IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28-3-2011
CORAM
THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI
CRL.O.P.No.5165 of 2009
and M.P.No.1 of 2009
P.L. Meenakshi Sundram .... Petitioner
vs
1. The State rep by
The Inspector of Police
Central Crime Branch
Coimbatore
2. V. Sunderraj .... Respondent
(impleaded as 2nd respondent as per order of
this Court in MP No.2 of 2009 dated 28.4.2009)
Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein.
For petitioner : Mr.M.K. Kabir, Senior Cournsel for
Mr.S. Sivakumar
For 1st respondent : Mr.S. Rajakumar
Govt.Advocate (Crl.Side)
For 2nd respondent : Mr.S.D. Venkateswaran
Mr.R. Vijayakumar
ORDER
By consent of both sides, the petition has been taken up for final hearing. The petition has been filed seeking a direction to call for the records in Cr.No.67 of 2004 on the file of the respondent police and quash the same.
2. The 2nd respondent has given a complaint dated 30.12.2004 against 11 named accused for an alleged offence under Sec.120-b, 465, 468, 471 and 420 IPC and a case has been registered by the 1st respondent in Cr.No.67 of 2004 and it is pending investigation.
3. The complaint relates to a property in S.No.4/1 situated Anuparpalayam village, Coimbatore to an extent of 32 cents and another property in S.No.490/2 of Seerapalayam of an extent of 1.97 acres. The petitioner entered into sale agreements with one Kalaiselvan who is the power of attorney of one Velumani who is the father of the complainant. The said sale deeds were cancelled vide documents dated 21.6.2004 and 20.8.2004. The said Kalaiselvan sold the property to various individuals. However, the defacto-complainant, who is the son of the original owner of the property has given the present complaint and the sum and substance of the complaint is that the petitioner, the said Kalaiselvan and various other persons have created forged and fraudulent documents and they have dishonestly cheated and has taken away valuable property.
4. According to the petitioner one Velumani and his two brothers K.venkatesan and K. Swaminathan were partners of a Company named The New City Engineering Company. Later, it was registered as a Company under the Companies Act. In 1987, the Company became defunct and there were more than 100 employees, whose salaries were not paid. Apart from the dues, the Company became liable to pay huge amount to State Bank of India. There was a negotiation between the parties and a tripartite agreement was entered on 28.2.2004. Pursuant to which, it was agreed to sell the property and appropriate the sale consideration towards the amount payable to the employees and also to the Bank.
5. Mr.M.K. Kabir, learned senior counsel who appeared for Mr.S. Shivakumar would submit that the petitioner had advanced huge amounts for settlement of disputes and therefore, the said Kalaiselvan, being the power of attorney of the father of the defacto-complainant, executed two sale agreements and later they were cancelled. The learned counsel also pointed out that the said Kalaiselvan sold the properties to various persons and that being so, the petitioner has been arrayed as A.1 on the complaint given by the defacto-complainant alleging fraud and cheating. The learned counsel pointed out that the petitioner has nothing to do with the alienation of the property and registration of FIR is nothing but abuse of process of law. The learned counsel also drew our attention to the various documents and agreements between the parties.
6. Per contra, Mr.S.D. Venkateswaran, learned counsel for the respondent would submit that the petitioner is the prime accused and forged and fraudulent general power of attorney was created at the instigation of the petitioner by the said Kalaiselvan. The learned counsel drew the attention of this court to a confession statement given by the said Kalaiselvan before a judicial Magistrate and submitted that the prima-facie allegations strengthened with the statement would constitute serious offence against the petitioner and the investigation has to be allowed to be continued for its logical conclusion. The learned counsel produced statement of the said Kalaiselvan given under Sec.164 Cr.P.C dated 2.11.2010.
7. The learned Senior counsel for the petitioner relied on the following decisions for the following ratios:
1992 Supp (1) SCC 335 (State of Haryana and Others vs Bhajan Lal and others)
2008 (12) SCC 531 (George Pentaiah vs State of Andhra Pradesh and Others)
RATIO: Where allegations made in the FIR or complaint do not prima facie make out a case or disclose a cognizable offence or Commissin of any offence, and or observed inherently improbable or there is a legal bar and it is proceeded with malafide or ulterior motive the inherent power under Section 482 Cr.P.C can be exercised by the High Court
(II)
1982 (1) SCC 466 (Chandrapal Singh and Others vs Maharaj Singh and another)
2000(2) SCC 636 (G. Sagar Suri and another vs State of U.P and others)
AIR 2010 SC 3624 (Kishan Singh vs Gurpal Singh)
2010 (1) LW Crl.56 (E. Gokulakrishnan and another vs The Inspector of Police, Saravanpatti Police Station, Coimbatore
AIR 1989 SC 2222 (State of U.P Vs R.K. Srivastava
RATIO: Chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of Criminal Court. Such invocation constitutes an abuse of process of law. However, where FIR is lodged with sole intention of harassing the respondents and enmeshing them in long arduous Criminal Proceedings the same constitutes an abuse of process.
