BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/02/2011 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM Crl.R.C.(MD).No.310 of 2008 Allagusundaram ...Petitioner/1st Accused Vs. A.L.S.Sankaranarayan ...Respondent/Complainant PRAYER Petition filed under Sections 397 & 401 of the Criminal Procedure Code to call for the records and set aside the order of the learned Additional District Munsif cum Judicial Magistrate, in M.P.No. 6308 of 2004 dated 20.12.2007 and discharge the petitioner. *** !For Petitioner ... Mr.K.Vinayagan ^For Respondent ... Mr.M.Suri :ORDER
The revision petitioner is arrayed as first accused in C.C.No.46 of 2003,
on the file of the learned Additional District Munsif cum Judicial Magistrate,
Manamadurai, Sivaganga District. The respondent herein filed a private
complaint against the revision petitioner along with three other accused, who
are father and sisters of the petitioner, for the alleged offences under Section
120(b), 420 read with 34 of IPC. The revision petitioner filed an application in
M.P.No. 6308 of 2004, before the Trial Court, seeking discharge from the
accusation and the said application was dismissed. Being not satisfied with the
dismissal order, the petitioner has preferred the Criminal Revision.
2. The case of the complainant in brief is that the suit property
belonged to the accused Nos. 1 to 4 and they agreed to sell their property to
the complainant for a sum of Rs.21,350/-. On 10.02.2001, the accused Nos. 1 to
4 met the complainant and told him that they were in urgent need of Rs.10,000/-
in order to send the first accused abroad. They also promised to execute the
sale deed after receiving the balance amount of Rs.11,350/-. After receiving
the sum of Rs.10,000/-, the first accused has gone abroad. On 17.05.2001, the
accused Nos.2 to 4, executed the sale deed in favour of the complainant
including the first accused’s share in the said property. The first accused,
after returning from abroad, conspired with the other accused in order to demand
more money from the complainant and thereafter, filed a suit before the Civil
Court in O.S.No. 158 of 2001, claiming partition in the said property. In the
suit, he had shown the accused Nos. 2 to 4 as defendants 1 to 3 and the
complainant as the fifth defendant.
3. The learned counsel appearing for the petitioner submitted that the
petitioner is not a signatory to the sale deed and he had not received the sale
consideration and while the sale was executed, he was in Malasia and that the
complainant, knows fully that the accused Nos. 2 to 4 had no right to sell the
property, in which, the first accused had a share. He also submitted that the
complainant has filed the false complaint which amounts to abuse of process of
Court. The learned counsel also relied on the decision of the Supreme Court in
Inder Mohan Goswami 7 Another Vs. State of Uttaranchal & Ors., reported in AIR
2008 SC 251 and stated that the civil dispute has been given a criminal colour.
4. Per contra, the learned counsel appearing for the respondent
submitted that, at the time of receiving the amount of Rs.10,000/-, the first
accused also was present and on behalf of the first accused, the accused Nos. 2
to 4 executed the sale deed. But, as the value of the land has gone high, with
the ulterior motive, all the accused joined together and had instigated the
first accused and the suit was filed and in the said suit, the accused Nos. 2 to
4 remained ex-parte, without supporting the case of the complainant and had been
helpful to the first accused. The learned counsel also produced the copy of the
sale deed, in which, it is mentioned that the accused Nos. 2 to 4 had accepted
the sale consideration and the same had been received for sending the first
accused abroad and also for their family expenses.
5. This Court considered the submissions made on either side and also
perused the records.
6. Though it is claimed by the complainant a sum of Rs.10,000/- was
paid as adance by the complainant, absolutely there is no material to support it
by way of documentary proof. Admittedly, the sale deed was not executed by the
first accused, and on the date of execution of the sale deed he was in abroad.
No power of Attorney was given by the first accused to other accused to execute
the sale deed on behalf of the first accused. The first accused after his
return to India, had filed the civil suit in O.S.No. 158 of 2002 before the
learned Principal District Munsif Court, Manamadurai, claiming partition
property. There is no direct material to connect the revision petitioner/first
accused along with other accused in the said sale transaction. It is observed
by the Hon’ble Supreme Court in Inder Mohan Goswami 7 Another Vs. State of
Uttaranchal & Ors., reported in AIR 2008 SC 251, the para 45 as under:
“The Court must ensure that criminal prosecution is not used as an
instrument of harassment or for seeking private vendetta or with an ulterior
motive to pressurise the accused.”
7. For the aforesaid reasons, this Court is of the considered view that
the proceedings against the first accused should be quashed. Accordingly, the
Revision is allowed and the petitioner is discharged from the case. However, it
is made clear that this order should not be made use of by the other co-accused,
since as regards the accused Nos. 2 to 4 are concerned, they executed the sale
deed including the share of the first
accused and they also admitted of receiving the above sale consideration.
Therefore, it is open to the Trial Court to consider the case of the accused
Nos. 2 to 4 on the basis of the evidence to be let in.
vsg
To
The Additional District Munsif
cum Judicial Magistrate
Manamadurai, Sivaganga District