Loading...

Bhagchand Uttamchand vs The Inspector Of Police on 4 November, 2011

Madras High Court
Bhagchand Uttamchand vs The Inspector Of Police on 4 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04/11/2011

CORAM
THE HONOURABLE MS.JUSTICE R.MALA

Crl.O.P.(MD) No. 8741 of 2011
and
Crl.O.P.(MD) No.9385 of 2011
&
M.P.Nos. 1 and 1 of 2011
and
Crl.O.P.(MD) Nos.8765 to 8767, 8773, 9058, 9282 of 2011

Bhagchand Uttamchand                    .. Petitioner/Accused-1
  Galada		                    in Crl.O.P.(MD)No.8741/2011

E.N.Palanisamy		                 .. Petitioner/Accused-2		
				            in Crl.O.P.(MD)No.9385/2011

vs.

1.The Inspector of Police
   Kodaikanal Police Station
   Dindigul District.                    .. 1st Respondent/Complainant
2.John Roger			         .. 2nd Respondent/Defacto
                                                    complainant
                                                  (in both Crl.O.P.(MD) Nos.
                                                           8741 and 9385 of 2011)
1.C.Vijayakumar
2.Sudhir D.Jain                          .. Petitioners/Accused in
                                            Crl.O.P.(MD)No.8765/2011

J.Govindan				 .. Petitioner/Accused in
                                            Crl.O.P.(MD)No.8766/2011

D.Reuban				 .. Petitioner/Accused in
                                            Crl.O.P.(MD)No.8767/2011

K.C.A.Kurian Abraham			 ..  Petitioner/Accused in
                                             Crl.O.P.(MD)No.8773/2011	
Kannan					 ..  Petitioner/Accused in
                                             Crl.O.P.(MD)No.9058/2011

Bhagchand Uttamchand
Galada/A1				 ..  Petitioner/Accused in
                                             Crl.O.P.(MD)No.9282/2011
vs.

$The state rep. by Inspector of Police
Kodaikkanal Taluk
Kodaikkanal.
(Crime No.203 of 2011)

Prayer

Petitions in Crl.O.P.(MD) Nos. 8741 and 9385 of 2011 filed under
Section 482 of the Code of Criminal Procedure, to call for the records
pertaining to F.I.R.No.203 of 2011 on the file of the first respondent police
and to quash the same.

!For Petitioner
in Crl.O.P(MD)No.8741/2011 … Mr.Vijay Narayan, senior counsel
for Mr.R.R.Kannan
For Petitioner
in Crl.O.P(MD)No.9385/2011 … Mr.R.Yashod Vardhan
senior counsel for
Mr.K.Muthuramalingam
^For Respondent No.1 … Mr.K.Chellapandian
Addl. Advocate General for
Govt. of Tamil Nadu in all Crl.OPs.

For Respondent No.2 … Mr.M.Ajmalkhan in both Crl.O.Ps.

For Petitioners in
Crl.O.P.(MD)Nos.8765,      ... Mr.S.Prabakaran for
8767, 9282/2011                Mr.Arunprasad
For Petitioner in
Crl.O.P(MD)No.8766/2011    ... Mr.S.Muthukumar
For Petitioner in
Crl.O.P(MD)No.8773/2011    ... Mr.S.Alagumani
For Petitioner in
Crl.O.P(MD)No.9058/2011    ... Mr.T.Lenin Kumar

:COMMON ORDER

The petitions in Crl.O.P.Nos.8741 and 9385 of 2011 have been filed by the
first and second accused in Crime No.203 of 2011 on the file of the Inspector of
Police, Kodaikanal.

2.The averments in the petitions are as follows:

(i) The case has been registered against the petitioners/A1 & A2 and
others under Crime No.203 of 2011 for the offences under Sections 147, 148, 448,
294(b), 387 and 420 I.P.C.

(ii) The property bearing D.No.41/67, Welwyn inn Cottage, Kodaikanal
town, Dindigul District, is originally belongs to one John Tapp and he
bequeathed the property to his legal heirs by a will dated 09.10.1939 and the
same was probated vide order dated 16.12.1941 in O.P.No.58 of 1941 on the file
of the District Judge, Madurai.

(iii) On 24.04.1989, the said property has been purchased by Bhagchand
Uttamchand Galada/A1 and his other family members from the legal heirs of John
Tapp vide registered sale deeds. The patta is also stands in their names.

(iv) In the above said property, there were two tenants, one is Mani Iyer
and another Zavior Michael, the father of the second respondent herein. In order
to evict the tenants, the said Galada/A1 has filed R.C.O.P.Nos.2 & 3 of 2001
before the District Munsif at Kodaikanal against the above said tenants. Pending
R.C.O.P. Proceedings, one tenant Mr.Mani Iyer entered into compromise between
Galada, accordingly he vacated the premises by filing joint memo before the Rent
Control Court.

(v) On 10.12.2003, eviction order was passed in R.C.O.P.No.3 of 2001
against Zavior Michael. Against that order, he filed R.C.A.No.1 of 2004 and the
same was allowed on 09.10.2009 by the Appellate authority/Subordinate Judge at
Palani and thereby the eviction order was reversed. Thereafter, the said
Galada/A1 filed C.R.P.(NPD)(MD)No.853 of 2010 before this Hon’ble Court and on
24.08.2010, both parties entered into compromise and accordingly joint memo has
been filed and consent decree was passed by this Court. As per the joint memo,
the said Zavior Michael handed over the possession to Galada in compliance of
the consent decree passed by this Court.

(vi) While being so, on 02.09.2010, Galada/A1 and his family members have
decided to sell the property to one Reuban and executed power of attorney in his
favour. Taking advantage of the circumstances that both the parties are at
Chennai, the said Zavior Michael started to create problem by trespassing into
the property and he demanded further amount for vacating the illegal occupation
in violation of the consent decree passed by this Hon’ble Court.

(vii) In order to purchase peace, the said Galada/A1 and Reuban/A4, the
purchaser of the property have agreed to settle the illegal demands of Zavior
Michael and accordingly, a house property was purchased on 07.02.2011 in the
name of Zavior Michael vide registered sale deed and entire sale consideration
for this purchase of property has been paid by Reuban.The petitioner herein is
the first accused. On perusal of an F.I.R., no offence is made out and that the
entire proceedings arising out of a civil transaction, which is according to the
petitioners/accused have already been settled and attained finality. The present
complaint has been preferred by the defacto complainant only in order to threat
and harass the petitioner for certain extraneous reasons and considerations.

(viii)In order to justify the illegal occupation of the property, on
25.09.2010, son of Zavior Michael, the second respondent herein made a
representation to the Director General of Police, Chennai, seeking police
protection for him and his family members. The above said petition was enquired
by the then Deputy Superintendent of Police in C.S.R.No.501 of 2010 on
15.10.2010. In that enquiry, the defacto complainant and his family members
have requested not to proceed further and prayed to close the said petition,
since the matter was already settled and the second respondent and his family
members have stated that the said petition was sent due to some distress and
without consent of Zavior Michael. Accordingly, the said complaint was closed on
15.10.2010.

(ix) Galada/A1 is a permanent resident of Chennai and even the defacto
complainant is a resident of Chennai and it is only the father of the defacto
complainant who is living in Kodaikanal. The complaint failed to lay down the
factual foundation for making out the offence as alleged.

(x)E.N.Palanisamy/A2 is the Managing Director of M/S.Mookambikai Textile
Mills at Vada Madurai and he is having high reputation and respect in the
society. In fact, the second respondent and his family members are very well
known to the petitioner since from the year 1990 and on several occasions, the
petitioner had helped the second respondent monetarily and on humanitarian
grounds. They had also approached the petitioner to get aid for education and
medical expenses. While being so, the second respondent had lodged a false
complaint and without appreciation of facts and materials, the first respondent
registered the case and investigated the matter in an improper way.

(xi)The entire complaint does not disclose the essential ingredients of an
offence under Sections 147, 148, 448, 294(b), 387 and 420 I.P.C. The entire
proceedings arise out of a civil transaction, which has been already settled and
attained finality by the decree passed by this Court in C.R.P.(NPD)(MD)No.853 of
2010 dated 24.08.2010. Since the consent decree is in existence, the second
respondent has estopped from making contradictory statements in other forum.

(xii)The Apex Court consistently held that there should not be second
F.I.R. for the same offence, in this case also on the complaint, an enquiry was
conducted in C.S.R.No.501 of 2010 on the file of the first respondent and after
enquiry, the matter was closed on 15.10.2010, thereafter on 27.04.2011, the
impugned F.I.R. has been registered on the very same complaint, which is totally
against the principles laid down by the Apex Court.

(xiii)On perusal of F.I.R., the date of alleged occurrence said to have
taken place on 23.04.2010 and the complaint was sent to the Director General of
Police on 25.09.2010 and thereafter, after enquiry on 15.10.2010, C.S.R.No.501
of 2010 was closed as withdrawn. The impugned F.I.R. has been registered on
27.04.2011 after one year from the date of alleged occurrence and there is no
explanation for the said delay in registering the case. The complaint lodged by
the second respondent is clear abuse of the process of the Court and clear
violation of the consent decree passed in civil revision petition. Hence, they
prayed for quashing the F.I.R.

3.The gist and essence of the counter affidavit filed by both the
respondents are as follows:

(i)On the complaint preferred by the defacto complainant before the
Director General of Police, Tamil Nadu, on 25.09.2010, preliminary enquiry was
conducted and inasmuch as prima facie case was established to proceed against
the accused, a case was registered in Crime No.203 of 2011 on the file of the
Kodaikanal Police Station under Sections 147, 148, 448, 294(b), 387 and 420
I.P.C. and investigation was going on.

