AI Structured Summary
Not yet generated for this judgment
Judgment
A. Kulasekaran, J.—The petitioners herein who are accused in C.C. No. 3839 of 2002 on the file of the Additional Chief Metropolitan
Magistrate''s Court, Egmore, Chennai have filed this petition under sec.482 Cr.P.C. to call for the records and quash the same.
Respondent herein has filed a private complaint in C.C. No. 3839 of 2002 against the petitioners for the alleged offences under sections 465,
468, 470, 419, 420 read with 34 IPC.
Learned counsel Mr. R. Subramanian appearing for the petitioners submitted as follows:-
The first petitioner purchased a plot measuring 2472 sq.ft. In Sri Venkateswara Nagar, Korattur Village, Chengai District in the name of his minor
son Kumaragururajan on 15.2.1996 under a registered document No. 465/96. The said land originally belonged to one Damodaran who in turn
sold it to one Latha Maheswari under sale deed dated 19.6.1992. The said Latha Maheswari has executed a registered deed of power of attorney
in favour of the second petitioner on 18.1.1996. By virtue of the said deed of power of attorney, the second petitioner has sold the said plot to the
first petitioner''s minor son. Eversince the date of purchase, the first petitioner is in possession of the said plot. The respondent herein, taking
advantage of similarity in her name falsely claimed the same as her property. The respondent herein filed a complaint in M.P. No. 4443 of 1997
before the XIII Metropolitan Magistrate''s Court, Chennai against the petitioners for the offences under sec.465, 468, 470, 419 and 430 IPC
which was forwarded under sec.156(3) Cr.P.C to the police. The police has registered a case in Crime No. 66 of 1998, after investigation
referred it as mistake of fact. Suppressing the same the respondent filed Crl.O.P. No. 14527 of 2001 before this court for a direction to the police
to investigate the matter. This court directed the police to serve a copy of the referred notice to enable her to approach the concerned court by
way of private complaint. In the above said Crl.O.P. No. 14527 of 2001, the petitioners were not arrayed as respondents, hence, they could not
brought to the notice of this court all the facts. Taking advantage of the order passed by this court, the respondent has filed the above said C.C.,
before the Additional Chief Metropolitan Magistrate Court, Egmore with similar allegations. The respondent has also preferred O.S. No. 1840 of
1998 before the City Civil Court, Madras against the petitioners herein and as she felt that no substance in her suit, she has preferred the said
private complaint made use of the order of this court to blackmail the petitioners. The petitioners are leading and reputed medical practitioners. The
private complaint is vitiated as the earlier complaint was closed as mistake of fact. The learned counsel for the petitioner relied upon the following
judgments:-
(i) Alpic Finance Ltd. Vs. P. Sadasivan and Another, wherein the Honourable Supreme Court has held in para 5 that
Contours of the power u/s 482 Cr.P.C. Have been explained in a series of decisions by this Court. In Nagawwa V. Veeranna Shivalingappa
Konjalgi it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations in the
complaint, if proved, would ultimately end in a conviction of the accused. It was held that the order of Magistrate issuing process against the
accused could be quashed under the following circumstances:
(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make
out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the
accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a
conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on
materials which are wholly irrelevant or inadmissible; and
(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority
and the like.
In the above case, the Honourable Supreme Court has held that when complaint and statement of witnesses taken at their face value made out no
case the same could be quashed. And further held that merely because remedy by way of civil suit is available is not an impediment in maintaining a
criminal complaint provided the complaint discloses the ingredients of the offence alleged.
(ii) Major Singh and Others Vs. State of Punjab, wherein the Punjab and Haryana High Court has held in para 7 that
Notice of the petition was issued n this case tot he respondent-State of Punjab, and the learned counsel for both the parties have addressed the
arguments at considerable length. Obviously, the only point which fals for consideration is, as to whether the criminal court which was seized of the
case against the petitioners and which had framed a Charge Sheet against them for various offences relating to acts of impersonation, forgery etc.,
can proceed with the case, in pite of the final three-tier verdict of the civil courts, culminating with the dismissal of the Regular Second Appeal by
this court, on the very points which are the subject matter of the charge Sheet in the criminal case. In this behalf Mr. P.C. Mehta, learned counsel
for the petitioners has placed strong reliance on Karam Chand Ganga Prasad and Another Vs. Union of India (UOI) and Others, , wherein it was
observed that ""It is a well established principle of law that the decisions of the Civil Courts are binding ont he criminal Courts. The converse is not
true."" In this case, a Division Bench of Delhi High court after elaborately hearing the arguments in a writ petition under Art.226 of the Constitution
of India, rejected the Writ Petition on the sole ground of that in view of the pendency of the criminal proceedings before some Courts, it would be
inappropriate for the High Court to pronounce on the questions arising for decision in the Writ Petition. Their Lordships of the Supreme Court held
that the High Court had seriously erred in coming to this conclusion. The appeals were, therefore, allowed by the Supreme Court and the cases
were remitted to the High Court, for disposal on merits, with observations which have already been noticed.
