R.Pattivinayagam v. State by Inspector of Police, Vadavalli Police Station, Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.07.2010CORAM:THE HON'BLE MR.JUSTICE C.T. SELVAMCrl.O.P.No.27472 of 2009andM.P.Nos.1 and 2 of 20091.R.Pattivinayagam2.R.Murugan3.R.Natarajan.. PetitionersVs.1.State by Inspector of Police, Vadavalli Police Station, Coimbatore. (Crime No.137 of 2007)2.A.R.Ramanathan.. Respondents Criminal Original Petitions filed under Section 482 of theCode of Criminal Procedure to call for the records pertaining to theproceedings pending trial in C.C.No.356 of 2008 on the file oflearned Judicial Magistrate VI, Coimbatore and to quash the same. For Petitioners : Mr.M.Vijayakumaran For Respondent 1 : Mr.A.Saravanan, GA (Crl.Side) For Respondent 2 : Mr.N.Sivabharathi Legal Aid Counsel*****O R D E RThe petitioners seek quash of proceedings pending in C.C.No.356of 2008 on the file of learned Judicial Magistrate VI, Coimbatore. 2.On a complaint preferred by the 2nd respondent, case in CrimeNo.137 of 2007 has been registered informing that the petitionersherein had entered into a criminal conspiracy towards usruping theproperties belonging to the complainant, had on 11.03.2007 preventedthe complainant from entering into his property and committed offenceof criminal breach of trust and cheating by fabricating falsedocuments and using the same as genuine. On investigation, the finalreport has been filed against the three petitioners herein for https://hcservices.ecourts.gov.in/hcservices/ offence under Sections 120(b), 341, 406, 420, 463, 465, 468, 471 and506(ii) IPC. 3.In support of the quash petition, the learned counsel for thepetitioners submitted that the case came to be registered by the 1strespondent on the order of the learned Judicial Magistrate directinginvestigation under Section 156(3) Cr.P.C, and on a complaint beforeit. The learned counsel informed that the complaint allegation was tothe effect 'that one P.S.P.Somasundaram Chettiar who is the relative of oneValliammal who is the mother of the 2nd respondent herein andChairman and permanent Director of one Somasundaram CorporationLimited, had given a Power of Attorney to the mother of 2ndrespondent to look after the lands which is situated in SurveyNos.128, 129, 133, 134, 135, 136, 138/1, 138/2 in totalling 16.89acres and the above said properties were sold by the saidSomasundaram Chettiar to the Corporation. It is further allegedthat while so the 2nd respondent herein on the advise of hismother went to the place where the properties are situated on11.03.2007 at about 11.00 a.m. The petitioners who were thereillegally waylaid the 2nd respondent and told him that theproperties were divided and given to them by his father by virtueof one partitioned deed and the same was shown to the 2ndrespondent herein. The 2nd respondent was shocked and came toknow that the said documents was forged by the petitioners and hisfather in order to take over the property. The petitionersthreatened the 2nd respondent by taking an aruval that they wouldkill him. Immediately, he preferred a complaint before the 1strespondent but it was refused to be taken because of the influenceof the petitioners.'4.Learned counsel submitted that the factual position was that 'the petitioners father by name Rengasamy Moopan was a cultivatingtenant in the year 1953 under one Seethai Achi wife of SathappaChettiar. After the death of Seethai Achi the properties wereinherited by P.S.S.Somasundaram Chettiar and on 19.10.67 anagreement for sale was entered into between the father of thepetitioners and Somasundaram Chettiar and the properties which arethe subject matter of this case were agreed to be sold to thefather of the petitioners for a sum of Rs.1,60,000/-. In pursuantto the said agreement, the father of the petitioners paid a sum ofRs.1,37,000/- towards the sale consideration and he was put inpossession of the properties and to enjoy the properties as hisown. From the said date onwards, the father of the petitionerswas enjoying as the owner of the properties.The Corporation represented by Somasundaram Chettiarattempted to interfere with the peaceful enjoyment of theproperties by the father of the petitioners, resulting in the https://hcservices.ecourts.gov.in/hcservices/ filing of a suit by the father of petitioners in O.S.No.31 of1971. In the said suit itself the father of the petitionersasserted the payment of Rs.1,37,000/- which was not controvertedby the Corporation as well as by Somasundaram Chettiar. Afterobtaining the decree on 26.04.1972 in the suit, the father of thepetitioners and his family members were enjoying the propertiesasserting hostile title to the knowledge of the corporation andthe said Somasundaram Chettiar. Recognizing the absolutepossession and enjoyment of the properties by the father of thepetitioner which is the subject matter of this case, patta wasalso transferred in the year 1981. The properties were alsodivided between the father of the petitioners and his familymembers under a registered partition deed dated 31.07.1987.While so, two suits were filed by M/s.Somasundaram chettiarreligious Private (Family) Trust represented by its trusteeT.N.Renganathan against the petitioners and their father inO.S.No.1889 of 1992 and O.S.No.1869 of 1992 for bare injunctionrestraining them in any manner encumbering or alienating theproperties which are the subject matter of the case and apermanent injunction against one acre where a Temple Samathi issituated. The petitioners 1 and 2 