1. The petitions are filed seeking a direction to call for the records in C.C.No.2 of 2007 on the file of the learned Judicial Magistrate No,I, Poonamallee and quash the same.
2. The petitioner in both the petitions charged for offences punishable under Secs.120-B and 409 IPC for criminal conspiracy and criminal breach of trust. The brief fact of the case is as follows:
3. One N.T. Radhakrishna Mudalir and his wife Girijabai died on 2.10.1990 and on 22.4.2004, respectively,leaving behind 3 sons and 6 daughters. The sons are N.R. Ramakodi, N.R.Padmakodi and N.R. Navakodi. One Sasireka, Gandhimathi, Kasturibai, Renganayaki, Rajamani and Subashini are the daughters. The parents left behind family properties which remained undivided and the first son Ramakodi was looking after the management of the family property. According to the respondents, the said Ramakodi and his wife Chinthamani and one Madhavan entered into a criminal conspiracy to commit breach of trust, executed a settlement deed in favour of his wife, she, in turn executed a power of attorney in favour of Madhavan, who sold the same to third parties. A complaint was given by the 2nd and 3rd respondent, who are the sisters against the petitioners and the same was registered in Cr.No.909 of 2006 by the Central Crime Branch and on investigation, the 1st respondent laid a charge sheet on the file of the learned J.M.I, Poonamalee and the same was taken on file in CC No,.2 of 2007. Seeking an order of quash, the petitioners/accused are before this Court.
4. The main ground raised in both these applications is that the entire dispute is a civil dispute and initiation of the criminal proceedings is not maintainable and the defacto-complainants have no right in the property dealt by the petitioners and the offences were not made out.
5. Mr.B.Sriramulu, learned Senior Counsel for Mr R.Karthikeyan, for petitioners invited the attention of this Court to the legal notice dated 18.6.2006 issued by the three sisters against the brothers and the reply notice. The learned senior counsel submitted that after exchange of notices, a suit in C.S.No.1046/2007 was filed by the three sisters for partition. The learned senior counsel pointed out that while the civil court is seized of the matter, the initiation of criminal proceedings is abuse of process of law.
6. The learned Senior Counsel relied on a decision reported in AIR 1998 SC 128 (M/s Pepsi Foods Ltd vs Special Judicial Magistrate) ,wherein the Apex Court has held as follows: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complainant to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused"
7. The learned counsel also relied on a decision reported in 2007 14 SCC 776 (All Cargo Movers (India) Private Limitd and others vs Dhanesh Badaramal Jain and another), wherein the Supreme Court dealt with the offences under sec.406 and 420 IPC and held as follows: "We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correction its entirety, do not disclose an offence. For the said purpose, this Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of respondent 1-plaintiff in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract on the part o the carriers and their agent. Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court. It is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice.
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, be any doubt that only because civil law can be taken recourse to would not necessarily mean that criminal proceedings should be barred as has been opined by this Court in Pratibha Rani vs Suraj Kumar" .....
21. There exists a distinction between pure contractual dispute of a civil nature and an offence of cheating. Although breach of contract per se would not come in the way of initiation of a criminal proceeding, there cannot be any doubt whatsoever that in the absence of the averments made in the complaint petition wherefrom the ingredients of an offence can be found out, the court should not hesitate to exercise its jurisdiction under section 482 of the Code of Criminal Procedure.
22. We may reiterate that one of the ingredients of cheating as defined in Section 415 of the Penal Code is existence of an (sic fraudulent or dishonest) intention of making initial promise or existence thereof from the very beginning of formation of contract.
23. Section 482 of the Code of Criminal Procedure saves the inherent power of the court. It serves a salutary purpose viz., a person should not undergo harassment of litigation for a number of years although no case has been made out against him.
24. It is one thing to say that a case has been made out for trial and as such the criminal proceedings should not be quashed but it is another thing to say that a persons should undergo a criminal trial despite the fact that no case has been made out at all".
9. The learned counsel further relied on a decision reported in 2009 7 SCC 495 (Devendra and others vs State of Uttar Pradesh and another) , in which the Apex Court has held as follows: "11. The fact that the appellants are co-sharers is not in dispute. The dispute between them is confined to the extent of their respective shares. It must be determined only in a civil suit. If appellants 1 and 2 had executed a deed of sale in favour of a third party stating that they have one-third share over the entire properties, the same would not be binding on the respondent complainant. If any cause of action arose by reason of a threat of dispossession at the hands of the co-sharer or at the hands of the third party, as was contended, recourse to legal action could always be taken. Even for that purpose a proceeding under Sections 144 and 145 of the Code of Criminal Procedure would be maintainable. The decision of a criminal court in a case of this nature would not be binding on the civil court.
10. Lastly, the learned counsel relied on a decision reported in 2009 14 SCC 466 (Shakson Belthissor vs State of kerala and another), in which the Apex Court has held as follows: "32. It is crystal clear that neither in the FIR nor in the charge-sheet there is any ingredient of Section 498-A IPC, which could prima facie constitute a case of cruelty as defined in that section. It is thus established that on a reading of the FIR as also the charge-sheet filed against the appellant no case under Section 498-A is made out on the face of the record and therefore, both the FIR as also the charge sheet are liable to be quashed in exercise of the powers under Section 482 Cr.P.C. Clearly, the High Court failed to appreciate the facts in proper perspective and therefore, committed an error on the face of the record".
