Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, praying to call for the records and quash the FIR in Cr. No. 7/2014 on the file of the first respondent police.
ORDER
This petition is filed by the sole accused to quash the FIR in Cr. No. 7/2014 on the file of the first respondent, Inspector of Police Central Crime Branch, EDF-III, Vepery, Chennai, registered on the basis of the complaint given by the second respondent defacto complainant.
2. The complaint proceeds as if the petitioner/accused, who is the owner of 93 cents at Selaiyur, approached the second respondent defacto complainant to purchase the same and they negotiated and fixed sale consideration of Rs. 2,79,00,000/- and the second respondent defacto complainant paid Rs. 70,00,000/- as advance on 21.4.2012 and entered into a document styled as deed of sale advance agreement and on 4.9.2012, the petitioner received balance sum of Rs. 2,09,00,000/- and executed due receipt and also one general power of attorney in favour of the second respondent and the same was registered as Doc. No. 1193/2012 on 4.9.2012 and the second respondent was also entrusted with the original documents and possession of the property in question. Thereafter, the power of attorney entered into an agreement with one Rajkumar on 19.2.2013 and the same was registered as Document No. 1744/2013. Whereas the petitioner herein, in order to cheat the second respondent to the tune of Rs. 2,79,00,000/- and grab the land in question, cancelled the power of attorney on 1.4.2013 and when he was questioned about the same, he made life threat to the second respondent/defacto complainant and the petitioner thus committed the acts of cheating and breach of trust. Though the complaint was lodged on 13.5.2013, the same was registered as FIR in Cr. No. 7/2014 on 10.1.2014 for the offences under sections 406 and 420 IPC.
3. Pending investigation, the sole accused has come forward with the present petition for quashing the FIR mainly on the ground that the case of the complainant is nothing but false and improbable and suffers from inconsistency and that the averments raised in the complaint do not attract the ingredients for the offences under sections 406 and 420 IPC, as there was no entrustment of property and as there was no act of cheating from the inception. It is also his case that the complaint lodged on the basis of the illegal transaction i.e, alleged sale through power of attorney, is not maintainable.
4. The actual facts involved in the present case according to the petitioner, are as follows:
The petitioner is the owner of the land to an extent of 1.43 acres in Selaiyur Village, Tambaram Taluk, Kancheepuram District and he sold 43 cents to one Sumeru Housing Limited and 7 cents to the defacto complainant and the petitioner appointed the second respondent as power agent to develop the remaining 93 cents and executed a general power of attorney on 4.9.2012 with specific clause that there was no consideration received for execution of the power and the agent is accountable for the Principal. Because of their long time friendship between the parties, the original document was handed over to the second respondent defacto complainant. Thereafter, the petitioner came to know that the defacto complainant attempted to demand more commission from the prospective buyers for purchase at lesser sale consideration. The Petitioner/Principal also came to know that the power agent sold other property measuring 11.11 acres belonging to the petitioner at Sri. Vaikundam, Tuticorin District during 2010 itself and did not submit any accounts to the petitioner. As a result, the petitioner instructed the second respondent not to sell Selaiyur property. But inspite of the same, the second respondent created a document and entered into an agreement for sale as power agent with Rajkumar to sell the entire property by fixing the sale consideration of Rs. 2,25,00,000/- and received Rs. 2,00,000/- as advance for sale. The petitioner, on coming to know about the same, revoked the power of attorney and intimated the same to the power agent through public and private notices and written communication and also demanded return of the original document relating to the property. Without complying with such demand, the second respondent/power agent lodged the complaint on 13.5.2013
