BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/06/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.3831 of 2007 and M.P(MD)Nos.2 and 3 of 2007 1.Thangadurai Nadar 2.Dr.Rajesh 3.George Joseph ... Petitioners Vs Devadoos Jebaraj ... Respondent Prayer Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records relating to C.C.No.208 of 2006 on the file of the learned Judicial Magistrate No.I, Tirunelveli, filed under Section 200 Cr.p.C and quash the same. !For Petitioners ... Mr.K.Mahendran ^For Respondent ... Mr.M.Patturajan :ORDER
This petition has been focussed to call for the records relating to
C.C.No.208 of 2006 on the file of the learned Judicial Magistrate No.I,
Tirunelveli, filed under Section 200 Cr.p.C and quash the same.
2. A re’sume’ of facts absolutely necessary for the disposal of this
petition as found set out from the records and as transpired from the arguments
of both sides, would be to the effect that between the defacto complainant and
the petitioners/accused herein, there were previous civil litigations and now,
the matter is pending before the Honourable High court in Second Appeal. In the
meanwhile, it appears that the respondent filed a private complaint which was
taken on file by the learned Judicial Magistrate No.I, Tirunelveli, as
C.C.No.208 of 2006 and the learned Magistrate proceeds with the matter and
adopts the warrant procedure relating to that complaint case and before framing
the charges, P.W.1 and P.W.2 have also been examined. At that stage, the
petitioners/accused have chosen to file this petition to get the matter quashed.
3. The learned Counsel for the petitioners/accused would submit that
previously at the instance of the same complainant, the police registered the
case in Cr.No.13 of 2005 under Sections 465, 467, 468, 471 and 474 read with
Sections 120(B),34 and 109 I.P.C and ultimately, it was referred as ‘civil in
nature’ on the ground that a civil case was pending and thereafter, so to say,
from the date of the alleged occurrence, i.e, eleven years after, the present
complaint was filed and now, the criminal proceedings are in progress. The
respondent claims to be the person who derived title from one Jegannathan who
was not examined in the previous proceedings. Now, under the pretext of going
to proceed with the matter with the help of Jegannathan, the criminal matter is
processed. According to the petitioners, it is an abuse of criminal process and
it has to be quashed.
4. The learned Counsel for the respondent would submit that the Sub Court
which is the first appellate Court in paragraph No.41 of its judgment had made
an observation that the plaintiff could not prove the forgery of the signature
of the said Jegannathan in the power of attorney deed in favour of the third
petitioner/A.3 herein; that Jegannathan was not examined in the Civil Court and
that now, the said Jegannathan is very much present and he has been examined as
P.W.2 in C.C.No.208 of 2006 before framing charges.
5. As such, the nitty-gritty of the case of the complainant is that even
though Jegannathan conveyed the title in favour of the complainant relating to
the immovable property, the third petitioner/A.3 by preparing forged power deed
of Jegannathan, executed the sale deed in favour of A.1 and A.2. These are
certainly factual issues which this Court while exercising the power under
Section 482 Cr.P.C is not expected to decide finally. It is crystal clear that
under Sections 244 and 245 Cr.P.C., the petitioners who are accused, are having
the due opportunity to get alleged the injustice eliminated by filing the
discharge petition, even otherwise, the learned Magistrate is duty bound to see
as to whether any prima facie case has been made out before framing the charges.
6. The learned Counsel for the petitioners would cite the decision of the
Honourable Apex Court in Suresh v. Mahadevappa Shivapa Danannava and another
reported in 2005-1-L.W.-(Crl.)-218. An excerpt from it, would run thus:
“10. … A perusal of the complaint would show that the entire dispute
raised by the complainant is based on the alleged agreement to sell dated
25.12.1988 nearly 11 years prior to the filing of the private complaint on
17.05.1999. For nearly 3 years from the date or reply, the complainant kept
quiet before filing his complaint on 17.05.1999 before the Magistrate. It is
stated that even as per the police report, no offence is made out against
accused Nos.2-4. Despite this, the Magistrate issued process against accused
Nos.2-4 as well which clearly shows the non-application of mind by the
Magistrate. A perusal of the complaint would only reveal that the allegations
as contained in the complaint are of civil nature and do not prima facie
disclose commission of alleged criminal offence under section 420 I.P.C. In our
opinion, the Magistrate ought not to have taken cognizance of the alleged
offence against the accused No.1, the appellant herein and that the complaint
has been made to harass the accused No.1 to come to terms by resorting to
criminal process.”
7. The perusal of the aforesaid extract would show that in that particular
case, the Honourable Apex Court gave a categorical finding to the effect that
the matter was civil in nature; after long lapse of eleven years, just for the
purpose of harassing the accused therein, such complaint was filed. Here, the
position is different; the offence of forgery has been pleaded and that
according to the petitioners, the said Jegannathan could not be examined earlier
in the Civil proceedings. Now, the complainant with the help of Jegannathan, is
trying to process the matter in the Criminal Court. While narrating the history
of the allegations and counter allegations, I do not in any way, express my
opinion about the truth or falsity of the contentions of both sides. It is for
them to canvass their case before the learned Magistrate and get appropriate
orders.
8. In the result, this petition is disposed of with the direction to the
effect that the learned Magistrate of his own accord, if no petition is filed
for discharge, see as to whether the decisions rendered by the civil Court are
having any nexus whatsoever with regard to the criminal complaint and whether it
is a bar for criminal proceedings. The delay as canvassed by the
petitioners/accused before this Court, shall also be considered before framing
charges. Consequently, connected M.P(MD)Nos.2 and 3 of 2007 are also closed.