R.Viswanathan v. State, Central Crime Branch

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 17.04.2012CoramTHE HON'BLE MR.JUSTICE C.S.KARNANCrl.R.C.No.688 of 2007 &M.P.Nos.1 of 2007 and 2 of 2009R.Viswanathan.. Petitioner Vs.1. State by Inspector of Police, Central Crime Branch, Egmore, Chennai - 600 008. (Crime No.685 of 2003)2. Segh Salalludin.. RespondentsPrayer :-Criminal Revision is filed under Section 397 r/w 401 ofCr.P.C., to call fore the records in C.C.No.8810 of 2005, on the fileof the III Metropolitan Magistrate Court, George Town, Chennai,examine the same to satisfy itself as to the correctness, legality orpropriety of the order dated 12.04.2007 in M.P.No.13095 of 2006 inC.C.No.8810 of 2005, set-aside the said order and consequentlydischarge the petitioners by holding that the charge against him isgroundless. For Petitioner : Mr.A.RavindranFor Respondents : Mr.C.Balasubramaniam Additional Public Prosecutor for R-1 Mr.S.F.Mohammed Yousuf for R-2- - -ORDERThe petitioner / petitioner / accused No.2 has preferred thepresent revision against the order passed in M.P.No.13095 of 2006 inC.C.No.8810 of 2005, by the learned III Metropolitan MagistrateCourt, George Town, Chennai. https://hcservices.ecourts.gov.in/hcservices/

2. The short facts of the case are as follows:-On the first information laid before the police on22.07.2003, by the witness Segh Salalludin, the police registeredthe case against the first accused, viz., Syed Ibrahim underSections, 465, 468, 471 and 420 of IPC. The gist of the allegation isthat the first informant's father had executed and registered thefamily settlement in the office of the Sub-Registrar at Vellipattinamon 28.02.1974 under document No.383 of 1974, by which the firstinformant and his siblings were given the estate of their father. Thefirst informant thereafter executed and registered the General Powerof Attorney in favour of his sister one Syed Amina Beevi in theoffice of the Sub-Registrar of Keelakarai on 03.04.1987 underdocument No.41 of 1986 to maintain the estate he had inherited fromhis father. Abu. Ayub, another witness also executed a General Powerof Attorney in favour of his mother Syed Amina Beevi, and registeredthe said power of attorney in the office of Sub-Registrar which arein existence and they were not cancelled. The first informationfurther reads that the accused Syed Ibrahim had registered the saleof the first informant's estate in S.F.No.37 of 2004 comprised inpatta No.284 with the aid of two deeds of general power of attorneysaid to have been executed and registered by the first informant andhis nephew in the office of the District Registrar, North Madras videdocument no.1400 and 1401 of 2002 on 30.09.2002 in favour of thefirst accused. The Police after completing the investigation laid thecharge sheet against the accused 1 and 2, viz., Syed Ibrahim andR.Viswanathan under Sections 467, 468 and 471 of IPC r/w 120(B)citing seven witnesses. Subsequently, the case was taken on the fileof III Metropolitan Magistrate, George Town, Chennai as C.C.No.8810of 2005.3. At this stage, the accused No.2 / R.Viswanathan has fileda petition in M.P.No.13095 of 2006 seeking discharge. It wassubmitted that the petitioner / accused No.2 has been arrested on07.10.2003 by the respondent herein / Inspector of Police, CentralCrime Branch, Egmore, Chennai-8, for alleged offences under Sections420, 471 r/w 468 IPC r/w 120(b) of IPC and later let on bail. It wassubmitted that after the receipt of summons from this Court, in theabove case, he is regularly appearing before the Hon'ble Court fromJanuary 2006 onwards and the case was posted for further hearing on13.12.2001. It was submitted that this petitioner had purchased thesaid property for the benefit of a registered firm bearingregistration No.699 of 2002 called by name of "Athma Jyothi PublicWelfare Trust" and that he is the Managing Director of the trust. Itwas submitted that he had verified the General Power of Attorney ofthe accused No.1 and found that it was a registered one. Thereafter,on the bona-fide belief that it was a genuine power deed, thispetitioner purchased the said property for a valuable consideration.It was submitted that he was not aware that the General Power ofAttorney is a forged one at that time as the action of the accused A1did not create