Dismissed

Suresh v. Mohamed Ali

Madras HC21 Aug 2013CRL RC(MD)/991/2011

Case brief

AI extract

What is this about?

High Court Bench confirmed the acquittal of accused persons in a cheating case involving suppression of a prior mortgage. Despite arguing that the offence was made out due to the existence of an earlier bank mortgage, the Court found the trial court's reasoning insufficient to interfere with the acquittal.

What did the court decide?

Criminal revision petition dismissed; order of acquittal confirmed.

Suresh Vs Mohamed Ali — Cheating and Forgery | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 21.08.2013

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THE HON'BLE MR.JUSTICE A.ARUMUGHASWAMY

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CRL.R.C.(MD) No.991 of 2011

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Suresh ... Petitioner/Defacto Complainant Vs. 1.Mohamed Ali 2.Syed Siddiq 3.Syed Ali Fathima 4.Thoulath Kalima ... Respondents/A1 to A4 5.State rep. by Sub Inspector of Police, Cumbum North Police Station, Theni District (Crime No.249 of 2004) ... Respondent/Complainant

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Prayer: Criminal revision petition filed under Section 397 r/w 401 of Criminal Procedure Code against the judgment dated 02.11.2011 in C.C.851/2005 by Judicial Magistrate, Uthamapalayam, acquitting the respondent Nos.1 to 4 for the offences under Sections 420, 423 and 465 r/w 34 of IPC and convict the accused for the charges framed against them and praying to set aside the same.

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For Petitioner : Mr.A.K.Manickam For Respondents : Mr.S.M.A.Jinnah 1 to 4 For 5^th Respondent : Mr.K.Anbarasan, Govt.Advocate(Crl.Side)

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ORDER

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This Criminal Revision has been filed by the defacto complainant against the judgment of acquittal dated 02.11.2011 passed by the learned Judicial Magistrate, Uthamapalayam in C.C.No.851 of 2005.

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The revision petitioner has presented a complaint before the police stating that the properties have been sold by the accused on suppressing the loan raised by them in the State Bank of India and they sold the property on 25.02.1998 and the case was registered in Cumbum North Police Station in Crime No. 249 of 2004 and after investigation, charge sheet has been laid for the offence under Sections 420, 423, 465 of IPC and the same has been taken cognizance by way of C.C.No. 851 of 2005. Before the trial court, P.W.1 to P.W.5 were examined and Ex.P.1 to Ex.P.5 were marked and ultimately, the trial court has acquitted the accused. At the time of dismissing the complaint, the trial court has observed that even though it is stated in the complaint that the first https://hcservices.ecourts.gov.in/hcservices/ accused did not furnish relevant documents, no explanation was given by the complainant for what purpose they have got the property without the original documents and on that basis, the complaint has been dismissed

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and the accused have been acquitted. Against which, the complainant preferred the present revision petition.

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Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents 1 to 4 and the learned Government advocate appearing for State and perused the materials placed on record.

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The learned counsel appearing for the petitioner contended that the land in question belongs to the first accused in Survey Nos.124,125/16,125A/16 and he has mortgaged the property by depositing the title deed to the State Bank of India Branch and he has raised a loan but, without disclosing that fact as if the original documents have been misplaced,he has sold the property in favour of the complainant and hence, the complaint has been lodged.

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The main contention of the learned counsel for the accused is that the properties have been pledged in favour of State Bank of India on 26.05.1995 and subsequently, the property has been sold for one lakh to the complainant. Therefore, there is no question of cheating arises and no ingredients in respect of cheating were proved. Hence, he prays that the judgment of the trial court has to be confirmed and the revision has to be dismissed.

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According to the case of the prosecution, the third and fourth accused raised Agricultural Loan and the first accused stood as a guarantor and after that, the first accused, who is the owner of the properties, has sold one shop to P.W.1 and another shop to P.W.2 on 25.02.1998, which were already mortgaged and the second accused signed in the Registered Title Deed as a witness and the third and fourth accused are responsible for the loan.

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Now the contention of the learned counsel for the petitioner is that earlier mortgage made by the accused before the State Bank of India has been suppressed. Hence, according to him, the offence against the accused has been proved.

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It is submitted by the learned counsel for the petitioner that in the additional typed set of papers, he has filed a copy of the letter issued by the State Bank of India addressed to the learned Judicial Magistrate, Uthamapalayam on 28.09.2011. In that, it is stated that the third and fourth accused have availed the agricultural loan on 26.05.1995 mentioning the account number and the first accused stood as a guarantor for the above loan. Further in that letter, it has also been mentioned that three similar suits have been filed for recovery of those amounts.

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Once the land is owned by the first accused, where is the question of sanctioning the agricultural loan for the third and fourth accused who are not the owners of the property. Thereafter, the land was sold by the first accused. The date of mortgage is earlier and the date of sale is later and the third and fourth accused raised a mortgage by https://hcservices.ecourts.gov.in/hcservices/ depositing of title deed before the State Bank of India on 26.05.1995. The original documents have not been produced at the time of sale and

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only xerox copy has been produced. On what basis the original document has not been produced by the accused at the time of the sale is not known to this Court. Further, the civil suits have also been filed.

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Under such circumstances, I am of the view that offence Under

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Section 420 of IPC has not been made out and even though the finding given by the trial court is correct, the reason given in the order that the date of mortgage is not mentioned and on that basis he acquitted the accused which is not correct and there is no need to interfere in the order of the trial court and the same is confirmed and the revision is dismissed. Anyhow, this order will not bind the parties at the time of trial of the civil suits.

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Sd/-

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Assistant Registrar(P)

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/TRUE COPY/

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Sub Assistant Registrar

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1.The Judicial Magistrate, Uthamapalayam.

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2.-Do-Thro' The Chief Judicial Magistrate, Theni.

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3.The Sub Inspector of Police, Police Cumbum North Police Station, Theni District.

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4.The Addl.Public Prosecutor, Madurai Bench of Madras High Court,Madurai. +1cc to Mr.S.M.A.Jinnah, Advocate SR.No.41503

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Crl.R.C.(MD)No.991 of 2011

21.08.2013

ses

PA/06.09.2013/3P/6C

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

Suresh v. Mohamed Ali

Case brief

What is this about?

What did the court decide?

Suresh v. Mohamed Ali

Case brief

What is this about?

What did the court decide?

What the court decided

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