(ii) The first accused filed a petition before the Rent Controller-cum-
District Munsif, Kodaikanal and obtained a decreetal order in R.C.O.P.No.3 of
2001 dated 10.12.2003 in his favour, against which, the father of the defacto
complainant had preferred R.C.A.No.1 of 2004. On 09.10.2009, the Rent Control
Appellate Authority and Sub-Court, Palani allowed the appeal and eviction order
was set aside, against which, the petitioner/A1 filed C.R.P.(NPD)(MD)No.853 of
2010. In the civil revision petition, which was ended in compromise, without
the knowledge of the family of the defacto complainant, a joint memo of
compromise was entered purportedly at the behest of the second accused, who
acted as the power agent of the father of the defacto complainant and one Reuban
with the active connivance of certain powerful persons just to grab the lands
held by the family of the defacto complainant for more than 40 years. The joint
memo submitted before the Court was mislead to the effect that the possession of
the property was handed over to the petitioner herein which resulted in this
Court passing the said order closing the Civil Revision Petition on 24.08.2010.
On coming to know of the order passed against the father of the defacto
complainant, he has filed an application to recall the order which is pending in
C.R.P.SR.No.38719 of 2011. They have not vacated on their own volition from the
premises. On the other hand, they were forcibly evicted by using force and the
building which stood for more than 85 years were demolished on 07.02.2011 by one
Reuban and his henchmen, who came to the spot with pockalines and bulldozers
took possession of the building forcibly before demolishing them. The strong arm
act was perpetrated with active connivance of powerful people and land grabbers.

(iii) The defacto complainant presented a petition before the Director
General of Police, Chennai on 25.09.2010 stating that at the behest of certain
powerful people, his family is being harassed to vacate the property which was
under their possession and enjoyment for more than 40 years. He was also alleged
that they have been receiving threatening calls and the family head, being a
pastor, a peace loving person engaged in welfare activities were forced to sign
blank papers and inasmuch as the rowdy elements armed with deadly weapons are
frequently visiting their abode, they fear for their life and hence requested
necessary action. The Inspector General of Police, South Zone, also directed the
Deputy Superintendent of Police, Kodaikanal, to take action on the complaint
dated 25.09.2010. With the active connivance of several high-ups, the father of
the defacto complainant was forced to sign a petition withdrawing the said
complaint on 15.10.2010. On the same day, it appears that they got in touch with
one Father Joseph, 72 years old leader of the Minority Community Education
Foundation and appraised of their predicament and on seeing their plight, he
took up cudgels on his behalf and sent petition to the President of India among
others which was forwarded to the hierarchy of Officials and reached the
Superintendent of Police, Dindigul, who verified the veracity of the complaint
and directed the Deputy Superintendent of Police, Nilakottai, in-charge,
Kodaikanal Sub-Division to register a case and investigate the same. On the
instructions given by the Deputy Superintendent of Police, Nilakottai, in-charge
of Kodaikanal Sub-Division on 27.04.2011, the aforesaid case has been registered
and the investigation was taken up which is perfectly legal.

(iv) This is a case where the accused No.1 has used his political and
police power so as to throw away the defacto complainant’s family without
following the due process of law. Since the accused No.1 had continuously
threatened the informant family, the informant’s father Zavior Michael met his
childhood friend one Sivanandi, who is arrayed as A3 in this case. The said
Sivanandi who is serving as Inspector General of Police, Tamil Nadu had
introduced one Palanisamy, who is the petitioner/accused No.2 herein, a mill
owner so as to render assistance to the informant family. The petitioner/A2 had
given a false hope that he would give all legal assistance. The
petitioner/accused No.1 had gained confidence of informant’s family by giving
suggestions to the family. In the mean while, A2 and A3 have been gained by A1
and they have shifted their loyalty in favour of A1 for extraneous
considerations. From 06.06.2010 and 04.10.2010, A2/Palanisamy had continuously
threatened the informant’s father to vacate the premises and A3 had also
threatened to vacate the premises and hand over the same to A1. On 23.04.2010,
the defacto complainant appeared before the Director General of Police and
lodged the present complaint seeking action against the accused No.1 and other
accused persons. The said complaint was forwarded to the Inspector General of
Police, South Zone, Madurai for enquiry. On receipt of the said complaint, the
Inspector General of Police, South Zone, Madurai, had forwarded the same to the
Deputy Superintendent of Police, Kodaikanal to register a case and investigate
into the matter. Though, a specific direction was given by the then Inspector
General of Police, South Zone, that the then Deputy Superintendent of Police,
Kodaikanal had colluded with the accused and not registered any F.I.R. against
the accused. Instead the then D.S.P. Kodaikanal under the pressure from the then
Inspector General of Police, West Zone (Sivanandi) had closed the complaint on
15.10.2010 as if the informant’s father Zavior Michael had requested him to drop
all further proceedings against the accused persons and withdrawn the complaint.
The accused persons had misused the order obtained behind the back of
informant’s family in C.R.P.(NPD)(MD)No.853 of 2010 and the signatures obtained
in the blank sheets by A2.

(v)On 04.10.2010, the Kodaikanal Municipality Chairman one Ibrahim/A5 came
to informant’s house and taken the informant’s father, mother and aunty Rubi to
the house of the former Municipal Chairman one Kurian Abraham/A6. The
petitioner/A2, Reuban/A4, Deva/A6, Soleman/A7, Subbaiah/A12, Thannashi/A13 were
present in the house. At that time, all the accused had threatened the
informant’s father and his family members and obtained signatures in blank and
unfilled documents and white sheet under coercion. Due to the illegal
confinement and life threat made to the informant’s family members, they had no
other go than to sign in the documents as directed by the accused persons.

(vi)The respondent police has come forward to register the case against
the accused, because of the consistent effort of informant’s family. One of the
accused is presently serving as Inspector General of Police and others are
highly influential persons. There is a specific allegations and averments made
in the F.I.R. as well as the statements given under Section 161(3) of Cr.P.C. by
the informant and his family members against A2. That on 04.10.2010, the first
accused and other accused had threatened the informant’s family members and
obtained their signatures under coercion so as to use the same for illegal
purpose. So the averments made in the quash petitions are not correct. The
documents relied on by him are fabricated to grab the property. If really the
possession was handed over by virtue of the order passed in C.R.P., there was no
necessity to enter into a memorandum of understanding on 27.01.2011 for vacating
and handing over the vacant possession of the property. The inconsistent stand
taken by the petitioners/accused in taking possession of the property would go
to prove the case that the defacto complainant and his family members had been
put in fear of death and dishonestly induce them to sign in documents to deprive
of their valuable property.

(vii)A prima facie case of criminal force being used to vacate the family
members of the defacto complainant, prima facie criminal nexus and intention
are clearly made out as an outcome of the investigation, as culled out from the
testimony of Tvl.Fathinathan, Rajesh, Raja, Doss, Vasu, Julie, Kannan, Beulah,
Pandi and Bala who dwell in close proximity to the land in question. It has been
held in cantina of cases both by Apex Court as well as this Court that only in
rare and rarest of cases quashing of F.I.R. should be ordered. The Apex Court
held that the power of quashing an F.I.R. and criminal proceedings should be
exercised sparingly by the Courts. Indeed, the High Court has the extraordinary
or inherent powers to reach out injustice and quash the F.I.R. and criminal
proceedings keeping in view the guidelines laid down by this Court in various
judgements. Hence, they prayed for the dismissal of the petitions.

4.The petitioners in Crl.O.P.(MD)Nos.8765 to 8767, 8773, 9058, 9282 of
2011 filed the above said petitions for anticipatory bail stating that they are
innocent and their names have been falsely implicated in this case. Now they are
apprehending for arrest at the hands of the respondent police, hence they have
come forward with these petitions for seeking anticipatory bail. Heard the
learned counsel for the petitioners/accused and the learned Additional Advocate
General for respondent.

5.It is appropriate to consider the backdrop of the case. The quash
petitions have been filed by the first and second accused to quash the F.I.R.
registered in crime No.203 of 2011 for the alleged offence under Sections 147,
148, 448, 294(b), 387 and 420 I.P.C. pending on the file of the first
respondent police. Even though the complaint was nil dated, it was received by
the Director General of Police on 25.09.2010. So hereafter, for our convenience
sake, it was mentioned as compliant dated 25.09.2010.

6.Admittedly, the property bearing D.No.41/67, Welwyn inn Cottage,
Kodaikanal town, Dindigul District, is originally belongs to one John Tapp and
he bequeathed the property to his legal heirs by a will dated 09.10.1939 and the
same was probated vide order dated 16.12.1941 in O.P.No.58 of 1941 on the file
of the District Judge, Madurai. John Tapp bequeathed all the reminder of his
property movable and immovable wherever situated to his nephew Victor Tapp and
that has been properly probated, after the death of the said John Tapp, Victor
Tapp was filed O.P.No.58 of 1941 before the District Court, Madurai and Letters
of Administration has been issued. The said Victor Tapp/Legatee died on
14.07.1972 at Greenwich, London. The Reserve Bank of India has given a
permission in favour of the legal heirs of Victor Tapp to hold the immovable
properties mentioned therein in terms of Section 31(1) of the Foreign Exchange
Regulation Act, 1973. The licence to hold the immovable properties in India has
been granted in favour of the following four persons viz., (1) John Edward Tapp
(2) Mary Eleanor Rogers (3) Victor Alfred Henry Tapp and (4) Robert Arthur
William Tapp. This disputed property is mentioned as item No.1. Since the heirs
of the said Victor Tapp want to dispose the property, they obtained a
permission from Reserve Bank of India. On 08.08.1988, the heirs executed the
power of attorney in favour of one Rajendrakumar Pukharajmal Lunkad. The first
accused had purchased the property along with three persons vide registered sale
deed dated 24.04.1989 from the power of attorney of legal heirs of Victor Tapp.
The land and building namely, ‘Welwyn’ bearing D.No.17/99 is situated at Old
S.No.50, New T.S.No.22, Kodaikanal Town with an extent of 1.44.0 hec. and the
said property was rented out to the tenants namely, Zavior Michael, who is the
father of the defacto complainant/R2 and one Mani Iyer. Since dispute arose
between the above referred tenants, the petitioner/first accused had preferred
R.C.O.P.Nos.2 and 3 of 2001 against Mani Iyer and Zavior Michael before the Rent
Controller-cum-District Munsif Court, Kodaikanal. R.C.O.P.No.2 of 2001 was
ended in compromise and dismissed as settled out of Court and R.C.O.P.No.3 of
2001 was ordered in his favour. Since the eviction was ordered, the said Zavior
Michael had preferred R.C.A.No.1 of 2004 on the file of the Rent Control
Appellate Authority-cum-Sub-Court Palani, which was allowed on reversing the
fair and decreetal order dated 10.12.2003 made in R.C.O.P.No.3 of 2001, against
which, the first accused herein had preferred C.R.P.(NPD)(MD)No.853 of 2010
against the father of the defacto complainant/R2 and the same has been ended in
compromise on 24.08.2010. The order was passed by recording joint memo filed by
them. The present complaint was presented by the defacto complainant on
25.09.2010 to the Director General of Police for taking steps. That complaint
was closed as withdrawn on the basis of statement given by defacto complainant
and his family members on 15.10.2010. Subsequently, on the intervention of the
Hon’ble President of India, the said complaint was forwarded to the
Superintendent of Police, Dindigul and on the basis of the above complaint dated
25.09.2010, the case has been registered in Crime No.203 of 2011 on 27.04.2011.

