Allowed

Malini v. Inspector of Police

Madras HC13 Jun 2011CRL OP/20223/2009

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings launched against petitioners for cheating. The dispute stemmed from a property sale where purchasers sought to convert a civil matter into a criminal case by alleging fraud after the seller gifted the property to her children. The court held the matter was purely civil.

What did the court decide?

The Criminal Original Petitions were allowed; the proceedings in C.C.Nos.155, 156 of 2009 and Cr.No.229 of 2010 were quashed; connected Mahila Petitions were closed.

Malini Vs Inspector of Police — Contract and Commercial Disputes | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 13-6-2011

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CORAM:

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THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI

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CRL.O.P.Nos. 20223, 21466 and 24441 of 2009 and 15126 of 2010 and M.P.Nos.1 of 2009(3 in Nos.) and 1 of 2010

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Crl.O.P.No.20223 of 2009

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Malini
2. Mrs.Vijayalakahsmi
3. Thilothama
4. Savithiri ... Petitioners/A4,A5, A6 & 7
vs
1. Mrs.Gunavathy
2. Mohamed Safudeen
3. State rep by
The Inspector of Police
Crimes,
T-4, Maduravoyal Police Station
Chennai-95 ... Respondents/Complainants

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Crl.O.P.No.21466 of 2009

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1.Mrs.Padhamavathy
2.M.R. Balaji
3.M.R. Udhayakumar
4.Malini
5.Mrs.Vijayalakshmi
6.Thilothama
7.Savithiri .... Petitioners/A1 to A7
vs
1. State rep by
The Inspector of Police, Crimes
T-4, Maduravoyal Police Station
Chennai ..Ist Respondent/Complainant
2. Rajendran
3. Sumathi ... Respondents 2 & 3/Defacto
Complainants
CRL.O.P.No.24441 of 2009

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https://hcservices.ecourts.gov.in/hcservices/

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Mrs.Padhmavathy

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M.R. Balaji 3. M.R. Udhayakumar ... Petitioners/Accused 1 to 3

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State rep by The Inspector of Police, Crimes T-4, Maduravoyal Police Station Chennai ..Respondent/Complainant

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Gunavathy 3. Mohammed Sarfudeen ... 2nd & 3rd Respondents/ Defacto Complainants Crl.O.P.No.15126 of 2010 1. Mrs.Padhmavathy 2. M.R. Balaji 3. M.R. Udhayakumar .... Petitioners/Accused 1 to 3 vs 1. State rep by The Inspector of Police, Crimes T-4, Maduravoyal Police Station Chennai ...Respondent/Complainant 2. Ramaravindra Kumar ..Respondent/Defacto Complainant Criminal Original Petitions filed under Section 482 Cr.P.C. for the reliefs as stated therein.

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For petitioner : Mr.K.Veeraragavan in all Crl OPs

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For respondents 1 & 2 in Crl.O.P.Nos.20223 of 2009 : Mr.Ramesh, Senior Counsel For Mr.N.R.Anantha Ramakrishnan

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For respondents 2 & 3 in Crl.O.P.No.21446/2009 : Mr.Ramesh, S.C. for Mr.N.R.Anantha Ramakrishnan For respondents 2 & 3 in Crl.O.P.No.24441/2009 : Mr.Ramesh, S.C. for Mr.N.R.Anantha Ramakrishnan For 3rd respondent in Crl.O.P.No.20223/2009 : Mr.Hassan Mohamed Jinnah

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https://hcservices.ecourts.gov.in/hcservices/

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For Ist respondent

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in Crl.O.P.No.21446/2009 : Mr.Hassan Mohamed Jinnah Crl.OP.Nos.24441/2009 & 15126/2010

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For 2nd respondent in Crl.O.P.No.15126/2010 : Mr.G. Karthikeyan

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COMMON ORDER

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The above petitions have been preferred seeking to call for the records in C.C.Nos.155, 156 of 2009 on the file of learned Judicial Magistrate No.II, Poonamallee, and Cr.No.229 of 2010 on the file of T-4 Maduravoyal Police Station and to quash the same.