5. Pending the same, the petitioner also filed two complaints dated 27.5.2013 and 31.7.2013 and on the failure of the police to register any case, the petitioner approached this Court by way of Crl. O.P No. 26715 of 2013. This Court by order dated 31.10.2013 directed the Sub Judge, Tambaram to take steps for mediation to solve the dispute between the petitioner and the second respondent. In pursuance of the same, the Sub Judge, Tambaram appointed one Thirumurthy as Advocate commissioner, who inturn issued notice to the second respondent and because of non co-operation of the second respondent, mediation was closed. Thereafter the petitioner instituted a civil suit in O.S No. 121/2013 before the Principal District Munsif Court, Tambaram against the second respondent and Rajkumar for declaration and for protecting his possession and enjoyment of the property and for directing the second respondent to hand over the original title deed. In the mean while, the petitioner also issued lawyer notices on 26.9.2013 and 20.12.2013, demanding the accounts pertaining to the property at Tuticorin. Thereafter, the complaint of the second respondent dated 13.5.2013 came to be registered as FIR in Cr. No. 7/2014 on 10.1.2014
6. It is the case of the petitioner that the clause relating to no consideration and accountability of the power agent with the Principal in the general power of attorney, would falsify the theory of sale of the property raised by the complainant. The petitioner has also denied the genuineness of the deed of sale advance agreement dated 21.04.2012 and deed of receipt dated 4.9.2012 It is also his case that as the property is belonging to the petitioner and as the second respondent was acting only as power agent, no case of criminal breach of trust in respect of the property belonging to the petitioner is attracted and in the absence of any averment regarding the intention of the petitioner to cheat the complainant from the inception of the agreement dated 4.9.2012, the ingredients for the act of cheating are also not attracted.
7. Heard the rival submissions made on both sides.
8. Admittedly, the property measuring 93 cents in Selaiyur Village belongs to the petitioner. Though the second respondent defacto complainant has raised theory of sale of the same in his favour through power of attorney, the same does not amount to legally valid conveyance in favour of the second respondent defacto complainant. For all the legal purposes, until and unless the property is conveyed through registered sale deed in favour of the second respondent, the same remains to be belonging to the petitioner herein. Notwithstanding the same, the petitioner has admittedly executed a general power of attorney in favour of the second respondent on 4.9.2012 The terms and conditions of the general power of attorney would support the theory of no consideration passed for execution of the power. The specific clause regarding accountability of the power agent to Principal would run contra to the theory as put forth by the second respondent.
9. It may be true that the petitioner has referred to about one deed of sale advance agreement and one deed of receipt for payment of Rs. 2,79,00,000/- but the genuineness of the same is seriously denied on the side of the petitioner herein. Further, the theory that the second respondent has having allegedly purchased the property for Rs. 2,79,00,000/-, entered into sale agreement with Rajkumar on 19.2.2013 for sale consideration of Rs. 2,25,00,000/- appears to be improbable. The second respondent has filed two documents styled as sale advance agreement dated 21.4.2012 and 4.9.2012 and agreement of sale dated 19.2.2013 by way of typed set of papers dated 18.8.2014 The reading of the same would reveal that both the documents are executed between the second respondent/power agent and D. Rajkumar and one is dated 4.9.2012 and other one is dated 19.2.2013 While what was referred to in the complaint is agreement of sale dated 19.2.2013, no reference at all is made about the deed of sale advance agreement dated 4.9.2012 Further, while the sale consideration mentioned in deed of sale advance agreement dated 4.9.2012 is Rs. 3,10,00,000/-, the sale consideration mentioned in deed of receipt dated 4.9.2012 is Rs. 2,79,00,000/- and the failure to mention anything about the sale advance agreement dated 4.9.2012 in the complaint and the sale consideration fixed in the agreement of sale dated 19.2.2013 as Rs. 2,25,00,000/- renders the entire theory of the defacto complainant as improbable and inconsistent. In that event, on the face of the allegations raised herein, the second respondent defacto complainant remains to be the power agent of the petitioner/principal and nothing more.