7.The learned senior counsels appearing for the petitioners/accused raised
the following grounds for quashing F.I.R.

(i) This case has been generated only on the property dispute. So this
dispute is civil in nature.

(ii) C.R.P.(NPD)(MD)No.853 of 2010 has been disposed of recording the
compromise memo filed by both the parties. Judges’ record is conclusive.

(iii) On the basis of the complaint dated 25.09.2010, which was taken on
file in C.S.R.No.501 of 2010 was closed as withdrawn on 15.10.2010. So the
F.I.R. is liable to be quashed, since F.I.R. has been registered only on the
basis of the complaint dated 25.09.2010.

(iv) Subsequent events proved that the F.I.R. is abuse of process of Court
(i.e.) on 27.01.2011, a memorandum of understanding was entered. In pursuance of
that the defacto complainant’s father got the property on 07.02.2011.

(v) The ingredients of offences have not been prima facie made out, which
was mere abuse of process of Court.

To substantiate their arguments, they relied upon the decisions of Apex Court
and this Court.

8.The learned counsel for the second respondent/defacto complainant
contended that without the knowledge of the defacto complainant,
C.R.P.(NPD)(MD)No.853 of 2010 was disposed of by recording compromise and they
are taking steps to set aside that order. He further submitted that F.I.R. is in
initial stage and there is no necessity to quash the same. The documents
produced by the accused need not be relied upon. To substantiate his argument,
he also relied upon the decisions of the Apex Court and this High Court.

9.The learned counsel for the second respondent Mr.M.Ajmalkhan would
further submit that it is pre-matured to consider the documents filed by the
petitioners. They may very well produce the documents before the investigating
agency and put forth their case. If the charge sheet is filed, they can work
out their remedy to file the petition to quash the charge sheet. It is pre-
matured to quash the F.I.R. at this initial stage, since the case has been
registered only on 27.04.2011.

10.The learned Additional Advocate General has submitted that as soon as
they received the complaint, it was closed as withdrawn. But as soon as the
complaint received from the office of the Hon’ble President, they registered
the case. Now the investigation is going on, witnesses were examined and
Sections 161 & 164 Cr.P.C. statements were recorded. So it is very pre-matured
stage to decide the quash petitions. Hence, he prayed for the dismissal of the
petitions.

11.Considering the rival submissions as well as perusal of the record,
this Court has considered the following points.

Whether the documents filed by the accused to be looked into?
The learned counsel for the defacto complainant/R2 has submitted that the
documents filed by the petitioners/accused could not be relied upon, since the
case is in initial stage and the documents are not accepted by the defacto
complainant. Hence he prayed for the dismissal of the quash petitions.

12.At this juncture, it is appropriate to consider the following decisions
relied upon by both sides counsel.

(i)AIR 1992 SC 1379 (Smt.Chand Dhawan v. Jawahar Lal and others) in
paragraphs-6 and 8, it is held as follows:

“6.The High Court, relying on the decision of this Court in State of Bihar
v. Murad Ali Khan, AIR
1989 SC 1, pointed out that when the High Court is called
upon to exercise the jurisdiction to quash a proceeding at the stage of the
magistrate taking cognizance of an offence, the High Court is guided by the
allegations whether those allegations set out in the complaint or the charge-
sheet do not in law constitute or spell out any offence and that resort to
criminal proceedings within the circumstances amount to an abuse of the process
of the court or not. The High Court, has however, in approaching the question
misdirected itself in analysing the truth or otherwise of the allegations on the
basis of the materials which could not be relied on without legal proof. It is
not disputed that the complaint filed by the appellant does disclose an offence
under section 494, I.P.C. The allegations made by the complainant in law
constitute and spell out an offence. If so, the only question that could have
been considered at this stage is whether the continuance of the proceedings
would be an abuse of the process of the court. This court has in various
decisions examined the scope of the power under section 482, Cr.P.C., and has
reiterated the principle that the High Court can exercise its inherent
jurisdiction of quashing a criminal proceedings only when the allegations made
in the complaint do not constitute an offence or that the exercise of the power
is necessary either to prevent the abuse of the process of the court or
otherwise to secure the ends of justice. No inflexible guidelines or rigid
formula can be set out and it depends upon the facts and circumstances of each
case wherein such power should be exercised. When the allegations in the
complaint prima facie constitute the offence against any or all of the
respondents in the absence of materials on record to show that the continuance
of the proceedings would be an abuse of the process of the court or would defeat
the ends of justice, the High Court would not be justified in quashing the
complaint.

8. .. .. The High Court was not justified in reaching the conclusion that
the proceedings were liable to be quashed on the basis of additional materials
produced by the accused as those were required to be proved. When those
materials were not accepted by the complainant.

(ii)AIR 2005 SC 359 (State of Orissa v. Debendra Nath Padhi) in paragraph-
21, it is held as follows:

“Regarding the argument of accused having to face the trial despite being
in a position to produce material of unimpeachable character of sterling
quality, the width of the powers of the High Court under Section 482 of the Code
and Article 226 of Constitution of India is unlimited whereunder in the
interests of justice the High Court can make such orders as may be necessary to
prevent abuse of the process of any Court or otherwise to secure the ends of
justice within the parameters laid down in Bhajan Lal’s case.”

“21. It is evident from the above that this Court was considering the rare
and exceptional cases where the High Court may consider unimpeachable evidence
while exercising jurisdiction for quashing under Section 482 of the Code. In the
present case, however, the question involved is not about the exercise of
jurisdiction under Section 482 of the Code where along with the petition the
accused may file unimpeachable evidence of sterling quality and on that basis
seek quashing, but is about the right claimed by the accused to produce material
at the stage of framing of charge.”

(iii) (2011) 3 SCC 351 (Harshendra Kumar D. v. Rebatilata Koley and
others
) in paragraphs-25 and 26, it is held as follows:

“25.In our judgment, the above observations cannot be read to mean that in
a criminal case where trial is yet to take place and the matter is at the stage
of issuance of summons or taking cognizance, materials relied upon by the
accused which are in the nature of public documents or the materials which are
beyond suspicion or doubt, in no circumstance, can be looked into by the High
Court in exercise of its jurisdiction under Section 482 or for that matter in
exercise of revisional jurisdiction under Section 397 of the Code. It is fairly
settled now that while exercising inherent jurisdiction under Section 482 or
revisional jurisdiction under Section 397 of the Code in a case where complaint
is sought to be quashed, it is not proper for the High Court to consider the
defence of the accused or embark upon an enquiry in respect of merits of the
accusations. However, in an appropriate case, if on the face of the documents –
which are beyond suspicion or doubt – placed by accused, the accusations against
him cannot stand, it would be travesty of justice if accused is relegated to
trial and he is asked to prove his defence before the trial court. In such a
matter, for promotion of justice or to prevent injustice or abuse of process,
the High Court may look into the materials which have significant bearing on the
matter at prima facie stage.

26.Criminal prosecution is a serious matter; it affects the liberty of a
person. No greater damage can be done to the reputation of a person than
dragging him in a criminal case. In our opinion, the High Court fell into grave
error in not taking into consideration the uncontroverted documents relating to
the appellant’s resignation from the post of Director of the Company. Had these
documents been considered by the High Court, it would have been apparent that
the appellant has resigned much before the cheques were issued by the Company. ”

(iv) (2009) 1 SCC 681 (B.Jagdish and another v. State of Andhra Pradesh
and another) in paragraph-24, it is held as follows:

“24.The question is as to whether the High Court should have
interfered with the order summoning the appellant at this stage? It is now a
well settled principle of law that at the stage of quashing of an order taking
cognizance, an accused cannot be permitted to use the material which would be
available to him only as his defence. In his defence, the court would be left to
consider and weigh materials brought on record by the parties for the purpose of
marshalling and appreciating the evidence. The jurisdiction of the Courts, at
this stage, is limited as whether a case of reckless/gross negligence has been
made out or not will depend upon the facts of each case.”

In the above citations, it was held that in the quash application,
unimpeachable, sterling document can be looked into. But, in the case on hand,
most of the documents filed by the petitioners/accused are public documents
either Court proceedings or the registered documents. In such circumstances, as
per the dictum of the Apex Court, I am of the considered view that the Court is
empowered to be considered those documents in quash applications.

13.Now this Court has to consider the following decisions relied upon by
both sides for what circumstance, the F.I.R. is liable to be quashed.

(i) 1992 SCC (Crl) 426 (State of Haryana and others v. Bhajan Lal and
others
), in para-102, it is held as follows:

“102. In the backdrop of the interpretation of the various relevant
provisions of the code under Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power could be exercised
either to prevent abuse of the process of any Court or otherwise to secure the
ends of justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad kinds of cases wherein such power
should be exercised.

(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case against
the accused.

(2) Where the allegations in the First Information Report and other
materials, if any, accompanying the F.I.R do not disclose a cognizable offence,
justifying an investigation by police officers under Section 156(1) of the Code
except under an order of Magistrate within the purview of Section 155(2) of the
Code.

(3) Where the uncontroverted allegations made in the F.I.R. or complaint
and the evidence collected in support of the same do not disclose the commission
of any offence and make out a case against the accused.

(4) Where the allegations in the F.I.R. do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for proceeding against the
accused.

(6) Where there is an express legal bar engrafted in any of the provisions
of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or where
there is a specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spite him due to
private and personal grudge.”

(ii) (1995) 6 SCC 194 (Rupan Deol Bajaj (MRS) and another v. Kanwar Pal
Singh Gill and Another) and (B.R.Bajaj v. State of Punjab and others) in
paragraph-8, it is held as follows:

“8.The question under what circumstances and in what categories of cases
the High Court can quash an F.I.R. or a complaint in exercise of its powers
under Article 226 of the Constitution of India or under Section 482 Cr.P.C. has
had been engaging the attention of this Court for long. Indeed, the learned
counsel for the parties invited our attention to some of those decisions. We
need not, however, refer to them as in State of Haryana v. Bhajan Lal 1992 Supp
(1) SCC 335 this Court considered its earlier decisions. ..
.. .. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases; that the court will not
be justified in embarking upon an enquiry as to the reliability or genuineness
or otherwise of the allegations made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an arbitrary jurisdiction on the
court to act according to its whim or caprice.”

