V.Pandi vs The State represented by, The Inspector of Police, & Anr.

This Criminal Original Petition is filed under Section 482 of Criminal Procedure Code to quash the proceedings in C.C.No.224 of 2008 on the file of the learned Judicial Magistrate No.I, Tirunelveli.

The case of the prosecution is that the second respondent is the rightful owner of 10 cents of land in S.No.156/1 and 40 cents in S.No.183/B1, in Sankarankovil. He acquired the said land through a partition deed No.1854/1945, dated 17.09.1995 and enjoying the same by possession. While so, A1 without having any right or title upon the above said properties executed a General Power of Attorney, as if he is the owner and registered a document No.65 of 1995, dated 06.09.1995 in favour of A2, who in turn sold a part of the property to A3 and the remaining part to some other persons, who are arrayed as A4 and A5 in the First Information Report. After investigation, the first respondent police filed a charge sheet as against three persons and the same was taken cognizance by the learned Judicial Magistrate No.I, Tirunelveli, in C.C.No.224 of 2008. The present petition is preferred by A3 to quash the said proceedings.

The learned counsel appearing for the petitioner would submit that the petitioner, who is arrayed as A3, is only a bonafide purchaser, without having any malafide intention to cheat the original owner, the defacto complainant. The petitioner purchased the property vide document No.65 of 1995, dated 06.09.1995. Further, he has constructed a house after obtaining permission from the local body concerned and he is also having electricity connection and he is enjoying the property by paying house tax. Patta was also transferred in the name of the petitioner. That apart, No Objection Certificate has also been given by the Railway authorities, as the property was originally belonged to them prior to the conferment of right upon A1. The defacto complainant R2 without having any physical possession made an attempt to establish the right by a partition deed. Further, the learned counsel for the petitioner submitted that the petitioner had no knowledge about the alleged forged power deed and rightly no charge under Section 120(b) IPC was framed against the petitioner. Therefore, the learned counsel for the petitioner pleads to quash the proceedings as against the petitioner.

The learned Government Advocate (Criminal Side) submitted that the General Power of Attorney executed in favour of A1 was cancelled and subsequent to the cancellation, sale has been effected and on that basis a case has been registered. Therefore, there is a prima facie case as against the petitioner and the trial is at the threshold. Hence, he prays for dismissal of this petition.

I have carefully considered the submissions made by the learned counsel on either side and also perused the materials available on record.

From the materials available on record it could be seen that the case of the second respondent is that he is the rightful owner of 10 cents of land in S.No.156/1 and 40 cents in S.No. 183/B1, in Sankarankovil and he acquired the said land through a partition deed No.1854/1945, dated 17.09.1995 and enjoying the same by possession. It is represented that second respondent and A1 died.

As per the 161 Cr.P.C. Statement of the second respondent, the grandfather of R2 and the father of A1 are brothers. The grand father of R2 had partitioned his property in favour of his 5 sons and the father of R2 is the eldest son among the 5 sons. However, he has not stated anything about the physical possession upon the disputed property. A suit was also filed by the wife of the deceased second respondent for declaration and also for recovery of possession in O.S.No.228 of 2011 before the Principal District Munsif, Sankarankovil, and the same was dismissed for default on 09.12.2014.

Be that as it may, a perusal of the additional typed set of papers filed by the learned counsel for the petitioner would go to show that the first accused in this case namely AV.Rm.Sankaranarayanan, filed a petition before the Revenue Divisional Officer, Tirunelveli, to cancel the patta standing in the name of the defacto complainant namely Sundara Velayutham, and to issue patta in his name. The Revenue Divisional Officer, Tirunelveli, after due enquiry, vide order, dated 24.02.2010, allowed the petition in favour of Av.Rm.Sankaranarayanan/A1. It is useful to extract the relevant portion of the proceedings of the Revenue Divisional Officer hereunder:- "VERNACULAR MATTER OMITTED"

Aggrieved against the said order, the defacto complainant preferred a review petition before the District Revenue Officer, Tirunelveli, and the District Revenue Officer, Tirunelveli, vide order dated 19.11.2010, dismissed the review petition. It is relevant to extract the relevant portion of the order hereunder: "VERNACULAR MATTER OMITTED"

From the above, it is clear that the defacto complainant failed in his attempt to prove his case before the revenue officials against A1(died). In addition to that, the defacto complainant proceeded to file a criminal case against the same set of facts against the petitioner and others. Apart from that a civil suit also filed by the wife of the defacto complainant for declaration and recovery of possession and the same was dismissed for default as stated earlier. A perusal of the orders of the revenue officials reveals that the second respondent has no physical possession of the property, which is in dispute and he is having only a constructive possession, that too could not be relied upon, since the constructive possession has also not been proved by him before the revenue officials as well as in the complaint as against this petitioner. On the other hand, the petitioner herein has established that he is having constructive as well as physical possession of the disputed property, by which there is no possibility of prima facie criminal case as against him.

From the above discussion and reason, this Court has no hesitation to come to a conclusion that the first respondent police has not made out a prima facie case against the petitioner under Sections 467 and 420 IPC. Therefore, if the trial is allowed to proceed against the petitioner, it will cause great prejudice to him. Hence, the proceedings in C.C.No.224 of 2008 against the petitioners are quashed. The criminal original petition is allowed. Consequently, connected miscellaneous petition is closed.