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All these cases have been heard together and they are given disposal by the common order. The 1^st petitioner is the mother and the other petitioners are her sons and daughters. The property in Old S.No.88/1D, New S.No.117/2 measuring total extent of 1.61 acres, belongs to the 1^st petitioner/mother. On 26.3.2003, the complainants in Cr.No.2693/2007, who are husband and wife entered into a sale agreement for the purchase of the aforesaid property for a sum of Rs.27,37,644/- and initially paid a sum of Rs.5,00,000/- as advance and later a sum of Rs.1,00,000/-. The petitioners' sons were witnesses to the agreement. However, there were some encroachment in the property and it was agreed that the sale shall be concluded on removal of those encroachments. Removal of encroachments has lead to civil and criminal proceedings.

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While so, an agreement was entered into between the complainants and the 1^st petitioner and thereby, the complainants agreed to restrict their sale agreement for half of the property and the remaining half was to be sold to the 2^nd complainant.

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On 16.8.2005, the 1^st petitioner entered into a sale agreement with the 2^nd complainants for the half of the property and received a sum of Rs.6,50,000/- as advance. The sale consideration was Rs.13,68,222/-. However, the sale deeds were not executed.

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According to the complainants, after removal of the encroachments by the active participation of the agreement holders, in order to deceive them, the 1^st petitioner had stealthy and fraudulently executed a gift settlement deed in favour of her children on 5.3.2007. The agreement holders of the earlier sale agreement had given a complaint in Cr.No.2693 of 2007 for the offences under secs.120-B and 420 IPC. Similarly, the agreement holders of the second agreement had given a complaint in Cr.No.2694 of 2007 for a similar offence. Both the cases have been investigated by the respondent police and charge sheets have been https://hcservices.ecourts.gov.in/hcservices/ filed in C.C.No.155 and 156 of 2009.

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Meanwhile, one Rama Ravindra Kumar, who claims to be the broker, had also given a complaint that he was promised by the petitioners certain commission which was not paid to him and therefore, he had given a complaint alleging offences under Secs.406 and 408 IPC and the same has been registered in Cr.No.229 of 2010 by Maduravoyal Police Station. Seeking to quash the charge sheet as well the FIR, the petitioners are now before this court invoking the powers under Sec.482 Cr.P.C by way of present criminal original petitions.

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Mr.K. Veeraraghavan, learned counsel for the petitioner, would submit the following points for consideration:

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a) the defacto-complainants have filed civil suits for specific performance of the contract in O.S.No.181 of 2007 and 182 of 2007 and they are pending trial. Therefore, the dispute is purely civil in nature and there is no criminality.

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b) the sale agreements were entered into in the year 2003 and 2005 and the time is the essence of the contract and the agreement holders are not ready and willing to perform their part of contract and therefore, out of love and affection, the 1^st petitioner executed the gift settlement deed in favour of her children. Therefore, there is no cheating .

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c) there is no deception at the inception of the agreement and the offence under Sec.420 IPC cannot be drawn into.

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d) in both the complaints, the allegations and the facts being one and the same, the 2^nd complaint cannot be entertained.

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e) the complainant one Rama Ravindra Kumar with a view to cheat the aged 1^st petitioner, under the guise that he would remove the encroachers, obtained power deeds and is now trying to take away the property and there is no question of the petitioners cheating the alleged broker.

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The learned counsel for the petitioner relied on the following case laws: Harmanpreet Singh Ahluwalia and others vs State of Punjab and others (2009) 3 SCC (Crl) 620

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S.W. Palanitkar and Others vs State of Bihar and another (2002) SCC (crl) 129

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Anil Mahajan vs Bhor Industries Ltd and another (2006) 1 SCC (crl) 746

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https://hcservices.ecourts.gov.in/hcservices/

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Inder Mohan Goswami and another vs State of Uttaranchal and Others (AIR 2008 SC 251 = (2008) 1 SCC (Crl.) 259)

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On the contrary, Mr.A. Ramesh, the learned Senior Counsel for the complainants vehemently opposing grant of the relief by this Court, as sought for by the petitiners, would point out that while exercising jurisdiction under Sec.482 of the Code., the High Court would not ordinarily embark upon a roving enquiry whether the evidence is enough to convict or acquit a person.

