(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C.to call for the records in C.C.No.1828 of 2019 pending on the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai, and quash the same as against the petitioners.
This Criminal Original Petition has been filed to quash the criminal proceedings in C.C.No.1828 of 2019 pending on the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai which was taken on file on the basis of the private complaint for the offence under Section 193, 406, 418, 420, 423, 468, 469 r/w 34 and 120 I.P.C.
2. The crux of the allegations in the private complaint is as follows:
2.a. The defactco complainant and the accused 1 to 3 had financial dealings from the year 2005 till 2018 and the A1 advanced the finance towards the vehicles owned by the defacto complainant. At the time he has also obtained several documents relating to the property at Thanjavur and also in Chennai. When the matter stood thus, after accounts, a made over agreement was executed between the A1, defacto complainant and one R.R.Vasudevan on 23.5.2008, where Mr.R.R. Vasudevan agreed to pay a sum of Rs.79,00,000/- payable to the defacto complainant and paid to A1. Thereafter, the defacto complainant paid the remaining amount. However, he sought for return of documents on 30.08.2011 by way of a legal notice. However, the same was replied with false notice. Thereafter, the agreement has been created in respect of the Tanjavur property as against which a complaint was given by the defacto complainant and the same was registered in Cr.No.193 of 2012 as per the direction of this Court. Thereafter the same has been referred as Mistake of Fact and as against which he has also filed revision and appeal before the Honourable Supreme Court. Based on the above order he has also filed a separate private complaint in Tanjavur Court in C.C.No.41 of 2015 and the same is pending. Similarly, a suit filed by the 1st Accused was also dismissed by the 1st Additional District Court, Tanjavur in O.S.No.8 of 2012.
2.b. According to the defacto complainant, during the loan transaction he was induced to part with the documents and created documents. When the matter stood thus, now the 4th Accused being the man of A1 has filed a suit as if there is equitable mortgage in respect of the property at Adyar in C.S.No.79 of 2018 on the file of the this Court. Therefore, according to the defact complainant the accused has cheated him and sought action against the accused for various offences under Section 193, 406, 418, 420, 423, 468, 469 r/w 34 and 120 I.P.C. The above complaint was taken on filed by the learned IX Metropolitan Maghistrate, Saidapet, Chennai. The same is sought to be quashed by way of this Criminal Original Petition.
3.a. The learned counsel appearing for the Petitioner vehemently contended that though the earlier quash application was dismissed on the ground that since the trial Court has examined the witnesses and taken cognizance, the present quash application has been filed on some other grounds and other circumstances which has been suppressed in the court of law. When the court raised doubt about the maintainability of the second quash petition, this Court after considering the earlier order passed in Crl.O.P.(MD) No.13228 of 2015 and 19634 of 2016 by Order dated 09.03.2020 has entertained this petition considering the judgment of the Apex Court reported in Anil Khadkiwala vs. State of (Government of NCT of Delhi) and another [(2019) 17 SCC 294] the Apex court has held that second quash petition under the other circumstances is maintainable. Therefore, this present petition came for quashing the proceedings. The learned counsel for the Petitioners would mainly contend that this case is nothing but an abuse of process of law. Earlier round of litigation, the defacto complainant pressed into similar allegations an FIR was registered in Cr.No.193 of 2012. According to him the allegation contained in the private complaint and the allegation contained in the previous FIR in Cr.No.193 of 2012 are almost similar except adding the 4th Petitioner herein as one of the accused in the private complaint. On that ground he has filed a suit for recovery of money before this Court.
3.b. Learned counsel appearing for the petitioners would further submit that the case in Cr.No.193 of 2012 was thoroughly enquired by the Central Crime Branch and filed referred charge sheet holding that there is no case for criminal prosecution, since the case is of the civil issue. As against which protest petition has been filed before the Chief Metropolitan Magistrate, Egmore, Chennai in Crl.M.P.No.5358 of 2013. Learned Magistrate after elaborate arguments considered the entire materials and final report filed by the police has held that transactions are based on various documents executed between the parties which itself shows that the case is civil in nature and dismissed the petition. The same was challenged before this Court in Crl.R.C.No.1305 of 2013. By order dated 24.10.2013 this Court dismissed the Crl.R.C.holding that the dispute is only adjustment of account and civil in nature. As against which SLP was filed before the Honourable Supreme Court in SLP No.1042 of 2014. By Order dated 07.01.2015 the Apex Court has dismissed the petition. However, held that in the event the petitioner chooses to avail of the civil remedies, the observations of the High Court in the impugned judgment may not come in the way. Thereafter, on 09.01.2015 the Apex Court clarified the order as follows:
“However, in the event, the petitioner chooses to avail of the appropriate remedies, the observations of the High Court in the impugned judgment may not come in the way.”
