IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.09.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.5002 of 2009 C.Natarajan ... Petitioner Vs. 1.State by Inspector of Police District Crime Branch (D.C.B) Thiruvannamalai Thiruvannamalai District 2.Balakrishnan ... Respondents This Criminal Original Petition has been filed under Section 482 Cr.P.C to call for the records in Crime No.3/2009 pending on the file of the respondent and quash the FIR dated 03.03.2009. For Petitioner : Mr.S.Gunaseelan For Respondent : Mr.I.Paul Nobel Devakumar (R1) Govt Advocate (Crl.Side) Mr.T.Vijayaraghavan (R2) O R D E R
This is a petition filed under Section 482 Cr.P.C for quashing the FIR registered in Crime No.3/2009 on the file of the District Crime Branch, Thiruvannamalai, Thiruvannamalai District for an offence punishable under Section 420 IPC based on the complaint of the second respondent herein dated 03.03.2009.
2. The facts leading to the filing of the present petition can be summarised in brief as follows:
Claiming to be the owner of a property comprised in Survey No.191/3 having an extent of six cents, the petitioner herein sold the said land along with the adjacent lands comprised in Survey No.191/1 to three persons viz. 1) Babu s/o Masilamani, 2) Saravanan s/o Annamalai and 3) Balaji s/o Dakshinamoorthy under three sale deeds bearing document Nos.911/2008, 988/2008 and 3298/2008 respectively registered on the file of the Sub Registrar, Polur. The second respondent, namely the de-facto complainant preferred a complaint on the file of District Crime Branch, Thiruvannamalai alleging that the said property originally belonged to his father-in-law Rangaiah Reddiar; that after his death the same devolved upon Sundaralakshmi, wife of Rangaiah Reddiar and his daughter Rani; that the second respondent/de-facto complainant was the husband of the said Rani; that while so, the petitioner fraudulently obtained a patta in his name for the above said property measuring six cents (equivalent to 2613 sq.ft.) comprised in survey No.191/3 and sold it along with his property comprised in survey No.191/1 which was admittedly that of the petitioner herein under the above said sale deeds and that hence criminal proceedings for cheating should be initiated against the petitioner herein. The said complaint was received by the Inspector of Police, District Crime Branch on 03.03.2009 and a case was registered by him against the petitioner herein in Cr.No.3/2009 on the file of the District Crime Branch, Thiruvannamalai for an offence punishable under Section 420 IPC.
3. In the above said factual background, the petitioner herein has come forward with the present petition under Section 482 Cr.P.C to quash the above said criminal case registered against him on the ground that the allegations made in the complaint do not disclose the commission of an offence punishable under Section 420 IPC.
4. The arguments advanced by Mr.S.Gunaseelan, learned counsel for the petitioner, by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) representing the respondent and by Mr.T.Vijayaraghavan, learned counsel for the second respondent were heard. The petition and the documents produced on either side were also perused.
5. It is the contention of the learned counsel for the petitioner that the first respondent has registered a case for an offence of cheating punishable under Section 420 IPC based on a false complaint of the 2nd respondent containing incorrect and false allegations; that even if the allegations made in the complaint are taken to be true, no case of cheating punishable under Section 420 will be disclosed by the said allegations and that hence the criminal case registered based on the complaint of the second respondent/de-facto complainant should be quashed using the inherent powers of this court under Section 482 Cr.P.C.
6. Admittedly, petitioner is not the owner of the property, which is the subject matter of the dispute. He claims the same to be belonging to his mother-in-law and wife. It is his further case that he got an agreement for sale from the said persons. As rightly pointed out by the learned counsel for the petitioner, the said document was nothing but one created for the purpose of enabling the second respondent/de-facto complainant to prefer a complaint against the petitioner. It is quite obvious that the contents of the complaint disclosed a dispute of civil nature which is sought to be given a criminal colour and converted into a criminal case. Such an attempt on the part of the second respondent/de-facto complainant was proved to be successful as the first respondent has chosen to register a case for an offence under Section 420 I.P.C. against the petitioner without properly considering whether the contents of the complaint disclosed commission of any cognizable offence, especially the offence punishable under Section 420 IPC for which the case was registered.
7. It is the case of the petitioner that the property adjoining six cents of land comprised in Survey No.191/3 did belong to his grandmothers viz. Raja Kannammal and Sivagamiammal from 22.02.1959; that the disputed property, namely six cents of land comprised in survey No.191/3 had been classified as kalvai poramboke and that the petitioner was enjoying the said property for more than 50 years paying kist to the government and local authorities; that by virtue of such long enjoyment he got patta for that land also and that thereafter he sold it to third parties in the year 2008. Therefore, it is quite obvious that the petitioner herein chose to sell the disputed land to third parties in exercise of his supposed right as the owner of the property. When such transactions are made in exercise of his supposed right of title, a rival claimant cannot be heard to say he has been cheated. It is proved that there was cheating in accordance with definition found in Section 415 IPC. The offence under Section 420 IPC will not attract the penal provision under Section 420 IPC.
