@JUDGMENTTAG-ORDER
C.T. Selvam, J.@mdashThis petition has been filed by the accused in Crime No. 1 of 2006 on the file of the 1st Respondent to quash the investigation pending against them in such case. The defacto complainant in the case had been impleaded as 4th Respondent by this Court under orders in Crl.M.P. No. 922 of 2006 dated 17.02.2006.
2. The 4th Respondent/defacto complainant had preferred a complaint before the Respondent police on 02.01.2006 informing that he was the director of the L.V.R. Group of companies and that a group company besides being engaged in granite business was also in the process of purchase of lands and the Petitioners 1 to 3 used to assist them in this regard. Placing trust upon the Petitioners 1 to 3, the 4th Respondent/complainant left several documents and papers with the Petitioners 1 to 3 towards assisting the 4th Respondent/complainant in obtaining patta/chitta to the properties purchased in the name of the company. The 4th Respondent/complainant has informed that an extent of 3.33 acres in Ulundai village stood in the name of the 4th Respondent/complainant and one Subba Rao, who was none other than the father of the Petitioners 1 to 3 and husband of the 4th Petitioner and who now is no more. According to the complaint, the Petitioners had put to use the papers entrusted to them towards forging a Power of Attorney in respect of such land, as if, the 4th Respondent/complainant had constituted the 2nd Petitioner, his power agent and on the basis thereof, entered into an memorandum of sale agreement of such property with one Fr. Lawrence Raj. The 4th Respondent/complainant came to know of the offence committed by the Petitioners when the said Fr. Lawrence Raj checked if there was any encumbrance upon the property, and contacted the 4th Respondent/complainant on finding that the agreement with him had been entered into also in respect of the 4th Respondent/complainant''s property.
3. The learned Counsel for the Petitioners submitted that the complaint against them is a false and malafide one. Though the complaint was given on 24.12.2005, the same has been registered only on 02.01.2006. The Respondent police, more particularly, the 3rd Respondent, Deputy Superintendent of Police were hand in glove with the 4th Respondent/complainant party and were acting at their behest as would be evident from the fact that the Petitioners 1 to 3 had been put to several hardships by being frequently called to the office of the 3rd Respondent, being made to wait there for endless hours and being put to severe physical and mental harassment and criminal intimidation over a period of two months. In fact, the Petitioners complain of conduct of "Katta Panchayat" by the 3rd Respondent at the instance of the 4th Respondent/complainant. The Petitioners have made several complaints to the higher officials and also moved this Court by way of writ petition praying that they be provided protection.
4. It is argued that as per the Criminal Procedure Code, the crime ought to have been registered on the very date of complaint i.e. 24.12.2005, if the complaint made out cognizable offences and when such has not been done, it was apparent that the information furnished in the complaint did not make out a cognizable offence. Therefore, the investigation could have been conducted only after obtaining permission from the concerned Judicial Magistrate as per Section 155(2) Code of Criminal Procedure. Alleging malafides, the learned Counsel for the Petitioner states that the registration of the crime is prima facie illegal, ab-initio void and liable to be quashed. The learned Counsel submits that the case in Crime No. 1 of 2006 as also Crime No. 2 of 2006 have been registered at one and the same time through anti-dated FI Rs by blindly stating that the opinion of the Assistant Public Prosecutor was sought and that both crime numbers came to be registered by the Respondent police towards saving the Respondents 2 and 3 i.e., District Superintendent of Police, Thiruvallur District and Deputy Superintendent of Police, District Crime Branch, Thiruvallur District from action against their wrongful conduct in having indulged in "Katta Panchayat" at the instance of the 4th Respondent/complainant. The learned Counsel also submits that the investigation in the connected Crime No. 2 of 2006 has been quashed under orders of this Court and while so, it was necessary that the proceedings in Crime No. 1 of 2006 shall also be quashed.
5. The learned Counsel for the Respondent on the other hand would submit that a bare perusal of the complaint would show that the offences alleged stood made out. While so, this Court would not interfere at the stage of investigation. The learned Counsel submits that the memorandum of sale agreement with the said Fr. Lawrence Raj dated 09.09.2005 was entered into by all the Petitioners herein and that the representation made was that they were the absolute owners, agreement holders and power agents of the lands covered thereby and as such, all the Petitioners would have to establish their innocence, if at all, only at the trial.
6. I have considered the rival submissions.
7. Though several submissions have been made alleging improper conduct and conduct of "Katta Panchayat" by the Respondent police at the behest of the 4th Respondent/complainant party, the fact remains that the complaint which gave rise to registration of case in Crime No. 1 of 2006 on the file of the 1st Respondent police clearly spells out that an offence of forgery was committed towards making it appear that the 2nd Petitioner was the duly authorised power of attorney of the 4th Respondent/complainant and that through use thereof, the 4th Respondent/complainant''s company property had been sought to be transferred to the said Fr. Lawrence Raj.
8. The reason for this Court entertaining the quash petition in Crl.O.P. No. 1517 of 2006 and ordering quash of investigation in Crime No. 2 of 2006 was that the 4th Respondent/complainant in such case had complained of having parted with a sum of Rs. 63,60,000/- on the representation of the Petitioners 1 to 4 that the property sought to be sold was not encumbered, that upon coming to know such was not the position the 4th Respondent/complainant had sought return but the accused had not effected repayment. In such case, the 4th Respondent/complainant had filed an affidavit informing that the matter stood settled and that the accused therein had returned the sum of Rs. 63,60,000/- which had been paid to them. In such circumstances, this Court applying the ratio laid down by the Honourable Supreme Court in Nikhil Merchant v. Central Bureau of Investigation and Anr., 2008 (3) Cri 377 (SC) had quashed the proceedings. Though the transactions in both crime numbers may in a sense be said to be related, the considerations that arise in respect of each of them are totally different. As stated above, in this case, forgery is said to have been committed by misuse of papers entrusted with the Petitioners and on the strength of the forged document, property had been sought to be transferred.
9. The complaint does spell out offences calling for investigation so far as the Petitioners 1 to 3 are concerned. However, Petitioners 4 and 5 would stand on a different footing.
10. The Petitioners 4 and 5 viz., wife of late K. Subba Rao and his daughter have been arrayed as accused because memorandum of sale agreement dated 09.09.2005 whereunder property was agreed to be transferred to the said Fr. Lawrence Raj was signed also by them. As in such agreement, it had been mentioned that the vendors had represented that they are the absolute owners, agreement holders and power agents of agricultural land sought to be transferred thereunder, it is averred in the complaint that the said assertions were wrong and false and these Petitioners also have to be prosecuted. The complaint itself reveals that the claim of the 4th Respondent/complainant was that the property covered by sale agreement dated 09.09.2005 stood both in his name as also in the name of one Subba Rao who was none other than the father of the Petitioners 1, 2, 3 and 5 and the husband of the 4th Petitioner. The Petitioners herein as sons, daughter and wife of the said Subba Rao and as his legal heirs would fulfill the description of owners in respect of part of the property. The agreement makes clear that the Petitioners do not claim to be the absolute owners. They have represented themselves to be the absolute owners, agreement holders and power agent. Confining ourselves to the Petitioners 4 and 5, it would be apparent that the claim of being absolute owner in respect of a part of the property would be true. Apparently, the claim of absolute ownership only could be over a part of the property. Otherwise, the claim of being agreement holders and power agent would make no sense.
11. In view of the above discussion, this petition shall stand dismissed in so far as the Petitioners 1 to 3 are concerned. However, the same shall stand allowed in so far as the Petitioners 4 and 5 are concerned. Consequently, the connected miscellaneous petition is closed.