3.c. Taking advantage of the orders of the Supreme Court, the defacto complainant once again filed a private complaint before the Judicial Magistrate at Thanjavur in respect of the property situated in Tanjavur. The same was taken on file in CC.No.41 of 2015 for the offences under Section 406, 420 r/w 34 of I.P.C. The Same was challenged before this Court in Crl.O.P.(MD) No.13228 of 2015 and 19634 of 2016. By order dated 09.03.2020, this Court has quashed the above proceedings holding that the criminal case is nothing but an abuse of process of law. These facts were never considered in the earlier quash petition. Whereas, the learned single judge of this Court has dismissed the quash petition to quash the criminal proceedings in C.C.No.1828 of 2019 merely on the ground that the case was taken on file, only based on the oral and documentary evidence submitted by the respondent before the trial court, verasity of his defence would be proved only in trial. Therefore it is his contention that the entire prosecution is nothing but an abuse of process of law. Earlier round of litigation, referred charge sheet has been filed, which was accepted by the trial Court; protest petition also filed which also reached finality. Therefore, merely because the Supreme Court has granted liberty to the respondent to avail appropriate remedies, it does not mean that once again the same allegation can be pressed into service and the criminal prosecution can be launched. It is his contention that taking advantage of the Apex Court judgment, two separate complaints, one with regard to the property situate in Thanjavur has been filed in CC.No.41 of 2015 which has already been quashed by this court, in the order referred above. Similarly the present quash petition relating to property situate at Chennai. Therefore, submitted that the entire prosecution is nothing but an abuse of process of law.
3.d. In support of his contention he relief upon the following judgments:
1. Vijay Kumar Ghal and Others vs. State of West Bengal and Others [2022 SCC Online SC 344]
2. Anil Khadkiwala vs. State (Government of NCT of Delhi) and Another [(2019) 17 Supreme Court Cases 294]
4. The learned counsel appearing for the Respondent would submit that the previous quash petition filed to quash the present CC has already dismissed by this Court. Therefore, the second quash petition is not maintainable. This Court took note of the fact that the trial Court taken cognizance based on the oral and documentary evidence. Hence it is his contention the earlier quash petition and Calendar Case are totally different. The allegations in the complaint make out a prima facie case. 4th Accused is no way connected with the transaction, now the 4th Accused filed suit for recovery of money based on the documents which was entrusted to A1. Therefore, it is a clear case of cheating and breach of trust. At this stage, quashment will not be permissible in the eye of law. High Court cannot assess the materials when the matter has taken cognizance by the competent court. High Court has no jurisdiction to appreciate the statement of witnesses and there are inconsistencies in the statements. Hence opposed the petition.
4.b. In support of his submissions he relied upon the following judgments:
1. CBI vs. Arvind Khanna [Crl.A.No.1572 of 2019 arising out of SLP(Crl.) No.1420 of 2017 dated 17.10.2019 Supreme Court of India]
2. M. Jayanthi vs. K.R.Meenkshil and Another [Crl.A.No.1817 of 2019 (arising out of SLP (Crl) No.741 of 2019)dated 02.12.2019]
3. Devendra Prasad Singh vs. State of Bihar & Another [Crl.A.No.579 of 2019 (arising out of SLP.(Crl.)No.21 of 2018 dated 2.4.2019.
5. I have perused the entire materials. The crux of the private complaint itself indicate that from 2005 to 2018 the defacto complainant had financial transaction with A1 to A5 and executed several documents by way of security and handed over the title deeds also. It is the contention of the defacto complainant that in the year 2008 there was some made over agreement entered between the parties including one Vasudevan who owe an amount to defacto complainant. According to him the said Vasudevan has paid a sum of Rs.79 lakhs towards the debt payable to the defacto complainant to A1. According to him the entire amount has been settled. However, the documents executed for the loan transaction retained by A1 has not been returned even after the legal notice and sent false reply. A suit is also filed in respect of certain properties in Tanjavour before the I Additional District Court, Tanjavur, which was also dismissed. Now A4 has filed a suit for recovery of money as if there was an equitable mortgage created his favour in respect of the Chennai property. Hence, according to him various offence have been made out.
6. The very allegation in the complaint itself indicate that the defacto complainant has executed various documents during the financial transaction from the year 2005 to 2018. Therefore, it cannot be said that there was an inducement at the time of the executing the document. The very complaint itself indicate that such documents came into existence during the financial transaction. The only allegation now appears with regard to the settling of accounts which has not been accepted by the respondent. Other allegations pressed into service is that A4 has filed a suit before the High Court for recovery of money in respect of certain documents said to have been executed in the loan transaction. The suit in High Court pending trial in C.S.No.79 of 2018 for recovery of money for a sum of Rs.24,62,000/-. Merely because A4 has filed a suit it cannot be assumed that he has filed such a suit only on the basis of the documents handed over to the A1 during the relevant point of time. It is a matter of defence in the particular suit, it has to be established by the defendant. Therefore, when the documents have been executed by the Defacto complainant during the loan transaction voluntarily and availed various loans to the tune of Rs.3 Crores, it cannot be said that there was inducement or deception played by the Accused from the very inception to attract the offence under Section 420 I.P.C.or it cannot be said that there is a breach of contact. The allegations in the entire complaint do not even indicate that the nature of forgery or creation of false records. When the very admitted case of the defacto complainant that he has handed over the documents it cannot be said that there is a creation of false documents. Similarly, merely because A4 filed a suit in his individual capacity it cannot be said that there is a falsification of records and forgery. It is for the defacto complainant to establish defence before the Civil Court. Therefore in order to detent the civil proceedings Criminal law cannot be set in motion.
