AVM K. Shanmugam and Others vs V. Shanthi

M. Jeyapaul, J.—Crl.O.P. No. 16367 of 2007 is laid by A1 to A7 and Crl.O.P. No. 18427 of 2007 is laid by A8 in C.C. No. 2677 of

2007 on the file of the learned XIV Metropolitan Magistrate, Egmore, Chennai, seeking quashment of the aforesaid proceedings initiated by the

respondent as against them.

The sum and substance of the complaint is that the first and second Accused having made misrepresentation to the complainant that some

rectification deed was to be executed in connection with the lease deed already executed by her in favour of Accused 3 to 7, played fraud upon

the complainant and got the subject Power of Attorney executed in favour of first and second Accused and thereafter, the first Accused executed

sale deed in favour of Accused 3 to 7, in spite of the cancellation of the said Power of Attorney. The allegation as against the 8th Accused is that

he being the Sub Registrar conspired with the first and second Accused to practise fraud upon the complainant. It has been alleged that the white

colour offence was deliberately designed and committed by the Accused with the sole intention of cheating the complainant.

The said private complaint has been filed u/s 200 of the Code of Criminal Procedure alleging commission of the aforesaid offences punishable

under Sections 415, 420. and 128(B) of IPC.

The Accused 1 to 7 have contended that the allegation as such, does not prima-facie indicate the commission of any offence as alleged by the

complainant. She herself went to the Registrar''s office and executed on her own the Power of Attorney authorising A1 and A2 to execute the sale

deed in favour of A3 to A7. No fraudulent representation was made by the first and second Accused to the complainant. The Accused 1 and 2

have already paid a sum of Rs. 1 lakh to the complainant towards a part of sale consideration even prior to the date of execution of the Power of

Attorney by the complainant in their favour. The deed of cancellation and the notice issued subsequent to the deed of cancellation to Accused 1

and 2 would go to show that the complainant on her own volition executed the Power of Attorney in favour of Accused 1 and 2. Therefore,

Accused 1 to 7 have contended that no case has been made out as against them in the complaint lodged by the complainant.

The eighth Accused would contend that he had only performed his official duty of registration of the Power of Attorney in favour of Accused 1

and 2 and the agreement of sale executed by the complainant in favour of Accused 3 to 7. Therefore no criminal case can be laid as against the

petitioner in Crl.O.P. No. 18427 of 2007, who has just discharged his official function.

Learned senior Counsel appearing for the Accused would submit that Accused 1 and 2 had not received any intimation about the cancellation of

the Power of Attorney given in their favour. Only for the first time, they received a lawyer''s notice on 15.03.2007, long after the sale deed was

executed by the first Accused in favour of Accused 3 to 7. It is his submission that the close reading of the deed of cancellation of the Power of

Attorney and the notice alleged to have been sent by the complainant to the first and second Accused on 11.12.2006 would disclose that the

complainant has come but with a case that she had in fact executed the Power of Attorney in favour of Accused 1 and 2. Very vague allegation of

misrepresentation and fraud has been alleged in the complaint. The deed of Power of Attorney was infact drafted by the complainant herself and

the same was registered by the Registrar in the presence of the complainant and not in the presence of Accused 1 and 2.

Referring to the statement of Bank account maintained by the 5th Accused, the learned senior Counsel for the Accused would further contend

that a sum of Rs. 1 lakh was already parted with by the Power of Attorney holders out of the total consideration of Rs. 5 lakhs contemplated in the

agreement of sale. Therefore, the learned senior Counsel would vehemently submit that no case has been made out as against Accused 1 to 7. He

would further contend that the Sub Registrar who is the 8th Accused has been implicated in this case unceremoniously for the performance of his

official duty of registration of the Power of Attorney, the agreement of sale and the sale deed.

The learned senior Counsel appearing for the respondent/complainant would contend that a telegram was already dispatched to the correct

address of the Accused 1 and 2 about the cancellation of the Power of Attorney allegedly executed in their favour. Accused 1 and 2 having come

to know of such a cancellation of the Power of Attorney have dodged to receive the telegram sent to them. A sum of Rs. 1 lakh was parted with

by Accused 1 and 2 only in connection with the rectification of the lease deed and not in connection with the execution of agreement of sale or

Power of Attorney allegedly. There is a specific allegation found in the complaint that there had been an intention to cheat the complainant making

misrepresentation at the time of the alleged execution of the Power of Attorney. There is a wide gap between the sale consideration passed on

under the sale transaction and the real market value of the property. This Court cannot go into the acceptability or otherwise of the allegations

found in the complaint, while dealing with the plea for seeking quashment of the criminal proceedings. When prima-facie case has been made out,

the Accused will have to necessarily face the prosecution before the trial Court. Therefore, the learned senior Counsel appearing for the

complainant would submit that there is no merit in the petition seeking quashment of the complaint laid by the complainant specifically alleging

criminal conspiracy and cheating.

Of course, there is a specific allegation of cheating in the private complaint laid by the complainant. The two documents, viz. the Power of

Attorney as well as the agreement of sale were obtained by Accused 1 and 2 by making misrepresentation and also by playing fraud upon the

complainant in the guise of rectification of the lease deed already executed by the complainant in favour of the Accused 3 to 7, it is charged therein.

The question of quashing the criminal proceeding embarking upon an enquiry as to the reliability of evidence and sustainability of accusation does

not arise. But, if a frivolous or vexatious complaint is laid with malice or malafide, of course this Court has every authority to interfere with the

criminal prosecution and quash the same. Even in a case where the allegations in the face of records is absurd and inherently improbable, quashing

is highly warranted.

