C.Natarajan v. State by Inspector of Police District Crime Branch (D.C.B) Thiruvannamalai Thiruvannamalai District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.09.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.5002 of 2009C.Natarajan ..PetitionerVs.1.State by Inspector of Police District Crime Branch (D.C.B) Thiruvannamalai Thiruvannamalai District2.Balakrishnan ..Respondents (Impleaded the 2nd respondent as per order of this Court dated 23.04.2009 in MP.No.1 of 2009)This Criminal Original Petition has been filed under Section 482Cr.P.C to call for the records in Crime No.3/2009 pending on the fileof the respondent and quash the FIR dated 03.03.2009.For Petitioner: Mr.S.GunaseelanFor Respondent : Mr.I.Paul Nobel Devakumar (R1) Govt Advocate (Crl.Side) Mr.T.Vijayaraghavan (R2)O R D E RThis is a petition filed under Section 482 Cr.P.C for quashingthe FIR registered in Crime No.3/2009 on the file of the DistrictCrime Branch, Thiruvannamalai, Thiruvannamalai District for anoffence punishable under Section 420 IPC based on the complaint ofthe second respondent herein dated 03.03.2009. 2. The facts leading to the filing of the present petition canbe summarised in brief as follows:Claiming to be the owner of a property comprised in SurveyNo.191/3 having an extent of six cents, the petitioner herein soldthe said land along with the adjacent lands comprised in Survey https://hcservices.ecourts.gov.in/hcservices/ No.191/1 to three persons viz. 1) Babu s/o Masilamani, 2) Saravanans/o Annamalai and 3) Balaji s/o Dakshinamoorthy under three saledeeds bearing document Nos.911/2008, 988/2008 and 3298/2008respectively registered on the file of the Sub Registrar, Polur. Thesecond respondent, namely the de-facto complainant preferred acomplaint on the file of District Crime Branch, Thiruvannamalaialleging that the said property originally belonged to his father-in-law Rangaiah Reddiar; that after his death the same devolved uponSundaralakshmi, wife of Rangaiah Reddiar and his daughter Rani; thatthe second respondent/de-facto complainant was the husband of thesaid Rani; that while so, the petitioner fraudulently obtained apatta in his name for the above said property measuring six cents(equivalent to 2613 sq.ft.) comprised in survey No.191/3 and sold italong with his property comprised in survey No.191/1 which wasadmittedly that of the petitioner herein under the above said saledeeds and that hence criminal proceedings for cheating should beinitiated against the petitioner herein. The said complaint wasreceived by the Inspector of Police, District Crime Branch on03.03.2009 and a case was registered by him against the petitionerherein in Cr.No.3/2009 on the file of the District Crime Branch,Thiruvannamalai for an offence punishable under Section 420 IPC. 3. In the above said factual background, the petitioner hereinhas come forward with the present petition under Section 482 Cr.P.Cto quash the above said criminal case registered against him on theground that the allegations made in the complaint do not disclose thecommission of an offence punishable under Section 420 IPC.4. The arguments advanced by Mr.S.Gunaseelan, learned counselfor the petitioner, by Mr.I.Paul Nobel Devakumar, learned GovernmentAdvocate (Crl.Side) representing the respondent and byMr.T.Vijayaraghavan, learned counsel for the second respondent wereheard. The petition and the documents produced on either side werealso perused.5. It is the contention of the learned counsel for thepetitioner that the first respondent has registered a case for anoffence of cheating punishable under Section 420 IPC based on a falsecomplaint of the 2nd respondent containing incorrect and falseallegations; that even if the allegations made in the complaint aretaken to be true, no case of cheating punishable under Section 420will be disclosed by the said allegations and that hence the criminalcase registered based on the complaint of the second respondent/de-facto complainant should be quashed using the inherent powers of thiscourt under Section 482 Cr.P.C.6. Admittedly, petitioner is not the owner of the property,which is the subject matter of the dispute. He claims the same to bebelonging to his mother-in-law and wife. It is his further case thathe got an agreement for sale from the said persons. As rightly https://hcservices.ecourts.gov.in/hcservices/ pointed out by the learned counsel for the petitioner, the saiddocument was nothing but one created for the purpose of enabling thesecond respondent/de-facto complainant to prefer a complaint againstthe petitioner. It is quite obvious that the contents of thecomplaint disclosed a dispute of civil nature which is sought to begiven a criminal colour and converted into a criminal case. Such anattempt on