N.R. Ramakoti v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASCORAMDATED : 01.10.2010THE HONOURABLE MR. JUSTICE G.M. AKBAR ALICRL.O.P.No.27210 of 2008 and M.P.Nos.1 and 4 of 2008and Crl.O.P.No.312 of 2009 and M.P.Nos.1 of 3 of 20091.N.R. Ramakoti2.Mrs.N.R.Chinthamani .. Petitioners in Crl.O.P.No.27210/2008S. Madhavan .. Petitioner in Crl.O.P.No.312/2009vs.1. State rep by The Inspector of Police (Crime) Central Crime Branch St. Thomas Mount, Chennai (Crime No.90 of 2006)2. D. Sasirekha3. R. Kandhimathi (respondents 2 and 3 are impleaded as per order of this court dated 23.1.2009 in M.P.No.3 of 2008) ... Respondents in both the petitions Criminal Original Petitions filed under Section 482 Cr.P.C.for the reliefs as stated therein.For petitioner : Mr.B. Sriramulu, Senior Counsel for Mr.R. KarthikeyanFor 1st respondent : Mr.Hassan Mohamed Jinnah, APP For R.2 and R.3 : Mr.R. Singaravelan COMMON ORDERThe petitions are filed seeking a direction to call for therecords in C.C.No.2 of 2007 on the file of the learned JudicialMagistrate No,I, Poonamallee and quash the same.2. The petitioner in both the petitions charged foroffences punishable under Secs.120-B and 409 IPC for criminalconspiracy and criminal breach of trust. The brief fact of the caseis as follows:3. One N.T. Radhakrishna Mudalir and his wife Girijabaidied on 2.10.1990 and on 22.4.2004, respectively,leaving behind 3sons and 6 daughters. The sons are N.R. Ramakodi, N.R.Padmakodiand N.R. Navakodi. One Sasireka, Gandhimathi, Kasturibai,Renganayaki, Rajamani and Subashini are the daughters. The parents https://hcservices.ecourts.gov.in/hcservices/ left behind family properties which remained undivided and thefirst son Ramakodi was looking after the management of the familyproperty. According to the respondents, the said Ramakodi and hiswife Chinthamani and one Madhavan entered into a criminalconspiracy to commit breach of trust, executed a settlement deed infavour of his wife, she, in turn executed a power of attorney infavour of Madhavan, who sold the same to third parties. Acomplaint was given by the 2nd and 3rd respondent, who are thesisters against the petitioners and the same was registered inCr.No.909 of 2006 by the Central Crime Branch and on investigation,the 1st respondent laid a charge sheet on the file of the learnedJ.M.I, Poonamalee and the same was taken on file in CC No,.2 of2007. Seeking an order of quash, the petitioners/accused are beforethis Court. 4. The main ground raised in both these applications isthat the entire dispute is a civil dispute and initiation of thecriminal proceedings is not maintainable and the defacto-complainants have no right in the property dealt by the petitionersand the offences were not made out.5. Mr.B.Sriramulu, learned Senior Counsel for MrR.Karthikeyan, for petitioners invited the attention of this Courtto the legal notice dated 18.6.2006 issued by the three sistersagainst the brothers and the reply notice. The learned seniorcounsel submitted that after exchange of notices, a suit inC.S.No.1046/2007 was filed by the three sisters for partition.The learned senior counsel pointed out that while the civil courtis seized of the matter, the initiation of criminal proceedings isabuse of process of law. 6. The learned Senior Counsel relied on a decision reportedin AIR 1998 SC 128 (M/s Pepsi Foods Ltd vs Special JudicialMagistrate) ,wherein the Apex Court has held as follows:"28. Summoning of an accused in a criminalcase is a serious matter. Criminal lawcannot be set into motion as a matter ofcourse. It is not that the complainant hasto bring only two witnesses to support hisallegations in the complainant to have thecriminal law set into motion. The orderof the Magistrate summoning the accusedmust reflect that he has applied his mindto the facts of the case and the lawapplicable thereto. He has to examine thenature of allegations made in thecomplaint and the evidence both oral anddocumentary in support thereof and wouldthat be sufficient for the complainant tosucceed in bringing charge home to theaccused. It is not that the Magistrate isa silent spectator at the time ofrecording of preliminary evidence beforesummoning of the accused. Magistrate has https://hcservices.ecourts.gov.in/hcservices/ to carefully scrutinise the evidencebrought on record and may even himself putquestions to the complainant and hiswitnesses to elicit answers to find outthe truthfulness of the allegations orotherwise and then examine if any offenceis prima facie committed by all or any ofthe accused"7. The learned counsel also relied on a decision reportedin 2007 14 SCC 776 (All Cargo Movers (India) Private Limitd andothers vs Dhanesh Badaramal Jain and another), wherein the SupremeCourt dealt with the offences under sec.406 and 420 IPC and held asfollows:"We are of the opinion that theallegations made in the complaintpetition, even if given face value andtaken to be correction its entirety, donot disclose an offence. For the saidpurpose, this Court may not only take intoconsideration the admitted facts but it isalso