(iii) 1995 SCC (cri) 387 (State of T.N. v. Thirukkural Perumal), in
paragraph-4, it is held as follows:

“4.M.S.K.Shanmugovol Chettiyar lodged a first information report at P.S.
Tallakulam against the respondents alleging commission of offences under
Sections 147/148/342/323/395/506 (ii) and 109 IPC. Investigation was taken in
hand and some evidence was collected by the investigating agency. The respondent
filed a petition under Section 482 Cr.P.C. in the High Court and by the impugned
order the petition was allowed and the proceedings emanating from Crime Case
No.246 of 1992 (supra) were quashed. From a bare perusal of the order of the
learned single Judge it appears that while quashing the proceedings, reliance
has been placed upon some evidence collected by the investigating agency during
the investigation. The approach of the learned Judge in relying upon such
evidence, which is yet to be produced before the trial court, to quash the
criminal proceedings in Crime Case No.246 of 1992 (supra) was not proper. The
power of quashing an FIR and criminal proceedings should be exercised sparingly
by the Courts. Indeed, the High Court has the extra-ordinary or inherent power
to reach out injustice and quash the First Information Report and criminal
proceedings, keeping in view the guidelines laid down by this Court in various
judgments (reference in this connection may be made with advantage to State of
Haryana v. Bhajan Lal
(1992 Supp. (1) 335) but the same has to be done with
circumspection. The normal process of the criminal trial cannot be cut short in
a rather casual manner. The Court, is not justified in embarking upon an enquiry
as to the reliability or genuineness of the allegations made in the FIR or the
complaint on the basis of the evidence collected during investigation only while
dealing with a petition under Section 432 Cr.P.C. seeking the quashing of the
FIR and the criminal proceedings. The learned single Judge apparently fell into
an error in evaluating the genuineness and reliability of the allegations made
in the FIR on the basis of the evidence collected during the investigation. The
order of the learned single Judge cannot, therefore, be sustained. This appeal
succeeds and is allowed. The impugned order of the High Court is hereby set
aside.”

(iv) (2000) 8 SCC 115 (Mahavir Prashad Gupta and another v. State of
National Capital Territory of Delhi and others) in paragraph-5, it is stated as
follows:

“If complaint itself discloses an offence, High Court should not embark
upon an inquiry as to genuineness of the allegations made in the complaint or
whether those allegations were likely to be established on evidence or not.
“5.The law on the subject is very clear. In the case of State of Bihar v.
Murad Ali Khan
reported in 1988 (4) SCC 655, it has been held that jurisdiction
under Section 482 of the Code of Criminal Procedure has to be exercised
sparingly and with circumspection. It has been held that at an initial stage a
Court should not embark upon an inquiry as to whether the allegations in the
complaint are likely to be established by evidence or not. Again in the case of
State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335, this Court has
held that the power of quashing criminal proceedings must be exercised very
sparingly and with circumspection and that too in the rarest of rare cases. It
has been held that the Court would no be justified in embarking upon an inquiry
as to the reliability or genuineness or otherwise of the allegations made in the
FIR or the complaint. It has been held that the extraordinary or inherent powers
did not confer an arbitrary jurisdiction on the Court to act according to its
whim or caprice.

(v)(2002) 3 SCC 89 (State of Karnataka v. M.Devendrappa and another) in
paragraphs-7 to 9, it is held as follows:

“7. In R.P.Kapur v. State of Punjab, this Court summarized some categories
of cases where inherent power can and should be exercised to quash the
proceedings.

(i) Where it manifestly appears that there is a legal bar against the
institution or continuance, e.g. want of sanction;

(ii) Where the allegations in the first information report or complaint taken
at its face value and accepted in their entirety do not constitute the offence
alleged;

(iii) Where the allegations constitute an offence, but there is no legal
evidence adduced or the evidence adduced clearly or manifestly fails to prove
the charge.

8. .. .. At the same time the section is not an instrument handed over to
an accused to short-circuit a prosecution and bring about its sudden death. The
scope of exercise of power under Section 482 of the Code and the categories of
cases where the High Court may exercise its power under it relating to
cognizable offences to prevent abuse of process of any Court or otherwise to
secure the ends of justice were set out in some detail by this Court in State of
Haryana v. Bhajan Lal. A
note of caution was, however, added that the power
should be exercised sparingly and that too in rarest of rare cases. .. ..

9.As noted above, the powers possessed by the High Court under Section 482
of the Code are very wide and the very plenitude of the power requires great
caution in its exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The inherent power should
not be exercised to stifle a legitimate prosecution. The High Court being the
highest Court of a State should normally refrain from giving a prima facie
decision in a case where the entire facts are incomplete and hazy, more so when
the evidence has not been collected and produced before the Court and the issues
involved, whether factual or legal, are of magnitude and cannot be seen in their
true perspective without sufficient material. Of course, no hard-and-fast rule
can be laid down in regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at any stage. [See: Janata
Dal v. H.S. Chowdhary and Raghubir Saran (Dr)
v. State of Bihar). It would not
be proper for the High Court to analyse the case of the complainant in the light
of all probabilities in order to determine whether a conviction would be
sustainable and on such premises arrive at a conclusion that the proceedings
are to be quashed. It would be erroneous to assess the material before it and
conclude that the complaint cannot be proceeded with. In proceeding instituted
on complaint, exercise of the inherent powers to quash the proceedings is called
for only in a case where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. .. .. ”

(vi) (2008) 2 SCC (cri) 430 (Central Bureau of Investigation v.
K.M.Sharan)
in paragraphs-25 and 26, it is stated as follows:
“25.This court in Janata Dal v. H.S. Chowdhary observed thus: (SCC p.355,
para 132)

132. The criminal courts are clothed with inherent power to make such
orders as may be necessary for the ends of justice. Such power though
unrestricted and undefined should not be capriciously or arbitrarily exercised,
but should be exercised in appropriate cases, ex debito justitiae to do real and
substantial justice for the administration of which alone the courts exist. The
powers possessed by the High Court under Section 482 of the Code are very wide
and the very plenitude of the power requires great caution in its exercise.
Courts must be careful to see that their decision in exercise of this power is
based on sound principles.

26.This court in Roy V.D. v. State of Kerala observed thus: (SCC p.597,
para 18)
“18. It is well settled that the power under Section 482 Cr.P.C has to be
exercised by the High Court, inter alia, to prevent abuse of the process of any
court or otherwise to secure the ends of justice. Where criminal proceedings are
initiated based on illicit material collected on search and arrest which are per
se illegal and vitiate not only a conviction and sentence based on such material
but also the trial itself, the proceedings cannot be allowed to go on as it
cannot but amount to abuse of the process of the court; in such a case not
quashing the proceedings would perpetuate abuse of the process of the court
resulting in great hardship and injustice to the accused. In our opinion,
exercise of power under Section 482 Cr.P.C. to quash proceedings in a case like
the one on hand, would indeed secure the ends of justice.

(vii)(2009) 8 SCC 787 (State of Maharashtra v. Sayed Mohammed Masood and
Another)
in paragraph-11, it is held as follows:

“11. The legal position in regard to exercise of jurisdiction by the High
Court for quashing of an FIR is now well settled. It is not necessary for us to
delve deep thereinto as the propositions of law have recently been stated by
this Court in R.Kalyani v.Janak C.Mehta (2009) 1 SCC 516 in the following terms:

15. Propositions of law which emerge from the said decisions are :
(1) The High Court ordinarily would not exercise its inherent jurisdiction
to quash a criminal proceeding and, in particular, a First Information Report
unless the allegations contained therein, even if given face value and taken to
be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional
circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations
made in the FIR disclose commission of an offence, the court shall not go beyond
the same and pass an order in favour of the accused to hold absence of any mens
rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may
not be a ground to hold that the criminal proceedings should not be allowed to
continue.

The cantina of citations would settle the legal position regarding the exercise
of jurisdiction for quashing of criminal proceedings by the High Court, the
power of quashing criminal proceedings should be exercised very sparingly and
with circumspection and that too in the rarest of rare cases.

14.Now this Court has to decide whether the case on hand is rarest in rare
cases?. At this juncture, it is appropriate to consider the dictum laid down in
State of Haryana v. Bhajan Lal’s case. The learned counsel for the
petitioners/accused would rely upon the clauses-3 and 7 in para-102 of the above
said decision reported in 1992 SCC (Crl) 426 (State of Haryana and others v.
Bhajan Lal and others
), which are extracted hereunder:
“(3) Where the uncontroverted allegations made in the F.I.R. or complaint
and the evidence collected in support of the same do not disclose the commission
of any offence and make out a case against the accused.

(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spite him due to
private and personal grudge.”

15.Now this Court has to decide whether the present F.I.R. is abuse of
process of law, where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused.

(i) It is appropriate on the part of this Court to consider the arguments
advanced by both sides in respect of previous civil dispute. The subject matter
of the issue is only the property situated at Kodaikanal town. While perusing
the documents filed by the accused, the said Zavior Michael, who is none other
than the father of the defacto complainant/R2 has declared as a tenant. In his
own document, he himself filed a suit in O.S.No.30 of 1989 on the file of the
District Munsif Court, Kodaikanal against John Edward Tapp and R.P.Lunkad and
sought for a prayer as follows:

“For declaring the plaintiff is the “statutory tenant” under the Rent
Control Act and consequently, pass an order of permanent injunction against the
defendant restraining the defendant, their subordinates, men or agents seeking
to interfere with the plaintiff’s peaceful possession and enjoyment until the
plaintiff evicts under due process of Court of law. ”

(ii) It is pertinent to note that the first accused herein filed
O.S.No.179 of 1990 for declaration of title and recovery of possession. The
written statement filed by Zavior Michael on 12.04.1993, in which, he has stated
as follows:

“The defendant is in physical possession of the entire extent of suit
property and all the building therein. The defendant took the suit property on
lease from Mrs.Henderson the power agent of Mr.Victor Tapp who was managing the
suit property as care taker. Ever since tenancy in 1974, the defendant has been
in exclusive possession of the suit property which is called Welwyn Bungalow.”