the part of the second respondent/de-facto complainant wasproved to be successful as the first respondent has chosen toregister a case for an offence under Section 420 I.P.C. against thepetitioner without properly considering whether the contents of thecomplaint disclosed commission of any cognizable offence, especiallythe offence punishable under Section 420 IPC for which the case wasregistered.7. It is the case of the petitioner that the property adjoiningsix cents of land comprised in Survey No.191/3 did belong to hisgrandmothers viz. Raja Kannammal and Sivagamiammal from 22.02.1959;that the disputed property, namely six cents of land comprised insurvey No.191/3 had been classified as kalvai poramboke and that thepetitioner was enjoying the said property for more than 50 yearspaying kist to the government and local authorities; that by virtueof such long enjoyment he got patta for that land also and thatthereafter he sold it to third parties in the year 2008. Therefore,it is quite obvious that the petitioner herein chose to sell thedisputed land to third parties in exercise of his supposed right asthe owner of the property. When such transactions are made inexercise of his supposed right of title, a rival claimant cannot beheard to say he has been cheated. It is proved that there wascheating in accordance with definition found in Section 415 IPC. Theoffence under Section 420 IPC will not attract the penal provisionunder Section 420 IPC. 8. The definition clause of Section 415 IPC reads as follows:"Whoever, by deceiving any person, fraudulently ordishonestly induces the person so deceived to deliver anyproperty to any person, or to consent that any person shallretain any property, or intentionally induces the person sodeceived to do or omit to do anything which he would not do oromit if he were not so deceived, and which act or omissioncauses or is likely to cause damage or harm to that person inbody, mind, reputation or property, is said to "cheat". In the explanation, it has been stated that a dishonestconcealment of fact is a deception within the meaning of this section.9. For an offence of cheating, the following averments should bethere: 1) there should be a representation made by the accused andthe same should be false, 2) the accused should knoe that therepresentation was false even at the time when he made it, 3) he made https://hcservices.ecourts.gov.in/hcservices/ such representation with a dishonest intention of deceiving theperson to whom it was made and 4) by such representation he shouldhave induced the person so deceived to deliver any property or to door omit to do something which he would not have done or omitted.10. In this case, it is clear that no representation was made tothe second respondent/de-facto complainant by the petitioner herein.It is not the case of the second respondent that the representationmade by the petitioner induced the second respondent/de-factocomplainant to deliver any property to any person, or to consent foranother person's retention of the property. It is also not the caseof the second respondent that he was induced by the petitioner bydeception to do or omit to do which he would not do or omit to do.11. In the entire complaint there is not even a whisper thatthere was any representation made by the petitioner to the secondrespondent/de-facto complainant or that the petitioner induced thesecond respondent/de-facto complainant by such representation to doanything or omit to do anything. So far as the offence under Section420 IPC is concerned, the aggrieved party should have been induceddishonestly to deliver any property to any person, or to make, alteror destroy the whole or any part of a valuable security, or anythingwhich is signed or sealed, and which is capable of being convertedinto a valuable security.12. There is no averment in the complaint that the petitionerwas induced, by any false representation, to deliver the property toany person or to make alter, destroy the whole or any part of avaluable security or anything which is capable of converting into avaluable security. The only grievance expressed by the de-factocomplainant (2nd respondent) is that the property, in respect of whichhe claims title in his monther-in-law and wife and claims to have gotan agreement for sale from the said persons in his favour, was soldby the petitioner herein to three persons after fraudulently gettinga patta from the authorities in his name. Even assuming that theproperty belonged to the mother-in-law and the second respondentherein/de-facto complainant and he got an agreement for sale fromthe real owners, the complaint does not disclose that the secondrespondent herein/de-facto complainant was cheated by the petitioner.The mere act of selling a