviammal . As per the judgment in
O.S. No. 10/1988 on the file of the Additional Sub Court, Tirunelveli and
Probabate O.P.No.104 of 1991 and O.S.No.295 of 2001 the said
Diraviammal is entitled to 12/24 shares and and the legal heirs of Enok
are entitled to 12/24 shares. The said Diraviammal executed a Will in
favour of the defacto complainant and died on 27.05.2003. While so both
the accused inorder to grab the property by obtaining legal heir certificate
the first accused executed settlement in favour of the second accused.
Therefore based on the same the defacto complainant who is the second
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respondent herein has lodged complaint before the first respondent and the
first respondent registered a case in Crime No. 28 of 2023 for the offences
under Sections 465,467,468,471 and 420 of IPC and thereafter the first
respondent completed investigation and filed final report and the trial
Court has also taken cognizance in C.CNo. 1432 of 2024 and now the case
is pending for trial and at this stage the petitioners have filed this petition
to quash the proceedings.
3. The learned counsel appearing for the petitioner would submit
that based on the complaint given by the second respondent the first
respondent registered a case in Crime No. 28 of 2023 for the offences
under Sections 465,467,468,471 and 420 of IPC. Thereafter the first
respondent without conducting proper investigation filed final report and
the same is now pending in C.C. NO.1432 of 2024. As per the prosecution
case the property belongs to one Appadurai Nadar who died without any
children. The said Appadurai Nadar had one brother Enoch and one sister
Diraviammal. The first petitioner claims to be adopted son of the said
Appadurai and asserts that Appadurai bequeathed the property through a
Will, wheras the defacto complainant claims that his wife is the daughter
of Diraviammal. The defacto complainant wife's mother and other legal
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heirs of Enoch filed suit claiming the property, while the first petitioner
filed an OP for probating the Will of Appadurai in his favour.
4. The suit filed by the defacto complainant's side for partition was
allowed and the OP filed by the petitioner was dismissed. Thereafter the
first petitioner appealed in both cases CMS 1443/1996 and Tr.AS No.
441/2000 but both the appeals were dismissed on 20.07.2022 due to non
appearance of advocate and now restoration petitioners are pending in
CMP(MD) No.11852 of 2022 in the said CMA which was dismissed on
23.09.2023 due to non appearance of another advocate. During the
pendency of the restoration petition the first petitioner executed settlement
deed in favour of his wife on 29.03.2023 and again the first petitioner filed
restoration petition and the same is pending. Therefore there is a dispute
between the parties in respect of title of the property. Moreover the first
petitioner executed settlement deed in favour of his wife. Therefore the
offences under Sections 465,467,467,471 and 420 of IPC would not
attract. The second respondent inspite of approaching Civil court had
lodged a false complaint against the petitioner. The civil dispute has been
converted into criminal case. The first respondent without conducting
proper investigation filed final report against the petitioners and based on
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the same the trial Court has also taken cognizance, thereby the pending
proceedings are liable to be quashed.
5. The learned Government Advocate(Crl.side) appearing for the
first respondent would submit that the second respondent has lodged a
complaint before the first respondent alleging that the property belongs to
the defacto complainant family and the case in O.S. No. 10/1988 on the
file of the Additional Sub Court, Tirunelveli and Probabate O.P.No.104 of
1991 and O.S.No.295 of 2001 were also filed and the same were disposed
of in favour of the second respondent. Whileso the first respondent
preferred appeal and the same was also dismissed. In the mean time, the
first respondent executed settlement deed in favour of the second
respondent without any title over the property. Therefore the second
respondent lodged a complaint against the petitioners before the first
respondent and they registered a case in Crime No. 28 of 2023 for the
offences under Sections 465,467,468,471 and 420 of IPC and thereafter
the first respondent conducted proper investigation filed final report and
the same in pending before the learned Judicial Magistrate No.I,
Tirunelveli in C.C. No.1432 of 2024. There are prima facie materials
available to constitute the offences as against the petitioners and therefore
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the matter needs elaborate trial and hence the petition is liable to be
dismissed.
6. The learned counsel appearing for the second respondent would
submit that originally the property belongs to Appadurai Nadar and he
died without any issues. The said Appadurai Nadar had one brother Enoch
and one sister Diraviammal.The said Diraviammal executed a Will in
favour of the defacto complainant and died on 27.05.2003. While so both
the accused inorder to grab the property by obtaining legal heir certificate
the first accused executed settlement in favour of the second accused.