(iii) Furthermore, Zavior Michael filed another suit on 17.05.1995 for
declaration of title that he is the owner of the property and also for
consequential injunction. He was examined as R.W.1 in R.C.O.P.No.3 of 2001 in
that, he has fairly conceded in his cross-examination that he has filed
O.S.No.30 of 1989. His candid admission is that the property belongs to Victor
Tapp and he is a tenant under him and paid rent of Rs.65/-. So his statement has
clearly proved that the father of the defacto complainant was only a tenant.
Furthermore, the first accused herein had filed R.C.O.P.No.3 of 2001 and
eviction has been ordered against which, Zavior Michael preferred R.C.A.No.1 of
2004, which was allowed, against which, the land lord, who is the first accused
herein had preferred C.R.P.(NPD)(MD)No.853 of 2010, which was ended in
compromise. A joint compromise memo has been filed and that has been recorded.
But now the second respondent/defacto complainant has disputed the compromise
memo filed before this Court. So the above facts are clearly proved that it is
only a civil dispute.

16.As already discussed that there was a civil dispute, which was ended in
compromise on 24.08.2010. Thereafter, this complaint has been generated on
25.09.2010. At this juncture, it is appropriate to consider the complaint given
by the second respondent, in which, it was stated as follows:
“Subject: Request for police protection since our entire family is facing
threatening of life by anti-social elements with deadly weapons and lot of
muscle power-immediate action requested.”

While perusing the complaint, he never mentioned that since R.C.A.No.1 of 2004
has been allowed, C.R.P.(NPD)(MD)No.853 of 2010 has been filed and ended in
compromise. The complaint was received by the Director General of Police, Tamil
Nadu, Camp on 25.09.2010 and forwarded the same to the Inspector General of
Police, Southern Zone, Madurai, for enquiry and report. Then, Deputy
Superintendent of Police, Kodaikanal was directed by the Inspector General of
Police, Southern Zone, Madurai to register the case and investigate. After
enquiry, report has been sent on 09.11.2010 to the Director General of Police,
Chennai, in which, it was specifically mentioned that the defacto complainant
has given a letter stating that no need to pursue the same. The letter dated
05.10.2010 was signed by the defacto complainant, son-in-law, daughter,
daughter-in-law. On that basis, C.S.R.No.501 of 2010 has been closed. But it is
not the case of the defacto complainant/R2 that after giving complaint on
25.09.2010, he was forced to give such statement and their signatures were
obtained. Admittedly, no complaint was preferred after 25.09.2010 till F.I.R.
registered on 27.04.2011.

17.At this juncture, it is pertinent to note that the defacto complainant
had brought to the notice of his plight to the religious heads in minority
community. One Rev.Fr. Joseph, leader of Minority Community Education and
Foundation on knowing the plight of the defacto complainant, had written a
letter to the Hon’ble President of India and other officials and a communication
was given to the Superintendent of Police, Dindigul District from the office of
the Hon’ble President of India for taking appropriate action. On receipt of the
said communication, on 27.04.2011, a case has been registered in Crime No.203
2011 for the offences under Sections 147, 148, 448, 294(b), 387 and 420 I.P.C.
against the accused 1 and 2.

18.On perusal of the file relating to C.S.R.No.501 of 2010, it is seen
that one Rev.Fr.Joseph, Chennai Education Foundation, Chennai, Tamil Nadu, has
sent a representation to the Hon’ble President on 01.10.2010 stating that
atrocities at Minority(Christian) Community at Dindigul, Tamil Nadu. That
complaint was sent along with the news published in Nakkeeran (Tamil Bi-Weekly
Magazine). On that basis, report has been called for on 20.04.2011 and result
of enquiry was forwarded by Additional Superintendent of Police, Dindigul.
Thereafter, the case has been registered on 27.04.2011. It is pertinent to note
that there is no complaint was preferred by the defacto complainant after
05.10.2010.

19.The learned senior counsel for the petitioners/accused submitted that
clauses-(3) and (7) in the referred para-102 in 1992 SCC (Crl) 426 (cited supra)
are applicable to the facts of the present case. Clause-(3) is extracted
hereunder:

“(3)Where the uncontroverted allegations made in the F.I.R. or complaint
and the evidence collected in support of the same do not disclose the commission
of any offence and make out a case against the accused.”

They mainly focussed their forceful argument that the defacto complainant’s
father is a tenant, who was evicted under due process of law. He has not filed
any application to set aside the order passed in C.R.P.(NPD)(MD)No.853 of 2010.
He filed only C.R.P.Sr.No.38719 of 2011 to recall the order made in C.R.P.,
which was yet to be numbered. It is pertinent to note that after filing of
counter affidavit by R1 in quash petitions, the petitioners initiated contempt
proceedings against R1. Then only, R2 filed C.R.P.Sr.No.38719 of 2011.
Admittedly, on 07.02.2011, after the complaint, the property worth about
Rs.40,00,000/- has been registered in the name of the tenant viz., Zavior
Michael and wherein the family members of the defacto complainant are residing
and the same was also admitted in the counter affidavit filed by the defacto
complainant/second respondent. Since it is a civil dispute, if at all Zavior
Michael is having any ill feeling, he can very well work out his remedy before
the Civil Court of law instead of filing criminal proceedings.

20.Now this Court has to follow the dictum laid down in 1992 SCC (Crl) 426
(State of Haryana and others v. Bhajan Lal and others). Considering the facts of
the case, the property was purchased by the first accused, who also filed
R.C.O.P.No.3 of 2001 against the father of the second respondent and obtained an
order of eviction. That eviction order was set aside by the Rent Controller
Appellate Authority, Sub-Court Palani in R.C.A.No.1 of 2004, against which, the
first accused had preferred a revision in C.R.P.(NPD)(MD)No.853 of 2010, which
was ended in compromise on 24.08.2010.

21.The learned counsel for the defacto complainant/second respondent would
submit that the aforestated joint compromise memo has not been signed by the
father of the defacto complainant, who is a tenant and a fraud has been played
upon before the Court and obtained an order. They had filed an application to
recall that order which is still pending.

22.At this juncture, the learned counsel for the petitioners would rely
upon the following decisions for the propositions (i.e.) consent/ compromise
decree is valid, until it was set aside by the same Court and Judges’ record is
conclusive.

(i) (2010) 5 SCC 104 (Shanti Budhia Vesta Patel and others v. Nirmala
Jayprakash Tiwari and others
), in which, it was held as follows:
“Consent decree recorded on basis of compromise entered into on behalf of
appellants by their power of attorney holder. Burden to prove that compromise
was tainted by coercion or fraud lies upon party alleging the same. If coercion
or fraud is alleged, it must be set out with full material particulars.
Appellants failed to furnish full and precise particulars with regard to the
alleged fraud. Consent decree is valid.”

(ii) (2007) 1 MLJ 257 (Hawa Ummal v. Mohammed Yousuf (deceased) and
others) in paragraphs-10 and 23, it was held as follows:
“10. .. .. the Supreme Court has held that on compliance of order 23 Rule
3 C.P.C., in terms of Order 3 Rule 1 C.P.C., the counsel can act on behalf of
the parties and held that it is not open to the appellant to contend to the
contrary.

23.The record of the proceedings made by the Court is sacrosanct and the
parties cannot dispute the correctness of the Court proceedings on record. ‘The
Judges’ record was conclusive. Neither lawyer nor litigant may claim to
contradict it, except before the Judge himself, but nowhere else. The Court
could not launch into inquiry as to what transpired in the High Court.”

(iii) AIR 2003 SC 4596 (Jineshwardas (D) by Lrs. and others v. Smt.Jagrani
and another) in paragraphs-39 and 40, it was held as follows:
“39. To insist upon the party himself personally signing the agreement or
compromise would often cause undue delay, loss and inconvenience, especially in
the case of non-resident persons. It has always been universally understood that
a party can always act by his duly authorized representative. If a power of
attorney holder can enter into an agreement or compromise on behalf of his
principal, so can counsel, possessed of the requisite authorization by
vakalatnama, act on behalf of his client. Not to recognise such capacity is not
only to cause much inconvenience and loss to the parties personally, but also to
delay the progress of proceedings in Court. If the legislature had intended to
make such a fundamental change, even at the risk of delay, inconvenience and
needless expenditure, it would have expressly so stated.

40. Accordingly, we are of the view that the words ‘in writing and signed
by the parties’, inserted by the C.P.C. (Amendment) Act, 1976, must necessarily
mean, to borrow the language of Order III, Rule 1 C.P.C.

“any appearance, application or act in or to any Court, required or
authorised by law to be made or done by a party in such Court, may except where
otherwise expressly provided by any law for the time being in force, be made or
done by the party in person, or by his recognized agent or by a pleader,
appearing, applying or acting as the case may be, on his behalf.
Provided that any such appearance shall, if the Court so directs, be made
by the party in person.”

(iv) AIR 1988 SC 400 (Gurpreet Singh v. Chatur Bhuj Goel), in paragraph-
10, it is held as follows:

“10.Under R. 3 as it now stands, when a claim in suit has been adjusted
wholly or in part by any lawful agreement or compromise, the compromise must be
in writing and signed by the parties and there must be a completed agreement
between them. To constitute an adjustment, the agreement or compromise must
itself be capable of being embodied in a decree. When the parties enter into a
compromise during the hearing of a suit or appeal, there is no reason why the
requirement that the compromise should be reduced in writing in the form of an
instrument signed by the parties should be dispensed with. The Court must
therefore insist upon the parties to reduce the terms into writing.”

(v) (2007) 4 SCC 241 (Bhagubhai Dhanabhai Khalasi and another v. State of
Gujarat and others) in paragraph-13, it is held as follows:
“13.There is nothing on record to show that the Division Bench while
entertaining the letters patent appeal intended to enter into any other
question. Judges’ record as is well known is final and conclusive. Any dispute
in relation thereto must be raised before the same Court.”

(vi) (2005) 4 SCC 120 (Commissioner of Endowments and others v. Vittal Rao
and others
) in which, it was stated as follows:

“On facts held, compromise order cannot be annulled on ground that compromise
was not in writing and was not signed by the petitioner.”

(vii) AIR 1982 SC 1249 (State of Maharashtra v. Ramdas Shrinivas Nayak and
another) in paragraphs-4 and 7, it is held as follows:

“4. .. .. If the Judges say in their judgment that something was done,
said or admitted before them, that has to be the last word on the subject. The
principle is well-settled that statements of fact as to what transpired at the
hearing, recorded in the judgment of the court, are conclusive of the facts so
stated and no one can contradict such statements by affidavit or other evidence.
If a party thinks that the happenings in Court have been wrongly recorded in a
judgment, it is incumbent upon the party. While the matter is still fresh in the
minds of the Judges, to call the attention of the very Judges who have made the
record to the fact that the statement made with regard to his conduct was a
statement that had been made in error.

