BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 17/08/2011 Coram The Honourable Mr. Justice S.PALANIVELU Crl.RC.(MD).No.647 of 2011 P.B.Sakthivel .. Petitioner vs. 1.P.B.Subramaniam 2.D.Jeyaprakash 3.M.P.Thasarathan 4.P.S.Velayutha Raja .. Respondents Criminal Revision Petition filed under Section 397 r/w. 401 of Criminal Procedure Code to call for the records in order dated 28.01.2011 made in C.C.No.343 of 2009 on the file of the Judicial Magistrate, Rajapalayam and set aside the same. !For Petitioner ... M/s.G.R.Swaminathan ^ :ORDER
This Criminal Revision is preferred to call for the records relating
to the order dated 28.01.2011, made in C.C.No.343 of 2009, on the file of the
Judicial Magistrate, Rajapalayam and set aside the same.
2. The petitioner is the complainant in C.C.No.343 of 2009, on the file
of the Judicial Magistrate, Rajapalayam. The Court below recorded sworn
statement of the complainant as well as the witnesses and passed an order on
28.01.2011 dismissing the complaint observing that in the pending civil suit,
the petitioner can ventilate his grievance, that he is attempting to change the
civil case into the criminal case and that there is no prima facie to take
cognizance of the offences.
3. In the complaint, it is alleged that the complainant filed a suit in
O.S.No.122 o 2003, on the file of the Sub Court, Srivilliputhur for partition
and separate possession of 7/24th share in the suit properties against his
brothers and others and the suit is pending. He also filed an application in
I.A.No.340 of 2003 praying the Court to grant ad-interim injunction restraining
the first defendant from alienating or creating any encumbrance with reference
to the suit properties. Interim injunction order was also passed by the Court.
4. Pending the trial of the suit, the first defendant sold a portion of
the suit properties on 18.11.2008 to the second respondent and the third and
fourth respondents are attestors to the sale deed. Only on 27.09.2009, the
petitioner came to know about the sale. He laid a complaint before the
Rajapalayam South Police Station on 03.10.2009 but they have advised the
petitioner to take steps before the Court. The petitioner also sent a complaint
to the Superintendent of Police, Virudhunagar, on 10.10.2009. Hence, the
private complaint has been filed before the Court below praying the Court to
take cognizance of the offences under Section 206 IPC against the respondents.
5. Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner
would contend that inasmuch as the conduct of the respondents would attract the
ingredients contained in the provision under Section 206 IPC, there is no legal
embargo for the Court below to take cognizance under Section 206 IPC, that the
terms available under Section 206 of IPC, themselves would indicate that if any
result is likely to be obtained in a civil suit in favour of the complainant,
wherein in case the respondents fraudulently removes, conceals, transfers or
delivers to any person any property, then the wrong doer could be held liable
under Section 206 of IPC. It is his further contention that since this is a
partition suit among the brothers, the petitioner has got every chance in
getting his share divisioned and since the first respondent has alienated a
portion of the joint property, definitely he can be found guilty under Section
206 IPC. Section 206 IPC goes thus:
“206.Fraudulent removal or concealment of property to prevent its seizure
as forfeited or in execution.-Whoever fraudulently removes, conceals, transfers
or delivers to any person any property or any interest therein, intending
thereby to prevent that property or interest therein from being taken as a
forfeiture or in satisfaction of a fine, under a sentence which has been
pronounced, or which he knows to be likely to be pronounced, by a Court of
Justice or other competent authority, or from being taken in execution of a
decree or order which has been made, or which he knows to be likely to be made
by a Court of Justice in a civil suit, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or
with both.”
6. The Court has to ascertain whether the relief prayed for in the
civil suit or any proceedings would come under the two categories as set out in
the section, which are, the interest in the property is likely to be forfeited
in the said proceedings or “in satisfaction of fine” under a sentence which has
been pronounced. By no stretch of imagination, it could be stated that the
relief prayed for in the partition suit would come under the above two
categories even if the relief of partition is granted in favour of the
petitioner in the partition suit. Directing division of property, certainly,
the relief is not in the form of the interest being taken as a forfeiture or in
satisfaction of a fine under a sentence. Only if the relief claimed in the
proceedings comes under any of the above two categories, definitely, Section 206
of IPC comes to play.
7. Even though the Court below has not drafted the order in consonance
with the terms employed in Section 206 IPC, still this Court is of the
considered view that there is no prima facie materials available in the case of
the petitioner and there is no infirmity either legally or factually is seen in
the order challenged before this Court.
8. The next limb of the contention of the learned counsel appearing for
the petitioner is that the case was given Calendar Case number and the Court
cannot dismiss the same under Section 203 Cr.P.C. A careful perusal of the
records would show that the office of the Judicial Magistrate has wrongly given
Calendar Case number instead of giving Criminal M.P. number. Only after taking
cognizance of the offences, question of assigning Calendar Case number will
arise. But, admittedly, in this case, this is a pre-cognizance stage and the
Calendar Case number was given wrongly by the staff of the Court which is not a
legal flaw. It is only an irregularity that can be cured. The learned Judicial
Magistrate has dismissed the petition under Section 203 Cr.P.C. properly and
there is no ground made out to interfere with the order challenged before this
Court.
In the result, the Criminal Revision Case is dismissed.
srm
To
The Judicial Magistrate,
Rajapalayam.