IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15-2-2011 CORAM THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.No.25961 of 2009 1. Vijaynataraj 2.V. Rajesh 3.V. Shanthi ... Petitioners vs 1. State rep by The Inspector of Police, City Crime Branch Coimbatore City Coimbatore Cr.No.94 of 2009 2. S. Velusamy ... Respondents Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein. For petitioner : Mr.S. Vijayakumar For 1st respondent : Mr.Hassan Mohammed Jinnah Additional Public Prosecutor For 2nd respondent : Mr.G.L. Ramshankar ORDER By consent, the matter is taken up for final hearing. This petition is filed seeking for a direction to call for the records pertaining to the proceedings in Cr.No. 94 of 2009 taken on file by the Inspector of Police, City Crime Branch, Coimbatore City on 7.11.2009 on the complaint lodged by the 2nd respondent/defacto-complainant for the alleged offences under Secs.120-B and 420 IPC, and to quash the same. 2. For better appreciation, the factual backdrop involved is briefly outlined herein: https://hcservices.ecourts.gov.in/hcservices/ The 2nd petitioner is the son of the petitioners 1 and 3, who are said to be the owners of the property in S.Nos.26/2B and 26/2C. The allegation is that by representing to the defacto- complainant that they would sell to him 33 cents of property for a sum of Rs.95,09,459/-, the petitioners made him to believe that there was no encumbrance in the property and believing such representation, the defacto-complainant purchased the same for a valid consideration under registered sale deeds in the year 2007. After purchase, when the defacto-complainant was taking steps to sell the property, he came to know that the entire extent was already earmarked for public road as per the orders of the local planning authority and thereby, he was deceitfully cheated by the petitioners, which resulted in setting in motion the present criminal proceedings. 3. The learned counsel for the petitioners Mr.S. Vijayakumar, by pointing out that the petitioners had sold the property after furnishing all the relevant details and by well apprising the Scheme in G.O.Ms.No.661, Housing and Urban development Department dated 12.10.1994, whereby the Scheme to form a public road itself was abandoned in terms of Sec.38 of the Tamil Nadu Town and Country Planning Act, and would submit that thus, absolutely there was never an encumbrance in respect of the property and further, the Registering Authority had also registered the sale thereby, confirming that the scheme has been rendered redundant. The learned counsel further pointed out that the property was sold as early as during April 2007 and consequently, mutation of records was also effected and such being the position, the complaint lodged 2 ½ years after the transaction only with a view to harass the petitioners can never be sustained in the eye of law as there is no element of cheating or deception as contemplated under Sec.420 IPC. 4. The learned counsel referred to Sec.38 of the Town and Country Planning Act and also the Notification dated 12.10.1994 and also placed reliance on the following decisions: (2005) 11 SCC 222 (Raju S. Jethmalani and Others vs State of Maharashtra and Others) (2008) 3 L.W 982 (Karpaga Nagar Nala Urimai Sangam vs Municipal Administration and Water Supply Department and Others (2008) 2 MLJ 184 (K.S. Kamakshi Chetty and Others vs Commissioner, Aruppukottai Municipality, Aruppukottai and Another https://hcservices.ecourts.gov.in/hcservices/ (2009) 8 SCC 751 (Mohammed Ibrahim and Others vs State of Bihar and another) (2009) 7 SCC 712 (Harmanpreet Singh Ahluwalia and others vs State of Punjab and Others) 2009 (5) SCALE (Hira Lal and Others vs State of UP and Ors) (2009) 9 SCC 682 (M.N. Ojha and Others vs Alok Kumar Srivastav and another) 2009(7) UJ SC 3292 (Dalip Kaur and Ors vs Jagnar Singh and Another 5. Per contra, Mr.G.L. Ramshankar, learned counsel for the 2nd respondent/defacto-complainant would submit that having known well that the subject matter of the property was earmarked for the public road by the authorities, the petitioners had fraudulently sold the property by suppressing such vital aspect with the sole intention to cheat the defacto-complainant. By stating that the encumbrance certificate, dated 19.4.2007, did not reflect any encumbrance, the learned counsel further submitted that the conduct of the parties would show that from the inception, they obsessed with the intention of cheating the defacto- complainant, the petitioners suppressed the material facts to the adverse interest of the defacto-complainant and if the criminal proceedings launched are stalled or quashed at this crucial stage, much prejudice would be caused to the defacto-complainant. Therefore, he pleads that this Court need not interfere with the investigation, which is at the initial stage. 