7.So the Judges’ record is conclusive. Neither lawyer nor litigant may
claim to contradict it, except before the Judge himself, but nowhere else.”

So unless the order passed in C.R.P.(NPD)(MD)No.853 of 2010 has been set aside,
that order is valid and conclusive.

23. Order of this Court in C.R.P.(NPD)(MD)No.853 of 2010 dated 24.08.2010,
in which, it was stated as follows:

“The respondent accept that the revision petitioner is the landlord and
also handed over the possession to the revision petitioner and the revision
petitioner took possession of the same and as on today he is in actual
possession.”

In the decreetal order, it was stated as follows”

“1)That the petitioner be and hereby is declared as the land lord since
the respondent already handed over the possession of the property.

2)That the respondents shall not have any interest in respect of the
property.

3)That this petition be and hereby is closed as per the joint memo.”

After a month only, the present complaint has been preferred by the defacto
complainant. Admittedly, the defacto complainant had suppressed the order
passed in C.R.P.(NPD)(MD)No.853 of 2010 on 24.08.2010. As per the counter
affidavit filed by the defacto complainant, in paragraph-8, he has stated that
on coming to know of the order passed against his father, he has filed a
petition for recall before this Court in C.R.P.SR.No.38719 of 2011 and the same
is pending and filed only after filing of the application which is yet to be
numbered, as per the version of the learned counsel for the second respondent.
It is clearly proved that the dispute between the first accused and the defacto
complainant’s father is only a civil dispute.

24.It is pertinent to note as per the dictum of the Bhajanlal’s case,
criminal proceedings should not be encouraged, when it is found to be mala
fide or otherwise an abuse of the process of the Court. Superior Courts while
exercising this power should also strive to serve the ends of justice. Now it is
appropriate to consider the decisions relied upon by the learned counsel for the
petitioners/accused.

(i) (2007) 14 SCC 776 (All Cargo Movers (India) Private Limited and others
v. Dhanesh Badarmal Jain and
another) in paragraph-16, it is held as follows:

“16. .. .. Where a civil suit is pending and the complaint petition has
been filed one year after filing of the civil suit, we may for the purpose of
finding out as to whether the said allegations are prima facie correct, take
into consideration the correspondences exchanged by the parties and other
admitted documents. It is one thing to say that the Court at this juncture would
not consider the defence of the accused but it is another thing to say that for
exercising the inherent jurisdiction of this Court, it is impermissible also to
look to the admitted documents. Criminal proceedings should not be encouraged,
when it is found to be mala fide or otherwise an abuse of the process of the
Court. Superior Courts while exercising this power should also strive to serve
the ends of justice.”

(ii) AIR 2008 SC 1683 (Suryalakshmi Cotton Mills Ltd., v. Rajvir
Industries Ltd., & Others)
in paragraph-22, it is held as follows:
“22.Ordinarily, a defence of an accused although appears to be plausible
should not be taken into consideration for exercise of the said jurisdiction.
Yet again, the High Court at that stage would not ordinarily enter into a
disputed question of fact. It, however, does not mean that documents of
unimpeachable character should not be taken into consideration at any cost for
the purpose of finding out as to whether continuance of the criminal proceedings
would amount to an abuse of the process of Court or that the complaint petition
is filed for causing mere harassment to the accused. While we are not oblivious
of the fact that although a large number of disputes should ordinarily be
determined only by the civil courts, but criminal cases are filed only for
achieving the ultimate goal namely to force the accused to pay the amount due to
the complainant immediately. The Courts on the one hand should not encourage
such a practice; but, on the other, cannot also travel beyond its jurisdiction
to interfere with the proceeding which is otherwise genuine. The Courts cannot
also lose sight of the fact that in certain matters, both civil proceedings and
criminal proceedings would be maintainable.”

(iii) (2010) 10 SCC 673 (Manoj Mahavir Prasad Khaitan v. Ram Gopal Poddar
and
another) in para-12, it is held as follows:

“12.We reiterate that when the criminal Court looks into the complaint, it
has to do so with an open mind. True it is that that is not the stage for
finding out the truth or otherwise in the allegations; but where the allegations
themselves are so absurd that no reasonable man would accept the same, the High
Court could not have thrown its arms in the air and expressed its inability to
do anything in the matter. Section 482 Cr.P.C. is a guarantee against injustice.
The High Court is invested with the tremendous powers thereunder to pass any
order in the interests of justice. Therefore, this would have been a proper case
for the High Court to look into the allegations with the openness and then to
decide whether to pass any order in the interests of justice. In our opinion,
this was a case where the High Court ought to have used its powers under Section
482 Cr.P.C.”

(iv) (2008) 1 SCC (Cri) 259 (Inder Mohan Goswami and another v. State of
Uttaranchal and others) in paragraphs-29,30 and 37, it is held as follows:
“29. In Chandrapal Singh v. Maharaj Singh in a landlord and tenant matter
where criminal proceedings had been initiated, this Court observed in para 1 at
page 467 as under:

“A frustrated landlord after having met his waterloo in the hierarchy of
civil courts, has further enmeshed the tenant in a frivolous criminal
prosecution which prima facie appears to be an abuse of the process of law. The
facts when stated are so telling that the further discussion may appear to be
superfluous.”

30. The court noticed that the tendency of perjury is very much on the
increase. Unless the courts come down heavily upon such persons, the whole
judicial process would come to ridicule. The court also observed that chagrined
and frustrated litigants should not be permitted to give vent to their
frustration by cheaply invoking jurisdiction of the criminal court.

37. In Indian Oil Corporation v. NEPC India Ltd., this Court again
cautioned about a growing tendency in business circles to convert purely civil
disputes into criminal cases. The Court noticed the prevalent impression that
civil law remedies are time consuming and do not adequately protect the
interests of lenders/creditors. The Court further observed that:(SCC page 749,
para 13)
“13. … Any effort to settle civil disputes and claims, which do not involve
any criminal offence, by applying pressure through criminal prosecution should
be deprecated and discouraged. ” ”

The above citations along with the facts of the present case would prove because
of the civil dispute, the defacto complainant with a malafide intention initiate
the criminal proceedings against the petitioners.

25. Whether F.I.R. is liable to be quashed, since the same complaint is
closed as withdrawn.

At this juncture, it is appropriate on the part of this Court to consider
the argument advanced by the learned counsel for the petitioner that the
complaint was given by the defacto complainant on 25.09.2010, which was closed
on 15.10.2010. For the same set of facts, no second complaint will be
entertained, so it is liable to be quashed. To substantiate his argument, he
relied upon the decision reported in 2007 (2) MLJ (Cri) page 1647 (A.Yousuf Khan
and others v. Inspector of Police)
in paragraphs-8 and 14, it is stated as
follows:

“8.It is also pertinent to note that in the very same order, this Court
further observed and quashed the proceedings as follows:

“As the complainant suppressed earlier proceedings and memo filed between the
parties, this Court without any hesitation is of the opinion that the
proceedings pending in C.C.No.325 of 2004 has got to be quashed. Accordingly,
the same is quashed.”

14.This Court has no hesitation to hold that the present complaint in this case
squarely comes within the above said guideline stipulated by the Hon’ble Apex
Court for quashing the F.I.R. In view of the sequence of events, viz.,
suppression of present first complaint, preferring second complaint, findings of
this Court regarding suppression of material facts by the defacto complainant in
the order dated 11.10.2004 in Crl.O.P.No.23083 of 2004 and the findings of the
learned Judicial M Class Magistrate No.II, Kochi, this present complaint is
liable to be quashed. ”

Considering the above citation along with the facts of the present case,
admittedly, on the basis of the complaint given on 25.09.2010, the case was
taken on file in C.S.R.No.501 of 2010 and the same was closed as withdrawn.
Again, the case has been registered on 27.04.2011 on the basis of the complaint
dated 25.09.2010. Till 27.04.2011, R2 had not taken any steps and preferred any
complaint stating that the signatures obtained forcibly from the complainants
for closing C.S.R.No.501 of 2010. Only in the counter affidavit, R2 raised such
a plea. In such circumstances, as per the decision reported in 2007(2) MLJ (Cri)
page 1647(cited supra), I am of the considered view, it is only deemed to be
second complaint, on the basis of the complaint dated 25.09.2010. Since the
first complaint dated 25.09.2010 was closed as withdrawn, I am of the view
that the F.I.R. is liable to be quashed, since the case has been registered on
the basis of the complaint dated 25.09.2010.

26.It is appropriate to consider the arguments advanced by the learned
counsel appearing for the petitioners/accused that on 07.02.2011, property
worth about Rs.40,00,000/- has been purchased in the name of the defacto
complainant’s father, where they are put up. In the counter affidavit, the
defacto complainant himself has stated that now they are residing at Lobo
Cottage, which was purchased on 07.02.2011 in the name of Zavior Michael and the
amount has been paid by the agent of the first accused. It is also pertinent to
note that on 27.01.2011, there was a compromise agreement entered into between
one of the accused viz., Reuban and the defacto complainant’s father. Clause-1
of the said compromise agreement was stated as follows:
@1) 1tJ ghh;l;o 2tJ ghh;l;of;F bfhilf;fhdy; lt[d;. ky;yp nuhL fhd;btz;l;
nuhL nrUk; gFjpapy; 25 brz;l; epyKk;. nkw;go epyj;jpy; cs;s nyhngh fhl;nl$; vd;w
bgahpy; cs;s tPLk; nrh;j;J 1tJ ghh;l;o jdJ brhe;j brytpy; 2tJ ghh;l;of;F 04-02-
2011?k; njjpf;Fs; fpiuak; Koj;J bfhLf;f ntz;oaJ/ nkYk; 2tJ ghh;l;of;F 1tJ
ghh;l;o U:/2.50.000-? U:gha; ,uz;L yl;rj;J Ik;gjhapuk; bfhLf;ft[k; xg;g[f;
bfhz;L. mjd;go moapw;fz;l rhl;rpfs; Kd;dpiyapy; 1tJ ghh;l;oaplkpUe;J 2tJ
ghh;l;oa[k;. mtUila FLk;gj;jhh;fSk; nrh;e;J nkw;go bjhifapy; ehsJ njjpapy;
U:gha;- U:gha; Ik;gjhapuj;ij 1tJ ghh;l;oaplkpUe;J 2tJ ghh;l;o buhf;fk; bgw;Wf;
bfhz;oUf;fpwhh;fs;/ v”;rpa U:gha;- U:gha; ,uz;L yl;rj;ij nkw;go fpiuak;
gjpa[k; njjpapy; 1tJ ghh;l;oaplkpUe;J 2tJ ghh;l;o bgw;Wf; bfhs;s ntz;oaJ/@

In the above clause, it was stated that the ‘Lobo cottage’ is going to be
registered in the name of the defacto complainant’s father. In pursuance of
that, ‘Lobo Cottage’ has been purchased and registered on 07.02.2011, in which,
the defacto complainant had appeared before the sub-Registrar’s office,
Kodaikanal and he signed and affixed his Left Thumb impression before the Sub-
Registrar at Kodaikanal. After the complaint dated 25.09.2010, Lobo Cottage has
been purchased in the name of the defacto complainant’s father and he is in
possession. It was also admitted by the defacto complainant/R2. But the case was
registered on 27.04.2011 on the basis of the complaint given on 25.09.2010.