In the above case, the Punjab and Haryana High Court has held that when the civil proceedings ended in favour of accused on very points which
were subject matter of charge sheet in criminal case, continuance of criminal proceedings is abuse of process of court.
(iii) Gopalakrishna Menon and Another Vs. D. Raja Reddy and Another, wherein the Honourable Apex Court has held in para 7 that
In view of what we have said above, the prosecution in the instant case on the basis of a private complaint and in the absence of a complaint from
the appropriate civil court where the alleged fraudulent receipt has been produced, would not be sustainable. As we are of the view that if the
prosecution is allowed to continue serious prejudice would be caused to the appellants and they would be called upon to face a trial which would
not be sustainable, we allow this appeal and set aside the decision of the High Court and quash the complaint case filed against the appellants.
In the above case, the Honourable Apex Court has held that in case no complaint by court in which fraudulent money receipt is produced,
prosecution at the instance of opposite party is not maintainable.
Learned counsel Mr. P. Selvaraj appearing for the respondent submitted as follows:-
The petitioners herein, in order to misappropriate the property of the respondent, has created two documents viz., deed of power of attorney and
sale deed by forging the respondent''s signature and also by impersonation. The respondent has filed a private complaint on 15.12.1997 before the
XIII Metropolitan Magistrate, Egmore, Chennai against the petitioners herein and the learned Magistrate, after perusing the complaint, directed the
Crime Branch to investigate the matter under sec. 156(3) Cr.P.C. On 19.1.1998, the said complaint was registered in Crime No. 66/98 for
offences under sec.465, 468, 470, 419, 429 read with 34 IPC, but, no investigation has been done inspite of several request made by the
respondent. In the result, the respondent filed petition under sec.482 Cr.P.C. in O.P. No. 14527 of 2001 before this court and this court, after
verifying the necessary records, directed the police to serve a copy of the referred notice on the respondent to enable her to work out her remedy
by approaching the concerned court by way of private complaint against the petitioners herein. The respondent is the owner of the property in
dispute and she never executed any deed of power of attorney to the second petitioner herein nor authorised him to execute a sale deed and the
petitioners by impersonation created the deed of power of attorney with the intention to misappropriate the property. In order to seek the remedy
available under civil law, the respondent filed O.S. No. 1840 of 1998 to declare that the sale deed and deed of power of attorney which were
created fraudulently are null and void and for other remedies. The petitioners herein have not made out any valid ground to quash the complaint
filed by the respondent and prayed for dismissal of the present petition. The learned counsel appearing for the respondent relied upon the following
judgments:-
(i) KAMALADEVI AGARWAL v. STATE OF WEST BENGAL AIR 2001 SCW 4292 wherein the Honourable Supreme Court has held in
para 17 that
... Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the code of Criminal Procedure and the
pendency of a civil action in a different Court even though higher in status and authority, cannot be made a basis for quashing of the proceedings.
In the above case, the Honourable Apex Court has held that quashing of proceedings at initial stage merely on the grounds that the very foundation
of the criminal case is the subject matter of a civil case is unsustainable.
(ii) VITOORI PRADEEP KUMAR v. KAISULA DHARMAIAH AIR 2001 SCW 2286 wherein the Honourable Apex Court has held in para 2
that
The order of learned Single Judge of Andhra Pradesh High Court passed in Criminal Revision No. 602/1999 allowing the revision filed by the
accused persons on the ground that the criminal case cannot proceed because of the pendency of a civil suit is the subject matter of the challenge in
this Court. As it appears, before the learned Magistrate, an application for discharge was filed, but, the Magistrate was of the opinion that there
exist sufficient material to proceed with the criminal case and therefore prayer for discharge was rejected... Moreso, there is an earlier order of the
High Court itself. In this view of the matter, we set aside the impugned order of the High Court and direct that the criminal proceedings should be
continued. We make it clear that any observation made, will not bind the Magistrate.
In the above case, the Honourable Apex Court has held that quashing of criminal proceedings on the ground that civil suit for specific performance
is pending is untenable.