6. The point for consideration is that as to whether the the allegation would constitute an offence that the petitioners have acted dishonestly to deceive the defacto-complainant to purchase the property which has already encumbranced thereby causing damage to the defacto-complainant. 7. Indisputably the petitioners have purchased the property under two sale deeds dated 6.3.89. The Government of Tamil Nadu by a Government Order in G.O.Ms.No.661 dated 12.10.1994 notified for preparation of a Master Plan for Coimbatore local planning area, whereunder, the property in question, viz., 32 cents and 23 ½ sq.ft seemed to have been earmarked for a public road. The petitioners approximately sold 40 cents of land to one Rajkumar and to one Senthil Kumar. The balance extent covered under the two sale https://hcservices.ecourts.gov.in/hcservices/ deeds dated 6.3.89 is the disputed property. According to the complainant, knowing well that the said property was already set apart for formation of public road, the petitioners have deceitfully sold the same to him. 8. In that back ground, the stand of the petitioners with reference to Sec.38 of the Act which reads as follows may be looked into" Sec.38 of the Act reads as follows: "Section 38. Release of land: If within three years from the date of the publication of the notice in the Tamil Nadu Government Gazette under Section 26 or 2 7. (a) No declaration as provided in sub-section (2) of Section 37 is published in respect of any land reserved, allotted or designated for any purpose specified in a regional plan, master plan, detailed development plan or new town development plan covered by such notice; or (b) such land is not acquired by agreement, such land shall be deemed to be released from such reservation, allotment or designation". 9. According to the petitioners, since there is no acquisition of property and handing over of the same for the purpose of laying road within three years from the date of Notification, the Scheme itself is rendered redundant and thereby nothing prevented them in dealing with the property. 10. At this juncture, it will be of much relevant to refer to the following case laws: (2005) 11 SCC 222 (Raju S. Jethmalani and Others vs State of Maharashtra and Others) the Hon'ble Supreme Court held as follows: "There is no prohibition for preparing the development plan comprising of private land but than plan cannot be implemented unless the said private land is acquired by the Government for development purpose. In the present case, the area comprising in Plot No.438 belonged to the appellants and that no steps were taken to acquire the said land https://hcservices.ecourts.gov.in/hcservices/ by the State Government or by the Municipal Corporation of Pune and the Municipal Corporation had already expressed their inability to acquire that land and therefore, the said land has been dereserved by the State Government. Therefore, the present case has no semblance to that of Bangalore Medical Trust case. The question is whether without acquiring the land the Government can deprive a person of his use of the land. This in our opinion, cannot be done. 11. In 2008 2 MLJ 184 (K.S. Kamakshi Chetty and Others vs Commissioner, Aruppukottai Municipality, Aruppukottai and Another), this Court held as follows: Ratio Decidendi "When there was no acquisition proceeding taken within three years after the Notification issued under Section 14(3) of the old Act 7 of 1920 and even after the new Act of 1971 has come into effect, no step has been taken within the stipulated period for acquiring the property for the purpose of "open space" stated to have been reserved under the said Scheme, in view of Section 38 of the Act 1971, the property would be deemed to be released from such reservation". 12. In (2009) 8 SCC 751 (Mohammed Ibrahim and Others vs Stat of Bihar, the Apex Court held as follows: "16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed in his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a properly describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs https://hcservices.ecourts.gov.in/hcservices/ to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of 'false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed." 13. In (2008) 3 L.W 982 (Karpaga Nagar Nala Urimai Sangam vs Municipal Administration and Water Supply Department and Others2008 3 LW 982, a Division Bench of this court has held "31. Keeping in view the scheme or the Tamil Nadu Town and Country Planning Act, it is obvious that if any private land is to be included in the Development Plan as contemplated in the Tamil Nadu Town and Country Planning Act, steps are required to be taken as contemplated in Sections 37 or 38." 