Palaniappan v. C.K.Munusamy

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.09.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.15769/2006Cr.MP.NO.1/20061. Palaniappan2. Jambu @ Shanmugam3. Thavasiappan @ Chinnu.. Petitioners VsC.K.Munusamy.. RespondentPrayer:- This Criminal Original Petition is filed under section 482of Cr.P.C. to call for the records in criminal proceedings inPRC.No.30/2005 on the file of the Judicial Magistrate, Bhavani andquash the same by allowing this Criminal Original Petition.For Petitioner:Mr.N.ManokaranFor Respondent :Mrs.L.SrilekaORDER This Criminal Original Petition is filed to quash thecriminal proceedings in PRC.No.30/2005 on the file of the learnedJudicial Magistrate, Bhavani.2. The petitioners are arrayed as A1 to A3 for the allegedoffences under Section 3(1)(iv)&(v) of Schedule Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989 herein afterreferred to as the Act) and Sections 341 and 451 of IPC. The 1stpetitioner is the father of the petitioners 2 and 3.3. The father of the respondent by name Kali was a memberof the Anthiyur Land Colonization Cooperative Society Limited,Anthiyur, Erode District and by the proceedings No.1916/66 dated8.2.1966 and he was allotted the lands measuring an extent of 3.86acres in SF.No.1075 and 1.35 Acres in SF.No.1974/1 of AnthiyurVillage corresponding to RS.No.627. The allottee was in possessionand enjoyment of the property and after the death of the originalallottee, his son the respondent herein executed a registered saledeed dated 7.6.1967 in the name of the 1st petitioner's mother-in-law Guruvayammal, wife of Palani gounder. The said document wasduly registered as Document No.1288/1967 on the file of the SubRegistrar, Anthiyur in respect of the property measuring an extentof 3.86 Acres in SF.No.1075. 4. Right from the year 1967, the petitioners are said tobe in exclusive possession and enjoyment of the property for thepast 45 years and they are said to have invested a huge amount forlevelling the land and to make it fit for cultivation of variouscrops. Subsequently, on 3.7.1973, the respondent had executed a https://hcservices.ecourts.gov.in/hcservices/ registered mortgage deed in the name of the 1st petitioner and thepossession of the property was continued to be with the petitionersfor the past four decades. Therefore, the petitioners are said tobe in possession of an extent of 3.86 acres and the remainingextent of 1.35 acres in SF.No.1074/1 was with the respondent. 5. According to the petitioners, in the year 1980, therespondent orally sold an extent of 1.35 acres in SF.No.1074/1 toone Venkidusamy, son of Angappa Devar, who in turn sold theproperty to one Marasamy, son of Muthan in the year 1990. Later,the said Marasamy executed a sale deed in favour of one RajuVathiyar in the year 1997 and after his death his wife by nameRajammal is in possession of an extent of 1.35 acres. It appearsthat the said Rajammal had leased out the said property to oneSakthivel, son of Mani. Therefore, at present, the lesseeSakthivel is in possession and enjoyment of the property measuringan extent of 1.35 acres in S.No.1074/1 and he is living with hisfamily in the suit property.6. The petitioners submit that without disclosing the abovesaid facts, the respondent filed the suit in OS.No.592/1991 on thefile of the District Munsif, Bhavani for the relief of bareinjunction and the same was allowed to be dismissed for default.Further, suppressing the entire material facts, the respondentfiled a claim petition before the Deputy Registrar of CooperativeSocieties, Gopichettipalayam on 24.1.2001, praying for recovery ofpossession and permanent injunction. According to the petitioners,the Deputy Registrar of Cooperative Societies had no jurisdictionto entertain the said claim petition filed under Section 90 of theTamil Nadu Cooperative Societies Act, but proceeded with the claimpetition in ARC.No.117/2000-2001 and without sufficient service ofnotice to the petitioners, they were set exparte and an award cameto have been passed on 2.5.2001. 7. The petitioners further submit that they have not beenserved with the copy of the award as contemplated under Rule 107(8)(c) of the Tamil Nadu Cooperative Societies Rules, 1988.However, the fact remains that the petitioners are in possession of3.86 acres in SF.No.1075, but the award had been passed in respectof the entire extent of 5.21 acres comprised in SF.No.1074/1 and1075. While the facts are as such, without disclosing the abovefacts, the respondent had filed the private complaint under Section200 of Code of Criminal Procedure in CMP.No.4619/2005 before thelearned Judicial Magistrate, Bhavani against the petitioners forcommission of offences under Section 3(1)(iv)&(v) of the Act andSections 341 and 451 of IPC. The petitioners would contend that thelearned Magistrate without considering the nature of theallegations and the litigation pending between the parties beforedifferent forum had erroneously taken cognizance of the complaintand issued summons for their appearance, which is challenged inthis Criminal Original Petition.8. On a perusal of the complaint, it is seen that therespondent has alleged that despite the award passed by the Deputy https://hcservices.ecourts.gov.in/hcservices/ Registrar of Cooperative Societies against the petitioners inrespect of the entire extent of 5.21 Acres in S.No.1075/1 and 1075by order dated 2.5.2001 directing the petitioners to hand overpossession to the respondent, they failed to do so and further on21.4.2005 at 1.00 a.m. when the respondent asked the petitionersto vacate the land, they attempted to assault him with a stone andchased him and therefore, he lodged the complaint with the AnthiyurPolice, but as no case was registered, he has filed the impugnedprivate complaint beofe the learned Magistrate.9. On a reading of Section 3(1)(iv)&(v) of the Act, itshows that there has to be actual dispossession from the land orpremises belonging to the members of categories of Schedule Castesor Scheduled Tribes or interference with the enjoyment. Unlessthis part of section is made out, there cannot be any prosecutionfor commission of