(iii) M.KRISHNAN v. VIJAY SINGH AIR 2001 SCW 4142 wherein the Honourable Supreme Corut has held in para 9 that
Right from the case of R.P. Kapur Vs. The State of Punjab, , this Court has held that revisional or inherent powers for quashing the proceedings
at the initial stage can be exercised only where the allegations made in the complaint or the first information report, even if taken at their face value
and accepted in their entirety, do not prima facie disclose the commission of an offence or where the uncontroverted allegations made in the FIR or
complaint and the evidence relied in support of the same do not disclose the commission of any offence against the accused, or the allegations are
so absurd and inherently improper that on the basis of which no prudent person could have reached a just conclusion that there were sufficient
grounds in proceeding against the accused or where there is an express legal bar engrafted in any provisions fo the Code or any other statute to the
institution and continuance of the criminal proceedings or where a criminal proceeding is manifestly actuated with mala fide and has been initiated
maliciously with the ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.
In the above case, the Honourable Supreme Court has held that when the complaint alleges commission of offence of cheating and fraud, quashing
of complaint merely on grounds that nature of dispute was primarily of civil nature is not proper.
(iv)LALMUNI DEVI v. STATE OF BIHAR AIR 2001 SCW 2504 wherein the Honourable Apex Court has held in para 8 that
There could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it is also settled law
that facts may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable does not mean that the criminal
complaint cannot be maintained. In this case, on the facts, it cannot be stated, at this prima facie stage, that this is a frivolous complaint. The High
Court does not state that on facts no offence is made out. If that be so, then merely on the ground that it was a civil wrong the criminal prosecution
could not have been quashed.
In the above case, the Honourable Supreme Court has held that merely because a civil claim is maintainable, it does not mean that criminal claim
cannot be maintained.
(v) M/s. MEDCHL CHEMICALS & PHARMA PVT. LTD., v. M/S.BIOLOGICAL E. LTD. AIR 2000 SCW 682 wherein the Honourable
Apex Court has held in para 16 that
Be it noted that in the matter of exercise of High Court''s inherent power, the only requirement is to see whether continuance of the proceeding
would be a total abuse of the process of Court. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and
in the event, the High Court is desirous of putting a stop to the known procedure of law, the High Court must use a proper circumspection and as
noticed above, very great care and caution to quash the complaint in exercise of its inherent jurisdiction.
In the above case, the Honourable Apex Court has held that the High Court, while exercising its inherent powers has to see whether continuance
of proceedings would be a total abuse of the process of court and the High Court must use its power with very great care and caution before
quashing the complaint in exercise of its inherent jurisdiction.
Sec.482 Cr.P.C. confers a separate and independent power on the High Court alone to pass orders ex-debito justitiae in cases where grave
and substantial injustice has been done or where the process of the Code has been seriously abused. Inherent power conferred on the High Court
u/s 482 has to be used sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the
section itself. It is only when the ends of justice are put in jeopardy by the conduct of the parties, the inherent power can be exercised. A
proceeding initiated on a complaint can be quashed when the complaint taken as a whole does not disclose any offence. In appropriate cases the
High Court can exercise inherent powers to protect a person from illegal and vexatious prosecution, but, where the circumstances do not so
warrant the High Court should not quash the proceedings in exercise of inherent jurisdiction.
The Honourable Supreme Court in R.P. Kapur Vs. The State of Punjab, has indicated some of the categories of cases where the inherent
jurisdiction to quash proceedings can and should be exercised as
(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence
alleged.
(ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety,
do not constitute the offence alleged.
(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in
support of the case or the evidence adduced clearly or manifestly fails to prove the charge. So far as cases other than the categories of the cases
mentioned above, the High Court shall refrain from exercising its inherent powers under sec.482 Cr.P.C.
In a proceeding instituted on a complaint, exercise of inherent powers to quash the proceedings is called for only in a case where the complaint
does not disclose any offence or is frivolous, vexatious or oppressive. When an allegation on a complaint discloses a prima facie case, the process
is issued by the Trial Magistrate, quashing of such proceedings is illegal.
The allegation in the complaint against the petitioners herein is that the first petitioner herein is the maternal uncle of the respondent herein, during
the last week of August 1992, he has induced her to hand over the sale deed in respect of the property in dispute to him enabling him to arrange
for loan for the purpose of construction of a building in the said plot for her. It is further alleged that she has entrusted him the original title deeds of
the said plot, but, he failed to arrange for loan till the middle of May 1997, she and her husband requested him to return the original sale deed, but,
he has been giving evasive reply. The first petitioner has allegedly informed the complainant that the original sale deed was lost. She has
approached the Sub-Registrar''s office for issuance of encumbrance certificate. The encumbrance certificate issued by the Sub Registrar discloses
that a power of attorney was executed in the name of the respondent in favour of the second petitioner herein and the second petitioner allegedly
by virtue of the power of attorney, executed sale deed in favour of the first petitioner''s minor son. Immediately, she has filed a private complaint
before the XIII Metropolitan Magistrate, which was forwarded under sec.156(3) Cr.P.C. to the police, and the police registered a case in Crime
No. 66/98 for offences under sec.465, 468, 470, 419, 420 read with sec.34 IPC, but, no investigation has been commenced by them, she has
filed a petition under sec.482 Cr.P.C for a direction to the police to investigate the case. When the police reported that the case was referred as
mistake of fact, but, no referred notice was served on her, this court directed the police to serve refer notice to enable her to file private complaint.