8. The definition clause of Section 415 IPC reads as follows:
“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
In the explanation, it has been stated that a dishonest concealment of fact is a deception within the meaning of this section.
9. For an offence of cheating, the following averments should be there: 1) there should be a representation made by the accused and the same should be false, 2) the accused should knoe that the representation was false even at the time when he made it, 3) he made such representation with a dishonest intention of deceiving the person to whom it was made and 4) by such representation he should have induced the person so deceived to deliver any property or to do or omit to do something which he would not have done or omitted.
10. In this case, it is clear that no representation was made to the second respondent/de-facto complainant by the petitioner herein. It is not the case of the second respondent that the representation made by the petitioner induced the second respondent/de-facto complainant to deliver any property to any person, or to consent for another person’s retention of the property. It is also not the case of the second respondent that he was induced by the petitioner by deception to do or omit to do which he would not do or omit to do.
11. In the entire complaint there is not even a whisper that there was any representation made by the petitioner to the second respondent/de-facto complainant or that the petitioner induced the second respondent/de-facto complainant by such representation to do anything or omit to do anything. So far as the offence under Section 420 IPC is concerned, the aggrieved party should have been induced dishonestly 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.
12. There is no averment in the complaint that the petitioner was induced, by any false representation, to deliver the property to any person or to make alter, destroy the whole or any part of a valuable security or anything which is capable of converting into a valuable security. The only grievance expressed by the de-facto complainant (2nd respondent) is that the property, in respect of which he claims title in his monther-in-law and wife and claims to have got an agreement for sale from the said persons in his favour, was sold by the petitioner herein to three persons after fraudulently getting a patta from the authorities in his name. Even assuming that the property belonged to the mother-in-law and the second respondent herein/de-facto complainant and he got an agreement for sale from the real owners, the complaint does not disclose that the second respondent herein/de-facto complainant was cheated by the petitioner. The mere act of selling a property, claiming title to the same, to a third person will not amount to an offence of cheating the real owner. It may sometimes amount to cheating the person to whom the property was sold on the pretext that the vendor was the real owner. If at all the persons in whose favour the sale deeds were executed come forward with a complaint airing grievance that they were made to part with their money by a false representation made by the vendor to the effect that he had transferable title in respect of the property and that such representation turned out to be false, such allegations will make out a case for an offence of cheating punishable under Section 420 IPC. But, in this case, the persons in whose favour the petitioner herein executed the sale deeds in respect of the disputed property did not come forward with any complaint that the petitioner did not have a transferable title and hence they were cheated. Even then, if the representation was made not with any dishonest intention, but with a belief that he has got such a transferable title, then the offence of cheating under Section 420 IPC would not be made out.
14. In instant case, the petitioner has produced a number of documents to show that the petitioner had title to the disputed property. The documents include a sale deed in the name of the petitioner’s grandmother dated 22.02.1959, a partition deed dated 29.01.1970, proceedings of the Tahsildar, Polur dated 30.08.1994, patta issued in the name of the petitioner dated 25.07.2007 and kist receipts in the name of the petitioner. The said documents are produced not for establishing the title of the petitioner but for showing that the property was enjoyed by him in exercise of his supposed title and sold to third parties in such exercise of rights of the title holders. The said aspect was considered by the Hon’ble Supreme court in Ramesh Dutt and Ors. vs. State of Punjab and Ors. reported in 2009(9) Scale 723 The following were the observations made by the Hon’ble Supreme Court in the said case.
“Title in or over an immovable property has many facets. Possession is one of them. Unless there exists a statutory interdict, a person in possession may transfer his right, title or interest in favour of a third party.”
“In the facts and circumstances of this case, in our opinion, only because appellants are said to have transferred a portion of the property without having complete ownership over them by itself do not satisfy the ingredients of Sections 467, 468 and 469 of IPC.”
15. In V.Y.Jose v. State of Gujarat and Anr. reported in 2009 (3) SCC 78, it was observed that,
“An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
(i)deception of a person either by making a false or misleading representation or by other action or omission;
(ii)fraudulently or dishonestly inducing any person to deliver any property or
(iii)To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
” For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in case of a culpable intention at the time of making initial promise being absent, no offence under Section 420 IPC can be said to have been made out.”
The said view was also approved in a subsequent case in Devendra & Ors. Vs State of U.P. & Anr. reported in 2009 (7) SCC 613.
16. When the said ratio is applied to the facts of the case on hand, one can have no hesitation in coming to the conclusion that no case has been made out by the allegations made in the complaint for an offence of cheating punishable under Section 420 IPC.
17. For all the reasons stated above, this court comes to the conclusion that the petitioner has made out a clear case for quashing of the FIR as the contents of complaint, even if it is taken to be true, do not disclose the commission of the offence punishable under Section 420 IPC for which alone the case has been registered.
16. In the result this petition is allowed and the criminal proceedings in Cr.No.3/2009 pending on the file of the respondent police are quashed.
asr
To
1.The Inspector of Police
District Crime Branch (D.C.B)
Thiruvannamalai
Thiruvannamalai District
2.The Public Prosecutor
High Court
Madras 600 104