AVM.K.Shanmugam v. V.Shanthi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.02.2008CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCRL.O.P.NOs.16367 and 18427 of 2007 andM.P.No.1 of 2007in CRL.O.P.No.18427 of 2007CRL.O.P.NOs.16367 of 20071. AVM.K.Shanmugam2. Meena Veerappan3. Angayarkanni Rajendran4. Uma Ravi5. Usha Saravanan6. Latha Sanjay Changanti (A)7. Bhuvaneswari Murugabharathy.. Petitionersvs.V.Shanthi..RespondentPetition filed under Section 482 of Cr.P.C to call for the recordsof complaint in C.C.No.2677 of 2007 on the file of the 14th MetropolitanMagistrate, Egmore, Chennai and quash the proceedings against thepetitioners.CRL.O.P.NOs.18427 of 2007G.Kumaresan.. Petitionervs.V.Shanthi..RespondentPetition filed under Section 482 of Cr.P.C to call for the recordsin C.C.No.2677 of 2007 on the file of the 14th Metropolitan Magistrate,Egmore, Chennai and quash the proceedings against him.For petitioners : Mr.A.Raghunathan, Senior Counsel for T.I.RamanathanFor respondent : Mr.A.Natarajan, Senior Counsel for Mr.K.P.Chandrasekaran https://hcservices.ecourts.gov.in/hcservices/ ORDERCrl.O.P.No.16367 of 2007 is laid by A1 to A7 and Crl.O.P.No.18427of 2007 is laid by A8 in C.C.No.2677 of 2007 on the file of the learnedXIV Metropolitan Magistrate, Egmore, Chennai, seeking quashment of theaforesaid proceedings initiated by the respondent as against them.2. The sum and substance of the complaint is that the first andsecond Accused having made misrepresentation to the complainant thatsome rectification deed was to be executed in connection with the leasedeed already executed by her in favour of Accused 3 to 7, played fraudupon the complainant and got the subject Power of Attorney executed infavour of first and second Accused and thereafter, the first Accusedexecuted sale deed in favour of Accused 3 to 7, in spite of thecancellation of the said Power of Attorney. The allegation as againstthe 8th Accused is that he being the Sub Registrar conspired with thefirst and second Accused to practise fraud upon the complainant. It hasbeen alleged that the white colour offence was deliberately designed andcommitted by the Accused with the sole intention of cheating thecomplainant.3. The said private complaint has been filed under Section 200 ofthe Code of Criminal Procedure alleging commission of the aforesaidoffences punishable under sections 415, 420 and 120(B) of IPC.4. The Accused 1 to 7 have contended that the allegation as such,does not prima-facie indicate the commission of any offence as allegedby the complainant. She herself went to the Registrar's office andexecuted on her own the Power of Attorney authorising A1 and A2 toexecute the sale deed in favour of A3 to A7. No fraudulentrepresentation was made by the first and second Accused to thecomplainant. The Accused 1 and 2 have already paid a sum of Rs.1 lakhto the complainant towards a part of sale consideration even prior tothe date of execution of the Power of Attorney by the complainant intheir favour. The deed of cancellation and the notice issued subsequentto the deed of cancellation to Accused 1 and 2 would go to show that thecomplainant on her own volition executed the Power of Attorney in favourof Accused 1 and 2. Therefore, Accused 1 to 7 have contended that nocase has been made out as against them in the complaint lodged by thecomplainant. 5. The eighth Accused would contend that he had only performed hisofficial duty of registration of the Power of Attorney in favour ofAccused 1 and 2 and the agreement of sale executed by the complainant infavour of Accused 3 to 7. Therefore no criminal case can be laid asagainst the petitioner in Crl.O.P.NO.18427 of 2007, who has justdischarged his official function. https://hcservices.ecourts.gov.in/hcservices/

6. Learned senior counsel appearing for the Accused would submitthat Accused 1 and 2 had not received any intimation about thecancellation of the Power of Attorney given in their favour. Only forthe first time, they received a lawyer's notice on 15.03.2007, longafter the sale deed was executed by the first Accused in favour ofAccused 3 to 7. It is his submission that the close reading of the deedof cancellation of the Power of Attorney and the notice alleged to havebeen sent by the complainant to the first and second Accused on11.12.2006 would disclose that the complainant has come out with a casethat she had infact executed the Power of Attorney in favour of Accused1 and 2. Very vague allegation of misrepresentation and fraud has beenalleged in the complaint. The deed of Power of Attorney was infactdrafted by the complainant herself and the same was registered by theRegistrar in the presence of the complainant and not in the presence ofAccused 1 and 2.7. Referring to the statement of Bank account maintained by the5th Accused, the learned senior counsel for the Accused would furthercontend that a sum of Rs.1 lakh was already