C. Sivasankaran and 9 Others vs The State and A.N. Shanmugam

R. Regupathi, J.—In as much as the points raised and issue involved in all these three matters are inter-related in the same case, a common order is passed hereunder. Crl.O.P. No. 21443 of 2006 is filed to quash the charge sheet taken on file by the learned Magistrate in C.C. No. 191 of 2006. Crl.R.C. No. 935 of 2006 has been filed by the Petitioners to set aside the order passed by the learned Magistrate, permitting the first Respondent to take further investigation. Crl.R.C. No. 936 of 2006 has been filed by the Petitioners to set aside the order passed by the learned Magistrate, in a petition filed by the Petitioner to recall the Non Bailable Warrant.

The Petitioners herein, are arrayed as A-1 to A-10 for the offences punishable under Sections 409 r/w 109 and 120-B IPC, before the learned Judicial Magistrate I, in C.C. No. 191 of 2006. Originally, the complaint has been taken on file on the strength of the complaint given by the second Respondent, the defacto complainant. The first Respondent, after receiving the complaint through the Commissioner of Police, initially registered a case for offence u/s 467, 468, 471, 472, 420 and 120B IPC on 17.06.2006.

The genesis of the case is as follows:

a) The second Respondent is the owner of a property as per sale deed dated 30.04.1990. The second Respondent along with 18 other persons, executed joint power of attorney to develop a land to an extent of 45.1622 acres on 06.09.2003. Simultaneously, a gift deed was also executed on 30.1 1.1993 to the MMDA, Chennai to an extent of 4.58 acres in order obtain necessary permission for developing the land. This was registered at the office of the Joint Sub Registrar, Madras South.

b) The first Petitioner with the connivance of the 4th Petitioner, alleged to have created a sale deed, as if it was executed on 13.03.2003. The first Petitioner could not have executed the sale deed on that date and it is alleged that the accused in conspiracy, alleged to have cheated the defacto complainant. It was alleged that the first Petitioner was not at all present in India for the execution of sale and this came to light by a letter of Ministry of Home Affairs, Government of India dated 08.12.2005. Under such circumstances, it has been concluded that the forgery and misappropriation of funds have been committed.

c) On conclusion of the investigation, a final report has been filed on 02.08.2006 for an offence u/s 409 read with 109 and 120-B IPC and the learned Magistrate taken cognizance of the case. During the course of investigation A-l to A-3 were not available for interrogation and therefore, they have been shown as absconding accused and therefore, NBW has been issued by the learned Magistrate.

d) To recall the NBW a petition has been flied by A-l to A-3 and the same was dismissed by the learned Magistrate. In the meantime, the prosecution has filed a petition for further investigation of the case u/s 173(8) Code of Criminal Procedure and the learned Magistrate has passed an order allowing the first Respondent to conduct further investigation. It is as against the orders impugned, the present petition and revisions have been filed.

The contention of the learned Counsel appearing for the Petitioners is that the second Respondent/defacto complainant has entered into a joint venture, business transaction and by the way, he is one of the party among 18 persons to develop a larger extent of land. Even at the time of lodging the first information report, the same has been done with several incorrect particulars and the dispute is purely of civil in nature. The complaint has been lodged relying on the incorrect information received by the defacto complainant from the Home Ministry of Government of India and subsequently, it has been clarified by the same authority to the effect that as on the date of registration of sale, the first Petitioner was very well available in India. A-5 to A-10 were employees of A-2 and only in order to coerce and humiliate them, they have been implicated as accused in the case. Final report of the case has been filed on 02.08.2006 and even prior to that on 31.07.2006 a letter of withdrawal of the complaint has been given by the defacto complainant and without considering the same, the final report has been filed. If such a letter of withdrawal is taken into account by the first Respondent, final report would not have been filed.

