The Honourable Mr. Justice S. Palanivelu
1. This Criminal Revision Petition filed u/s 397 of Code of Criminal Procedure read with Section 401 of Code of Criminal Procedure. to call for the records and set aside the judgment passed by the learned Additional Sessions Judge, Fast Track Court No. I, Madurai in Crl.R.C. No. 83 of 2008 dated 07.09.2009 and allow this revision.
2. The following are the allegations in brief contained in the complaint laid by the Respondent.
a) Both the accused are friends. The second accused is working as Lecturer in Economics in Madurai Thiyagarajar College. A vacant site to an extent of 672 Sq.ft along Madurai Aruppukottai Main Road belonged to the complainant. The first accused pressurised the complainant to sell the property to him and hence, the complainant sold his property to him. He paid Rs. 13,000/- to the complainant and the balance of Rs. 25,000/- would be paid by him within two months. The terms were agreed and the first accused gave a ''letter of undertaking'' to the complainant. The second accused supported the version of the first accused and attested the said undertaking.
b) While so, the accused did not pay Rs. 25,000/- to the complainant. Instead, the first accused came to occupy the properties in question and stored haystack. The complainant objected to it. He picked up quarrel with the complainant and refused to pay Rs. 25,000/- . besides, saying that he got the original sale deed from the second accused. He is attempting to grab the properties. Both the accused have committed breach of trust and cheating. On 02.02.2004, the complainant laid a compliant with Avaniayapuram Police Station. He also gave a complaint on 06.02.2004 against both the accused before the Superintendent of Police, Madurai District. But, there was no action. On 26.02.2004, the complainant preferred another complaint against both the accused before the Inspector General of Police Southern Region. But, there was no response. Hence, the complainant filed a complaint u/s 156(3) Code of Criminal Procedure. on 30.07.2004 before the learned Judicial Magistrate No. 1, Madurai, which was forwarded to Madurai District Crime Branch. The complaint was investigated and the complainant was advised to seek remedy before the Court. Hence, summons may be issued after taking cognizance of the offences to the accused and charges may be framed and the accused may be punished u/s 406, 420 and 387 Indian Penal Code.
c) Pending the hearing of the complaint, both the accused filed an application u/s 245 of Code of Criminal Procedure. for discharge in Crl.M.P.(MD). No. 3819 of 2007 in C.C. No. 68 of 2005. In the petition, they alleged that the allegations contained in the complaint are totally false, that the complainant received a hand loan of Rs. 55,000/- from the first accused on various occasions during 1999 and failed to repay the same for which, the complainant agreed to sell his land to an extent of 672 Sq.ft in Avaniapuram Village, that he demanded Rs. 60,000/- towards cost of the land and asked the Petitioner to pay him Rs. 5,000/- deducting the amount due from him to the first accused, that on 14.06.2000, a sale deed was executed by the complainant, that when the first accused asked the complainant to give original title deeds and encumbrance certificate, the Respondent demanded Rs. 25,000/- in addition and hence, an undertaking was given by the first accused to pay Rupees Twenty Five Thousand, that when the original documents are given to him, it was witnessed by the second Petitioner, but the complainant did not hand over the title deeds and encumbrance certificates for the property in question, that before the District Crime Branch, Madurai, during the enquiry, the first accused was ready to give demand draft for Rs. 18,000/- and a cash of Rs. 7,000/- , but the complainant refused to accept the same and hence, the enquiry could not be proceeded further and a report was sent to the Court to the effect that no charges under Sections 420, 406 and 387 Indian Penal Code could be framed against the accused.
3. After hearing both sides and perusing the relevant documents, the learned Judicial Magistrate No. 1, Madurai, allowed the application discharging the accused. The complainant carried the matter in revision before the learned Fast Track Court No. 1, Madurai, in Crl.R.C. No. 83 of 2008 which was allowed setting aside the order passed by the learned Judicial Magistrate. The said order in the revision is challenged before this Court in this revision case.
4. The learned Judicial Magistrate after considering the materials on record reached a conclusion that the alleged conduct of the accused could not be brought within the purview of Sections 420 and 406 Indian Penal Code, that the dispute between the parties is a civil dispute and if at all the complainant feels aggrieved, he can file a suit for recovery of money and that no prima facie materials are available to frame the charges against the accused.
5. The learned Fast Track Court Judge has taken a different view on appreciation of materials by observing that as per Ex. P1 undertaking letter, without paying Rupees Twenty Five Thousand to the complainant, the first accused got the sale deed from the second accused which would attract the penal provisions and that the charges could be framed against the first accused u/s 406 read with Section 109 and 420 Indian Penal Code and charges could be framed u/s 406 as against the second accused.
6. The Learned Counsel for the Petitioners would contend that inasmuch as it is categorically admitted in the sale deed by the complainant that he has received the sale consideration, the letter of undertaking under Ex. P.1 can be deemed to have been executed by the first accused only in the event of handing over the original title deeds by the complainant to the first accused and the same was witnessed by the second accused, that this circumstance would show that the complainant got additional payment of Rupees Twenty Five Thousand Only for the purpose of handing over the earlier title deeds to the first Petitioner and that there is no materials prima facie available to frame the charge against these Petitioners.