permissible to look into thepleadings of respondent 1-plaintiff in thesuit. No allegation whatsoever was madeagainst the appellants herein in thenotice. What was contended was negligenceand/or breach of contract on the part ofthe carriers and their agent. Breach ofcontract on the part o the carriers andtheir agent. Breach of contractsimpliciter does not constitute anoffence. For the said purpose,allegations in the complaint petition mustdisclose the necessary ingredientstherefor. Where a civil suit is pendingand the complaint petition has been filedone year after filing of the civil suit,we may for the purpose of finding out asto whether the said allegations are primafacie correct, take into consideration thecorrespondences exchanged by the partiesand other admitted documents. It is onething to say that the Court at thisjuncture would not consider the defence ofthe accused but it is another thing to saythat for exercising the inherentjurisdiction of this Court. It isimpermissible also to look to the admitteddocuments. Criminal proceedings should notbe encouraged, when it is found to be malafide or otherwise an abuse of the processof the court. Superior courts whileexercising this power should also striveto serve the ends of justice. https://hcservices.ecourts.gov.in/hcservices/

8. He also relief on a decision reported in 2009 3 SCC 78(V.Y. Jose and another vs State of Gujarat and another)" 16. There cannot, furthermore, beany doubt that only because civillaw can be taken recourse to wouldnot necessarily mean that criminalproceedings should be barred as hasbeen opined by this Court inPratibha Rani vs Suraj Kumar".....21. There exists a distinctionbetween pure contractual dispute ofa civil nature and an offence ofcheating. Although breach ofcontract per se would not come inthe way of initiation of a criminalproceeding, there cannot be anydoubt whatsoever that in the absenceof the averments made in thecomplaint petition wherefrom theingredients of an offence can befound out, the court should nothesitate to exercise itsjurisdiction under section 482 ofthe Code of Criminal Procedure.22. We may reiterate that one of theingredients of cheating as definedin Section 415 of the Penal Code isexistence of an (sic fraudulent ordishonest) intention of makinginitial promise or existence thereoffrom the very beginning of formationof contract. 23. Section 482 of the Code ofCriminal Procedure saves theinherent power of the court. Itserves a salutary purpose viz., aperson should not undergo harassmentof litigation for a number of yearsalthough no case has been made outagainst him.24. It is one thing to say that acase has been made out for trial andas such the criminal proceedingsshould not be quashed but it isanother thing to say that a personsshould undergo a criminal trialdespite the fact that no case hasbeen made out at all". https://hcservices.ecourts.gov.in/hcservices/

9. The learned counsel further relied on a decisionreported in 2009 7 SCC 495 (Devendra and others vs State of UttarPradesh and another) , in which the Apex Court has held as follows:"11. The fact that the appellants areco-sharers is not in dispute. Thedispute between them is confined to theextent of their respective shares. Itmust be determined only in a civilsuit. If appellants 1 and 2 hadexecuted a deed of sale in favour of athird party stating that they have one-third share over the entire properties,the same would not be binding on therespondent complainant. If any cause ofaction arose by reason of a threat ofdispossession at the hands of the co-sharer or at the hands of the thirdparty, as was contended, recourse tolegal action could always be taken.Even for that purpose a proceedingunder Sections 144 and 145 of the Codeof Criminal Procedure would bemaintainable. The decision of acriminal court in a case of this naturewould not be binding on the civilcourt.10. Lastly, the learned counsel relied on a decisionreported in 2009 14 SCC 466 (Shakson Belthissor vs State of keralaand another), in which the Apex Court has held as follows:"32. It is crystal clear thatneither in the FIR nor in thecharge-sheet there is any ingredientof Section 498-A IPC, which couldprima facie constitute a case ofcruelty as defined in that section.It is thus established that on areading of the FIR as also thecharge-sheet filed against theappellant no case under Section 498-A is made out on the face of therecord and therefore, both the FIRas also the charge sheet are liableto be quashed in exercise of thepowers under Section 482 Cr.P.C.Clearly, the High Court failed toappreciate the facts in properperspective and therefore, committedan error on the face of the record".11. On the contrary, Mr.R. Singaravelan, the learnedcounsel for R2 and R3 submitted that that 1st petitioner, who was https://hcservices.ecourts.gov.in/hcservices/ in management of joint family property has clandestinely settledthe same in favour of his wife, who is the 2nd petitioner, who inturn, has executed a power of attorney to the petitioner in theother OP who sold the same to the third parties. The