also filed a suit inO.S.No.2055 of 1993 against P.S.S.Somasundaram Chettiar,M/s.Somasundaram Corporation (P) Ltd., represented by its DirectorT.N.Renganathan and M/s.Somasundaram Chettiar, ReligiousCharitable Private Family Trust, represented by its Trustee SriT.N.Renganathan for permanent injunction in respect of theproperties which is the subject matter of this case.The learned II Additional District Munsif evaluating theabove materials assessing its strength applying the provisions oflaw, as pointed out by the parties, had come to the conclusionthat the reasons alleged for not taking steps by PW1 to evict thedefendants is not acceptable, that the defendants (Plaintiff inO.S.No.2055/93) are enjoying the suit properties after thecancellation of the sale agreement as owner and was not enjoyingthe suit properties as cultivating tenants, that the Samadhi isonly in an extent of 20 cents, fences as indicated in theCommissioner's report and therefore, the plaintiff in O.S.No.1869of 92 is entitled to an injunction only to that extent, that theplaintiff in O.S.No.2055/93 and their family members haveprescribed title to the suit properties by adverse possession,being in continuous possession of the suit properties for wellover the statutory period, and therefore, they are entitled toinjunction, excluding 20 cents and that the plaintiffs inO.S.No.1889 of 1992 are not entitled to any injunction andconcluding so, decreed the suit O.S.No.2055 of 1993 as prayed for,excluding 20 cents, dismissed the suit O.S.No.1889/92 and decreedthe suit O.S.No.1869/92 only for 20 cents without costs in all thesuits. https://hcservices.ecourts.gov.in/hcservices/ Aggrieved by the judgment and decree granted by the lowerCourt, defendants in O.S.N.2055 of 1993 and the plaintiffs inO.S.No.1889 of 1992 and O.S.No.1869 of 1992 preferred appeals inA.S.No.58 of 2001, 59 of 2001 and 60 of 2001 before the PrincipalDistrict Judge, Coimbatore. After detailed hearing the learnedPrincipal District Judge, Coimbatore, dismissed all the appeals byhis judgment dated 10.07.2001 after holding that the appellantshave not approached the court with clean hands. After thatneither the said P.S.S.Somasundaram Chettiar nor the Corporationnor the trust approached this Court by way of second appeals andas such the civil litigations came to an end.5.Learned counsel would submit that in such circumstances'nearly after 7 years, the 2nd respondent in the guise of son ofPower of Attorney Holder of P.S.S.Somasundaram Chettiar sayingthat he was sent to look after the properties which is the subjectmatter of this case as well as the civil case which were ended infavour of the petitioners in the year 2001 itself, has preferredthe false complainant before the learned Judicial Magistrate VI,Coimbatore which was referred under section 156(3) Cr.P.C. forinvestigation and on the basis of the same final report was filedby the 1st respondent and the case is pending trial in C.C.No.356of 2008 on the file of the learned Judicial Magistrate VI,Coimbatore for the alleged offences under Sections 120(b), 341,406, 420, 463, 465, 468, 471 and 506(ii) IPC.'6.In support of the above submissions, the learned counselplaced strong reliance on the judgment of the learned PrincipalDistrict Judge, Coimbatore in A.S.Nos.50, 59 and 60 of 2001 dated10.07.2001.7.A perusal of such judgment would show that such judgmentsupports the contentions of the learned counsel for the petitioners.8.The 2nd respondent has been served but has not enteredappearance. Mr.N.Sivabharathi has been appointed as legal aidcounsel by this Court on behalf of the 2nd respondent, consequent tothe non-appearance of such respondent before this Court.9.I have heard the learned counsel for the petitioners, learnedGovernment Advocate (Crl.Side) and the legal aid counsel.10.Learned Government Advocate (Crl.Side) would inform that thecharge sheet in the case has been filed in keeping with what wasemerged in the course of investigation. 11.Learned counsel for the 2nd respondent would state that thelower Court having taken cognizance, the petitioners have to agitatetheir rights and establish their innocence in the course of trial. https://hcservices.ecourts.gov.in/hcservices/

12.I have considered the rival submissions.13.In the circumstances put forth before this Court and theunequivocal position that the petitioners/accused who are entitled tohold property in their own right are being sought to be prosecuted onthe basis of a compliant which necessarily is false, this Courtconsiders it inappropriate to permit further proceedings inC.C.No.356 of 2008. 14. In exercise of powers under Section 482 Cr.P.C., this Courtin appropriate cases is entitled to look into the documents submittedby the accused. A perusal thereof leaves no doubt at all that thecomplaint is false and an action in malafides.15. For the above said reasons, the Criminal Original Petitionshall stand allowed and the proceedings in C.C.No.356 of 2008 on thefile of learned Judicial Magistrate VI, Coimbatore shall standquashed. Consequently, the connected miscellaneous petitions areclosed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gmTo1. THE JUDICIAL MAGISTRATE VI,COIMBATORE2. THE CHIEF JUDICIAL MAGISTRATE,COIMBATORE3. THE INSPECTOR OF POLICE,VADAVALLI POLICE STATION,COIMBATORE4. THE PUBLIC PROSECUTOR,HIGH COURT,MADRAS+ 1 CC To Mr.M.Vijayakumaran, Advocate SR NO.47153+ 1 CC To Mr.Sivabharathi, Advocate SR NO.11218Crl.O.P.No.27472 of 2009andM.P.Nos.1 and 2 of 2009MRD(CO)SRA(13/07/2010)