the said offence much less conviction. Thus theprerequisite condition is either dispossession or interference withthe enjoyment of his rights over any land, premises or water.10. The petitioners have submitted materials and evidencein the form of legal documents to show that they are in exclusivepossession and enjoyment of the property i.e. 3.86 cents as earlyas from 1967 for more than 45 years and the respondent hassuppressed the material facts before the Deputy Registrar ofCooperative Societies and an award came to be passed withoutaffording an opportunity to the petitioners to put forth all theabove said facts. In fact, the petitioners have challenged theaward by filing a writ petition in WP.No.4460/2006 and inWPMP.No.4780/2006, this court by order dated 17.2.2006 granted anorder of status-quo. Prior to the complaint, the respondent hasfiled the suit in OS.NO.592/1991 on the file of the DistrictMunsif, Bhavani against the petitioners for bare injunction and thesame was allowed to be dismissed for default.11. Even as per the allegations made in the complaint, itis stated that the respondent went to the property, which was inoccupation of the petitioners and asked them to vacate, but theyrefused. It is not his case that he was in occupation at any pointof time and was either dispossessed or his possession wasinterfered with by the petitioners. 12. Mr.N.Manokaran, the learned counsel for thepetitioners would submit that the allegations made by thecomplainant in the complaint filed do not disclose an offence asalleged in the complaint either under the provisions of IPC or theSC/ST (PA) Act and therefore, the learned Magistrate was notcorrect in taking cognizance of the complaint filed against thepetitioners.13. Per contra, Mrs.L.Srileka, the learned counsel for therespondent would contend that the learned Magistrate was convincedthat the complaint and the materials produced annexed with thecomplaint disclosed cognizable offences under IPC and SC/ST (PA)Act and issued summons and therefore, there is no error in the https://hcservices.ecourts.gov.in/hcservices/ order passed by the learned Magistrate.14. It is no doubt true that if the allegations taken assuch prima facie showed commission of an offence, then the samecannot be quashed by exercising jurisdiction under Section 482 ofCode of Criminal Procedure. In the present case, the question isnot whether there was any truth in the allegations made, but thequestion is as to whether on the basis of the allegations thecognizable offence or offences had been alleged to have beencommitted by the petitioners.15. In the case of State of Haryana Vs. Bhajan Lal andothers [1992-SCC-Cri-426], the Honourable Supreme Court categorisedthe cases where the High Court may exercise its power under itrelating to cognizable offences to prevent abuse of process ofcourt or otherwise to secure the ends of justice and the 7thillustration highlighted in the said case applies to the facts ofthis case and the 7th illustration reads thus:-“7. Where a criminal proceeding is manifestly attendedwith mala fide and/or where the proceeding ismaliciously instituted with an ulterior motive forwreaking vengeance on the accused and with a view tospite him due to private and personal grudge.”16. In the present case, the factual position ashighlighted above clearly goes to show that the respondent had notcome to the court with clean hands. He had suppressed the entirefacts before the Deputy Registrar of Cooperative Societies and anaward had come to have been passed. It is important to note thatno opportunity had been given to the petitioners to put forth theirexplanation regarding their possession and exclusive occupation ofthe property for more than 45 years. 17. In exceptional circumstances, this court can look intothose documents which are relevant and unimpeachable and it couldbe legally translated into reliable evidence as laid down by theHonourable Supreme Court in the decision rendered in the case ofMinakshi Bala Vs. Sudhir Kumar and others [1994-4-SCC-142]. 18. In the present case, in order to serve ends ofjustice, it is permissible to look into the materials submitted bythe petitioners to assess whether any offence is made out. Theauthority of the court exists for advancement of justice and if anyattempt is made to abuse that authority so as to produce injustice,the court has power to prevent abuse.19. In the case of R.P.Kapur Vs. State of Punjab [AIR-1960-SC-866], the Honourable Supreme Court summarised some categories ofcases where inherent power can and should be exercised to quash theproceedings viz:-“(i) Where it manifestly appears that there is a legalbar against the institution or continuance e.g. Want ofsanction; https://hcservices.ecourts.gov.in/hcservices/ (ii) where the allegations in the first informationreport or complaint taken at its face value and acceptedin their entirety do not constitute the offence alleged(iii) Where the allegations constitute an offence, butthere is no legal evidence adduced or the evidenceadduced clearly or manifestly fails to prove thecharge.”20. It is held by the Honourable Supreme Court that thecourt should be circumspect and judicious in exercising itsdiscretion and should take all relevant facts and circumstancesinto consideration before issuing process, lest it would be ainstrument in the hands of a private complainant to unleashvendetta to harass any person needlessly.21. In the present case, the respondent has abused theprocess of court by filing the complaint vexatiously withoutdisclosing the material facts and the criminal proceedings ismanifestly attended with mala fide and therefore, it warrantsinterference by this court under Section 482 of Code of CriminalProcedure.22. For the aforesaid reasons, the impugned complaint andconsequential criminal proceedings are liable to be quashed andaccordingly, it is quashed and this Criminal Original Petition isallowed. Consequently, the connected MP is closed. Srcm Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1.The Judicial Magistrate, Bhavani.2.-do-Through the Chief Judicial Magistrate, ErodeOrder inCrl.OP.No.15769/2006MSM (CO)SS (23.10.2009)