The further submission of the learned Counsel is that the charge sheet itself was filed in haste, when the aggrieved party namely the defacto complainant himself has withdrawn the allegations. The Sub-Registrar who has registered the document has also been cited as one of the witness in the case, who has categorically stated that the first Petitioner was very well available before the office of the Sub Registrar at the time of registration. When the material furnished by the Home Ministry, Government of India as well as the statement of the Sub Registrar is available with the first Respondent, there is no possibility at all to come to a conclusion that an offence u/s 409 IPC has been made out. That is the reason why the defacto complainant has come to a conclusion after verifying these facts and gave a letter of withdrawal. Suppressing the same a final report has been filed with an ulterior intention. There is no reason to suspect that those documents are forged documents, when the parties have agreed that the transaction took place in the legal manner before the office of the sub Registrar. It is further contended that even accepting the allegation in entirety, an offence u/s 409 IPC is not made out and submitted that the case pending in C.C. No. 191 of 2006 is liable to be quashed. In view of the submissions made, a petition seeking for further investigation u/s 173(8) Code of Criminal Procedure may not be necessary at all and in such circumstances, the order passed by the learned Magistrate is liable to be set aside. In view of such circumstances, issuance of Non-bailable warrant becomes unnecessary and as the orders have been passed mechanically without application of mind, such order is also liable to be set aside.

The defacto complainant, namely the second Respondent filed an affidavit stating that the complaint has been given by him on an erroneous impression that the first Petitioner, who is the power of attorney agent of the defacto complainant was not at all available on the date of registration of the sale deed. Subsequently on verification, it came to light that the documents were presented before the Sub Registrar, only by the first Petitioner and further submitted that the dispute and misunderstanding between the first Petitioner and himself has been resolved and misappropriation is not made out. In such circumstances, there may not be any useful purpose in continuing the litigation and that is the reason why he has given a letter of withdrawal of the complaint even before the filing of the final report on 31.07.2006. But unfortunately the first Respondent with an ulterior motive without taking into consideration of all those developments has filed the final report and the same may be quashed.

In support of his contentions the Learned Counsel for the Petitioner relied on a judgment reported in B.S. Joshi v. State of Haryana and another ILR 2003 KAR 1785 wherein reliance was placed at Para 6 of the judgment:

In Pepsi Food Ltd and Anr. v. Special Judicial Magistrate and others", this Court with reference to Bhajan Lai''s case observed that the guidelines laid therein as to where the Court will exercise jurisdiction u/s 482 of the Code could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise care and caution while invoking such powers.

It is contended that the defacto complainant has withdrawn the allegations against the Petitioner and the transaction is purely of civil nature. Though the offences alleged is a non-compoundable one, no useful purpose may be served in continuing the proceedings before the learned Magistrate and sought for quashing the proceedings pending.

Per contra the learned Additional Public Prosecutor submitted that on the basis of the materials collected, during the course

of the investigation the first Respondent has come to a conclusion that an offence u/s 407 read with 409 and 120-B IPC has been made out. The learned Magistrate also has taken cognizance of the offences. During the course of the investigation A-l to A-3 were not co-operating with the investigation and therefore, it was felt that further investigation is necessary. The letter of withdrawal given by the defacto complainant is of no relevance as such, as substantial materials have been collected against the Petitioner to substantiate the offences. A-l to A-3 have been shown as absconding accused, even at the time of filing of the final report. Several documents may have to be recovered from them. Their signature for comparison is necessary. Opinion through document expert also may have to be obtained. In such circumstances, custodial interrogation of the Petitioners 1 to 3 are absolutely necessary. Even after filing of the final report, the prosecution sincerely felt that the MMDA has also been cheated by the Petitioner. Though a gift deed has been executed in favour of MMDA as early as on 30.11.1993 to an extent of 4.58 acres of land, a portion of such land has also been sold by the first Petitioner to the fourth Petitioner. In such circumstances, valid materials may have to be collected and in continuation of such investigation the defacto complaint and others may be implicated in this case.

The present value of the property is several cores. Only on the complaint given by the defacto complainant, the case has been taken for investigation by the first Respondent.

It appears that there is a collusion between the defacto complainant and the Petitioner/accused and that is the reason why a letter of withdrawal has been given by the defacto complainant. This is also under consideration during the course of further investigation. Moreover when an NBW has been issued by a competent Court after taking cognizance, a petition to quash the proceedings cannot be entertained at all.

In support of the above contention, reliance was placed on the judgment reported in (1992 2 LW (Crl) 814) Gladdy Lilly v. The Superintendents, Narcotic Control Bureau, South Zonal Units, Chennai. It has been contended by the State that an absconder who is not cooperating with the investigation from the inception especially at the time when NBW is pending cannot approach this Hon''ble Court u/s 482 Code of Criminal Procedure to quash the proceedings.