27.Even though the defacto complainant has stated that on 07.02.2011, one
Reuban demolished the structures and they had transferred from Welwyn Cottage
(disputed property) to Lobo Cottage in his counter, but admittedly no complaint
was lodged either on 07.02.2011 or after or before registering this case on
27.04.2011 for the alleged occurrence said to have been taken place on
07.02.2011. As already stated that the case in Crime No.203 of 2011 has been
registered on 27.04.2011 only on the complaint given by the defacto complainant
on 25.09.2010. Considering this aspect, I am of the view that without any
basis, the case has been registered in Crime No.203 of 2011, even after
complaint dated 25.09.2010 was closed as withdrawn.

28.At this juncture, it is appropriate to consider the following decisions
relied upon by the learned counsel for the second respondent.

(i) (2001) 6 SCC 181 (T.T.Antony v. State of Kerala and others), in which,
it is held as follows:

“There can be no second F.I.R. and no fresh investigation on receipt of
every subsequent information in respect of the same cognizable offence or same
occurrence giving rise to one or more cognizable offences. All such subsequent
information will be covered by Section 162 Cr.P.C. Officer in charge of the
police station has to investigate not merely the cognizable offence reported in
the F.I.R. but also other connected offences found to have been committed in the
course of the same transaction or the same occurrence and file one or more
reports as provided in Section 173 Cr.P.C.”

(ii) AIR 1993 SC 1637 (Ajay Agarwal v. Union of India and others), in
para-25, it is held as follows:

“25. A conspiracy thus is a continuing offence and continues to subsist
and committed wherever one of the conspirators does an act or series of acts. So
long as its performance continues, it is a continuing offence till it is
executed or rescinded or frustrated by choice or necessity A crime is complete
as soon as the agreement is made, but it is not a thing of the moment. It does
not end with the making of the agreement. It will continue so long as there are
two or more parties to it intending to carry into effect the design. Its
continuance is a threat to the society against which it was aimed at and would
be dealt with as soon as that jurisdiction can properly claim the power to do
so. The conspiracy designed or agreed abroad will have the same effect as in
India, when part of the acts, pursuant to the agreement are agreed to be
finalised or done, attempted or even frustrated and vice versa.”

He submitted that even though the complaint has been given on 25.09.2010, the
case has been registered on 27.04.2011 and the occurrence has been taken place
on 07.02.2011. Hence, it is only a continuing offence and prayed for dismissal
of the quash petitions. On the basis of the complaint, the case has been
registered only under the provisions under Sections 147, 148, 294(b), 387, 448
and 420 I.P.C. not under Section 120B I.P.C. Considering the ingredients of the
offence, it is not a continuing offence and hence, the above citations are not
applicable to the facts of the present case.

29.In the counter affidavit filed by the second respondent, he would
clearly averred that only on 07.02.2011, they were physically evicted from the
disputed property and the entire structures situated in the disputed property
were demolished. At this juncture alone, the learned counsel Mr.Ajmal Khan would
submit that second F.I.R. is not necessary, since it is a continuing offence.
But the citations reported in (2001) 6 SCC 181 (cited supra) and AIR 1993 SC
1637 (cited supra) are not applicable to the facts of the present case, because
in the Antony’s case, it was specifically mentioned that no second F.I.R. in
respect of the same transaction or same occurrence. But here, in the complaint,
it was stated that the accused are attempted to trespass into the property. But
as per the averment in the counter affidavit filed by the second respondent, it
was specifically mentioned that they have been physically shifted from the
disputed property to the Lobo Cottage only on 07.02.2011. So the argument
advanced by the learned counsel for the second respondent does not merit
acceptance. I am of the considered view that the occurrence alleged to have been
taken place on 07.02.2011 is not a continuing offence. The complaint has been
given on 25.09.2010. The alleged occurrence said to have been taken place after
entering into compromise. In the complaint, it was specifically mentioned that
the signatures were obtained. But admittedly, it was not produced before the
Court in C.R.P.(NPD)(MD)No.853 of 2010. Filing of C.R.P.(NPD)(MD)No.853 of 2010
and pendency and disposal of the same have not been disclosed in the complaint
dated 25.09.2010. As per the counter affidavit filed by the defacto
complainant/R2, on 07.02.2011 alone they were shifted from the disputed
property to Lobo cottage and the superstructure in the disputed property has
been demolished. So the incident alleged to have been taken place on 07.02.2011
is not a continuing offence. So the decisions reported in (2001) 6 SCC 181
(cited supra) and AIR 1993 SC 1637 (cited supra) are not applicable.

30.The learned counsel for the petitioners/accused submitted that the
ingredients of the penal provisions have not been made out, for the reason he
would rely upon the decision reported in AIR 2001 SC 3721 (Charanjit Singh
Chadha and others v. Sudhir Mehra)
in paragraph-17, it is held as follows:
“17.The hire-purchase agreement in law is an executory contract of sale
and confers no right in rem on hirer until the conditions for transfer of the
property to him have been fulfilled. Therefore, the re-possession of goods as
per the term of the agreement may not amount to any criminal offence. .. ..”

31. As per the dictum laid down in Janata Dal v. H.S. Chowdhary and
Raghubir Saran (Dr)
v. State of Bihar, there is no hard-and-fast rule can be
laid down in regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceedings at any stage. Now it is
appropriate to consider the following decisions relied upon by the learned
counsel for the second respondent.

(i) (2002) 3 SCC 89 (State of Karnataka v. M.Devendrappa and another), in
paragraph-9, it is held as follows:

“9.As noted above, the powers possessed by the High Court under Section
482 of the Code are very wide and the very plenitude of the power requires great
caution in its exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The inherent power should
not be exercised to stifle a legitimate prosecution. The High Court being the
highest Court of a State should normally refrain from giving a prima facie
decision in a case where the entire facts are incomplete and hazy, more so when
the evidence has not been collected and produced before the Court and the issues
involved, whether factual or legal, are of magnitude and cannot be seen in their
true perspective without sufficient material. Of course, no hard-and-fast rule
can be laid down in regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at any stage. [See: Janata
Dal v. H.S. Chowdhary and Raghubir Saran (Dr)
v. State of Bihar). It would not
be proper for the High Court to analyse the case of the complainant in the light
of all probabilities in order to determine whether a conviction would be
sustainable and on such premises arrive at a conclusion that the proceedings
are to be quashed. It would be erroneous to assess the material before it and
conclude that the complaint cannot be proceeded with. In proceeding instituted
on complaint, exercise of the inherent powers to quash the proceedings is called
for only in a case where the complaint does not disclose any offence or is
frivolous, vexatious or oppressive. .. .. ”

Considering the above citation, there is no hard-and-fast rule for
quashing the F.I.R.

(ii) (2004) 1 SCC 691 (State of M.P. v. Awadh Kishore Gupta and others) in
paragraphs-11 and 13, it is held as follows:

“11. .. .. If the allegations set out in the complaint do not constitute
the offence of which cognizance has been taken by the Magistrate, it is open to
the High Court to quash the same in exercise of the inherent powers under
Section 482 of the Code. It is not, however, necessary that there should be
meticulous analysis of the case before the trial to find out whether the case
would end in conviction or acquittal. The complaint has to be read as a whole.
If it appears that on consideration of the allegations in the light of the
statement made on oath of the complainant that the ingredients of the offence or
offences are disclosed and there is no material to show that the complaint is
mala fide, frivolous or vexatious, in that event there would be no justification
for interference by the High Court. When an information is lodged at the police
station and an offence is registered, then the mala fides of the informant would
be of secondary importance. It is the material collected during the
investigation and evidence led in the Court which decide the fate of the accused
person. The allegations of mala fides against the informant are of no
consequence and cannot by itself be the basis for quashing the proceedings.

13.It is to be noted that the investigation was not complete and at that
stage it was impermissible for the High Court to look into materials, the
acceptability of which is essentially a matter for trial. While exercising
jurisdiction under Section 482 of the Code, it is not permissible for the Court
to act as if it was a trial Judge. Even when charge is framed at that stage, the
Court has to only prima facie be satisfied about existence of sufficient ground
for proceeding against the accused. For that limited purpose, the Court can
evaluate material and documents on records but it cannot appreciate evidence.
The Court is not required to appreciate evidence to conclude whether the
materials produced are sufficient or not for convicting the accused. In Chand
Dhawan v. Jawahar Lal,
it was observed that when the materials relied upon by a
party are required to be proved, no inference can be drawn on the basis of those
materials to conclude the complaint to be unacceptable. The Court should not act
on annexures to the petitions under Section 482 of the Code, which cannot be
termed as evidence without being tested and proved. When the factual position of
the case at hand is considered in the light of principles of law highlighted,
the inevitable conclusion is that the High Court was not justified in quashing
the investigation and proceedings in the connected case (Crime No. 116 of 1994)
registered by the Special Police Establishment, Lokayukta, Gwalior. We set aside
the impugned judgment. The State shall be at liberty to proceed in the matter
further.”

