IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/10/2002
CORAM
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
Crl.O.P.No.9501 of 2002
and
Crl.M.P.No.4392 and 7880 of 2002
1. Dr.K.Thiruneelakandan
2. Dr.K.P.Natarajan ..... Petitioners
-Vs-
M.Lathamageswari ..... Respondent
Criminal Original Petition filed under section 482 Crl.P.C. for quash
as stated therein.
!For Petitioners : Mr.R.Subramanian
^For Respondent : Mr.P.Selvaraj
:ORDER
The petitioners herein who are accused in C.C.No.3839 of 2002 on the
file of the Additional Chief Metropolitan Magistrate’s Court, Egmore,
Chennai have filed this petition under sec.482 Cr.P.C. to call for the
records and quash the same.
2. Respondent herein has filed a private complaint in C.C.No.3839 of
2002 against the petitioners for the alleged offences under sections 465, 468,
470, 419, 420 read with 34 IPC.
3. Learned counsel Mr.R.Subramanian appearing for the petitioners
submitted as follows:-
The first petitioner purchased a plot measuring 2472 sq.ft. In Sri
Venkateswara Nagar, Korattur Village, Chengai District in the name of his
minor son Kumaragururajan on 15.2.1996 under a registered document No.465/96.
The said land originally belonged to one Damodaran who in turn sold it to one
Latha Maheswari under sale deed dated 19.6.199 2. The said Latha Maheswari
has executed a registered deed of power of attorney in favour of the second
petitioner on 18.1.1996. By virtue of the said deed of power of attorney, the
second petitioner has sold the said plot to the first petitioner’s minor son.
Eversince the date of purchase, the first petitioner is in possession of the
said plot. The respondent herein, taking advantage of similarity in her name
falsely claimed the same as her property. The respondent herein filed a
complaint in M.P.No.4443 of 1997 before the XIII Metropolitan Magistrate’s
Court, Chennai against the petitioners for the offences under sec.465, 468,
470, 419 and 430 IPC which was forwarded under sec.156(3) Cr.P.C to the
police. The police has registered a case in Crime No.66 of 1998, after
investigation referred it as mistake of fact. Suppressing the same the
respondent filed Crl.O.P.No.14527 of 2001 before this court for a direction to
the police to investigate the matter. This court directed the police to serve
a copy of the referred notice to enable her to approach the concerned court by
way of private complaint. In the above said Crl.O.P.No.14527 of 2001, the
petitioners were not arrayed as respondents, hence, they could not brought to
the notice of this court all the facts. Taking advantage of the order passed
by this court, the respondent has filed the above said C.C., before the
Additional Chief Metropolitan Magistrate Court, Egmore with similar
allegations. The respondent has also preferred O.S.No.1840 of 1998 before the
City Civil Court, Madras against the petitioners herein and as she felt that
no substance in her suit, she has preferred the said private complaint made
use of the order of this court to blackmail the petitioners. The petitioners
are leading and reputed medical practitioners. The private complaint is
vitiated as the earlier complaint was closed as mistake of fact. The learned
counsel for the petitioner relied upon the following judgments:-
(i) ALPIC FINANCE LTD. v. P.SADASIVAN ((2001) 3 SCC 513) wherein the
Honourable Supreme Court has held in para 5 that
“Contours of the power under section 482 Cr.P.C. Have been explained in a
series of decisions by this Court. In Nagawwa V. Veeranna Shivalingappa
Konjalgi it was held that the Magistrate while issuing process against the
accused should satisfy himself as to whether the allegations in the complaint,
if proved, would ultimately end in a conviction of the accused. It was held
that the order of Magistrate issuing process against the accused could be
quashed under the following circumstances:
“(1) Where the allegations made in the complaint or the statements of
the witnesses recorded in support of the same taken at their face value make
out absolutely no case against the accused or the complaint does not disclose
the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and
inherently improbable so that no prudent person can ever reach a conclusion
that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is
capricious and arbitrary having been based either on no evidence or on
materials which are wholly irrelevant or inadmissible; and
(4) Where the complaint suffers from fundamental legal defects, such as, want
of sanction, or absence of a complaint by legally competent authority and the
like.”