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He would further point out that having agreed to sell the property, after receiving a huge sum as advance and on removal of the entire encroachment at the intervention of the purchasers, the 1^st petitioner, even while existence of the agreement, solely with an intention to cheat the complainants, executed the gift settlement deed, thereby, the entire scheme of deceptioin is exfacie apparent from the beginning and therefore the acts would attract an offence under Sec.420 IPC. According to the learned counsel, in such a circumstance, when there is a clear case of criminal conspiracy to cheat the purchaser has been prima-facie made out by the complainants, this court may not to interfere with the trial and the criiminal proceedings so that a logical conclusion may be arrived at therefrom.

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The learned senior counsel for the

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respondents/complainants relied on the following case laws:

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an unreported judgment of the Apex Court in Crl.Appeal No.590 of 2007 dated 27.8.2010 (State of Maharashtra & Others vs Arun Gulab and Others)

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an unreported judgment of the Apex Court in Crl.Appeal No.1252 of 2010 dated 15.7.2010 (State of A.P vs Gourishetty Mahesh and Others)

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Jeffrey J Diermeier and another vs State of West Bengal and another (2010) 6 SCC 243

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S.P. Gupta vs Ashutosh Gupta (2010) 6 SCC 562

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an unreported judgment of the Apex Court in Crl.Appeal No.574 of 2010 dated 22.2.2010 (K. Neelaveni vs State rep by Inspector of Police and others)

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I have heard and gave my anxious consideration. Exercising the power under Sec.482 Cr.P.C has been now well settled. 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.

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"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 https://hcservices.ecourts.gov.in/hcservices/ extraordinary power under Article 226 or the inherent

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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.

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(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.

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(2) Where the allegations in the first information report and other materials, if any, accompanying, the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR 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.

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(4) Where, the allegations in the FIR 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.

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(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.

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(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.

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(7) Where a criminal proceeding is manifestly attended with malafide 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.

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Following the judgment there has been catena of judgments defining the power of the High court to quash the criminal proceedings under Sec.482 Cr.P.C.

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It is well settled that the High Court ordinarly is not https://hcservices.ecourts.gov.in/hcservices/ expected to conduct a roving enquiry or sift the evidence to find

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out whether there are enough evidence to convict a person or not. Similarly, it is also well settled that the High Court may exercise its power to prevent abuse of process of court or otherwise to secure the ends of justice and such power should also be exercised sparingly.

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In R.P. Kapur vs State of Punjab AIR 1960 SC 866, this court laid down the following principles:

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(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice.

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

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(iii) Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged and

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

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In Madhavrao Jiwaji Rao Scindia and another vs Sambhajirao Chandrojirao Angre and others (AIR 1988 SC 709), this Court held as under:

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“The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage”

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At this juncture, it may be highlighted that a wrongful act such as criminal breach of trust, misappropriation, cheating may give raise to action both on civil and criminal sides. Further Acts not constituting an offence do not warrant a criminal prosecution. In a case where ingredients of alleged offences not seem to be attracted even prima-facie, it cannot be said that power under Sec.482 Cr.P.C should not be exercised to quash the https://hcservices.ecourts.gov.in/hcservices/ proceedings. In such a circumstance, as in the given case, It is

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the duty of the court to see that the criminal prosecution is not used as an instrument of harassment or for wrecking private vendata or with an ulterior motive to pressurise the accused.

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In Indian Oil Corproation vs NEPC India Limited 2006 (6) SCC 736 the Apex Court cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases by observing thus:

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“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.”

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The learned counsel for the petitioner relied on a decision reported in (2002) SCC (Crl) 129 (S.W Palanitkar and Others vs State of Bihar and another), in which the Apex Court has held as follows:

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"27. .... Exercise of inherent power is avilable to the High Court to give effect to any order under Cr.P.C, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 Cr.P.C should be consistent with the scope and ambit of the same in the light of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive, exercise of inherent power is not only desirable but necessary also, so tht the judicial forum of court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 Cr.P.C to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with circumspection as stated above to really serve the purpose and object for which they are conferred.

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He also relied on a decision reported in (2006) 1 SCC (Crl) 746 (Anil Mahajan vs Bhor Industries Ltd and another), in which the Apex Court has held as follows: "6.... Reliance has been placed, in that order, on various decisions of this Court holding that from mere failure of a person to keep up promise subsequently, a culpable intention right at the beginning, that is, when he made the promisews cannot be presumed. A distinction has to be kept in mind between mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction."