any suspicion. It was submitted that if at all the https://hcservices.ecourts.gov.in/hcservices/ said power if forged, the defacto complainant can challenge the saidpower before the competent civil Court and this petitioner can alsoseek his remedies against the accused No.1, if it is truly a forgedone, since he will be the loser. It was submitted that instead ofchallenging the power deed, the defacto complainant has filedO.S.No.29 of 2003, on the file of the District Munsif Court,Ramanathapuram for a bare injunction against the petitioner and theaccused No.1 restraining them from entering into the property sold.It was submitted that unless the said power deed is cancelled or set-aside by a competent civil Court, the defacto complainant has noright to interfere with the possession of this petitioner. But, theyhave not sought for such a relief before the civil Court. This onlyshows that there is something fishy about their title or the powerdeed. Therefore, this complaint against the petitioner herein isunsustainable as it is not supported by any documentary deed. It wasfurther submitted that the copies of documents relied upon by theprosecution were given to this petitioner only on 30.11.2006 sincethe accused A1 could not appear before this Court due to his ill-health and old age. It was submitted that on a perusal of thedocuments and statements furnished by the prosecution and thecomplaint filed by the defacto complainant, it is obvious that thereis nothing on record to incriminate the petitioner/ accused A2 inthis case. It was submitted that this petitioner / accused A2 isappearing before this Court from Uchippuli Village, RamanathapuramDistrict, which is more than 500 Kms away from Chennai, on account ofthe false complaint made by the defacto complainant. It was submittedthat if at all any proceeding can be initiated against thispetitioner, it must be only civil in nature, but unfortunately thepetitioner has been implicated in this case. Hence, it was prayed todischarge him from the above calender case in C.C.No.8810 of 2005.4. The respondents in their counter had submitted that basedon the complaint given by one Thiru.Sheik Salauddin, a criminal casehad been filed against the petitioner and another in Cr.No.685 of2005. It was submitted that the defacto complainant had denied thathe had given the power of attorney to the accused 1 to sell hisproperty at Ramanathapuram District and that the first accused hadused forged power of attorney and effected sale of property to thesecond accused and that the second accused is aware of this. It wassubmitted that only after evidence of witnesses during trial, thefactual nature of the case can be made out and hence, it was prayedto discharge the accused No.2 from the proceedings.5. The learned III Metropolitan Magistrate, Georgetown,Chennai, on scrutiny of oral and documentary evidence and on scrutinyof the power of attorney given to accused A1, observed that thesignature contained in it had not been signed by the property holderviz., Thiru.Thaikka Abu Aiud and another and that it had been forgedas per the report of Forensic Science Department. The IIIMetropolitan Magistrate, therefore observed that based on the forgedpower of attorney, the accused No.1 had sold the said property to the https://hcservices.ecourts.gov.in/hcservices/ second accused and as such, held that the sale is not valid. Further,the learned Magistrate on observing that the question of acquittingthe second accused cannot be decided before the commencement of trialand on considering that only at the end of trial, the issue regardingwhether the second accused had colluded with the first accused andbought the land knowing fully well that the power of attorney shownby the first accused is forged or whether the second accused hadinnocently purchased the said land, could be decided and on observingthat the petition filed under Section 227 of Cr.P.C had been filedunder wrong sections, held that the petitioner/second accused couldnot be discharged at this stage and hence, dismissed the petition.6. Aggrieved by the dismissal of his petition, thepetitioner/second accused had preferred the present revision.7. The learned counsel for the revision petitioner hascontended in his revision that the trial Court failed to see thatthere is no whisper in the statement