7. It is also relevant to note that as rightly pointed out by the learned counsel for the Petitioner that a similar set of allegations except the A4 with regard to the loan transaction and retained the documents a crime has been registered as early as in the year 2012 in Cr.No.193 of 2012, which has been thoroughly investigated by the District Crime Branch, Chennai, and filed negative report before the learned Chief Metropolitan Magistrate, Egmore, Chenai. The above negative report was challenged by way of protest petition in Crl.M.P.No.5358 of 2013 before the learned Chief Metropolitan Magistrate. The learned Chief Metropolitan Magistrate vide order dated 23.09.2013 has dismissed the protect petition and accepted the closure report. As against which a revision was also filed before this Court in Crl.R.C.(MD).No.1305 of 2013. This Court has dismissed the revision on 24.10.2013. As against which SLP was filed before the Supreme Court vide SLP No.1042 or 2014. When the matter came hearing on 07.01.2015 the Apex Court has dismissed the SLP and held that in the event, the petitioner chooses to avail of the civil remedies, the observations of the High Court in the impugned judgment may not come in the way. Thereafter, by order dated 09.01.2015 the Apex Court has clarified as follows:
“However, in the event, the petitioner chooses to avail of the appropriate remedies, the observations of the High Court in the impugned judgment may not come in the way.”
8. It is relevant to note that the allegations of retaining of documents and made over document and execution of the documents relating to the properties at Tanjavur and Madras and the adjustment alleged by the defacto complainant is also pressed into service in the previous FIR. The investigating agency found that the case is not for criminal prosecution, which has reached finality before the Apex Court. Thereafter, the defacto complainant taking advantage of the observation and the liberty granted by the Apex Court that in the event the petitioner chooses to avail appropriate remedies, the observations of the High Court in the impugned judgment may not come in the way has initiated similar private complaint in C.C.No.41/2015 on the file of the learned Judicial Magistrate, Tanjavur, by separating the cause of action relating to the property situate in Tanjavur. The above Crl.O.P.(MD) Nos.13228 of 2015 and 19634 of 2016 was alllowed by this Court by order dated 09.03.2020, where this Court clearly held that the private complaint in C.C.No.41 of 2015 similar allegations which were raised in the FIR No.193 of 2012 were pressed into service and therefore, there cannot be any subsequent prosecution and quashed the entire proceedings.
9. The present private complaint is filed in respect of the properties situate in Chennai and in different forum at Chennai with similar set of allegations. Therefore, once the same allegations already been not accepted by the Court and rejected, choosing the different forum and filing the different set of allegations is nothing but an abuse of process of law.
10. In the case of State of Haryana and Others vs. Bhajan Lal and Others reported in 1992 SUPP (1) Supreme Court Cases – 335, the Hon'ble Supreme Court has set out the following guidelines for quashing the complaint:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is m
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aliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 11. The only difference in the private complaint in this case is, inclusion of 4th accused who said to have filed a suit for recovery of money which is still pending before this Court. In such a view of the matter this Court is of the view that it is for the defacto complainant to resist the suit and establish his defence and there is no element of cheating or breach of trust could be found in this case. Similarly, when the defacto complainant has admittedly executed certain documents, it cannot be said that there is a creation of false documents and forgery. In such a view of the matter this Court do not find any merits in this prosecution, which is nothing but an abuse of process of law. No doubt while exercising the power under Section 482 of Cr.P.C. the Court cannot go into the verasity of the statements and documents. Absolutely there is no dispute with regard to the above proposition, but the fact remains in this case initiation of the prosecution is nothing but an abuse of process of law. As already referred though this court has dismissed the quash petition earlier without adverting to the various factors this Court has entertained the second quash petition considering the judgment of the Apex Court reported in Anil Kadkiwala vs. State (Government of NCT of Delhi) and Another [(2019) 17 SCC 294] Considering the entire facts and circumstances of this case the private complaint is nothing but an abuse of process of law. Accordingly, the case in C.C.No.1828 of 2019 on the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai is quashed. 12. Accordingly, Criminal Original Petition is ordered and the case in C.C.No.1828 of 2019 pending on the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai is quashed. Consequently, connected Miscellaneous Petitions are closed.