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https://hcservices.ecourts.gov.in/hcservices/ 21. He further relied on a decision reported in 2008 (1) SCC

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Crl 259 (Inder Mohan Goswami and another vsState of Uttaranchal and Others) = AIR 2008 SC 251, in which the Hon'ble Supreme Court held thus:

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"22. The only veracity of the facts alleged by the appellants and the respondents can only be ascertained on the basis of evidence and documents by a civil court of competent jurisdiction. The dispute in question is purely of civil nature and respondent 3 has already instituted a civil suit in the Court of the Civil Judge. In the facts and circumstances of this case, initiating criminal proceedings by the respondents against the appellants is clearly an abuse of the process of the court.

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He also relied on a decision reported in (2009) 3 SCC (Crl) 620 (Harmanpreet Singh Ahluwalia and othersvs State of Punjab and Others), in which, the Apex Court has held as follows: "An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: "(i) deceptiion of a person either by making a false or misleading representation or by other action or omission; (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit."

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For the purpose of constituting an offence of cheatiing, the complainant is required to show that the accused had fraudulent or dishones intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Penal Code is existence of an intention (sic a fraudulent of dishonest intention at the time) of making initial promise or existence thereof from the very beginning of formation of contract".

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The learned senior counsel for the respondents relied on an unreported judgment in C.A.No.574 of 2010 dated 22.2.2010 of the Apex court (K. Neelaveni vs state rep by Inspector of Police and others), in which, the Hon'ble Supreme Court has held thus:

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"11. ... The procedure for trial of warrant case by a Magistrate instituted on a police report is provided under Chapter XIX Part A of the Code of Criminal Procedure, 1973. Section 239 inter alia provides that if upon considering the police report and the document sent https://hcservices.ecourts.gov.in/hcservices/ with it under Section 173 and making such examination,

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if any, of the accused and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge aainst the accused to be groundless, he shall discharge the accused and record his reasons for so doing. It seems tha the accused persons even before the case had reached that stage filed an application for quashing of the charge sheet under Sections 406 and 494 of the Indian Penal Code. In our opinion, the High Court ought not to have interfered after the submission of the charge sheet and even before the Magistrate examining as to whether the accused persons deserved to be discharged in terms of Section 239 of the Code of Criminal Procedure.

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He also relied on a decision reported in 2010 (6) SCC 562 (S.P. Gupta vs Ashutosh Gupta), wherein, the Hon'ble Supreme Court has held as follows:

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"17. It is true, as pointed out by Mr.Lekhi, that Section 415 IPC, which defines the offence of cheating, provides in Illustration (g) as follows:

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"415(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantitiy of indigo plant which he does not intend to deliver and thereby dishonestly induces Z to advance money upon the faith of such delivery, A cheats; but if A, at the time o obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract"

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However, the aforesaid provision clearly indicates that if at the very initiation of the negotiations it was evident that there was no intention to cheat, the dispute would be of a civil nature. But such a conclusion would depend on the evidence to be led at the time of trial."

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He further relied on a decision reported in 2010 6 SCC 243 (Jeffrey J. Diermeier and another vs State of West Bengal and another)

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"20.... Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuseof authority and not to produce injustice".

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He also relied on an unreported judgment in CA No.1252 of 2010 daetd 15.7.2010 (State of A.P vs Gourishetty Mahesh and Others), wherein the Hon'ble Apex Court has held as follows: "12. While exercising jurisdiction under Section 482 of https://hcservices.ecourts.gov.in/hcservices/ the Codel the High Court would not ordinarily embark

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upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial judge/Court. It is true that Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about is closure without ullfledged enquiry".

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He further relied on an unreported judgment of the Apex Court in C.A.No.590 of 2007 daetd 27.8.2010 (State of Maharashtra and Others vs Arun Gulab Gawali and Others), wherein the Apex Court has held as follows:

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"16. The inherent power is to be exercised ex debito justitiae, to do real and substantial justice, for administration of which alone Court exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. It is, however, not necessary that at this stage there should be a meticulous analysis of the case before the trialo to find out whether the case ends in conviction or acquittal".

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In (2009) 3 SCC (Crl) 620 (Harmanpreet Singh Ahluwalia and othersvs State of Punjab and Others), in which, the Apex Court has held as follows:

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"29. The said principle has been reiterated in All Cargo Movers (India) (P) Ltd vs Dhanesh Badarmal Jain stating "16. ... For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for thepurpose 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".