learnedcounsel pointed out that the transactions were carried out within10 days only to cheat the lawful owners of the property and suchoffence will definitely attract criminal breach of trust andcriminal conspiracy. The learned counsel submitted that the powersunder sec.482 Cr.P.C has to be used sparingly and only in therarest of rare cases and the inherent powers of the Court is to beexercised only when the entirety of the complaint and the finalreport will not constitute the alleged offence. The learnedcounsel would draw our attention to the legal heir certificatesdated 21.9.1992 and 3.2.2005 wherein the 1st petitioner was aloneshown as legal heir to the deceased parents. The learned counselrelied on a decision reported in 2008 3 SCC 574(Som Mittal vsGovernment of Karnataka), in which the Apex Court has held asfollows:"9. When the words "rarest of rarecases" are used after the words"sparingly and with circumspection"while describing the scope of Section482, those words merely emphasise andreiterate what is intended to beconveyed by the words "sparingly andwith circumspection". They mean that thepower under Section 482 to quash theproceedings should not be usedmechanically or routinely, but with careand caution, only when a clear case forquashing is made out and failure tointerfere would lead to a miscarriage ofjustice. The expression "rarest of rarecases" is not used in the sense in whichit is used with reference to punishmentfor offences under Section 302 IPC, butto emphasise that the power underSection 482 Cr.P.C to quash the FIR orcriminal proceedings should be usedsparingly and with circumspection.Judgments are not to be construed asstatutes. Nor words or phrases injudgments to be interpreted likeprovisions of a statute. Some words usedin a judgment should be read andunderstood contextually and are notintended to be taken literally. Many atime a judge uses a phrase or expressionwith the intention of emphasising apoint or accentuating a principle oreven by way of a flourish of writingstyle. Ratio decidendi of a judgment isnot to be discerned from a stray word orphrase read in isolation." https://hcservices.ecourts.gov.in/hcservices/

12. The learned counsel also relied on a decision reportedin AIR 1960 SC 866 (R.P. Kapur vs State of Punjab), wherein theApex Court held as follows:"It is well established that theinherent jurisdiction of the HighCourt can be exercised to quashproceedings in a proper case eitherto prevent the abuse of the processof any court or otherwise to securethe ends of justice. Ordinarilycriminal proceedings institutedagainst an accused person must betried under the provisions of theCode, and the High Court would bereluctant to interfere with the saidproceedings at an interlocutorystage. It is not possible, desirableor expedient to lay down anyinflexible rule which would governthe exercise of this inherentjurisdiction".13. He also relied on a decision reported in 2010 6 SCC 243(Jeffrey J Diermeier and another vs State of West Bengal andanother), wherein the Apex Court held as follows:"20. Before addressing theconnections advanced on behalf ofthe parties, it will be useful tonotice the scope and ambit of theinherent powers of the High Courtunder Section 482 of the Code. Thesection itself envisages threecircumstances under which theinherent jurisdiction may beexercised, namely, (i) to giveeffect to an order under the Code;(ii) to prevent abuse of the processof court; and (iii) to otherwisesecure the ends of justice.Nevertheless, it is neither possible nor desirableto lay down any inflexible rulewhich would govern the exerciseinherent jurisdiction of the Court.Undoubtedly, the power possessed bythe High Court under the saidprovision is very wide but is notunlimited. It has to be exercisedsparingly, carefully and cautiously,ex debito justitiae to do real andsubstantial justice for which alonethe court exists. It needs little https://hcservices.ecourts.gov.in/hcservices/ emphasis that the inherentjurisdiction does not confer anarbitrary power on the High Court toact according to whim or caprice.The power exists to prevent abuse ofauthority and not to produceinjustice.14. The learned Additional Public Prosecutor submitted thatbased on the complaint given by the respondents 2 and 3 the CentralCrime Branch of Egmore, Chennai registered a case and investigatedand examined 16 witnesses and filed a final report for the offencesunder Sec.120-B and 420 IPC. 15. Heard both sides and perused the materials available onrecord.16. Admittedly, one N.T.Radhakrishna Mudaliar and GirijaBai died leaving behind 3 sons and 6 daughters. They have leftsome family properties. Admittedly, the 1st petitioner was managingthe family properties. The sons seem to have dealt with theproperties and the daughters have claimed their share through anotice dated 18.6.2006. There were exchange of notices between thebrothers and sisters which culminated into filing of civil suit inC.S.No.1046 of 2007 for partition. While so, the 2nd and 3rdrespondent have preferred a complaint against the petitioner andone