The respondent has filed a private complaint before the Additional Chief Metropolitan Magistrate, Egmore, Chennai which was taken on file and
as it is evident that there is sufficient ground for a proceeding and the learned Magistrate has ordered for issuance of summons to the attendance of
the petitioners/accused. The respondent also filed a suit before the competent civil court for a declaration to declare that the deed of power of
attorney as well as the sale deed both said to have been executed by her is null and void.
The learned counsel appearing for the petitioners advanced argument that when a civil proceedings has been initiated, on the said set of facts, a
criminal proceedings initiated in a private complaint is unsustainable in law. It is also argued by the learned counsel appearing for the petitioners that
when the respondent has also filed a civil suit where she has canvassed the with regard to forgery and impersonation that the deed of power of
attorney and sale deed were created by the petitioners, the civil court is the competent court to file a complaint, as such the private complaint
initiated by the respondent is not maintainable.
In Gopalakrishna Menon and Another Vs. D. Raja Reddy and Another, , the money receipt alleged to have been forged was produced before
the civil court, but, the same court has not chosen to give a complaint as contemplated under sec.195(1)(b)(ii) of Cr.P.C., but, the private
complaint has been initiated by the other side. The Honourable Apex Court has held that the same is unsustainable in law since no complaint has
been preferred by the court. This judgment is not applicable to the facts and circumstances of the present case since no such document was
produced by the petitioners herein during the pendency of the civil suit to attract sec.195(1)(b)(ii) of Cr.P.C. The argument of the learned counsel
for the petitioners that when a civil suit is already filed, such a criminal complaint is not maintainable is also unsustainable in law. In Alpic Finance
Ltd. Vs. P. Sadasivan and Another, relied on by the learned counsel appearing for the petitioner, the facts in that case were that a person who
availed a loan failed to repay the same as per the lease agreement. The Honourable Supreme Court has held that on facts, the complaint does not
disclose the element of deception or fraud or dishonest inducement or wilful misrepresentation in the entire transaction and ultimately quashed the
complaint, hence the said judgment is not applicable to this case. In Major Singh and Others Vs. State of Punjab, criminal action was initiated for
various offences relating to acts of impersonation, forgery, etc. against the accused in spite of final three tier verdict of civil courts culminating with
the dismissal of regular second appeal on the very points against the complainant. The remedy sought for by the respondent before the Trial Court
is to declare that the deed of power of attorney as well as the sale deed is null and void which suit is pending. But, the criminal proceedings are
initiated by her for the alleged offences under sec.465, 468, 470, 419, 420 read with sec.34 IPC. In a criminal court, the allegations made in the
complaint have to be established independently. Hence, this judgment is not applicable to the present case.
Even the judgment relied on by the counsel for the petitioner reported in Alpic Finance Ltd. Vs. P. Sadasivan and Another, , the Honourable
Supreme Court has laid down the ratio that merely because remedy by way of civil suit is available is not an impediment in maintaining a criminal
complaint provided the complaint discloses the ingredients of the offence alleged. So, now we have to look into whether the complaint filed by the
respondent discloses the alleged offences or not. It is not the case of the petitioners that the complaint does not discloses the ingredients of the
offences alleged, but, only canvassed that the present complaint is vitiated as the earlier complaint was closed and suit for the same relief is filed.
The respondent has stated valid reasons for filing the present complaint that the police has failed to investigate the matter.
On a careful reading of the complaint, I am of the view that the complaint preferred by the respondent herein discloses the ingredients of the
alleged offences under sec.465, 468, 470, 419, 420 read with sec.34 IPC. However, it is for the Trial Court to decide whether or not the
allegations in the complaint are otherwise correct on the basis of the evidence to be lead at the time of Trial. I am not inclined to exercise the power
under sec.482 Cr.P.C.
In the result, this petition is dismissed without expressing any opinion on merits of the case. The learned Magistrate shall proceed with the
complaint and dispose of the same in accordance with law without taking into account any observation made by me.