IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM CRL.O.P.No.9583 of 2007 and M.P.Nos.1 of 2007 and 1 of 2008 1.T.H.Mohammed Farook 2.Jameerunnisa Farook ..Petitioners/Accused -Vs- L.Muruganantham ..Respondent/Complainant Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the records in C.C.No.468 of 2006 on the file of the learned Judicial Magistrate II, Kancheepuram and quash the same. For Petitioners : Mr.R.Sreerangan For Respondent : Mr.M.Devaraj O R D E R This petition has been filed to quash proceedings in C.C.No.468 of 2006 on the file of the learned Judicial Magistrate II, Kancheepuram. In such case, the petitioners stand accused of offences under Sections 420 and 294(b) r/w.506(ii) IPC. 2.The gist of the complaint is as follows: The accused approached the complainant on 28.01.2006, informed that they hold an extent of 40 acres 55 cents at Tammanur village and at the complainant's office and in the presence of witnesses requested him to purchase the same. An agreement was entered into whereby the sale consideration was arrived at Rs.16,22,000/- and an advance of Rs.41,000/- was paid on 28.01.2006 by the complainant to the accused. The complainant was put in possession of the property. On the assurance that he could develop the property, the complainant spent huge sums of money for such purpose. Though the accused were called upon to execute sale deed within the period stipulated in the agreement, the accused purposely avoided doing so with intent of usurping the advance paid by the complainant. Doubting the intent of https://hcservices.ecourts.gov.in/hcservices/ the accused, the complainant caused a legal notice on 03.03.2006. As there was no response, the complainant made enquiries and learnt that the accused were habitually involved in entering into an agreement of sale, causing the agreement period to elapse and usurping the advance paid. The complainant made one final attempt by contacting the accused over phone. The 1st accused informed that the land would not be transferred. Feeling cheated the complainant filed a complaint with the Superintendent of Police, Kancheepuram District on 15.03.2006. While matters stood thus, the accused came to the complainant's office at about 11 a.m. on 02.11.2006, demanded return of the agreement for sale as also an authorisation letter to which the complainant retorted that by placing trust in what the accused had led him to believe, he had spent huge sums of money for developing the property, informed that he was willing to pay the entire sale consideration and required the accused to effect sale of property. The 2nd petitioner/accused informed that the accused party had entered into an agreement for sale of the property with a third party and that the complainant could not receive either the property or any money from them. When the complainant impressed upon them that he was in possession of the property, the 1st accused got angry and abused him in foul language and stated that if the documents were not handed over by the complainant as demanded, it was possible for him to do away with the complainant and also retain the money. The 2nd petitioner/accused stated that by using their henchmen the complainant would be done away with. The witnesses present informed the accused that their conduct was poor and wanting to which the 2nd petitioner/accused replied that they would not be cowed down by any complaint, nothing could be done to them and neither the property nor the advance would be returned. The 1st accused beat the complainant, others intervened and the accused shouted that the complainant could do what he liked and that they would do away with him and left the place. It is on such allegations that the complaint has been filed. 3.Learned counsel for the petitioner submitted in response to the notice of the complainant dated 03.03.2006, a reply notice dated 17.03.2006 had been caused informing that the agreement for sale dated 28.01.2006 in favour of the complainant was not valid. An extent of 20 acres of the property covered by the agreement belonged to a company viz., M/s.Shoreline Farms Pvt. Ltd. and no resolution had been passed by such company for sale of the property. It was contended on behalf of the 2nd petitioner that she was not a party to the agreement for sale and that the property was a joint property belonging both to the company as also the petitioners. In the reply, the complainant's allegation of having been in possession of the property and of having spent huge sums towards forming of roads etc. were denied. Learned counsel for the petitioner submits that in so far as the 2nd petitioner is concerned she was not a signatory to the agreement for sale dated 28.01.2006. The same had been entered into on behalf of the company only by the 1st petitioner. Even though the stand of the 1st petitioner that the agreement was not binding on the https://hcservices.ecourts.gov.in/hcservices/ company might not seem just, still the parties were now before the civil Court in respect of the very same dispute and the same is pending adjudication in O.S.No.2121 of 2007 on the file of the learned District Judge, Chengalpat filed by the respondent/complainant. 