Madhavan for the alleged execution of a settlement deed and apower deed for the purpose of sale of 3.55 acres. The respondentshave alleged criminal conspiracy and criminal breach of trust. Theonly point to be considered in these petitions are whether theinvestigation has revealed the necessary ingredients for thealleged offences and whether the criminal proceedings should allowto be continued as there is a civil dispute between the co-sharersbefore a competent court. In Bajanlal's case reported in 1992 SCC(crl) 426, the Apex Curt has held on the principles in exercisingthe jurisdiction under Sec.482 Cr.P.C.17. It is also now well settled that the High Courtordinarily would exercise its jurisdiction under Sec.482 of Cr.P.Cif the allegations made in the First Information Report, even ifgiven face value and taken to be correct in their entirety do notmake out any offence. It is also well settled that when theallegations made in the FIR or the evidence recorded duringinvestigation do not satisfy the ingredients of the offence theHigh Court would not encourage harassment of a person in criminalcourt. It is also well settled that when dispute between theparties constitute only a civil wrong and not a criminal wrong thecourt would not permit a person to be harassed and more so when nocase for taking cognizance of the offence has been made out.18. Therefore, before the exercising the power underSec.482 Cr.P.C, the court's duty is to see whether the evidencecollected during the investigation satisfies the ingredients of the https://hcservices.ecourts.gov.in/hcservices/ offence and whether the dispute between the parties constitute onlya civil wrong not a criminal wrong.19. In the case before us, the major offence alleged iscriminal breach of trust. Even according to the defacto-complainant, the parties are co-sharers and the 1st petitioner wasmanaging the property. The defacto-complainant alleges that theyhave a share in the property,but the brothers would contend thatthe daughters were already married and they have no share in theproperty.20. It is to be noted that the other two brothers have notobjected the transaction made by the petitioners. The criminalbreach of trust presupposes entrustment. The 1st petitioner was inmanagement in his capacity as the manager and as well as on aseparate claim over the property. Whether the daughters have anyright or title in the property is yet to be decided and that has tobe decided only in the civil suit. The ingredients to constitute acriminal breach of trust are i) entrusting a person with theproperty or any dominion over the property(ii) that personentrusted (a) dishonestly misappropriating on converting thatproperty to his own use; or (b) dishonestly using on disposing ofthat property or wilfully suffering any other person so to do inviolation of any direction of law prescribing the mode in whichsuch trust is to be discharged, (iii) of any legal contract made,touching the discharge of such trust.21. As stated earlier, the daughters have made no claimtill the death of the mother in their father's property. It is onlyin 2006 there were claims and counter claims and the civil suit ispending. That being so, the respondents 2 and 3 have to establishtheir right in the property. That can be resolved only in the civilforum. In 2009 1 SCC 516 (R. Kalyani vs Janak c. Methta),the ApexCourt held as follows:"15. Propositions of law which emergefrom the said decisions are:(1) The High Court ordinarily would notexercise its inherent jurisdiction toquash a criminal proceeding and, inparticular, a first information reportunless the allegations containedtherein, even if given face value andtaken to be correct in their entirety,disclosed no cognizable offence.(2) For the said purpose the Court, saveand except in very exceptionalcircumstances, would not look to anydocument relied upon by the defence.(3) Such a power should be exercisedvery sparingly. If the allegations madein the FIR disclose commission of anoffence, the Court shall not go beyondthe same and pass an order in favour of https://hcservices.ecourts.gov.in/hcservices/ the accused to hold absence of any mensrea or actus reus.22. Therefore, in my considered view, the proceedings inC.C.2 of 2007 on the file of the learned Judicial Magistrate No,I,Poonamallee cannot be allowed to be continued, thereby subjectingthe petitioner for harassment. Therefore, the is an appropriatecase to interfere and exercise the powers under Sec.482 CrP.C23. In the result, both the criminal original petitions areallowed and the proceedings in CC No. 2 of 2007 on the file of thelearned Judicial Magistrate No.I, Ponnalamee is quashed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsrTo1. The Inspector of Police (Crime) Central Crime Branch St. Thomas Mount Chennai2. The Public Prosecutor, High Court, Chennai. 3. The Judicial Magistrate No.1, Poonamallee.4. -do- Through The Chief Judicial Magistrate, Tiruvellore District.1 cc To Mr.R.Karthikeyan, Advocate, SR.72709.CRL.O.P.No.27210 of 2008 and Crl.O.P.No.312 of 2009KM(CO)RVL 13.10.2010