Madras High Court
Mohammed Ali Jinnah vs Raja on 14 February, 2025
Crl.R.C.(MD)No.164 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 06.02.2025
Pronounced on : 14.02.2025
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.164 of 2025
Mohammed Ali Jinnah ... Petitioner
Vs.
1.Raja
2.Lakshmi
3.State of Tamil Nadu
rep.by the Inspector of Police,
Kottampatti Police Station,
Madurai. ... Respondents
Prayer : This Criminal Revision Petition filed under Sections 438 r/w 442
B.N.S.S., to call for the records relating to the order passed by the learned
Judicial Magistrate, Melur in Cr.M.P.No.4063 of 2024, dated 27.12.2024
and set aside the same.
For Petitioner : Mr.S.M.A.Jinnah,
For Respondents : Ms.M.Aasha,
Government Advocate (Crl. Side)
for R3.
1/11
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Crl.R.C.(MD)No.164 of 2025
ORDER
The Criminal Revision is directed against the order passed in
Cr.M.P.No.4063 of 2024, dated 27.12.2024 on the file of the learned
Judicial Magistrate, Melur, dismissing the petition filed under Section
175(3) of BNSS 2023.
2. The case of the petitioner is that he is a physically challenged
person; that the first respondent offered to sell the land of 50 cents in
ChinnaKottampatti Bypass belonging to his wife/second respondent and
the petitioner agreed to purchase the same; that they have fixed the sale
consideration at Rs.46,00,000/- and in pursuance of the same, the
petitioner and the second respondent have entered into an agreement,
dated 16.02.2022; that the petitioner has paid the advance amount of
Rs.10,00,000/- and he had spent Rs.5,00,000/-for backfilling the deep land
using sand; that the petitioner availed loan and private debts in order to
settle the remaining consideration amount; that the petitioner had
deposited the balance sale price of Rs.36,00,000/- on 23.03.2024 in Tamil
Nadu Mercantile Bank as directed by the respondents 1 and 2; that the
petitioner had paid the registration charges of Rs.30,000/- and only at that
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time, he came to know that the said land has already been attached by the
order of Arbitration Tribunal, Madurai in the case filed by the Sriram
Transport Finance Company Limited; that the respondents had then falsely
promised that they will utilize the sale consideration to release the land
from the attachment and entered into another agreement, dated
24.03.2023; that the petitioner subsequently came to know that the
respondents 1 and 2 with ulterior fraudulent and dishonest motive to
deceive the petitioner, sold the said land to one Sridevi; that when the
petitioner approached the respondents in their office near Kottampatti
Main Road, the respondents 1 and 2 abused the petitioner by using filthy
language and attempted to attack him and also caused criminal
intimidation; that the petitioner has then lodged a complaint before the
third respondent and CSR came to be issued in C.S.R.No.404 of 2023; that
though the respondents 1 and 2 had given a statement to return the amount
of Rs.15,00,000/-, but not complied with their promise; that the
petitioner's complaint to the Superintendent of Police, Madurai, is also of
no avail and that therefore, the petitioner was constrained to file the
present petition under Section 175(3) of BNSS for direction to the
respondent to register an FIR and for conducting the investigation.
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3. The learned Judicial Magistrate, taking the petition filed under
Section 175(3) of BNSS in Cr.M.P.No.4063 of 2024 and upon perusing the
petition and on hearing the petitioner's side has passed the impugned
order, dated 27.12.2024, by holding that the dispute is of civil in nature,
dismissed the petition.
4.At this juncture, 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
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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 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
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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
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. As already pointed out, the petitioner has laid the above petition
alleging that the respondents have failed to execute the sale deed in
pursuance of the sale agreement entered into between the parties, but on
the other hand, they have sold the land to a third party and thereby cheated
the petitioner.
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7. The learned Magistrate in the impugned order has observed that
the petitioner has not produced any document to show that the property
subject matter of sale agreement came to to be attached already. No doubt,
the petitioner has produced the copy of the order of Sale Arbitrator, dated
07.01.2023 in the proceedings initiated by M/s.Shriram Transport Finance
Company Limited, wherein property admeasures 1.02 acres, four items of
properties (in 2 schedule) situated in Kottampatti Village, Madurai North
came to be attached. The sale agreement is with respect to 50 cents of land
situated in three survey numbers of Kottampatti Village of Melur Taluk,
Madurai District. According to the petitioner, the property was sold to one
Sridevi and though two sale agreements came to be entered, the
respondents have failed to execute the sale deed and thereby cheated.
8.It is not the case of the petitioner that he has approached the
competent Civil Court to get the relief of specific performance or to get
the refund of the advance amount. As rightly observed by the learned
Magistrate, even assuming that there was breach of contract, the remedy of
the petitioner is to approach the competent Civil Court.
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9. As rightly contended by the learned Government Advocate
(Criminal Side), non execution of sale deeds or non refund of advance
amount, by no stretch of imagination, can be taken as dispute of criminal
nature.
10. The learned counsel appearing for the petitioner would submit
that since their petition under Section 175(3) BNSS., 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 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 175(3) BNSS. It is
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settled law that the Judicial Magistrate, while exercising power under
Section 156(3) Cr.P.C.,(Section 175(3) BNSS) 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 223 BNSS., and there is absolutely
no bar or prohibition for filing a private complaint on the ground that the
petition filed under Section 175(3) BNSS., was dismissed by the
Magistrate.
11.Considering the above, this Court has no hesitation to hold that
the petitioner has been attempting to give the civil dispute a criminal color
and as such, the impugned order, dismissing the petition filed under
Section 175(3) of BNSS by the learned Magistrate cannot be found fault
with. Consequently, this Court concludes that the revision is devoid of
merits and the same is liable to be dismissed.
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13. In the result, this Criminal Revision Petition is dismissed.
14.02.2025
NCC :yes/No
Index :yes/No
Internet:yes/No
das
To
1. The Judicial Magistrate, Melur.
2.The Inspector of Police,
Kottampatti Police Station,
Madurai.
3.The Inspector of Police,
Subramaniyapuram Police Station,
Madurai. .
https://www.mhc.tn.gov.in/judis
K.MURALI SHANKAR,J.
das
Pre-Delivery Order made in
Dated : 14.02.2025
https://www.mhc.tn.gov.in/judis