parted with by the Power ofAttorney holders out of the total consideration of Rs.5 lakhscontemplated in the agreement of sale. Therefore, the learned seniorcounsel would vehemently submit that no case has been made out asagainst Accused 1 to 7. He would further contend that the Sub Registrarwho is the 8th Accused has been implicated in this case unceremoniouslyfor the performance of his official duty of registration of the Power ofAttorney, the agreement of sale and the sale deed.8. The learned senior counsel appearing for therespondent/complainant would contend that a telegram was alreadydispatched to the correct address of the Accused 1 and 2 about thecancellation of the Power of Attorney allegedly executed in theirfavour. Accused 1 and 2 having come to know of such a cancellation ofthe Power of Attorney have dodged to receive the telegram sent to them.A sum of Rs.1 lakh was parted with by Accused 1 and 2 only in connectionwith the rectification of the lease deed and not in connection with theexecution of agreement of sale or Power of Attorney allegedly. There isa specific allegation found in the complaint that there had been anintention to cheat the complainant making misrepresentation at the timeof the alleged execution of the Power of Attorney. There is a wide gapbetween the sale consideration passed on under the sale transaction andthe real market value of the property. This Court cannot go into theacceptability or otherwise of the allegations found in the complaint,while dealing with the plea for seeking quashment of the criminalproceedings. When prima-facie case has been made out, the Accused willhave to necessarily face the prosecution before the trial Court.Therefore, the learned senior counsel appearing for the complainantwould submit that there is no merit in the petition seeking quashment ofthe complaint laid by the complainant specifically alleging criminalconspiracy and cheating. https://hcservices.ecourts.gov.in/hcservices/

9. Ofcourse, there is a specific allegation of cheating in theprivate complaint laid by the complainant. The two documents, viz, thePower of Attorney as well as the agreement of sale were obtained byAccused 1 and 2 by making misrepresentation and also by playing fraudupon the complainant in the guise of rectification of the lease deedalready executed by the complainant in favour of the Accused 3 to 7, itis charged therein. The question of quashing the criminal proceedingembarking upon an enquiry as to the reliability of evidence andsustainability of accusation does not arise. But, if a frivolous orvexatious complaint is laid with malice or malafide, ofcourse thisCourt has every authority to interfere with the criminal prosecution andquash the same. Even in a case where the allegations in the face ofrecords is absurd and inherently improbable, quashing is highlywarranted.10. The complainant has come out with some reason for thecancellation of the Power of Attorney. The specific reason assigned inthe Deed of Cancellation of Power of Attorney dated 04.12.2006 for thecancellation of the Power of Attorney is that the power agents had notacted in accordance with the terms and conditions of the power grantedto them. In the deed of cancellation of Power of Attorney, thecomplainant has unambiguously admitted the execution of the deed ofPower of Attorney in favour of Accused 1 and 2. As rightly pointed outby the learned senior counsel appearing for the Accused,misrepresentation and fraud allegedly perpetrated by the Accused whileexecuting the deed of Power of Attorney by the complainant were notcited as reasons for the cancellation of the same. It is not as if thesaid deed of cancellation of Power of Attorney was inadvertently draftedwithout accommodating the actual reason for the cancellation of thePower of Attorney. The subsequent notice dated 11.12.2006 issued by thecomplainant addressing the Accused 1 and 2 would also read unambiguouslythat the deed of Power of Attorney was cancelled as the Accused 1 and 2had acted against the interest of the complainant. There is no whispertherein about the misrepresentation or fraud allegedly perpetrated bythe Accused 1 and 2 as against the complainant while executing theagreement of sale and also the Power of Attorney. 11. It is not as if the complainant is totally an unlettered womanwho is not wordly wise. On a perusal of the deed of Power of Attorney,it is found that there is a clear indication that it was she who draftedthe Power of Attorney. As rightly pointed out by the learned seniorcounsel for the Accused, the presence of the Power of Attorney holdersbefore the Registrar is not at all necessary. It is only the executantof the Power of Attorney who shall be present for the purpose ofregistration of the Power of Attorney. https://hcservices.ecourts.gov.in/hcservices/