Whileso the first respondent preferred appeal and the same was also
dismissed. In view of the same the first respondent executed settlement
deed in favour of the second respondent inorder to cheat the second
respondent. Thereby these petitioners have committed the serious offence,
hence the second respondent has lodged a complaint before the first
respondent and the first respondent also filed final report and the same is
pending before the trial Court, there are prima facie materials available as
against the petitioners and therefore the petitioners have to face the trial, at
this stage the petition is liable to be dismissed.
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7. Heard both sides and perused the materials available on record.
8. As per records they revealed that there is a civil dispute pending
between the parties in respect of properties of one Apppadurai Nadar
while so the first accused executed settlement deed in favour of the second
accused. According to the petitioner the property belongs to Appadurai
Nadar and the petitioners also not denied the same. According to the
petitioners the first petitioner is the adopted son of Appadurai Nadar and
the property belongs to him, whereas the second respondent claims that the
property belongs to him, though the Will executed by the sister of Enoc
and daughter of Appadurai namely Diraviammal Therefore there is a
dispute pending between the parties. While pending appeal the first
petitioner executed settlement deed in favour of the second respondent.
The charges levelled against the petitioners are 465,467,468,471 and 420
of IPC.
9. So far as offence under Section 420 of IPC is concerned there are
no ingredients that the petitioners dishonest intention from the inception
and they deceived the defacto complainant. So far as offence under
Section 465 of IPC is concerned the petitioners have not made any false
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documents as defined under Sections 466,467,468 and 469 of IPC. There
are no ingredients to show that the petitioner dishonestly, fraudulently,
executed document of settlement deed and no materials to make out a case
of false document. There are no averments to show that the petitioner
executed documents by impersonation as if the original owner of the
property.
10. So far as offence under Section 467 of IPC is concerned there is
no allegations that the petitioner forged valuable security or Will. Tbere
are no ingredients to constitute the offence under Section 468 of IPC that
he committed forgery with an intention to cheat the petitioner and they
prepared the documents for the purpose of cheating. So far as offence
under Section 471 of IPC is concerned, there are no ingredients to
constitute the offence that the petitioner used the forged documents as
genuine after knowing it was a forged document. Therefore there are no
ingredients to constitute the offence even as per the charge sheet and the
First Information Report. The available record shows that the civil dispute
has been given criminal colour.
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11. At this juncture the learned counsel appearing for the petitioner
relied on the Judgment of the Hon'ble Apex Court in the case of
Mohammed Ibrahim and Others .vs. State of Bihar and another
reported in 2010 Air SCW, wherein it is held as follows:
“10. An analysis of section 464 of Penal Code shows that it
divides false documents into three categories:
10.1) The first is where a person dishonestly or
fraudulently makes or executes a document with the intention of
causing it to be believed that such document was made or executed
by some other person, or by the authority of some other person, by
whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or
fraudulently, by cancellation or otherwise, alters a document in
any material part, without lawful authority, after it has been made
or executed by either himself or any other person. The third is
where a person dishonestly or fraudulently causes any person to
sign, execute or alter a document knowing that such person could
not by reason of (a) unsoundness of mind; or (b) intoxication; or
(c) deception practised upon him, know the contents of the
document or the nature of the alteration.
11. In short, a person is said to have made a `false
document', if (i) he made or executed a document claiming to be
someone else or authorised by someone else; or (ii) he altered or
tampered a document; or (iii) he obtained a document by
practicing deception, or from a person not in control of his senses.
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12. The sale deeds executed by first appellant, clearly and
obviously do not fall under the second and third categories of
`false documents'. It therefore remains to be seen whether the claim
of the complainant that the execution of sale deeds by the first
accused, who was in no way connected with the land, amounted to
committing forgery of the documents with the intention of taking
possession of complainant's land (and that accused 2 to 5 as the
purchaser, witness, scribe and stamp vendor colluded with first
accused in execution and registration of the said sale deeds) would
bring the case under the first category. There is a fundamental
difference between a person executing a sale deed claiming that the
property conveyed is his property, and a person executing a sale
deed by impersonating the owner or falsely claiming to be
authorised or empowered by the owner, to execute the deed on
owner's behalf. When a person executes a document conveying a
property describing it as his, there are two possibilities. The first is
that he bonafide believes that the property actually belongs to him.