10. As a matter of fact, the petitioner has already revoked the general power of attorney on 1.4.2013 and the same was also intimated to the second respondent on 7.4.2013 The petitioner already lodged two complaints against the second respondent, which were referred for mediation and the mediation was closed, because of non-cooperation on the part of the second respondent. The petitioner has also approached the civil forum by way of O.S No. 121/2013 along with application for interim reliefs involving the same issue as raised herein. If that is so, the theory of genuineness of the sale of the property in favour of the second respondent and the alleged payment of Rs. 2,79,00,000/- and genuineness of other documents in support of the same are the issues for consideration before the civil forum.
11. It is also noteworthy to mention at this juncture that the theory of sale through power of attorney, as per the observation of the Hon'ble Apex Court in the decision reported in (2012) 1 SCC 656 (Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana) is unwarranted and unjustified as the same neither conveys any title nor do they amount to transfer of, or create interest in the immovable property and the same shall not be treated as concluded transfer or conveyance and the general power of attorney cannot be treated as deed of title and the complaint based on such transaction cannot at all be entertained. The Hon'ble Apex Court in the authority reported in (2004) 12 SCC 83 (G. Pankajakshi Amma v. Mathai Mathew (dead) through LRs) was of the view that no court can come to the aid of the party in such unaccounted and illegal transaction.
12. Viewing from any angle, the allegations raised in the complaint do not refer to any legally valid concluded transaction so as to attract the ingredients for the act of criminal breach of trust punishable under Section 406 IPC. When there is no concluded sale transaction, the property remains to be as that of the petitioner herein. When the basic ingredient for the offence under section 406 IPC is entrustment of the property, there is no entrustment of the petitioner's own property with the petitioner by the second respondent. The Hon'ble Supreme Court in the case reported in (1996) 5 SCC 591 (Central Bureau of Investigation, SPE, SIU (X), New Delhi v. Duncans Agro Industries Ltd., Calcutta) has clearly laid down that it is however necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which the offence is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit….. The property in respect of which criminal breach of trust can be committed must necessary be the property of some person other than the accused or the beneficial interest in or ownership of it must be in the other person and the offender must hold such property in trust for such other person or for his benefit. Such basic ingredient is missing in the present case.
13. As far as other act of cheating punishable under section 420 IPC is concerned, here again, the allegations do not say that the petitioner has dishonest and fraudulent intention to cheat the defacto complainant from the very inception. The cause of action for filing the present case according to the second respondent arises on revocation of general power of attorney after receipt of Rs. 2,79,00,000/-. Whereas, the complaint except stating that the petitioner revoked the power of attorney, after receiving Rs. 2,79,00,000/-, with an intention to grab the property, does not state that the petitioner has such fraudulent intention at the time of alleged receipt of money and on the date of execution of power of attorney. That being so, the Hon'ble Apex court in (2009) 14 SCC 696 (Dalip Kaur v. Jagnar Singh) under identical circumstances, held that where the allegations contained in the FIR, even if given face value and taken to be correct, do not disclose the commission of the alleged offence and disclose only a civil dispute, FIR is liable to be quashed. In the opinion of the Apex Court in (2007) 14 SCC 776 (All Cargo Movers (India) Private Limited v. Dhanesh Badarmal Jain), the alleged conduct if any on the part of the petitioner amounts to breach of contract and breach of contract simpliciter does not constitute an offence as the act of cheating or criminal breach of trust and is basically more of civil in nature.
14. Thus, for the reasons held above, this court is of the view that the allegations do not attract any of the ingredients for the offences under sections 406 and 420 IPC and as the allegations are based on illegal transaction, the same cannot be entertained and as the dispute relating to genuineness of the documents and the theory of sale are more of civil in nature and are the issues pending determination in the civil suit filed by the petitioner, there is no justification for this Court to allow the criminal prosecution to continue and to subject the petitioner to face the ordeal of trial, as such, this Court, in order to secure the ends of justice and to prevent abuse of process of law, deems it fit to quash proceedings initiated against the petitioner herein.
15. In the result, this criminal original petition is allowed and the FIR in Cr. No. 7/2014 pending on the file of the first respondent police stands quashed. Consequently, connected miscellaneous petitions are closed.