In the above case, the Honourable Supreme Court has held that when complaint
and statement of witnesses taken at their face value made out no case the same
could be quashed. And further held that merely because remedy by way of civil
suit is available is not an impediment in maintaining a criminal complaint
provided the complaint discloses the ingredients of the offence alleged.
(ii) MAJOR SINGH v. STATE OF PUNJAB (1986 CRI.L.J. 303) wherein the Punjab
and Haryana High Court has held in para 7 that
“Notice of the petition was issued n this case tot he respondentState of
Punjab, and the learned counsel for both the parties have addressed the
arguments at considerable length. Obviously, the only point which fals for
consideration is, as to whether the criminal court which was seized of the
case against the petitioners and which had framed a Charge Sheet against them
for various offences relating to acts of impersonation, forgery etc., can
proceed with the case, in pite of the final three-tier verdict of the civil
courts, culminating with the dismissal of the Regular Second Appeal by this
court, on the very points which are the subject matter of the charge Sheet in
the criminal case. In this behalf Mr.P.C.Mehta, learned counsel for the
petitioners has placed strong reliance on Karamchand Ganga Parshad V. Union
of India AIR 1971 SC 1244:(1971 Cri. LJ 1072), wherein it was observed that
“It is a well established principle of law that the decisions of the Civil
Courts are binding ont he criminal Courts. The converse is not true.” In this
case, a Division Bench of Delhi High court after elaborately hearing the
arguments in a writ petition under Art.22 6 of the Constitution of India,
rejected the Writ Petition on the sole ground of that in view of the pendency
of the criminal proceedings before some Courts, it would be inappropriate for
the High Court to pronounce on the questions arising for decision in the Writ
Petition. Their Lordships of the Supreme Court held that the High Court had
seriously erred in coming to this conclusion. The appeals were, therefore,
allowed by the Supreme Court and the cases were remitted to the High Court,
for disposal on merits, with observations which have already been noticed.”
In the above case, the Punjab and Haryana High Court has held that when the
civil proceedings ended in favour of accused on very points which were subject
matter of charge sheet in criminal case, continuance of criminal proceedings
is abuse of process of court.
(iii) GOPALAKRISHNA MENON v. D.RAJA REDDY (AIR 1983 SC 1053) wherein the
Honourable Apex Court has held in para 7 that
“In view of what we have said above, the prosecution in the instant case on
the basis of a private complaint and in the absence of a complaint from the
appropriate civil court where the alleged fraudulent receipt has been
produced, would not be sustainable. As we are of the view that if the
prosecution is allowed to continue serious prejudice would be caused to the
appellants and they would be called upon to face a trial which would not be
sustainable, we allow this appeal and set aside the decision of the High Court
and quash the complaint case filed against the appellants.”
In the above case, the Honourable Apex Court has held that in case no
complaint by court in which fraudulent money receipt is produced, prosecution
at the instance of opposite party is not maintainable.
4. Learned counsel Mr.P.Selvaraj appearing for the respondent
submitted as follows:-
The petitioners herein, in order to misappropriate the property of the
respondent, has created two documents viz., deed of power of attorney and sale
deed by forging the respondent’s signature and also by impersonation. The
respondent has filed a private complaint on 15.12 .1997 before the XIII
Metropolitan Magistrate, Egmore, Chennai against the petitioners herein and
the learned Magistrate, after perusing the complaint, directed the Crime
Branch to investigate the matter under sec.156(3) Cr.P.C. On 19.1.1998, the
said complaint was registered in Crime No.66/98 for offences under sec.465,
468, 470, 419, 429 read with 34 IPC, but, no investigation has been done
inspite of several request made by the respondent. In the result, the
respondent filed petition under sec.482 Cr.P.C. in O.P.No.14527 of 2001
before this court and this court, after verifying the necessary records,
directed the police to serve a copy of the referred notice on the respondent
to enable her to work out her remedy by approaching the concerned court by way
of private complaint against the petitioners herein. The respondent is the
owner of the property in dispute and she never executed any deed of power of
attorney to the second petitioner herein nor authorised him to execute a sale
deed and the petitioners by impersonation created the deed of power of
attorney with the intention to misappropriate the property. In order to seek
the remedy available under civil law, the respondent filed O.S.No.1840 of 1998
to declare that the sale deed and deed of power of attorney which were created
fraudulently are null and void and for other remedies. The petitioners herein
have not made out any valid ground to quash the complaint filed by the
respondent and prayed for dismissal of the present petition. The learned
counsel appearing for the respondent relied upon the following judgments:-
(i) KAMALADEVI AGARWAL v. STATE OF WEST BENGAL (2001 AIR SCW 4292) wherein
the Honourable Supreme Court has held in para 17 that
“… Criminal cases have to be proceeded with in accordance with the
procedure as prescribed under the code of Criminal Procedure and the pendency
of a civil action in a different Court even though higher in status and
authority, cannot be made a basis for quashing of the proceedings.”