The complainant has come out with some reason for-the cancellation of the Power of Attorney. The specific reason assigned in the Deed of

Cancellation of Power of Attorney dated 04.12.28d6 for the cancellation of the power of Attorney is that the power agents had not acted in

accordance with the terms and conditions of the power granted to them. In the deed of cancellation of Power of Attorney, the complainant has

unambiguously admitted the execution of the deed of Power of Attorney in favour of Accused 1 and 2. As rightly pointed out by the learned senior

Counsel appearing for the Accused, misrepresentation and fraud allegedly perpetrated by the Accused while executing the deed of Power of

Attorney by the complainant were not cited as reasons for the cancellation of the same. It is not as if the said deed of cancellation of Power of

Attorney was inadvertently drafted without accommodating the actual reason for the cancellation of the Power of Attorney. The subsequent notice

dated 11.12.2086 issued by the complainant addressing the Accused 1 and 2 would also read unambiguously that the deed of Power of Attorney

was cancelled as the Accused 1 and 2 had acted against the interest of the complainant. There is no whisper therein about the misrepresentation or

fraud allegedly perpetrated by the Accused 1 and 2 as against the complainant while executing the agreement of sale and also the Power of

Attorney.

It is not as if the complainant is totally an unlettered woman who is not wordly wise. On a perusal of the deed of Power of Attorney, it is found

that there is a clear indication that it was she who drafted the Power of Attorney. As rightly pointed out by the learned senior Counsel for the

Accused, the presence of the Power of Attorney holders before the Registrar is not at all necessary. It is only the executant of the Power of

Attorney who shall be present for the purpose of registration of the Power of Attorney.

The Accused also have demonstrated before this Court that even before the agreement of sale and the deed of Power of Attorney were

executed by the complainant, a sum of Rs. 1 lakh was already parted with by the 5th respondent in favour of the complainant. Of course learned

senior Counsel appearing for the complainant would submit that the said amount was paid only in connection with the proposed rectification of the

lease deed already executed by the complainant in favour of petitioners 3 to 7. But the facts and circumstances of the case set out above would

show that there was no rectification deed executed as alleged. But only a Power of Attorney and an agreement of sale have been executed by the

respondent.

The learned senior Counsel appearing for the respondent would cite an authority in Indian Oil Corporation v. NEPC India Ltd. 2007 1 L.W.

(Crl. )80 , wherein the Honourbale Supreme Court has held that it is not necessary that the complaint should verbatim reproduce in the body of the

complaint all the ingredients of the offences he alleges, nor is it necessary that the complainant should state in so many words that the intention of

the Accused was dishonest or fraudulent.

Of course, the details with regard to the manner in which the misrepresentation was made and fraud was practised have not been detailed in

the complaint. As rightly pointed out by the learned senior Counsel appearing for the respondent, in the background of the aforesaid ratio laid

down by the Hon''ble Supreme Court, the complaint cannot be thrown out on the ground that the necessary details constituting the offence alleged

were not given in the complaint.

The learned senior Counsel appearing for the complainant quoted yet another decision in T. Vengama Naidu v. T. Dora Swamy Naidu and

Ors. (2007) II CCR 23(SC). It has been held therein that where the Accused has dishonestly executed sale deed in favour of a third party after

revocation of the General Power of Attorney given in his favour, the complaint alleging commission? of offence of cheating cannot be quashed,

embarking upon the investigation with regard to the nature of transaction and the actual commission of offence by the Accused.

That was a case where the revocation of the General Power of Attorney was duly intimated to the Accused. In spite of such a communication

he received, the Accused had chosen to alienate the property on the basis-of the revoked General Power of Attorney in favour of his daughter.

But, in the instant case, it is found that the Accused 1 and 2 have not received any intimation about the cancellation of the Power of Attorney by

the respondent before ever the first Accused executed the sale deed in favour of Accused 3 to 7. Further, on the own showing of the complainant,

a Power of Attorney was executed by her in favour of first and second Accused and the same was cancelled only on the ground that the agents

appointed therein had not acted in terms of the power given in their favour. In view of the above, it is held that the said ratio does not apply to the

facts and circumstances of this case.

Firstly, there is no legal evidence against the Accused. Secondly, the allegations made against the Accused in the face of the materials available

on record and the stand taken by the respondent both in the Deed of cancellation of Power of Attorney and the legal notice issued, to the Accused

1 and 2 are found to be so absurd and inherently improbable that no prudent man can ever reach a conclusion that there is sufficient fraud for

proceeding against the Accused. Thirdly, there are sufficient materials as referred to above to demonstrate that the complaint is a vexatious one

lodged for the sake of annoyance or oppression.

Coming to the allegation as against the Sub Registrar, who registered the agreement of sale, the deed of Power of Attorney and -the sale deed

executed by the first Accused in favour of Accused 3 to 7, it is found that he has only performed his official function. He is not supposed to verify

whether there was any misrepresentation or fraud practised by the Power of Attorney holders on the principal who executed the power in their

favour. No other material also is available even to distantly indicate that, he conspired with the other Accused to cheat the Consequently, in this

case.

In view of the above, the Court finds that the complaint as such given as against the Accused is not at all sustainable. It will be a miscarriage of

justice if the Accused 1 to 8 are directed to face a painful and horrific experience of trial in the face of the vexatious and frivolous complaint given

as against them. Therefore, quashing the criminal proceedings in C.C. No. 2677 of 2807 on the file of the XIV Metropolitan Magistrate, Chennai,

both these petitions stand allowed. Consequently, connected miscellaneous petition is closed.