property, claiming title to the same, to athird person will not amount to an offence of cheating the realowner. It may sometimes amount to cheating the person to whom theproperty was sold on the pretext that the vendor was the real owner.If at all the persons in whose favour the sale deeds were executedcome forward with a complaint airing grievance that they were made topart with their money by a false representation made by the vendor tothe effect that he had transferable title in respect of the propertyand that such representation turned out to be false, such allegationswill make out a case for an offence of cheating punishable underSection 420 IPC. But, in this case, the persons in whose favour the https://hcservices.ecourts.gov.in/hcservices/ petitioner herein executed the sale deeds in respect of the disputedproperty did not come forward with any complaint that the petitionerdid not have a transferable title and hence they were cheated. Eventhen, if the representation was made not with any dishonestintention, but with a belief that he has got such a transferabletitle, then the offence of cheating under Section 420 IPC would notbe made out. 14. In instant case, the petitioner has produced a number ofdocuments to show that the petitioner had title to the disputedproperty. The documents include a sale deed in the name of thepetitioner's grandmother dated 22.02.1959, a partition deed dated29.01.1970, proceedings of the Tahsildar, Polur dated 30.08.1994,patta issued in the name of the petitioner dated 25.07.2007 and kistreceipts in the name of the petitioner. The said documents areproduced not for establishing the title of the petitioner but forshowing that the property was enjoyed by him in exercise of hissupposed title and sold to third parties in such exercise of rightsof the title holders. The said aspect was considered by the Hon'bleSupreme court in Ramesh Dutt and Ors. vs. State of Punjab and Ors.reported in 2009(9) Scale 723 The following were the observationsmade by the Hon'ble Supreme Court in the said case. "Title in or over an immovable property has manyfacets. Possession is one of them. Unless there existsa statutory interdict, a person in possession maytransfer his right, title or interest in favour of athird party.""In the facts and circumstances of this case, in ouropinion, only because appellants are said to havetransferred a portion of the property without havingcomplete ownership over them by itself do not satisfy theingredients of Sections 467, 468 and 469 of IPC."15. In V.Y.Jose v. State of Gujarat and Anr. reported in 2009(3) SCC 78, it was observed that,"An offence of cheating cannot be said to have beenmade out unless the following ingredients are satisfied:(i)deception of a person either by making a false ormisleading representation or by other action oromission;(ii)fraudulently or dishonestly inducing any person todeliver any property or(iii)To consent that any person shall retain anyproperty and finally intentionally inducing that https://hcservices.ecourts.gov.in/hcservices/ person to do or omit to do anything which he wouldnot do or omit." For the purpose of constituting an offence ofcheating, the complainant is required to show that theaccused had fraudulent or dishonest intention at the timeof making promise or representation. Even in a case whereallegations are made in regard to failure on the part ofthe accused to keep his promise, in case of a culpableintention at the time of making initial promise beingabsent, no offence under Section 420 IPC can be said tohave been made out."The said view was also approved in a subsequent case in Devendra& Ors. Vs State of U.P. & Anr. reported in 2009 (7) SCC 613.16. When the said ratio is applied to the facts of the case onhand, one can have no hesitation in coming to the conclusion that nocase has been made out by the allegations made in the complaint foran offence of cheating punishable under Section 420 IPC. 17. For all the reasons stated above, this court comes to theconclusion that the petitioner has made out a clear case for quashingof the FIR as the contents of complaint, even if it is taken to betrue, do not disclose the commission of the offence punishable underSection 420 IPC for which alone the case has been registered.16. In the result this petition is allowed and the criminalproceedings in Cr.No.3/2009 pending on the file of the respondentpolice are quashed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar asrTo1.The Inspector of Police District Crime Branch (D.C.B) Thiruvannamalai, Thiruvannamalai District2.The Public Prosecutor, High Court, Madras-600 104.+ 1 c.c. to Mr. S. Gunaseelan, Advocate. S.R.No.46183.+ 1 c.c. to Mr. T. Vijayaraghavan, Advocate. S.R.No.46351.Crl.O.P.No.5002/2009TM (CO)GSK 29.09.2009.