In the above case, the Honourable Apex Court has held that quashing of
proceedings at initial stage merely on the grounds that the very foundation of
the criminal case is the subject matter of a civil case is unsustainable.
(ii) VITOORI PRADEEP KUMAR v. KAISULA DHARMAIAH (2001 AIR SCW 2286) wherein
the Honourable Apex Court has held in para 2 that
“The order of learned Single Judge of Andhra Pradesh High Court passed in
Criminal Revision No.602/1999 allowing the revision filed by the accused
persons on the ground that the criminal case cannot proceed because of the
pendency of a civil suit is the subject matter of the challenge in this Court.
As it appears, before the learned Magistrate, an application for discharge was
filed, but, the Magistrate was of the opinion that there exist sufficient
material to proceed with the criminal case and therefore prayer for discharge
was rejected… Moreso, there is an earlier order of the High Court itself.
In this view of the matter, we set aside the impugned order of the High Court
and direct that the criminal proceedings should be continued. We make it
clear that any observation made, will not bind the Magistrate.”
In the above case, the Honourable Apex Court has held that quashing of
criminal proceedings on the ground that civil suit for specific performance is
pending is untenable.
(iii) M.KRISHNAN v. VIJAY SINGH (2001 AIR SCW 4142) wherein the Honourable
Supreme Corut has held in para 9 that
“Right from the case of R.P.Kapur V. State of Punjab AIR 1960 SC 866: (1960
CRI LJ 1239), this Court has held that revisional or inherent powers for
quashing the proceedings at the initial stage can be exercised only where the
allegations made in the complaint or the first information report, even if
taken at their face value and accepted in their entirety, do not prima facie
disclose the commission of an offence or where the uncontroverted allegations
made in the FIR or complaint and the evidence relied in support of the same do
not disclose the commission of any offence against the accused, or the
allegations are so absurd and inherently improper that on the basis of which
no prudent person could have reached a just conclusion that there were
sufficient grounds in proceeding against the accused or where there is an
express legal bar engrafted in any provisions fo the Code or any other statute
to the institution and continuance of the criminal proceedings or where a
criminal proceeding is manifestly actuated with mala fide and has been
initiated maliciously with the ulterior motive for wrecking vengeance on the
accused and with a view to spite him due to private and personal grudge.”
In the above case, the Honourable Supreme Court has held that when the
complaint alleges commission of offence of cheating and fraud, quashing of
complaint merely on grounds that nature of dispute was primarily of civil
nature is not proper.
(iv)LALMUNI DEVI v. STATE OF BIHAR (2001 AIR SCW 2504) wherein the Honourable
Apex Court has held in para 8 that
“There could be no dispute to the proposition that if the complaint does not
make out an offence it can be quashed. However, it is also settled law that
facts may give rise to a civil claim and also amount to an offence. Merely
because a civil claim is maintainable does not mean that the criminal
complaint cannot be maintained. In this case, on the facts, it cannot be
stated, at this prima facie stage, that this is a frivolous complaint. The
High Court does not state that on facts no offence is made out. If that be
so, then merely on the ground that it was a civil wrong the criminal
prosecution could not have been quashed.”
In the above case, the Honourable Supreme Court has held that merely because a
civil claim is maintainable, it does not mean that criminal claim cannot be
maintained.
