P.B. Sakthivel vs P.B. Subramaniam, D. Jeyaprakash, M.P. Thasarathan and P.S. Velayutha Raja

The Honourable Mr. Justice S. Palanivelu

This Criminal Revision is preferred to call for the records relating to the order dated 28.01.2011, made in C.C. No. 343 of 2009, on the file of the Judicial Magistrate, Rajapalayam and set aside the same.

The Petitioner is the complainant in C.C. No. 343 of 2009, on the file of the Judicial Magistrate, Rajapalayam. The Court below recorded sworn statement of the complainant as well as the witnesses and passed an order on 28.01.2011 dismissing the complaint observing that in the pending civil suit, the Petitioner can ventilate his grievance, that he is attempting to change the civil case into the criminal case and that there is no prima facie to take cognizance of the offences.

In the complaint, it is alleged that the complainant filed a suit in O.S. No. 122 o 2003, on the file of the Sub Court, Srivilliputhur for partition and separate possession of 7/24th share in the suit properties against his brothers and Ors. and the suit is pending. He also filed an application in I.A. No. 340 of 2003 praying the Court to grant ad-interim injunction restraining the first Defendant from alienating or creating any encumbrance with reference to the suit properties. Interim injunction order was also passed by the Court.

Pending the trial of the suit, the first Defendant sold a portion of the suit properties on 18.11.2008 to the second Respondent and the third and fourth Respondents are attestors to the sale deed. Only on 27.09.2009, the Petitioner came to know about the sale. He laid a complaint before the Rajapalayam South before the Court. The Petitioner also sent a complaint to the Superintendent of Police, Virudhunagar, on 10.10.2009. Hence, the private complaint has been filed before the Court below praying the Court to take cognizance of the offences u/s 206 Indian Penal Code against the Respondents.

Mr. G.R. Swaminathan, the Learned Counsel appearing for the petitioner would contend that inasmuch as the conduct of the Respondents would attract the ingredients contained in the provision u/s 206 Indian Penal Code, there is no legal embargo for the Court below to take cognizance u/s 206 Indian Penal Code, that the terms available u/s 206 of Indian Penal Code, themselves would indicate that if any result is likely to be obtained in a civil suit in favour of the complainant, wherein in case the Respondents fraudulently removes, conceals, transfers or delivers to any person any property, then the wrong doer could be held liable u/s 206 of Indian Penal Code. It is his further contention that since this is a partition suit among the brothers, the Petitioner has got every chance in getting his share divided and since the first Respondent has alienated a portion of the joint property, definitely he can be found guilty u/s 206 Indian Penal Code. Section 206 Indian Penal Code goes thus:

Fraudulent removal or concealment of property to prevent its seizure as forfeited or in execution.-Whoever fraudulently removes, conceals, transfers or delivers to any person any property or any interest therein, intending thereby to prevent that property or interest therein from being taken as a forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he knows to be likely to be pronounced, by a Court of Justice or other competent authority, or from being taken in execution of a decree or order which has been made, or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

The Court has to ascertain whether the relief prayed for in the civil suit or any proceedings would come under the two categories as set out in the section, which are, the interest in the property is likely to be forfeited in the said proceedings or "in satisfaction of fine" under a sentence which has been pronounced. By no stretch of imagination, it could be stated that the relief prayed for in the partition suit would come under the above two categories even if the relief of partition is granted in favour of the Petitioner in the partition suit. Directing division of property, certainly, the relief is not in the form of the interest being taken as a forfeiture or in satisfaction of a fine under a sentence. Only if the relief claimed in the proceedings comes under any of the above two categories, definitely, Section 206 of Indian Penal Code comes to play.

Even though the Court below has not drafted the order in consonance with the terms employed in Section 206 Indian Penal Code, still this Court is of the considered view that there is no prima facie materials available in the case of the petitioner and there is no infirmity either legally or factually is seen in the order challenged before this Court.

The next limb of the contention of the Learned Counsel appearing for the Petitioner is that the case was given Calendar Case number and the Court cannot dismiss the same u/s 203 Code of Criminal Procedure. A careful perusal of the records would show that the office of the Judicial Magistrate has wrongly given Calendar Case number instead of giving Criminal M.P. number. Only after taking cognizance of the offences, question of assigning Calendar Case number will arise. But, admittedly, in this case, this is a pre-cognizance stage and the Calendar Case number was given wrongly by the staff of the Court which is not a legal flaw. It is only an irregularity that can be cured. The learned Judicial Magistrate has dismissed the petition u/s 203 Code of Criminal Procedure. properly and there is no ground made out to interfere with the order challenged before this Court. In the result, the Criminal Revision Case is dismissed.