12. The Accused also have demonstrated before this Court that evenbefore the agreement of sale and the deed of Power of Attorney wereexecuted by the complainant, a sum of Rs.1 lakh was already parted withby the 5th respondent in favour of the complainant. Ofcourse learnedsenior counsel appearing for the complainant would submit that the saidamount was paid only in connection with the proposed rectification ofthe lease deed already executed by the complainant in favour ofpetitioners 3 to 7. But the facts and circumstances of the case set outabove would show that there was no rectification deed executed asalleged. But only a Power of Attorney and an agreement of sale havebeen executed by the respondent.13. The learned senior counsel appearing for the respondent wouldcite an authority in M/s Indian Oil Corporation vs. M/s NEPC India Ltd.,2007-1-L.W.(Crl.)80, wherein the Honourbale Supreme Court has held thatit is not necessary that the complaint should verbatim reproduce in thebody of the complaint all the ingredients of the offences he alleges,nor is it necessary that the complainant should state in so many wordsthat the intention of the Accused was dishonest or fraudulent.14. Of course, the details with regard to the manner in which themisrepresentation was made and fraud was practised have not beendetailed in the complaint. As rightly pointed out by the learned seniorcounsel appearing for the respondent, in the background of the aforesaidratio laid down by the Hon'ble Supreme Court, the complaint cannot bethrown out on the ground that the necessary details constituting theoffence alleged were not given in the complaint.15. The learned senior counsel appearing for the complainant quotedyet another decision in T.Vengama Naidu vs. T.Dora Swamy Naidu and Ors.(II (2007) CCR 23(SC). It has been held therein that where the Accusedhas dishonestly executed sale deed in favour of a third party afterrevocation of the General Power of Attorney given in his favour, thecomplaint alleging commission of offence of cheating cannot be quashed,embarking upon the investigation with regard to the nature oftransaction and the actual commission of offence by the Accused.16. That was a case where the revocation of the General Power ofAttorney was duly intimated to the Accused. In spite of such acommunication he received, the Accused had chosen to alienate theproperty on the basis of the revoked General Power of Attorney in favourof his daughter. But, in the instant case, it is found that the Accused1 and 2 have not received any intimation about the cancellation of thePower of Attorney by the respondent before ever the first Accusedexecuted the sale deed in favour of Accused 3 to 7. Further, on the ownshowing of the complainant, a Power of Attorney was executed by her infavour of first and second Accused and the same was cancelled only onthe ground that the agents appointed therein had not acted in terms ofthe power given in their favour. In view of the above, it is held that https://hcservices.ecourts.gov.in/hcservices/ the said ratio does not apply to the facts and circumstances of thiscase.17. Firstly, there is no legal evidence against the Accused.Secondly, the allegations made against the Accused in the face of thematerials available on record and the stand taken by the respondent bothin the Deed of cancellation of Power of Attorney and the legal noticeissued to the Accused 1 and 2 are found to be so absurd and inherentlyimprobable that no prudent man can ever reach a conclusion that there issufficient fraud for proceeding against the Accused. Thirdly, there aresufficient materials as referred to above to demonstrate that thecomplaint is a vexatious one lodged for the sake of annoyance oroppression.18. Coming to the allegation as against the Sub Registrar, whoregistered the agreement of sale, the deed of Power of Attorney and thesale deed executed by the first Accused in favour of Accused 3 to 7, itis found that he has only performed his official function. He is notsupposed to verify whether there was any misrepresentation or fraudpractised by the Power of Attorney holders on the principal who executedthe power in their favour. No other material also is available even todistantly indicate that he conspired with the other Accused to cheat thecomplainant in this case.19. In view of the above, the Court finds that the complaint assuch given as against the Accused is not at all sustainable. It will bea miscarriage of justice if the Accused 1 to 8 are directed to face apainful and horrific experience of trial in the face of the vexatiousand frivolous complaint given as against them. Therefore, quashing thecriminal proceedings in C.C.No.2677 of 2007 on the file of the XIVMetropolitan Magistrate, Chennai, both these petitions stand allowed.Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrgTo1. The 14th Metropolitan Magistrate, Egmore, Chennai.2. -do-thro' The Chief Judicial Magistrate, Chennai.CRL.O.P.Nos.16367 and 18427 of 2007 GG(CO)RVL 18.02.2008