A.S. Anwardeen vs Barakkathulla

B. Gokuldas, J.—This Criminal Original Petition is filed under Section 482 of Criminal Procedure Code to quash the proceedings in C.C. No. 441 of 2007 on the file of learned Judicial Magistrate No. II, Dindigul.

The case of the first respondent is that the petitioner is his brother-in-law and the petitioner sold the property belong to his wife to 18 persons, without the knowledge of the wife of the first respondent. That apart, the petitioner failed to pay the sale consideration, which amount to Rs.65,93,000/-. Further it is the case of the first respondent that the petitioner had also misappropriated a sum of Rs.25,54,300/- accrued from the profit through the Crusher and Lorry Transport Business. Therefore, the present private complaint was filed by the first respondent against the petitioner for the offence under Sections 406 and 420 IPC.

The learned counsel for the petitioner submits that the first respondent has not made out any congnizable criminal offence against the petitioner much less than a civil transaction. He further submitted that the petitioner and the first respondent are closely blood relatives and the first respondent had already instituted a suit for permanent injunction against the defendants therein including the petitioner herein in O.S. No.562 of 2006 before the learned District Munsif, Palani and the same is pending. Further, the learned counsel for the petitioner submitted that the first respondent earlier made a complaint before the Superintendent of Police, Dindigul on 21.07.2006, who in turn forwarded the same to the District Crime Branch, Dindigul, in serial number G319683 and the District Crime Branch, after a through enquiry came to the conclusion that there is no iota of truth lies in the complaint of the first respondent and hence not proceeded against the petitioner. Aggrieved against the said action of the second respondent, the first respondent filed a direction petition before this Court in Crl. O.P.(MD).No.7812 of 2006, to register an FIR against the petitioner. However, for the reasons best known to the first respondent he withdrew the said petition and this Court vide order dated 28.02.2007 dismissed the said direction petition as withdrawn. Thereafter, the first respondent filed a private complaint before the jurisdictional Magistrate and the same was taken cognizance in C.C. No. 441 of 2007 by the learned Judicial Magistrate No. II, Dindigul. If the said proceedings are allowed to proceed against the petitioner, it will cause great prejudice to him. Therefore, the learned counsel for the petitioner prays to allow this petition by quashing the said proceedings.

Though several opportunities were given to the first respondent, there was no representation on behalf of him. Hence this Court has no other option except to pass orders on merit upon hearing the learned counsel for the petitioner and the learned Government Advocate for the second respondent and also on perusing the materials available on record.

The learned Government Advocate (Criminal Side) appearing for the second respondent would submit that whether the ingredients of Section 406 and 420 of IPC are made out have to be decided only after trial and letting in evidence. Therefore, she prays for dismissal of this petition.

I have carefully considered the submissions made by the learned counsel for the petitioner and the learned Government Advocate (Criminal Side) for the second respondent and perused the typed set of papers.

As per the provision of Section 482 of the Code of Criminal Procedure, 1973, the provisions of Section 482 can be invoked in certain specific cases mentioned therein. The provision of Section 482 of the Code of Criminal Procedure, 1973 reads thus :

"S. 482. Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

So it appears that the provisions of Section 482 of the Code of Criminal Procedure can be invoked only in certain specified cases. The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the code ; (ii) to prevent abuse of the process of the court; and (iii) to otherwise secure the ends of justice.

In the instant case, whether there is any substantial material or not against the accused person for the said offences as alleged by the first respondent, can not be considered by this Court at this stage and that point can be well considered only at the time of letting evidence or on trial. In all cases of breach of trust and cheating, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were regarding the criminal breach of trust on the basis of power of attorney and acquiring gains on the basis of such power of attorney. The proceedings could not be quashed only because the first respondent had filed a civil suit with respect to the aforesaid power of attorney. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the petitioner was entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in a criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of.

In the present case, the petitioner has not made out any grounds to quash the proceedings in C.C.No.441 of 2007, except mentioning the facts of the criminal proceedings which was initiated against him and the pendency of the civil suit between him and other defendants in O.S. No.562 of 2006, before the learned District Munsif, Palani, and the transfer petition relating to the transfer of above said suit.

In view of the foregoing reasons and discussion, the criminal original petition is dismissed. Since the case is of the year 2009, the Trial Court is directed to complete the trial, on merits and in accordance with law, within a period of 6 months from the date of receipt of a copy of this order. Consequently, the interim stay granted by this Court vide order dated 24.04.2009 stands vacated and the miscellaneous petition M.P.(MD).No.2 of 2009 stands dismissed.