The second is that he may be dishonestly or fraudulently claiming it
to be his even though he knows that it is not his property. But to fall
under first category of `false documents', it is not sufficient that a
document has been made or executed dishonestly or fraudulently.
There is a further requirement that it should have been made with
the intention of causing it to be believed that such document was
made or executed by, or by the authority of a person, by whom or
by whose authority he knows that it was not made or executed.
When a document is executed by a person claiming a property
which is not his, he is not claiming that he is someone else nor is he
claiming that he is authorised by someone else. Therefore,
execution of such document (purporting to convey some property of
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which he is not the owner) is not execution of a false document as
defined under section 464 of the Code. If what is executed is not a
false document, there is no forgery. If there is no forgery, then
neither section 467 nor section 471 of the Code are attracted.
Section 420 IPC
13. Let us now examine whether the ingredients of an
offence of cheating are made out. The essential ingredients of the
offence of "cheating" are as follows: (i) deception of a person
either by making a false or misleading representation or by
dishonest concealment or by any other act or omission; (ii)
fraudulent or dishonest inducement of that person to either deliver
any property or to consent to the retention thereof by any person or
to intentionally induce that person so deceived to do or omit to do
anything which he would not do or omit if he were not so deceived;
and (iii) such act or omission causing or is likely to cause damage
or harm to that person in body, mind, reputation or property. To
constitute an offence under section 420, there should not only be
cheating, but as a consequence of such cheating, the accused
should have dishonestly induced the person deceived (i) to deliver
any property to any person, or (ii) to make, alter or destroy wholly
or in part a valuable security (or anything signed or sealed and
which is capable of being converted into a valuable security).
14. When a sale deed is executed conveying a property
claiming ownership thereto, it may be possible for the purchaser
under such sale deed, to allege that the vendor has cheated him by
making a false representation of ownership and fraudulently
induced him to part with the sale consideration. But in this case the
complaint is not by the purchaser. On the other hand, the
purchaser is made a co-accused. It is not the case of the
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complainant that any of the accused tried to deceive him either by
making a false or misleading representation or by any other action
or omission, nor is it his case that they offered him any fraudulent
or dishonest inducement to deliver any property or to consent to
the retention thereof by any person or to intentionally induce him
to do or omit to do anything which he would not do or omit if he
were not so deceived. Nor did the complainant allege that the first
appellant pretended to be the complainant while executing the sale
deeds. Therefore, it cannot be said that the first accused by the act
of executing sale deeds in favour of the second accused or the
second accused by reason of being the purchaser, or the third,
fourth and fifth accused, by reason of being the witness, scribe and
stamp vendor in regard to the sale deeds, deceived the complainant
in any manner. As the ingredients of cheating as stated in section
415 are not found, it cannot be said that there was an offence
punishable under sections 417, 418, 419 or 420 of the Code.
12. On careful perusal of the above said judgment it is clear that if
person executed deed claiming ownership thereto it may be possible for
the purchaser under such sale deed to allege that the vendor has cheated
him by making a false representation of ownership and fraudulently
induced him to part with the sale consideration. If a person sells his
property knowing that it does not belong to him and thereby defrauds the
person who purchased the property, the present defrauder i.e., the
purchaser may complain that the vendor committed the fraudulent act of
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cheating, but a third party who is not the purchaser under the deed may not
be able to make such complaint. In the case on hand also A1 executed
settlement deed in favour of A2 no any document executed in favour of the
of the defacto complainant in respect of the property. In view of the same,
offences under Sections 420 ,468,and 471 of IPC would not attract.
13. Further the person who is not a party to the document cannot
lodge complaint for cheating and forgery. Thereafter the first respondent
without conducting proper investigation filed final report and the trial
Court also without considering the fact that there are no prima facie
materials to constitute the offence has taken cognizance, therefore the
pending proceedings are liable to be quashed.
14. Accordingly, the Criminal Original Petition stands allowed and
the proceedings in CC No.1432 of 2024 on the file of the learned Judicial
Magistrate No.I, Tirunelveli is herby quashed. Consequently connected
miscellaneous petition stands closed.
28.04.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
aav
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To
1. The Judicial Magistrate No.I, Tirunelvel
2. The Inspector of Police
Thiruverumbur All Women Police Station
Trichy
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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P.DHANABAL,J.
aav
28.04.2025
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