8. The learned counsel for the respondent relied on the following decisions:
2002 1 SCC 555 (Kamladevi Agarwal vs State of West Bengal and others)
2005 13 SCC 540 (State of Orissa and another vs Saroj Kumar Sahoo)
unreported judgment in Crl.O.P Nos.16705 and 19155 of 2010 dated 26.11.2010 and
2010 Crl L.J. 513 (Devendra Gupta and another vs State and others)
9. Heard and perused the materials available on record.
10. A case has been registered on a complaint given by the respondent against 13 persons for the alleged offences under Sec.465, 468, 471, 420 r/w 120-B IPC. The petitioner has been arrayed as A.1. The dispute relates to a property originally belonged to one New City Engineering Company founded by one K. Velumani and his two brothers viz., K. Venkatesan and K. Swaminathan. Admittedly, there were debts and the property was to be sold to settle the debts due to the bank and to the labourers. A tripartite agreement was executed on 28.2.2004 between the said Velumani on the management side and one Ganapathy who represented the labourers in front of the Tahsildar and a sum of Rs.45,00,000/- has to be paid. It was agreed to sell the portion of the property to settle the dues. One Kalaiselvan was authorised to negotiate and settle the matter. However, there was a sale agreement between the petitioner and the original owners of the property dated 24.5.2004. It was cancelled on 21.6.2004. Admittedly, the petitioner has advanced some amount and an acknowledgement was also executed. Later, property was sold by the said Kalaiarasan in the capacity of as power of attorney to various persons. One of the legal heirs of the Velumani is challenging those transactions stating that the accused had forged the documents and executed sale deeds with dishonest intention of cheating the family members.
11. In the celebrated case of State of Haryana and Others vs Bhajanlal and others, reported in 1992 Supp (1) SCC 335 , the Apex Court has clearly laid down the guidelines, where the inherent powers under Sec.482 of the Court could be exercised.
“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.
12. In the entire complaint, following are the allegations in respect of the petitioner:
a) the said Kalaiselvan removed the superstructure and demolished the entire compound wall of the factory belonging to the family with the help of A.1 (the petitioner herein) who is a scrap dealer as well as money lender in Coimbatore and the entire scrap, building material, superstructure were taken away by A.1 and A.2.
A.1 and A.2 have applied the funds realised from the above sale proceeds for the payment of labour dues and bank dues.
ii) A.13 , the Manager of the State Bank of India, criminally conspired with A.1 and A.2, and had handed over the documents of the property to A.1 and A.2.
iii) A.1 and A.2 criminally conspired together with the dishonest intention to grab the property of the family, prepared forged power of attorney deeds
iv) A.1 to A.13 with dishonest intention to cheat the family members have sold the properties to various persons for meagre amounts.
13. It is well settled that to constitute an offence under Sec.420 IPC, there must be dishonest intention at the inception. It is also well settled that when the allegations made in the complaint, even if they are taken at their face value and accepted in its entirety, do not prima-facie constitute any offence, the court can and should interfere to exercise the power under Sec.482 Cr.P.C.
14. Even according to the complaint, the petitioner and the said Kalaiarasan had assisted the company to settle the dues for the labourers and for the Bank. A dishonest intention at the beginning was not alleged. The father of the complainant and the other legal heirs of the lawful owners have executed power of attorney in favour of the said Kalaiarasan, pursuant to which, he has sold the property under various sale deeds. Therefore, the petitioner has not played any role in forging any document or creating of false or fraudulent document.
15. 2002 1 SCC 555 (Kamladevi Agarwal vs State of West Bengal and others), is a case where the Supreme Court held that criminal proceedings cannot be quashed merely because of pendency of civil proceedings between the same parties and the inherent power should be exercised sparingly when the complainant made out a prima facie case against the accused persons for forgery. However, the facts are not applicable to the present case.
16. In 2005 13 SCC 540 (State of Orissa and another vs Saroj Kumar Sahoo), the Hon’ble Supreme Court held that the High court should not ordinarily embark upon on enquiry as to the reliability of the evidence to sustain the allegations which is the function of the trial judge. This judgment is also not applicable to the case on hand as this court is considering only the prima facie allegations.
17. In 2010 Crl L.J. 513 (Devendra Gupta and another vs State and others), this court held that when there are valid materials to proceed against the accused the respondent police must be allowed to continue to investigate and the FIR should not be quashed at the inception.
18. The learned counsel for the respondent relied on a statement recorded from A.2 viz., Kalaiselvan under Sec.164 of Cr.P.C. A confession statement of the co-accused in course of investigation cannot be a basis to find out whether there is prima-facie allegation made in the complaint to constitute an offence. Therefore, the decision relied on by the respondent will not come to his aid as the at statement cannot be relied on.
19. The facts and circumstances of the present case squarely falls on the illustration (1) of para 102 of Bhajanlal’s case reported in 1992 Supp (1) SCC 335. Therefore, the it is a fit case to interfere and quash the first information at the inception, otherwise it will be a abuse of process of law.
20. In the result, the criminal original petition is allowed and as far as the petitioner is concerned the proceedings in Cr.No.67 of 2004 pending on the file of the respondent police is quashed. Consequently, connected MP is closed.
sr
To
1. The Inspector of Police
Central Crime Branch
Coimbatore
2. The Public Prosecutor, High Court,
Chennai