of witnesses sent with the finalreport that there was prior concert or undertaking between thepetitioner and first accused to bring into existence the allegeddeeds of power of attorney, viz., Document No.1400 of 2002 andDocument No.1401 of 2002, on the file of the District Registrar,North Madras. The signature of the witness Segh Salalludin and AbuJayam were forged and a power of attorney has been executed as ifthe first accused Syed Ibrahim was authorized to register the sale ofthe lands of the said witnesses. It was contended that the petitioneris neither an attesting witness nor the beneficiary of the saleproceeds. It was also contended that the learned Magistrate ought tohave seen that the petitioner is the Secretary of the Vendee Trust,viz., Atma Jyothi Public Welfare Trust, the bona-fide purchaser fromthe first accused. It was contended that it was incredulous to notethat the president of the Vendee Trust is cited as a witness,whereas, the petitioner has been roped in as an accused in the sametransaction. It was contended that in the absence of petitioner'sknowledge object of conspiracy i.e., conspiracy to bring intoexistence of alleged deed of power of attorney and thereafter, sellthe lands of the witnesses Segh Salalludin and Abu Jayam andappropriate the sale proceeds with the first accused, the learnedMagistrate ought to have discharged him and held him innocent. Hence,it was prayed to set-aside the order passed by the trial Court anddischarge the petitioner by holding that the charge against him isgroundless.8. The learned Additional Public Prosecutor appearing forthe first respondent submits that on the basis of second respondent'scomplaint, a criminal case has been registered against the firstaccused for the alleged offence under Section 465, 468, 471 and 420of IPC against the first and second respondent herein. The petitionerherein is the second accused, who colluded with the first accused andcreated false sale deed on the name of the first accused. Therefore,the criminal case has to be decided after trial. Under the https://hcservices.ecourts.gov.in/hcservices/ circumstances, the revision petitioner cannot be discharged from thecriminal case.9. The very competent counsel appearing for the secondrespondent submits that the first and second accused had colludedwith each other and created general power of attorney, which is abogus document. On the basis of bogus document, the first accused hadexecuted sale deed in favour of second accused, i.e., the revisionpetitioner herein. Therefore, the criminal case has been registeredagainst them and it is ready for trial. Under the circumstances, theabove revision petitioner cannot be discharged from the criminalproceedings.10. On considering the factual position of the case andarguments advanced by the learned counsels on all sides and onperusing the impugned order of the trial Court, this Court is of theview that the defacto complainant has filed O.S.No.29 of 2003, on thefile of District Munsif, Ramanathapuram, restraining the firstaccused, viz., Syed Ibrahim from alienating the said property to thethird parties. It is evident on a perusal of records that the saidSyed Ibrahim had sold the said property to the revision petitionerherein and as such, the revision petitioner herein cannot dischargedfrom the proceedings at this stage. However, the revisionpetitioner's presence is dispensed with before the III MetropolitanMagistrate, George Town, Chennai. However, the revision petitionerherein has to appear before the learned III Metropolitan Magistrate,George Town, Chennai, as and whenever required by him.11. In the result, the above revision is partly allowed.Consequently, the order passed in M.P.No.13095 of 2006 in C.C.No.8810of 2005, by the learned III Metropolitan Magistrate Court, GeorgeTown, Chennai, dated 12.04.2007 is modified. Consequently, connectedmiscellaneous petitions are closed.Sd/-Asst. Registrar[cs.iv]Dt/-06/11/2014/true copy/Sub Asst. Registrar.r n s https://hcservices.ecourts.gov.in/hcservices/ To1. The State by Inspector of Police, Central Crime Branch, Egmore, Chennai - 600 008. (Crime No.685 of 2003)2. The III Metropolitan Magistrate Court, George Town, Chennai.3. The Public Prosecutor, High Court, Madras.1 CC To Mr.N.A.Ravindran, Advocate SR NO.25138Crl.R.C.No.688 of 2007 vsn[co]gp/7.11