1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.07.2011 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.O.P.(MD).No.7841 of 2011 and M.P.(MD) No.1 of 2011 A.K.K.Baskaran : Petitioner Vs. 1.State represented by The Inspector of Police, Malli Police Sation, Srivilliputhur Taluk Circle, Virudhunagar District. 2.Karuppayee : Respondents PRAYER: Petition is filed under Section 482 of the Code of Criminal Procedure praying to call for the records relating to the impugned charge sheet laid in C.C.No.39 of 2011 on the file of the Judicial Magistrate No.II, Srivilliputhur, and quash the same. For Petitioners : Mr.M.R.Seenivasan For R - 1 : Mr.A.P.Balasubramani, G.A. (Crl. Side) For R - 2 : No Appearance O R D E R This petition is filed to call for the records relating to the impugned charge sheet laid in C.C.No.39 of 2011 on the file of the Judicial Magistrate No.II, Srivilliputhur, and quash the same. 2. The learned counsel appearing for the petitioner would submit the petitioner has purchased a peroperty of an extent of 1 acre 80 cents in S.No.1410 of Malli Village, Srivilliputhur Taluk, Virudhunagar District from one Gurusamy, Karuppiah and Karuppayee under a registered sale deed dated 1011.1990. The said property is originally belonged to Veerappan and Muthupetchi. They have two daughters viz., Karuppayee, who is the defacto complainant and Muthammal and one son viz., Gurusamy. The said Veerappan and Muthupetchi died intestate. The defacto complainant and her brother Gurusamy and one Karuppiah, who is the son of Muthammal have executed a sale deed and in pursuance of that the petitioner is in possessions and enjoyment of the property. The defacto complainant herein has given a complaint before the respondent police and after due enquiry, the complaint has been closed as civil in nature. Subsequently, the https://hcservices.ecourts.gov.in/hcservices/ 2 defacto complainant has filed a complaint before the Judicial Magistrate No.II, Srivilliputhur, which has been forwarded by the learned Judicial Magistrate to the respondent under Section 156(3) Cr.P.C and then only, the case has been registered against the petitioner as well as the said Karuppiah, who is the another executor in crime No.39 of 2011 on the file of the respondent police. At the time of filing of charge sheet against this petitioner for the offence under Sections 418, 419, 420, 465, 468, 471 and 465 read with 34 I.P.C., the co-executor Karuppiah was shown as witness No.2 in the charge sheet. 3. The learned counsel appearing for the petitioner would submit that the petitioner herein has filed a suit for declaration of title and for injunction before the Court of the Principal District Munsif, Srivilliputhur, in O.S.No.149 of 2010 and hence, it is purely civil in nature and hence, the petitioner has come forward with the present application for quashing the charge sheet filed against him. 4. At the time of argument, the learned counsel appearing for the petitioner would submit that the sale deed has been executed on 10.11.1990 and the complaint has been given in the year 2009 and it is barred by limitation. To substantiate the same, he relied upon the decision in 2003 Crl.L.J.3352 (M/s.Gadamsetty Sriramuly Vs. Assistant Director of Agriculture, Singarayakonda). He would also relied upon the Full Bench decision of the Apex Court in Inder Mohan Goswami and another Vs. State of Uttaranchal and Others reported in 2007(5) CTC 614 and since the issue is civil in nature, he prayed for quashing of the charge sheet. 5. The 2nd respondent/defacto complainant was served notice, but no one has represented on behalf of her. 6. Heard the learned Government Advocate (Criminal side) appearing for the 1st respondent/State, who would submit that on the basis of the complaint, they made an investigation and then only, the charge sheet has been filed and hence, he prayed for the dismissal of the application. 7. Considering the rival submission made on both side, the admitted case of both the petitioner as well as the defacto complainant is that the disputed property situated in Malli Village in Survey No.1410 is absolutely belonged to Muthupetchi, who is none other than the mother of the defacto complainant. Veerappan is the husband of Muthupetchi and they were having two daughters and one son viz., Muthammal and Karuppayee, who is the defacto complainant and one son viz., Gurusamy. Since Muthammal died, his son Karuppiah was succeeded with the share of Muthammal. 8. It is the case of the petitioner that he has purchased the property from Karuppayee, Gurusamy and the another sharer Karuppiah under a registered sale deed dated 10.11.1990. The learned counsel appearing for the petitioner would submit that at the time of sale deed, the parent/title document has been handed over to him and he https://hcservices.ecourts.gov.in/hcservices/ 3 is in possession and enjoyment of the same. In the year 2009 only, the defacto complainant has come forward with the complaint stating that her left thumb impression has been fabricated. But, admittedly, O.S.No.149 of 2010 has been pending before the learned Principal District Munsif, Srivilliputhur for declaration of title and injunction against the defacto complainant/2nd respondent herein and another executor. 9. At this juncture, this Court considered the Full Bench decision of the Apex Court in Inder Mohan Goswami and another Vs. State of Uttaranchal and Others reported in 2007(5) CTC 614 relied on the by the learned counsel appearing for the petitioner, wherein, it has been stated that when issue relating to right, title of land in dispute and also issue of correct demarcation of land are pending adjudication in competent civil court and the controversies between the parties are purely of civil nature, initiating criminal proceeding by respondent against appellant is clearly an abuse of process of Court and the case for prosecution under Sections 420 and 467 I.P.C. is not made out against the appellant even if all averments made in F.I.R. are taken to be correct and the criminal prosecution is not to be used as instrument for harassment or for seeking private vendetta or with an ulterior motive to pressure accused. In that, the Apex Court held that the High Court has inherent power to act ex debito justitiae to do real and substantial justice for administration or to prevent abuse of process of Court. 