(v) M/s.MEDCHL CHEMICALS & PHARMA PVT. LTD., v. M/S.BIOLOGICAL E. LTD.
(2000 AIR SCW 682) wherein the Honourable Apex Court has held in para 16 that
“Be it noted that in the matter of exercise of High Court’s inherent power,
the only requirement is to see whether continuance of the proceeding would be
a total abuse of the process of Court. The Criminal Procedure Code contains a
detailed procedure for investigation, charge and trial, and in the event, the
High Court is desirous of putting a stop to the known procedure of law, the
High Court must use a proper circumspection and as noticed above, very great
care and caution to quash the complaint in exercise of its inherent
jurisdiction.”
In the above case, the Honourable Apex Court has held that the High Court,
while exercising its inherent powers has to see whether continuance of
proceedings would be a total abuse of the process of court and the High Court
must use its power with very great care and caution before quashing the
complaint in exercise of its inherent jurisdiction.
5. Sec.482 Cr.P.C. confers a separate and independent power on the
High Court alone to pass orders ex-debito justitiae in cases where grave and
substantial injustice has been done or where the process of the Code has been
seriously abused. Inherent power conferred on the High Court under section
482 has to be used sparingly, carefully and with caution and only where such
exercise is justified by the tests specifically laid down in the section
itself. It is only when the ends of justice are put in jeopardy by the
conduct of the parties, the inherent power can be exercised. A proceeding
initiated on a complaint can be quashed when the complaint taken as a whole
does not disclose any offence. In appropriate cases the High Court can
exercise inherent powers to protect a person from illegal and vexatious
prosecution, but, where the circumstances do not so warrant the High Court
should not quash the proceedings in exercise of inherent jurisdiction.
6. The Honourable Supreme Court in R.P.KAPUR v. STATE OF PUNJAB (
AIR 1960 SC 866) has indicated some of the categories of cases where the
inherent jurisdiction to quash proceedings can and should be exercised as
(i) Where it manifestly appears that there is a legal bar against the
institution or continuance of the criminal proceeding in respect of the
offence alleged.
(ii) Where the allegations in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety, do
not constitute the offence alleged.
(iii) Where the allegations made against the accused person do constitute an
offence alleged but there is either no legal evidence adduced in support of
the case or the evidence adduced clearly or manifestly fails to prove the
charge. So far as cases other than the categories of the cases mentioned
above, the High Court shall refrain from exercising its inherent powers under
sec.482 Cr.P.C.
7. In a proceeding instituted on a complaint, exercise of 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. When an allegation on a complaint discloses a prima facie case,
the process is issued by the Trial Magistrate, quashing of such proceedings is
illegal.
8. The allegation in the complaint against the petitioners herein is
that the first petitioner herein is the maternal uncle of the respondent
herein, during the last week of August 1992, he has induced her to hand over
the sale deed in respect of the property in dispute to him enabling him to
arrange for loan for the purpose of construction of a building in the said
plot for her. It is further alleged that she has entrusted him the original
title deeds of the said plot, but, he failed to arrange for loan till the
middle of May 1997, she and her husband requested him to return the original
sale deed, but, he has been giving evasive reply. The first petitioner has
allegedly informed the complainant that the original sale deed was lost. She
has approached the Sub-Registrar’s office for issuance of encumbrance
certificate. The encumbrance certificate issued by the Sub Registrar
discloses that a power of attorney was executed in the name of the respondent
in favour of the second petitioner herein and the second petitioner allegedly
by virtue of the power of attorney, executed sale deed in favour of the first
petitioner’s minor son. Immediately, she has filed a private complaint before
the XIII Metropolitan Magistrate, which was forwarded under sec.156(3) Cr.P.C.
to the police, and the police registered a case in Crime No.66/98 for offences
under sec.465, 468, 470, 419, 420 read with sec.34 IPC, but, no investigation
has been commenced by them, she has filed a petition under sec.482 Cr.P.C for
a direction to the police to investigate the case. When the police reported
that the case was referred as mistake of fact, but, no referred notice was
served on her, this court directed the police to serve refer notice to enable
her to file private complaint. The respondent has filed a private complaint
before the Additional Chief Metropolitan Magistrate, Egmore, Chennai which was
taken on file and as it is evident that there is sufficient ground for a
proceeding and the learned Magistrate has ordered for issuance of summons to
the attendance of the petitioners/accused. The respondent also filed a suit
before the competent civil court for a declaration to declare that the deed of
power of attorney as well as the sale deed both said to have been executed by
her is null and void.
