IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.07.2009 CORAM: THE HONOURABLE MR.JUSTICE C.S.KARNAN Crl.O.P.No.5334 of 2004 and Crl.M.P.Nos.1427 and 1678 of 2004 1.D. Ganesan .. Petitioner/accused (Petitioner/Intervener is impleaded as per the order of this Court dated 16.06.2004 in Crl.M.P.No.6587 of 2004) Versus State represented by The Station House Officer, CID Police Station, Pondicherry. .. Respondent 2 P. Poungodi Impleaded the 2nd respondent/Intervenor as per order of this Court dated 16.6.2004 in Crl.M.P.No.6587/2004 Petition filed under Section 482 Cr.P.C to call for the records and quash the charges framed in C.C.No.52 of 2001 on the file of the Chief Judicial Magistrate, Pondicherry. For Petitioner : M/s. M.Christella For Intervener : Mr. C.Sundarapandian For Respondent : Mr. N.R.Thangavelu Government Advocate (Pondicherry) O R D E R The petitioner/accused has filed the above Criminal Original Petition to call for the records and quash the charges framed in C.C.No.52 of 2001 on the file of the Chief Judicial Magistrate, Pondicherry. 2. The petitioner contended that the respondent/complainant has filed the above C.C.No.52 of 2001 against the petitioner on a private complaint filed by a defacto complainant/intervener herein, https://hcservices.ecourts.gov.in/hcservices/ for an alleged offence under Section 409 of IPC. The learned Magistrate ordered to investigate the complaint filed as per section 156(3) of Cr.P.C. 3. The defacto complainant has alleged that she is the owner of the property comprised in R.S.No.103/10, 103/11 and 100/3 part, situated at Village No.69, Korrukkumedu, Thavalakuppam, Ariyankuppam, Pondicherry. The defacto complainant had appointed the petitioner as her power agent to subdivide the land, make a layout and sell it to the intending purchasers by executing a registered Deed of General Power of Attorney dated 20.03.1998, vide document No.402 of 98. As per Power of Attorney, the petitioner had sold 25 kuzhies and one Veesam through registered sale deeds to 10 various persons, between the period from March 1998 to March 1999 and misappropriated the sale proceeds for himself and not paid the amount to the defacto complainant. The act of the petitioner/accused on the face of it constitutes an offence punishable under Section 406 IPC and as the petitioner/accused is in the position of a power agent, he had committed breach of trust, and as such liable for punishment under Section 409 IPC. 4. The accused was then confronted by the complainant about his illegal action, about unauthorisedly selling away her lands and misappropriating the sale proceeds. The accused had accepted to pay the sale proceeds to the complainant in two instalments on or before 15.06.2001, but the accused had failed to keep up his words. Hence, the complainant had preferred the complaint. On the basis of all the allegations, the Honourable Judicial Magistrate No.II had ordered to register a complaint against the petitioner under Sections 406 and 409 of IPC. 5. The complaint was suo motu transferred the case to Chief Judicial Magistrate from the Court of Judicial Magistrate No.II on 07.08.2003, where the charges were framed against the accused only for the offence punishable under Section 409 IPC. 6. The petitioner/accused filed a petition under Section 239 of Cr.P.C to discharge him from the charges on various grounds and the same was dismissed on 14.11.2003 as the petition was not maintainable after framing of charges. Further, the petitioner submitted that the complaint is an abuse of process of court and law. Further, the entire complaint is with regard to non-payment of sale proceeds and so it is of a civil nature. Further, the petitioner submits that Section 409 IPC is not attracted in the said ingredients of the complaint. Further, the petitioner submitted that the sale transactions are purely of a civil nature and the defacto complainant ought to have taken steps to set aside the sale deeds that were executed by the petitioner without the knowledge and consent of the complainant. Further, the complaint has been filed against the petitioner, with malicious intention, just to harass the petitioner. The complaint only speaks about misappropriation of funds which does https://hcservices.ecourts.gov.in/hcservices/ not warrant an offence under Section 409 IPC. The complaint has also been filed at a belated stage after rendering accounts, and misunderstanding between the petitioner and complainant. 7. The learned Magistrate, after considering the contents of the complaint filed by the defacto complainant before the Honourable Judicial Magistrate No.II, Pondicherry under Section 156(3) of Cr.P.C, received it and preliminary enquiry was conducted and found that there is prima facie case and hence has taken the case on file. In the said complaint, the purchasers name and sale deed particulars, date of execution and extent of land etc., have been furnished. Supporting his case, statements also have been collected from witnesses. 8. It is seen from the facts and circumstances of the case, on the strength of power of attorney deeds executed by the defacto complainant to an in favour of the petitioner herein, the petitioner had sold the lands to various persons and the sale consideration was misappropriated by him. Hence, the Criminal Case in C.C.No.53 of 2003, has got to be tried in the trial court, in the interest of justice. If the matter is tried, the petitioner/accused will not be prejudiced. So, Criminal Original Petition No.5334 of 2004 is dismissed. Consequently, connected Miscellaneous Petitions are closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar mra To 1. The Station House Officer, CID Police Station, Pondicherry. 2. The Public Prosecutor, High Court, Madras. 3 The Chief Judicial Magistrate, Pondicherry +1 CC to Mr.M.Christeela, Advocate, Sr.32558 Crl.O.P.No.5334 of 2004 and Crl.M.P.Nos.1427 and 1678 of 2004 CO RL SRA 06/08/2009 https://hcservices.ecourts.gov.in/hcservices/