BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.02.2018
Reserved on : 16.02.2018
Delivered on : 28.02.2018
CORAM
THE HONOURABLE MR. JUSTICE R.PONGIAPPAN
Crl.O.P.(MD)No.3381 of 2013
and
M.P.(MD)No.1 of 2013
Dr.L.Subramanian … Petitioner
Vs.
1.The Inspector of Police,
Central Police Station,
Tuticorin.
(Crime No.558 of 2011)
2.L.Baskaran … Respondents
PRAYER: Criminal Original Petition is filed under Section 482 of the Code of
Criminal Procedure, to call for the records relating to Crime No.558 of 2011
pending on the file of the first respondent police and quash the same.
!For Petitioner : Mr.R.Shanmuga Sundaram
Senior Counsel
for Mr.S.Ravi
^For R1 : Mr.A.Robinson
Government Advocate
(Criminal side)
For R2 : Mr.A.Thiruvadikumar
:ORDER
The petitioner herein is the second accused in Crime No.558/2011 on the
file of the first respondent police. Now, this Criminal Original Petition is
filed under Section 482 Cr.P.C., to quash the said FIR as illegal.
2.The case of the prosecution is that the petitioner ? Dr.L.Subramanian
and the second respondent ? L.Baskaran are the sons of one
S.M.Lakshmanapillai [hereinafter referred to as ?Pillai?]. Apart from the
petitioner and the second respondent, the said Pillai was blessed with five
other children, viz., Muthiah, Prema, Padma, Gomathi and Chandrasekaran. The
said Pillai is having the properties, viz., Baskaran Marriage Hall, situated
at Door Nos.372, 373 and 373-A of Victoria Extension Road, Tuticorin and a
House at No.33, Chidambara Nagar II Street, Tuticorin. After the demise of
the said Pillai, the title of the property devolved upon all the legal heirs,
through which, the petitioner and the second respondent are also having one
share. By way of partition in the suit property, the second respondent
offered Rs.7,00,000/- each to the other legal heirs for the
purpose of reliving their respective shares in favour of him. All the co-
sharers have executed release deeds by receiving Rs.7,00,000/-, but, the
petitioner having received the said amount through his brother Muthiah and
thereafter, he had not executed a release deed as agreed and therefore, the
second respondent filed a private complaint before the Judicial Magistrate
Court No.II, Tuticorin and thereupon, as per the direction given by the said
Magistrate, the first respondent herein registered a case in Crime No.558 of
2011 for the offences punishable under Sections 406 and 420 IPC, against
which, this Criminal Original Petition has been filed by the petitioner to
quash the said FIR.
3.The first and foremost contention raised by the learned Senior
Counsel appearing for the petitioner is, previous to the registration of this
case, a civil suit was filed by one Gomathi Kathiresan, who is also a
daughter of the said Pillai, for the relief of partition with regard to the
family properties of the said Pillai, in which, the petitioner herein and the
second respondent are added as 5th and 4th defendants respectively. The
learned Senior Counsel appearing for the petitioner further added as in the
judgment rendered in the abovesaid suit, the payment of
Rs.7,00,000/- was discussed. Furthermore, the learned Additional District
Judge, Fast Track Court, Tuticorin, averred that in a letter written by the
1st defendant handing over of Rs.7,00,000/- to the 5th defendant is
mentioned. Subsequently, in Paragraph No.24 of the judgment, the learned
Additional District Judge came to the conclusion that the payment of
Rs.7,00,000/- to the 5th defendant is not at all proved. Accordingly, the
registration of the FIR based on the allegation that the second respondent
paid Rs.7,00,000/- to the petitioner is nothing but a Himalayan lie and
therefore, he prays to quash the FIR.
4.On the other hand, the learned Government Advocate (Criminal side)
appearing for the first respondent and the learned counsel appearing for the
second respondent made a submission that only in the investigation, the
question of entrustment can be identified. They further submitted that the
allegation in the complaint makes out the ingredients of offences under
Sections 406 and 420 IPC, is enough for continuing the investigation.
Further, they added that findings of fact in the civil suit cannot have any
bearing sofar as the criminal case is concerned and therefore, they prayed
for dismissal of the Criminal Original Petition as unwarranted.
5.In this aspect, the Hon?ble Supreme Court in Kishan Singh (Dead)
Through LRs. Vs. Gurpal Singh and others reported in 2010 (3) SCC (Cri.) 1091
: 2010 (8) SCC 775, has held as follows:
”18.Thus, in view of the above, the law on the issue stands
crystallised to the effect that the findings of fact recorded by the civil
court do not have any bearing so far as the criminal case is concerned and
vice versa. Standard of proof is different in civil and criminal cases. In
civil cases it is preponderance of probabilities while in criminal cases it
is proof beyond reasonable doubt. There is neither any statutory nor any
legal principle that findings recorded by the court either in civil or
criminal proceedings shall be binding between the same parties while dealing
with the same subject-matter and both the cases have to be decided on the
basis of the evidence adduced therein. However, there may be cases where the
provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the
relevance of previous judgments in subsequent cases may be taken into
consideration.”
6.Applying the verdict of our Hon?ble Supreme Court with the case on
hand, in the judgment rendered by the learned Additional District Judge,
Tuticorin, he specifically mentioned only one letter was produced to prove
the factum of payment of Rs.7,00,000/-. In this regard, the said observation
is subject to appeal. The parties herein have not stated anything about if
any challenge is made against the above judgment. Furthermore, without
completing investigation, this Court cannot come to the conclusion that the
allegation leveled in the complaint is false one.
7.It is true that for the offence of cheating has been made out, the
following ingredients have to be proved:
(i) deception of any persons;
(ii) fraudlatently or dishonestly inducing any person to deliver any
property; or
(iii) to consent that any person shall retain any property and finally
intentionally inducing that person to do or omit to do anything, which he
would not do or omit.
8.In the same way, for constituting an offence under Section 406 IPC,
proving the entrustment is the basic law.
9.In the above situation, in a complaint given by the second
respondent, he made allegation as Rs.7,00,000/- was paid to the petitioner
through another one accused in this case. If only the Investigation Officer
initiated extensive and elaborate investigation through the witnesses, it can
be seen whether the said ingredients are proved or not. Despite of that,
filing application before completion of investigation is unwarranted.
10.In Rajesh Bajaj Vs. State NCT of Delhi and others reported in 1999
SCC (Cri) 401, the Hon?ble Supreme Court has held as follows:
”9.It is not necessary that a complainant should verbatim reproduce in
the body of his complaint all the ingreidents of the offence he is alleging.
Nor is it necessary that the complainant should state in so many words that
the intention of the accused was dishonest or fraudulent. Splitting up of
the definition into different components of the offence to make a meticulous
scrutiny, whether all the ingredients have been precisely spelled out in the
complaint, is not the need at this stage. …..”
11.Now, according to the said observation, this is not a stage to find
out whether the offences alleged in the FIR are true or not. Furthermore, if
the allegations made in the FIR disclose commission of an offence, the Court
shall not go beyond the same and pass an order in favour of the accused to
hold the absence of any mens rea and actus reus.
12.Moreover, in the process of identifying the truth is nothing but a
great job and it should be done only by way of investigation and trial and
before that, quashing the FIR for this type of offences is unwarranted.
Accordingly, this Criminal Original Petition is dismissed. Consequently,
connected miscellaneous petition is closed.
To
1.The Inspector of Police,
Central Police Station,
Tuticorin.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
.