It is further contended that a further investigation has been ordered by the learned Magistrate and new materials are yet to be collected. Therefore, the investigation is still pending. When an investigation is pending it will be improper to quash the proceedings at the threshold. The Supreme Court has time and again held that it will be improper to quash the proceedings at the time of investigation.

Learned Additional Public Prosecutor relied on a case reported in State of Orissa and Another Vs. Saroj Kumar Sahoo, , wherein in paragraphs 8 and 11, it is held as follows:

8) Exercise of power u/s 482 Code of Criminal Procedure in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of Code of Criminal Procedure It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under Code of Criminal Procedure (ii) to prevent abuse of the process of Court and (iii) to otherwise secure the ends of justice

9)....

10)......

11) The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective.

It has been further contended by relying on 2001(SCC) Criminal 1280 (Hemand Dhasmana v. Central Bureau of Investigation and another) that it would be improper for the High Court to interfere with the further investigation in exercise of revisional powers. Further investigation has been ordered on satisfactory reasons and it has been permitted by the learned Magistrate. It was argued that this Hon''ble Court cannot interfere.

The learned Additional Public Prosecutor relied on the case reported in 1979 SCC (Cri) 479 (Ram Lal Narang v. State (Delhi Administration) and contended that at the time while praying for further investigation, the reason need not be divulged to the accused.

I have perused the materials on record and heard the contentions made.

Admittedly, further investigation is pending. The offence alleged is under Sections 409 read with 109 IPC and 120-B IPC. This is a case involving dispute over a land worth several crores of rupees. The investigation has been concluded and a positive conclusion has been reached by the prosecution. Final report has been filed and the same was taken cognizance by the learned Judicial Magistrate.

The process of further investigation by the first Respondent and the enquiry by the learned Magistrate is under progress. Materials have been collected and it is the case of the prosecution that a prima facie case to substantiate an offence has been committed u/s 409 IPC.

The judgment relied on by the counsel for the Petitioner for compounding may not be strictly applicable to the case on hand. The case decided by the Hon''ble Supreme Court for compounding and quashing the offence in a non compoundable offence, exercising inherent powers u/s 482 Code of Criminal Procedure was decided in a matrimonial matter. The present case on hand is a non compound-able offence, wherein the prosecution and MMDA is not willing for this suggestion.

Though an affidavit has been filed by the defacto complainant expressing his willingness to withdraw the complaint, a petition u/s 320 Code of Criminal Procedure for compounding has not been filed. The necessary disputing parties must appear before the Court and file a separate petition in that regard, without doing so, simply on the basis of an affidavit of the defacto complainant, without adopting a procedure established by law u/s 320 Code of Criminal Procedure a proceeding cannot be quashed.

By allowing the further investigation to continue, I am of the view that no prejudice may be caused. After collecting all the necessary particulars during further investigation, the prosecution may come to a conclusion one way or the other.

Learned Additional Advocate General appearing for the MMDA submits that'' some of the witnesses of MMDA have been examined and they have also furnished valid materials in this regard. Though by way of a gift deed dated 30.11.1993 an extent of 4.58 acres of land has been gifted to MMDA, a portion of such land has also been transferred by way of sale by conspiracy by the accused. It has been argued by the counsel for the Petitioners that such portion already gifted to MMDA was sold and it is only a mistake due to inadvertence and willing to correct the error committed. I am of the view that these materials must be made available during the course of further investigation.

Though this Hon''ble Court while conducting enquiry u/s 482 Code of Criminal Procedure cannot look into the defense materials and the Magistrate also cannot look into such materials, even at the time of enquiring a petition under discharge proceedings, in view of the peculiar circumstance of the present case, the investigating officer may as an original fact finder, receive all the defense documents and materials during the course of further investigation. It has been strenuously contended that a subsequent communication issued from the Home Ministry Government of India was not taken into consideration. To clarify a mistake committed in selling a portion of the property already gifted to MMDA submissions were made that a clarification deed will be registered before the concerned Sub Registrar. Those materials could be produced before the Investigating Officer, pending further investigation and the investigating officer is also bound to look into those materials before forming an opinion.

In view of the foregoing discussions, I am of the view that this is not a fit case to quash the proceedings. Consequently, other relief''s also could not be granted, in view of the facts and circumstances of the case.