IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 7.2.2011 Coram The Hon'ble Mr. Justice A.ARUMUGHASWAMY Criminal Appeal No.887 of 2004 M.Venkatesan ... Appellant Vs. 1. V.Madheswaran 2. P.T.Karunanidhi 3.N.Subramani ... Respondents Criminal Appeal against the judgment dated 31.3.2004 made in C.C.No.246 of 2002 on the file of the Judicial Magistrate, Tiruchengode . For Appellant : Mr.N.Manokaran For Respondent: Mr.Sathish Parasaran JUDGMENT
The complainant in C.C.No.246 of 2002 on the file of the Judicial Magistrate, Tiruchengode has preferred this appeal against the acquittal of the accused/respondents for an offence punishable under Section 420 IPC.
2. The complainant is the appellant. The respondents are the accused. The complainant/appellant has filed a complaint stating that the complainant and A1 were doing car business in which A1 sustained heavy loss to the tune of Rs.3,00,000. In order to clear the debts, A1 compelled the complainant to execute a power of Attorney deed in his favour on 15.6.1999. Thereafter, the said power of attorney was cancelled on 20.12.1999 under a registered cancellation deed on the file of the Sub-Registrar, Komarapalayam. The said cancellation of the power of attorney was intimated to A1 by telegram dated 21.12.1999. Since some mistake had crept in the power of attorney dated 20.12.1999, the complainant again registered an ratified document on 29.12.1999. However, on the same day A1 alienated the property in favour of A2 and A3. Hence the complainant preferred a complaint before the trial court alleging that the accused committed an offence under section 420 IPC.
3. Before the trial court on the side of the complainant P.Ws.1 to 2 were examined and Exs.P1 to P12 were marked. On the side of the accused, neither any documentary evidence was marked nor any witness was examined.
4. On consideration of the evidence, the learned Judicial Magistrate dismissed the complaint and acquitted the accused by his judgment dated 31.3.2004 against which the complainant has filed the present appeal.
5. As per the evidence of P.W.1 the complainant , on 15.6.1999 a general power of attorney was executed on behalf of himself and family members and the same was registered on the file of the Sub-Registrar, Sankagiri. Subsequently, the said power of attorney was cancelled on 20.12.1999 under a registered cancellation deed before the Sub-Registrar, Komarapalayam. Thereafter the cancellation of the power of attorney was telegraphically intimated to A1. However, the complainant realised some mistake had crept in the power of attorney and he executed another rectification deed on 27.12.199 and registered the same at the Sub-Registrar Office, Komarapalayam. In the meanwhile, it appears on the same day the respondent alienated the property to A2 and A3. Hence the appellant filed the complaint.
6. The vehement contention of the learned counsel appearing for the appellant is that after cancellation of the general power of attorney on 20.12.1999 A1 has sold the property by executing the sale deeds in favour A2 and A3 ON 27.12.1999 , which attracts the offence under Section 420 IPC. Hence the accused should be punished.
7. The learned counsel appearing for the respondents/ accused contended that on 27.12.1999 there is no effective cancellation document was forthcoming. Hence A1 executed the sale deeds dated 27.12.1999 in favour of A2 and A3. Thereafter, subsequent to alienation, it appears that the cancellation deed has been registered before a Sub-Registrar, who has no territorial jurisdiction to register the document. Hence, he prayed that the present appeal may be dismissed.
8. On the perusal of the records and the evidence it is seen that power of attorney has been executed by the complainant on 15.6.1999. The complainant has also accepted the execution of the power of attorney as well as the subsequent cancellation of the power of attorney on 20.12.1999. The plea of coercion alleged by the complainant has not been proved. From the perusal of the records, it is clear that on 20.12.1999 only the cancellation has been pressed into service under Ex.P2, which has been registered before the Sub Registrar, Komarapalayam. Ex.P6 is the rectification document. From the perusal Ex.P2 the cancellation deed and Exs.P6, P7 sale deeds it is seen that the description of the properties which find place in both the documents tally with each other. A1 has not denied the receipt of the telegram and also the cancellation deed. There is no contra evidence against P.W.1. As per the evidence of P.W.1 it is clear that the power of attorney has been cancelled at Komaramapalayam. It is needless to say that a registered document has to be cancelled only by way of registered document. Here the power of attorney has been cancelled under Ex.P2 at Komarapalayam Sub Registrar Office not at Sankagiri, where the power of attorney had been registered. Of course, the sale deeds have been executed by A1 in favour of A2 and A3 who are his close relatives. On the contrary, they have not let in any oral evidence to deny this factual position.
9. The learned counsel appearing for the respondents relied on the decisions of the Supreme Court in B.SURESH YADAV VS. SHARIFA BEE AND ANOTHER (2007 (13) SCC 107) and ANIL MAHAJAN VS. BHOR INDUSTRIES LIMITED AND ANOTHER (2005 (10) SCC 228) for the limited purpose that in the cases of fraudulent and dishonest intention, the conduct of the parties must be shown right from the execution of the power of attorney and alienation of the properties. The facts of the said cases relied on by the learned counsel are not applicable to the facts of the present case and the said decisions would not in any advance the case of the respondents.
10. At this juncture, the learned counsel appearing for the complainant wanted to let in evidence regarding the jurisdiction of the Sub-Registrar of Komarapalaym for registration of the deed of cancellation of the power of power of attorney and its variation of document numbers. Hence in order to give an opportunity, the order of the trial court is set aside and the matter is remitted back to the trial court to consider these aspects by affording time to both paties to let in evidence and decide the matter on merits without being influenced by any of the observations made by this court. Both parties are directed to appear before the trial court on 31.3.2011
11. with the above observations, the appeal is disposed of.
7.2.2011
krr/
1. The Judicial Magistrate,
Tiruchengode .
2. The Public Prosecutor
High Court,
Chennai