7. Contending contra, the Learned Counsel for the Respondent would submit that nothing wrong could be inferred on the order passed by the revision Court, that the receipt of original sale deed from the second Petitioner by the first Petitioner without paying Rupees Twenty Five Thousand to the complainant as agreed in the undertaking would candidly establish the criminal intention on the part of both the Petitioners and that there is no impediment in directing to frame charges against them.
8. The District Branch Police, Madurai, after enquiring both the parties submitted a report to the learned Judicial Magistrate by stating that the first accused was prepared to pay a sum of Rs. 25,000/- by means of a demand draft for Rs. 18,000/- drawn on the Tamil Nadu Mercantile Bank and a cash of Rs. 7,000/- , but the complainant refused to receive the same and he insisted to proceed the criminal action against the accused. On 14.06.2000, the registered sale deed with respect to the suit property came to be executed by the complainant by the Respondent in favour of the first Petitioner for Rs. 54,432/- in which the Respondent has recited that he has received the entire sale consideration from the first Petitioner for his family expenses from the first Petitioner by cash in person on various occasions and the entire sale price was paid.
9. In this situation, Ex. P.1 a letter of undertaking came to existence between the parties on the same day itself. i.e.14.06.2000 which is captioned as """epWj;jy; cWjpbkhHp yl;lh;"""""" in which the first Petitioner has stated that in the sale consideration Rupees Twenty Five Thousand was withheld by him and that the balance amount was received by the Respondent, that he would pay Rupees Twenty Five Thousand within two months and the original sale deed dated 14.06.2000 was given to custody with the second Petitioner who has attested to Ex. P.1. There are two sets of versions available among Ex. P.1 and the sale deed. In the sale deed which is a registered document, the Respondent himself has admitted that the entire sale consideration was received by him from the first Petitioner, whereas in Ex. P.1 undertaking letter, the first Petitioner would stipulate that Rupees Twenty Five Thousand, a part of sale consideration was retained by him.
10. In Ex. P.1, there is no mention as regards the handing over of earlier title deeds by the Respondent to the first Petitioner. But the recital in the registered document i.e. the sale deed would show that the entire sale price was received by the Respondent. In the discharge petition, it is pleaded that u/s 92 of the Indian Evidence Act, after registration of documents and on completion of the events as set out in the recitals, contrary to such clauses could not be raised in another form of undertaking and if there were anything, it is invalid. Section 92 of the Indian Evidence Act,1872 reads thus:
92. Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1).-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, (want or failure) of consideration, or mistake in fact or law.
Proviso (2).-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4).-The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso(5).-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6).-Any fact may be proved which shows in what manner the language of a document is related to existing facts.
11. In view of Section 92, oral transactions are excluded
when the matter in issue is required by law is reduced to the form of document. The Petitioners placed reliance upon a decision of the Hon''ble Supreme Court reported in (2006) (2)T.N.L.R.94 (SC), Ram Biraji Devi & another v. Umesh Kumar Singh and Anr.. In para 10 of the said judgment, it is held as follows:
10. The learned Magistrate in his order has categorically stated that the perusal of the complaint would make it clear that there was a dispute in respect of sale and purchase of land between the parties. In our view, even if the allegations made in the complaint are accepted to be true and correct, the Appellants cannot be said to have committed any offence of cheating or criminal breach of trust. Neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No criminal case is made out by the complainant against the Appellants in his complaint and in the statements of the complainant and his witnesses recorded by the Magistrate before taking of the cognizance of the alleged offences. The averments of the complaint and the statements of the complainant and his witnesses recorded by the Magistrate would amount to civil liability inter se the parties and no criminal liability can be attributed to the Appellants on the basis of the material on record.
12. In the background of the above said legal proposition, if
the dispute before this Court is looked into, it is to be observed that there could be no criminal intention on the part of the Petitioners. When the respondent himself has categorically conceded that he had received the entire consideration, even if anything to be paid reportedly towards the sale price by the first Petitioner, it could be only on insistence of the Respondent for handing over the earlier title deeds to the first Petitioner. There is no material on the side of the Respondent to show that he received and Rupees Thirty Thousand alone as advance for the sale price, as pleaded in the complaint. Particularly speaking, there is no recital in the sale deed that Rupees Thirty Thousand alone was received as advance and Rupees Twenty Five Thousand was withheld by the first Petitioner. This circumstance would throw much light on the conduct of the parties, that no criminal intention could be inferred on the part of the Petitioners. There is no prima facie materials to show that the first Petitioner was stubborn in paying Rupees Twenty Five Thousand alone, instead of payment of Rs. 41,432/- being the balance sale consideration. In the complaint, the total sale consideration as mentioned in the sale deed is not mentioned though in the statement before the Court the Respondent has stated that even though the first Petitioner was to pay Rs. 41,432/- he was stubborn in payment of Rs. 25,000/- alone and hence, it was stated in the undertaking letter. This is also not stated in the complaint.
13. In view of the above said discussions, it is discernible that there are no prima facie materials to frame charges against the Petitioners. In such view of the matter, the order challenged before this Court passed by the learned Fast Track Judge has to be set aside and it is accordingly set aside. The order passed by the learned Judicial Magistrate No. 1 allowing the discharge petition is restored.
14. In fine, the criminal revision case is allowed discharging the Petitioners from the case in C.C. No. 68 of 2005 on the file of the learned