14. Now, coming to the scope of the Town and Country Planning Act, Sec.36 thereof provides that any land required, reserved or designated in a detailed development plan shall be deemed to be needed for public purpose. Under Sec.37(1) appropriate planning authority is empowered to take such lands. The Scheme provided in Sec.38 of the Act will make the position succinctly clear that, within three years from the date of publication of notice if any land so designated is not acquired such land shall be deemed to be released from such allotment or designation. 15. Now bearing in mind the ratio laid down in the above case laws as well as the Scheme as provided in the Act, this Court shall proceed to examine as to whether the claim of the petitioners that the Scheme itself was rendered inoperative is correct or in any way advance his case. https://hcservices.ecourts.gov.in/hcservices/ 16. The argument of the learned counsel for the respondent seems to be that the proposal of the scheme has, in fact, not been abandoned, for once a land is designated for laying a road i.e., for public purpose, there is no question of acquisition of land as in such cases the land would be treated as a gift by the land owner to the authority for a public cause. 17. According to the respondent, the petitioners have suppressed the material fact that the property was designated or earmarked for public road. The learned counsel submitted that the deception is at the initial stage which undoubtedly attracts an offence under Sec.420 IPC. The respondents have also relied on the two sale deeds executed by the petitioners in favour of one Senthil Kumar and Raj Kumar on 11.6.2001, wherein, in the boundary description the disputed property is shown as the "Scheme Road". 18. Having regard to the counter submission made by the learned counsel for the respondent/defacto complainant, it would be quite apposite to quote below the observation of the Apex Court in Shivanarayan Kabra v. State of Madras (1967 SCR (1) 138):- „ it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intension by any direct evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn.“ 19. Similarly, in respect of the scope of Section 420 IPC, the Apex Court, in Bashirbhai Mohamedbhai v. State of Bombay (1960 SCR (3) 554 ), ruled thus:- Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. Section 415 defines "cheating". The said provision requires, (i) deception of any person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property or (iii) https://hcservices.ecourts.gov.in/hcservices/ intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly clear by use of disjunctive conjunction 'or'. The definition of the offence of cheating embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to attract Section 420 are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the ingredients for the offence of cheating under Section 420. 20. Assessing the case on hand in the light of the principles laid down in the above cited case laws, it could be seen that even though the emphatic claim of the petitioner is that the scheme for acquisition of the land was dropped, equally, the case of the defacto complainant is that once the property is declared to be acquired for a public cause, it would never be returned to the land owner. Further, the respondent, in a way, demonstrated before this Court about the existence of element of deception from the inception by stating that in the sale deeds executed by the petitioners in favour of one Senthilkumar, the disputed property is shown to be the scheme road, which aspect would definitely stare at the stand of the petitioners. That being the situation, this Court cannot simply acting upon the arguments of the petitioner, order quashing of the proceedings since a prima facie case is made out for a thorough investigation as only after the outcome of such full-fledged investigation, the actual state of affairs would come to surface and in that event, if the petitioners are right in their claim, the defacto complainant would not have any case against them. In such view of the matter, this Court finds no reason much less valid reason to interfere with the proceedings at this initial and crucial stage. https://hcservices.ecourts.gov.in/hcservices/ 21. In the result, the criminal original petition stands dimissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sr To 1. The Inspector of Police, City Crime Branch Coimbatore City Coimbatore 2. The Public Prosecutor High Court, Madras 1 cc To Mr.S.Vijayakumar, Advocate, SR.11430 1 cc To Mr.G.L.Ramshankar, Advocate, SR.11594 Order in Crl.O.P.No..25961 of 2009 SV (CO) RH (25.2.11) https://hcservices.ecourts.gov.in/hcservices/