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https://hcservices.ecourts.gov.in/hcservices/

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From a careful readiing of the observation of various courts made in the above referred case laws as extracted above, it can be deduced that when civil disputes are pending, the criminal prosecution cannot be encouraged in the absence of an act constituting an offence and purely civil disputes cannot be converted into criminal cases.

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In the present case, the charge sheet has been filed for the offence under Secs.120-b and 420 IPC. It is relevant to extract here the procedural law relating to cheating as contained in Sec.415 thereof:

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"415. Cheating:-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'

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Explanation:-A dishonest concealment of facts is a deception within the meanin of this section:

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Section 415 IPC thus requires:

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Deception of any person

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2.(a) Fraudulently or dishonestly inducing that person-

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(i) to deliver any property to any person; or

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(ii) to consent that any person shall retain any property; or

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(b)Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property".

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It is well settled that to attract an offence under Sec.415 IPC, the deception must be at the inception. There must be a fraudelent or dishonest inducement to deliver a property. Such inducement must be intentional. To hold a person guilt of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. Mere failure to keep a promise one cannot presume that he had a culpable intention.

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In the present case, an agreement of sale was entered into by the original owner with two persons for sale of the entire property. It is admitted that there were encorachments in the proeprty and the vendor had initiated civil and criminal https://hcservices.ecourts.gov.in/hcservices/ proceedings for the removal of encroachhments. After two years of

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the agreement, the purchasers have agreed to restrict their claim for the half of the property and agreed for the sale of the remaining half to two other intending purchasers.

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In 2005, the second sale agreement had also been entered into. In the the next two years, the agreement holders have not taken any initiation to get their sale deed executed. However, they have filed two civil suits for the enforcement of sale agreement and they are pending.

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The 1^st petitioner, being an elderly woman, had executed a gift settlement deed in favour of her children/other petitioners. Needless to say that the subsequent owners are bound by the sale agreementt.

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The subsequent encumbrance or alientation by way of gift deed will not attract cheating as defined under Sec.415 IPC. Therefore, as held in 2008 (1) SCC Crl 259 (Inder Mohan Goswami and another vsState of Uttaranchal and Others) the court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendatta or with an ulterior motive to pressurise the accused.

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Therefore, I am of the considered view the entire initiation of criminal proceedings is only an attempt to convert a purely civil dispute into a criminal cases. 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. Therefore, the proceedings are liable to be quashed.

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It must be made clear here that absence of criminal intention to cheat the complainant would automatically, in law, would take away the effect of criminal prosecution launched by the complainant. However, it does not mean that any finding rendered herein would affect either way or lighten the contractual obligations, if any, on the part of the petitioners. It is for the civil Court, based on the materials adduced to decide the issue in accordance with law.

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The complaint given by one Rama Ravindra Kumar in Cr.No.229 of 2010 is misconceived. The complainant alleges that he entered into an agreement with the owner of the land for the removal of the encroachers on his expenses and thereafter, the entire land to be shared 55:45, i.e., 55% to the owner and 45% to the complainant. He concedes that he is a party to the first sale agreement of the year 2003 and in the second agreement, his wife is also one of the intending purchasers for half of the property. If it is true, that he is to take almost half of the property on removal of the encroachment, then, a question would arise as to why a sale agreement has been executed for the entire property by the owner. https://hcservices.ecourts.gov.in/hcservices/

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Thus, it is a case where the allegations made in the FIR, even if they have taken at the face value and accepted in its entirety, do not make out a case for alleged offences under Secs.406 and 420 IPC. Therefore, in my considered view, in the interest of justice and to prevent abuse of process of law, this Court should exercise the power under Sec.482 Cr.p.C to grant the relief sought for.

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In the result, the criminal original petitions are allowed and the proceedings in C.C.Nos.155, 156 of 2009 on the file of the learned Judicial Magistrate No.II, Poonamallee and Cr.No.229 of 2010 on the file of T-4 Maduravoyal Police Station are hereby quashed with the aforesaid observations. Consequently, connected Mps are closed.

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Sd/
Asst. Registrar
/true copy/
Sub Asst.Registrar
sr
To
1. The Judicial Magistrate No.II, Poonamallee
2. -Do- Chief Judicial Magistrate, Tiruvellore

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