11. On the contrary, Mr.R. Singaravelan, the learned counsel for R2 and R3 submitted that that 1st petitioner, who was in management of joint family property has clandestinely settled the same in favour of his wife, who is the 2nd petitioner, who in turn, has executed a power of attorney to the petitioner in the other OP who sold the same to the third parties. The learned counsel pointed out that the transactions were carried out within 10 days only to cheat the lawful owners of the property and such offence will definitely attract criminal breach of trust and criminal conspiracy. The learned counsel submitted that the powers under sec.482 Cr.P.C has to be used sparingly and only in the rarest of rare cases and the inherent powers of the Court is to be exercised only when the entirety of the complaint and the final report will not constitute the alleged offence. The learned counsel would draw our attention to the legal heir certificates dated 21.9.1992 and 3.2.2005 wherein the 1st petitioner was alone shown as legal heir to the deceased parents. The learned counsel relied on a decision reported in 2008 3 SCC 574(Som Mittal vs Government of Karnataka),in which the Apex Court has held as follows: "9. When the words "rarest of rare cases" are used after the words "sparingly and with circumspection" while describing the scope of Section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words "sparingly and with circumspection". They mean that the power under Section 482 to quash the proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasise that the power under Section 482 Cr.P.C to quash the FIR or criminal proceedings should be used sparingly and with circumspection. Judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a judge uses a phrase or expression with the intention of emphasising a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation."
12. The learned counsel also relied on a decision reported in AIR 1960 SC 866 (R.P. Kapur vs State of Punjab), wherein the Apex Court held as follows: "It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction".
13. He also relied on a decision reported in 2010 6 SCC 243(Jeffrey J Diermeier and another vs State of West Bengal and another), wherein the Apex Court held as follows:
"20. Before addressing the connections advanced on behalf of the parties, it will be useful to notice the scope and ambit of the inherent powers of the High Court under Section 482 of the Code. The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.
14. The learned Additional Public Prosecutor submitted that based on the complaint given by the respondents 2 and 3 the Central Crime Branch of Egmore, Chennai registered a case and investigated and examined 16 witnesses and filed a final report for the offences under Sec.120-B and 420 IPC.
15. Heard both sides and perused the materials available on record.
16. Admittedly, one N.T.Radhakrishna Mudaliar and Girija Bai died leaving behind 3 sons and 6 daughters. They have left some family properties. Admittedly, the 1st petitioner was managing the family properties. The sons seem to have dealt with the properties and the daughters have claimed their share through a notice dated 18.6.2006. There were exchange of notices between the brothers and sisters which culminated into filing of civil suit in C.S.No.1046 of 2007 for partition. While so, the 2nd and 3rd respondent have preferred a complaint against the petitioner and one Madhavan for the alleged execution of a settlement deed and a power deed for the purpose of sale of 3.55 acres. The respondents have alleged criminal conspiracy and criminal breach of trust. The only point to be considered in these petitions are whether the investigation has revealed the necessary ingredients for the alleged offences and whether the criminal proceedings should allow to be continued as there is a civil dispute between the co-sharers before a competent court. In Bajanlal's case reported in 1992 SCC (crl) 426, the Apex Curt has held on the principles in exercising the jurisdiction under Sec.482 Cr.P.C.
17. It is also now well settled that the High Court ordinarily would exercise its jurisdiction under Sec.482 of Cr.P.C if the allegations made in the First Information Report, even if given face value and taken to be correct in their entirety do not make out any offence. It is also well settled that when the allegations made in the FIR or the evidence recorded during investigation do not satisfy the ingredients of the offence the High Court would not encourage harassment of a person in criminal court. It is also well settled that when dispute between the parties constitute only a civil wrong and not a criminal wrong the court would not permit a person to be harassed and more so when no case for taking cognizance of the offence has been made out.
18. Therefore, before the exercising the power under Sec.482 Cr.P.C, the court's duty is to see whether the evidence collected during the investigation satisfies the ingredients of the offence and whether the dispute between the parties constitute only a civil wrong not a criminal wrong.
19. In the case before us, the major offence alleged is criminal breach of trust. Even according to the defacto-complainant, the parties are co-sharers and the 1st petitioner was managing the property. The defacto-complainant alleges that they have a share in the property,but the brothers would contend that the daughters were already married and they have no share in the property.
20. It is to be noted that the other two brothers have not objected the transaction made by the petitioners. The criminal breach of trust presupposes entrustment. The 1st petitioner was in management in his capacity as the manager and as well as on a separate claim over the property. Whether the daughters have any right or title in the property is yet to be decided and that has to be decided only in the civil suit. The ingredients to constitute a criminal breach of trust are i) entrusting a person with the property or any dominion over the property(ii) that person entrusted (a) dishonestly misappropriating on converting that property to his own use; or (b) dishonestly using on disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such 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 claim till the death of the mother in their father's property. It is only in 2006 there were claims and counter claims and the civil suit is pending. That being so, the respondents 2 and 3 have to establish their right in the property. That can be resolved only in the civil forum. In 2009 1 SCC 516 (R. Kalyani vs Janak c. Methta),the Apex Court held as follows: "15. Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. 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 absence of any mens rea or actus reus.
22. Therefore, in my considered view, the proceedings in C.C.2 of 2007 on the file of the learned Judicial Magistrate No,I, Poonamallee cannot be allowed to be continued, thereby subjecting the petitioner for harassment. Therefore, the is an appropriate case to interfere and exercise the powers under Sec.482 CrP.C
23. In the result, both the criminal original petitions are allowed and the proceedings in CC No. 2 of 2007 on the file of the learned Judicial Magistrate No.I, Ponnalamee is quashed.