(iii) (2007) 12 SCC 93 (T.Vengama Naidu v. T.Dora Swamy Naidu and others)
in paragraph-8, it is held as follows:

“8.A glance at FIR suggests that there were serious allegations against
both the accused, respondents 1 and 2 herein inasmuch as it was specifically
alleged that inspite of the revocation of the general power of attorney and
inspite of a specific notice to that effect by the complainant to the first
respondent, the first respondent went on dishonestly to execute the sale deed in
favour of his own daughter on the basis of the said revoked general power of
attorney. It is alleged against the first respondent that he had no right over
the property and yet he had executed a document in favour of the second
respondent without any authority with an intention to cause loss to the
complainant and to cheat him. It was alleged against the second respondent that
she was well aware that the first respondent was not competent to sell the
property so as to defraud and cheat the complainant and, therefore, she also was
liable to be punished under Sections 464, 423, 420 read with Section 34 IPC. It
was not for the learned Judge at the stage of investigation to examine the
nature of the transaction and further to examine as to whether any offence was
actually committed by the accused persons or not. At that stage the only inquiry
which could have been made was as to whether the complaint or FIR did contain
allegations of any offence. Whether those offences were made out, even prima
facie, could not have been examined at that stage as the investigation was
pending then. We, therefore, do not agree with the learned Single Judge that FIR
was liable to be quashed. We also do not agree with the learned Judge that there
are no ingredients of the offences complained of in the FIR and this was a civil
dispute. .. ..”

(iv) (2009) 15 SCC 429 (Ramesh Dutt and others v. State of Punjab and
others
), in which, it is held as follows:

“The appellants had committed acts of criminal misconduct while trying to
obtain orders of mutation but it is another thing to say that only because they
filed such an application, the same by itself would tantamount to commission of
a criminal offence. Hence, institution of a criminal case must be held to be an
act of mala fide on the part of the respondents.”

(v) (2011) 4 SCC 593 (Kaushalya Devi Massand v. Roopkishore Khore) in
paragraph-11, it is held as follows:

“11.Having considered the submissions made on behalf of the parties, we
are of the view that the gravity of a complaint under the Negotiable Instruments
Act cannot be equated with an offence under the provisions of the Penal Code,
1860 or other criminal offences. An offence under Section 138 of the Negotiable
Instruments Act, 1881, is almost in the nature of a civil wrong which has been
given criminal overtones.”

As per the above citations, it is clearly held that ingredients of the offences
shall prima facie made out in the complaint/F.I.R.

32.It is well settled dictum that F.I.R. is not an encyclopaedia as per
the decision reported in CDJ 2007 MHC 4147 (G.Jeyaseelan v.T.Chandran). But
however, there must be some prima facie case to take cognizance of an offence
and there must be some elements of ingredients of the offence to be mentioned in
the F.I.R. On perusal of the F.I.R. along with penal provisions under Sections
147, 148, 448, 294(b), 387 and 420 I.P.C., no ingredients for the above offences
have been prima facie made out. It is true, it would not be proper for the
High Court to analyse the case of the accused, in order to determine whether the
conviction would be sustainable. But here, this Court is not analysing the
evidence. But this Court has made cursory glance over this F.I.R. and the
Ingredients of the penal provisions were not prima facie made out.

33.Now it is appropriate to incorporate the entire complaint, which is as
follows:

“Subject:Request for police protection since our entire family is facing
threatening of life by anti-social elements with deadly weapons and lot of
muscle power-Immediate action requested-Reg.

We have been in peaceful possession and enjoyment of bearing property
Block No.14, T.S.No.50, New Survey No.22, Door No.41/67, Old No.17/99,
Kodaikanal Taluk, in an extent of 3 acres and 98 cents for the past 40 years.
Patta stood in the name of one Thiru.Tapp & Zavior Michael, Pastor & head of our
family. Zavior Michael has been doing a dedicated service to the religious
people at large and has been doing welfare activities, charitable work etc. to
the local people. All these activities are being done only from the above
mentioned address. EB connection, telephone connection, revenue receipts all
stood only in the name of one Thiru.Tapp and Zavior Michael.

While that being so, some anti-social elements with the intention to grab
the said property from us started threatening us to vacate the property and hand
it over to them. In this regard, we have been receiving weapons.

Further the women members of the family more particularly were, tortured,
harassed, and shouted at by filthy language. In this regard we have preferred a
police complaint on 23.04.2010 before the Kodaikanal police station the copy of
the receipt issued by the police station is enclosed herewith.

One Thiru.Bhagchand Uttamachand Galada a business man from Chennai and his
aides are the main culprits, who have been indulging in all the above said
illegal and atrocious activities. It is relevant to state here that the said
Galada had filed a rent control suit in District Munsif Court, Kodaikanal vide
R.C.O.P.No.3/2001. The said suits were decreed in his favour vide order dated
10.12.2003. Thereafter, Zavior Michael our family head preferred an appeal
before the Sub-Court, Palani (Kodaikanal Camp Court) vide appeal No.1/2004. In
the said appeal lower Court order was set aside and appeal was allowed in favour
of Zavior Michael, our family head. Therefore, there is no right in any manner
to Thiru.Galada or any of his aides over the above mentioned property.

In the aforesaid circumstances, we have been repeatedly receiving
threatening calls, as stated earlier. Further, Zavier Michael, our family head
was threatened and forced to sign on various papers including blank papers
recently. Thereafter, more such threatening calls are being received and also
frequent visits of rowdy elements with deadly weapons are being made and our
life put to peril and danger.

It is pertinent to state here that the said Thiru. Galada a business
heavy weight Chennai is being supported by Thiru.P.Sivanandi, I.G. of Police,
Coimbatore Range and E.N. Palanisamy, Mill Owner, Dindigul. Only with their
assistance and background the said Galada has been ending rowdy elements,
threatening our lives, to grab the property. It is very unfortunate that a
Police Officer in the rank of Inspector General supporting land grabbers and
anti social elements. Moreover, signatures were forcefully obtained from
Zavier Michael, our family head to the effect that he would vacate the premises
and hand over the possession to them. So, it is utmost necessary that the
honourable Director General intervenes in the above matter and take necessary
actions. We are helpless, ordinary people with our family head doing religious
activities & belonging to minority community and now are at your mercy. Kindly
protect our lives from business heavy weights, anti-social elements.”

34. The case was registered under Sections 147, 148, 294(b), 387, 448 and
420 I.P.C. As per Section 420 I.P.C. is concerned, on perusal of F.I.R.,
elements of cheating has not been made out. Neither the defacto complainant nor
his family members have been cheated the valuable of the property belonging to
them. Because it is not the case of the defacto complainant that his property
has been cheated by the accused. Now it is appropriate to consider the essential
ingredients of following Sections, which are extracted hereunder:

Section 294(b):

(1)Accused did some act.

(2)Accused sang, recited or uttered a song or ballad.

(3)It was obscene.

(4)It was done in a public place.

(5)It caused annoyance to others.

Section 387
(1)Accused put some person or attempted to put some person in fear of death or
grievous hurt.

(2) He did so to commit extortion.

Section 420
(1)Accused cheated the complainant.

(2)Accused did so dishonestly.

(3)Thereby induced the complainant:

(i) to deliver some property to accused or to some other person.

(ii) to make, alter or destroy the whole or any part of the valuable security
or anything which was signed, sealed, and which was capable of being converted
into valuable security.

Section 448
(1)Complainant was in possession of the property.

(2)Accused entered into such building, tent or vessel.
(3)Accused having lawfully entered into such building remained there unlawfully.
(4)With intent to commit offence of insult, annoyance, intimidation.
On considering the ingredients of penal provisions along with the complaint, I
am of the view that the ingredients of the provisions under Sections 147, 148,
294(b), 387, 448 and 420 I.P.C. have not been prima facie made out.

35.As per the dictum of (2010) 10 SCC 673 (cited supra), it is held that
Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested
with the tremendous powers thereunder to pass any order in the interests of
justice. Therefore, this would have been a proper case for the High Court to
look into the allegations with the openness and then to decide whether to pass
any order in the interests of justice. In our opinion, this was a case where
the High Court ought to have used its powers under Section 482 Cr.P.C.

36.To sum up, the conclusions are as follows:

(i) There was a civil dispute (i.e.) in Rent Control proceedings in
respect of the disputed property in between the first accused and the defacto
complainant’s father, C.R.P.(NPD)(MD)No.853 of 2010 has been disposed of by
recording joint compromise memo on 24.08.2010. The compromise decree is valid
till it was set aside by the concerned Court. The Judges’ record is conclusive.

(ii)The present complaint was preferred on 25.09.2010, in which, the
defacto complainant had sought for protection. On perusal of the complaint,
ingredients of penal provisions have not been prima facie made out.

(iii) After the disposal of the case in C.R.P.(NPD)(MD)No.853 of 2010, son
of the tenant, who is the defacto complainant herein has taken vengeance and
gave a complaint, which is abuse of process of law.

(iv) Already on the basis of the complaint dated 25.09.2010, the case has
been closed as withdrawn and for the same, the defacto complainant/R2 had not
taken any steps.

(v) On 07.02.2011, though they were alleged to transfer from the disputed
property to Lobo cottage, no complaint has been given till the case has been
registered on 27.04.2011 on the basis of the complaint given on 25.09.2010,
which was already closed. Hence, F.I.R. was registered on the basis of the
complaint dated 25.09.2010, which is not sustainable.

(vi) On 27.01.2011, a Memorandum of Understanding was entered into between
the father of the defacto complainant and one of the accused viz., Reuban, Lobo
cottage has been purchased in the name of the father of the defacto complainant
and he was put in possession.

(vii) The conduct of the defacto complainant and his family members has
shown that the clause-7 of the para-102 of the dictum laid down in (State of
Haryana and others v. Bhajan Lal and others
) (i.e.) where a criminal proceeding
is manifestly attended with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the accused abuse
of process of Court.

37.For the foregoing reason, I am of the view that it is a fit case for
quashing the F.I.R.

38.In fine,
The Criminal Original Petitions in Crl.O.P.(MD) Nos. 8741 and
9385 of 2011 are allowed.

F.I.R. in Crime No.203 of 2011 on the file of the first
respondent police, Kodaikanal Police Station, Dindigul District, is
hereby quashed.

Consequently, connected Miscellaneous Petitions are closed.
Since the F.I.R. in respect of the Crime No.203 of 2011 is
quashed, Anticipatory Bail petitions in Crl.O.P.(MD) Nos.8765
to 8767, 8773, 9058, 9282 of 2011 are dismissed as
infructuous.

kj

To

1.The Inspector of Police
Kodaikanal Police Station
Dindigul District.

2.The Public Prosecutor
Madurai Bench of Madras High Court.

3.The Record Keeper
V.R.Section, High Court.

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information