10. The learned counsel for the petitioner would further submit that the ingredients of cheating has not been made and there is no fraudulent and dishonest intention by the petitioner and the basic ingredients of forgery are altogether missing even in allegations of F.I.R. against this petitioner and hence, the petitioner cannot be legally prosecuted for an offence of forgery. 11. Considering the above said citation along with the facts and circumstances of case, it is clear that even though the alleged sale deed has been executed on 10.11.1990, till 2009, no steps have been taken by the 2nd respondent and in the year 2009, she has given a complaint against the petitioner. Furthermore, a suit for declaration of title and injunction has also been filed by the petitioner. In such circumstances, I am of the view that since the issue is purely civil in nature, the above said decision is squarely applied to the facts of the present case. 12. This Court also considered the Apex Court decisions relied upon by the learned counsel for the petitioner in Ashok Chaturvedi and others Vs. Shitul H.Chanchani and other reported in AIR 1998 SUPREME COURT 2796, wherein, the Apex has held that when the allegations have been made on the basis of forgery and fabricated signatures, the bald allegation that the shares of the complainant have been transferred on the forged signatures, there is no iota of material to indicate how all or any of the accused is involved in the so called allegation of forgery. The allegations in the complaint as well as her statement, no offence is made out against the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 4 13. At this juncture, it is appropriate to consider the said decision along with the present case. In this case, the charge sheet has filed against the petitioner for the offences under Sections 418, 419, 420, 465, 468, 471 and 465 read with 34 I.P.C. Even though, in the complaint it was specifically mentioned that the defacto complaint had filed encumbrance certificate on 07.12.2009 and then only, she came to know that the property has been already sold to the accused on 10.11.1990 for Rs.4,320/-., in paragraph No.6 of the complaint, it was stated that when the 2nd respondent approached the Karuppiah, he agreed that he has impersonated her and executed the sale deed in favour of the petitioner. It is pertinent to note that at the time of filing the charge sheet, the person, who is alleged to be committed impersonation and created the documents was not shown as accused and he was shown as witness No.2, which shows that because of the raising of the price of the immovable properties, nowadays the persons are initiating frivolous complaints against the bonafide purchasers. Hence, considering the above facts and circumstances, I am of the view that the ingredients of Sections 418, 419, 420, 465, 468, 471 and 465 read with 34 I.P.C. are not made out against the petitioner herein. Hence, the above decision is squarely applied to the facts of the present case. 14. The learned counsel appearing for the petitioner would further submit that the cause of action arose in this crime is on 10.11.1990, whereas, the complaint has been given in 2009, after a lapse of 19 years. He would further submit that since the period of punishment of the offences itself is maximum 7 years, the complaint given by the defacto complainant is barred by limitation. To substantiate the same, he relied upon the decision in 2003 Crl.L.J.3352 (M/s.Gadamsetty Sriramuly Vs. Assistant Director of Agriculture, Singarayakonda). This Court considered the above said decision. In such circumstances, I am of the view, the complaint given by the defacto complainant is barred by limitation. But, no reason has been assigned as to how the 2nd accused has been transposed as witness. In the complaint, it has been stated that Karuppiah and Gurusamy have executed the sale deed along with the another executor Karuppayee. In such circumstances, no reason has been assigned for non filing the charge sheet against L.W.2. It shows though the property has been sold in 1990, now the prices of the immovable properties are increased in several folds, so as to get unjust enrichment, L.W.2 Karuppiah, who is a retired police official, instigated his junior maternal aunt to file the complaint. It is clear that the petitioner herein is a bonafide purchases for valuable consideration and from the date of purchases i.e. on 10.11.1990, he is in possession and enjoyment of the property and he is the possession of the parental document and there is no reason assigned as to how the petitioner is the possession of the parent document of the property. Considering the cumulative effect, the issue in this case is civil in nature and the complaint also is barred by limitation. So, it is purely abuse of process of law and hence, I am of the view that this is a fit case to quash the proceedings and the criminal original petition is liable to be allowed. https://hcservices.ecourts.gov.in/hcservices/ 5 15. Accordingly, this criminal original petition is allowed and the proceedings in C.C.No.39 of 2011 on the file of the Judicial Magistrate No.II, Srivilliputhur, is hereby quashed. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To 1.The Judicial Magistrate No.II, Srivilliputhur. 2.-Do- Thro' The Chief Judicial Magistrate, Virudhunagar at Srivilliputhur. 3.The Inspector of Police, Malli Police Sation, Srivilliputhur Taluk Circle, Virudhunagar District. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +3 CCs to Mr.Sreenivasan, Advocate (SR.No.24626) Crl.O.P.(MD).No.7841 of 2011 26.07.2011 arul NSV/27.07.11/5P/8C https://hcservices.ecourts.gov.in/hcservices/