4.The learned counsel placed reliance in the judgment of the Honourable Apex Court in Murari Lal Gupta v. Gopi Singh (2005) 13 SCC 699 to support his contention that the matter was only a civil dispute resulting from a breach of contract. The learned counsel further would submit that in any event the petitioners had under legal notice dated 22.06.2006, apart from complaining about certain wrongful conduct on the part of the complainant had returned the advance amount paid by him under Demand Draft dated 20.06.2006 drawn on Indian Bank, Saidapet, Chennai. The complainant had encashed such demand draft which fact had been confirmed by the bank under communication dated 06.12.2006. Thus having had return of the advance amount, the prosecution of the complaint case by the respondent was totally unjustified. Learned counsel also would submit that the allegation made in the complaint of verbal abuse and of attack upon the complainant have been done only as an attempt to make out offences under Sections 294(b) and 506(ii) IPC. 5.By way of reply to the submissions made by the learned counsel for the petitioners, learned counsel for the respondent would submit that a reading of the complaint would show that the offences alleged stood clearly made out. It is upon such satisfaction that the lower Court had taken cognizance and when such is a case, this Court would not interfere. Learned counsel would submit that having entered into the agreement dated 28.01.2006, the petitioners had by notice dated 17.03.2006 taken the stand that the company M/s.Shoreline Farms Pvt.Ltd. was the owner of a larger portion of the property covered under the agreement, that the agreement for sale had not been entered into by the 1st petitioner on the strength of any resolution passed by such Company and that the 2nd petitioner had not consented to sell the property and raised the claim that the agreement for sale was nonest and not valid nor enforceable. Thus, the learned counsel submits, it was apparent that having received the advance of Rs.41,000/-, the petitioners with criminal intention sought to wriggle out of the agreement. The very stand taken in the reply notice dated 17.03.2006 made it clear that the intent to cheat existed even at the time the agreement for sale was entered into on 28.01.2006. As regards the receipt and encashment of the demand draft for a sum of Rs.41,000/- by the complainant, it is submitted that such amount was a part of the amount due under a separate transaction whereunder the 1st petitioner had on execution of a pro-note borrowed a sum of Rs.60,000/-. After adjustment of the payment of Rs.41,000/- towards part payment of the due under the pro-note, the complainant had filed a separate suit before the Court of District Munsif, Chengalpet. Such is the explanation offered for non-mentioning of the fact of https://hcservices.ecourts.gov.in/hcservices/ receipt of Rs.41,000/- in the complaint. On the failure to mention a notice issued by the petitioners on 06.06.2006 wherein the petitioners had referred to their notice of 17.03.2006 wherein it was informed that the agreement for sale was nonest and unenforceable and also informed about the wrongful conduct of the complainant in visiting their house with henchmen on 24.05.2006 and threatening the petitioners and their family members with dire consequences, informed their having preferred complaint before the Assistant Commissioner of Police, Chennai and called upon the complainant to desist from such unlawful and illegal activities, it is submitted that the notice was received only by the learned counsel for the respondent, and that the respondent had no knowledge thereof. In immediate response, the learned counsel for the petitioners refers this Court to the notice dated 06.06.2006 to inform that the same was addressed to the respondent at his residential address. The learned counsel for the petitioners also submits that in receipt of the pro-note, on the strength of which the respondent has preferred a suit, the genuineness of the pro-note had been challenged by the 1st petitioner. 6.I have considered the rival submissions and perused the entire material on record. 7.In the facts and circumstances of the case, it is quite clear that the agreement for sale entered into between the parties gave rise only to civil rights which could be enforced by either party through resort to civil process. It is not disputed that the company by name M/s.Shoreline Farms Pvt.Ltd. is a private company of which the petitioners herein who are husband and wife are the only two directors. In such circumstances, it is not surprising that the husband/1st petitioner has executed the agreement for sale on behalf of the company and in his capacity as director. No criminal intent can be read from such an act. The defence taken by the petitioners regarding the real owners of the property not having entered into an agreement for sale can only be read as a defence against enforcement of agreement for sale and by such subsequent act, no intent to deceive at the inception i.e., at the time of agreement for sale can be drawn. The notice dated 06.06.2006 issued on behalf of the petitioners alleging wrongful conduct by the respondent/complainant stands suppressed. The allegations of threats issued by the petitioners and of the 1st petitioner having beat the complainant are seen to be self-serving. While differences have cropped up between the petitioners and the respondent in March 2006 and there have been exchange of notices upto June 2006, after a spell of calm, an occurrence wherein the petitioners are said to have wrongfully conducted themselves is alleged to have taken place on 02.11.2006 towards preference of complaint close to such date. 8.This Court would quash the complaint pending in C.C.No.468 of 2006 on the file of the learned Judicial Magistrate II, Kancheepuram both on the ground that there existed only a civil dispute between https://hcservices.ecourts.gov.in/hcservices/ the parties and that the complaint is malafide for reason that the complainant had not disclosed material particulars viz., the encashment of demand draft of Rs.41,000/- received by him from the petitioners as also the receipt of the notice dated 06.06.2006. 9.The Criminal Original Petition shall stand allowed and the proceedings in C.C.No.468 of 2006 on the file of the learned Judicial Magistrate II, Kancheepuram shall stand quashed. Consequently, the connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gm To 1. The Judicial Magistrate II, Kancheepuram. 2. -do- Through The Chief Judicial Magistrate, Kancheepuram. + 1 c.c. to Mr. M.Devaraj, Advocate. S.R.No.10186. + 1 c.c. to Mr. R. Sreerangan, Advocate. S.R.No.10101. CRL.O.P.No.9583 of 2007 and M.P.Nos.1 of 2007 and 1 of 2008 MDR (CO) GSK 01.03.2010. https://hcservices.ecourts.gov.in/hcservices/