9. The learned counsel appearing for the petitioners advanced
argument that when a civil proceedings has been initiated, on the said set of
facts, a criminal proceedings initiated in a private complaint is
unsustainable in law. It is also argued by the learned counsel appearing for
the petitioners that when the respondent has also filed a civil suit where she
has canvassed the with regard to forgery and impersonation that the deed of
power of attorney and sale deed were created by the petitioners, the civil
court is the competent court to file a complaint, as such the private
complaint initiated by the respondent is not maintainable.
10. In GOPALAKRISHNA MENON v. D.RAJA REDDY (AIR 1983 SC 1053), the
money receipt alleged to have been forged was produced before the civil court,
but, the same court has not chosen to give a complaint as contemplated under
sec.195(1)(b)(ii) of Cr.P.C., but, the private complaint has been initiated by
the other side. The Honourable Apex Court has held that the same is
unsustainable in law since no complaint has been preferred by the court. This
judgment is not applicable to the facts and circumstances of the present case
since no such document was produced by the petitioners herein during the
pendency of the civil suit to attract sec.195(1)(b)(ii) of Cr.P.C. The
argument of the learned counsel for the petitioners that when a civil suit is
already filed, such a criminal complaint is not maintainable is also
unsustainable in law. In ALPIC FINANCE LTD. v. P.SADASIVAN ((2001) 3 SCC 51
3) relied on by the learned counsel appearing for the petitioner, the facts in
that case were that a person who availed a loan failed to repay the same as
per the lease agreement. The Honourable Supreme Court has held that on facts,
the complaint does not disclose the element of deception or fraud or dishonest
inducement or wilful misrepresentation in the entire transaction and
ultimately quashed the complaint, hence the said judgment is not applicable to
this case. In MAJOR SINGH v. STATE OF PUNJAB (1986 CRI. LJ 303) criminal
action was initiated for various offences relating to acts of impersonation,
forgery, etc. against the accused in spite of final three tier verdict of
civil courts culminating with the dismissal of regular second appeal on the
very points against the complainant. The remedy sought for by the respondent
before the Trial Court is to declare that the deed of power of attorney as
well as the sale deed is null and void which suit is pending. But, the
criminal proceedings are initiated by her for the alleged offences under
sec.465, 468, 470, 419, 420 read with sec.34 IPC. In a criminal court, the
allegations made in the complaint have to be established independently.
Hence, this judgment is not applicable to the present case.
11. Even the judgment relied on by the counsel for the petitioner
reported in (2001) 3 SCC 513 cited supra, the Honourable Supreme Court has
laid down the ratio that merely because remedy by way of civil suit is
available is not an impediment in maintaining a criminal complaint provided
the complaint discloses the ingredients of the offence alleged. So, now we
have to look into whether the complaint filed by the respondent discloses the
alleged offences or not. It is not the case of the petitioners that the
complaint does not discloses the ingredients of the offences alleged, but,
only canvassed that the present complaint is vitiated as the earlier complaint
was closed and suit for the same relief is filed. The respondent has stated
valid reasons for filing the present complaint that the police has failed to
investigate the matter.
12. On a careful reading of the complaint, I am of the view that the
complaint preferred by the respondent herein discloses the ingredients of the
alleged offences under sec.465, 468, 470, 419, 420 read with sec.34 IPC.
However, it is for the Trial Court to decide whether or not the allegations in
the complaint are otherwise correct on the basis of the evidence to be lead at
the time of Trial. I am not inclined to exercise the power under sec.482
Cr.P.C.
13. In the result, this petition is dismissed without expressing any
opinion on merits of the case. The learned Magistrate shall proceed with the
complaint and dispose of the same in accordance with law without taking into
account any observation made by me.
Index: Yes.
Internet: Yes.
ssk.
To
The Additional Chief Metropolitan
Magistrate,
Egmore,
Chennai.