Mahaveer v. The Inspector Of Police

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.12.2015

CORAM:

THE HON'BLE MR.JUSTICE R.SUBBIAH Crl.O.P.No.28608 of 2015 M.P.No.1 of 2015 1.Mahaveer 2.Nihal Chand 3.R.Mukesh Kothari 4.M.Vijaya Kawar 5.Priyadharshna ... Petitioners/A1,A2,A4,A5 & A6 Vs.

1.The Inspector of Police, Central Crime Branch, Team IX-A, Egmore, Chennai-600 008.

2.P.Ramesh Babu 3.P.Padmaja ... Respondents Prayer: Petition filed under Section 482 of Cr.P.C., praying to call for the final report / records in C.C.No.1780 of 2015, dated 17.03.2015 on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai and to quash the same as illegal, arbitrary, time barred and against the law. For Petitioners : Mr.A.Thiyagarajan, Senior Counsel for Mr.S.Ramesh Kumar For Respondents : Mr.C.Emalias, APP (For R1) Mr.Subba Reddy (For R2 & R3)

ORDER

This petition has been filed by the petitioners praying to quash the criminal proceedings in C.C.No.1780 of 2015 pending on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai. The petitioners herein have been arrayed as Accused 1, 2, 4, 5 & 6 respectively in the said case.

2.The brief facts, as stated in the affidavit filed by this petitioner, inter alia, are as follows:- 2-1.The 2nd respondent has filed a complaint against the petitioners herein. As per the statement of the 2nd

respondent, he is a class-I civil contractor and the 1st petitioner/A1 is a financier. The 2nd respondent informed the 1st petitioner/A1 that he was allotted with a contract for carrying out construction work of Groybe at Enayam East under the Superintending Engineer-Anti Sea Erosion Division, Nagercoil and he requested the 1st petitioner/A1 for financial assistance and to undertake to furnish security. The 1st petitioner has also agreed for the same and though initially the interest rate was agreed at the rate of 36%, latter is was mutually agreed at the rate of 12% only and the same was calculated for all purpose.

2-2.On 17.05.2004, the 2nd respondent executed a power of attorney in favour of the 1st petitioner/A1 and registered the same as Doc.No.974 of 2004 on the file of the SubRegistrar Office, North Chennai, relating to the properties specifically mentioned in the power of attorney and the said power of attorney was attested by the accused 3 & 4 (A3 died). On 27.04.2004, the 2nd respondent executed another power of attorney, which has been registered as Document No.256/2004 on the file of the Sub-Registrar Office, Kanyakumari District. On 21.11.2004, the 2nd respondent executed a promissory note by filling up the blank columus in his own handwriting for a sum of Rs.35,50,000/- and agreed to pay interest at the rate of 18%, which was subsequently reduced and fixed at the rate of 12%.

2-3.Based on the said power of attorneys executed by the 2nd respondent, the 1st petitioner/A1 has entered into the Sale Agreement with one Roop Chand Kothari (A3) relating to the property at Flat No.T5 3rd Floor Block No.H 76, T.Survey No.222/Part, Thiruvanmiyur, Chennai; but, the same was not materialized and the said sale agreement was cancelled and the advance amount was refunded to Roop Chand Kothari on 25.03.2008.

Similarly, for the other property at Tirukalugundran, the 1st petitioner/A1 has entered into an agreement of sale with one Mukesh R.Kothari (A4 - 3rd petitioner herein); but, the same was also cancelled as transaction was not materialized and the advance amount was returned which was confirmed by the 2nd respondent. 2-4.Since the 2nd respondent did not come forward to make the payment, the 1st petitioner/A1 met the 2nd respondent during 3rd week of March, 2008 and asked to repay the amount of Rs.67,45,320/-, which was calculated with the interest and other dues. On 25.03.2008, the 2nd respondent has given a letter to the 1st petitioner assuring that the Power of Attorney executed by him in Doc.No.974/2004 is in force. 2-5.According to the 1st petitioner/A1, the 2nd respondent borrowed huge amount as loan from the 1st petitioner/A1 to complete the construction work given under

the contract of Groyne at Enayam East. The 2nd respondent admitted the execution of the registered power of attorney deeds. Based on the power of attorney the 1st petitioner/A1 entered into agreement of sale of the 2nd respondent's property with one Roop Chand Kothari (A3-died) and Mukesh Kothari (A43rd petitioner herein), which were subsequently cancelled by him. The interest rate was mutually agreed at the rate of 36% and latter on, it has been reduced to 12% and as on 31.03.2005, a sum of Rs.48,81,418/- was due calculated with interest at the rate of 12%. Thereafter, at the rate of 12% has been added upto 25.03.2008 and the 2nd respondent admitted to pay a sum of Rs.67,45,320/- and expressed his inability to settle the amount as on 25.03.2008.

Therefore, he agreed and authorized the 1st petitioner to sell the properties based on the power of Attorney Doc.No.974/2004, dated 27.12.2005. 2-6.However, suddenly on 19.12.2008, the 2nd respondent herein issued a legal notice to the 1st petitioner. On 29.12.2008, the said legal notice was converted into criminal complaint. In fact, the Central Crime Branch Team No.16 enquired the matter and closed the complaint. Thereafter, the 2nd respondent along with the 3rd respondent filed a civil suit in C.S.No.289 of 2009 praying for a drecree and judgment directing the defendants to redeem the mortgage and to return all the original title deeds, cheques and for consequential relief.

2-7.When the said suit is pending, again the 2nd respondent filed second complaint on 07.09.2009 before the 1st respondent-Police and the said complaint was registered as Crime No.519 of 2009 on 23.10.2009. The 1st respondent-Police has taken up the case and arrested the 1st petitioner on 21.08.2010. After completion of investigation, chargesheet was filed by the 1st respondent-Police and the same has been taken on file as C.C.No.1780 of 2015 on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai. 2-8.Now, the petitioners have come forward with the present petition seeking to quash the criminal proceedings. 3.

Today, when the matter is taken up for consideration, the petitioners/accused the 2nd respondent/defacto-complainant appeared before this Court, along with their respective counsel, and submitted that they have compromised the matter amicably and they have filed a compromise memo in the suits in C.S.Nos.289 of 2009 & 568 of 2011 pending between the parties. The parties have also produced a copy of the memo of compromise filed by them in the said Civil Suits. The 2nd respondent/defacto-complainant has no objection for quashing the impugned proceedings.

4.Heard both sides and and perused the materials available on record.

5.Considering the facts and circumstances of the case and in view of the compromise arrived at between the parties, I am of the opinion that the criminal proceedings in C.C.No.1780 of 2015 pending on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai, is liable to be quashed and accordingly, the same is quashed. In fine, the criminal original petition is allowed. Consequently, connected Miscellaneous Petition is closed. sd/- Assistant Registrar(CO) /TRUE COPY/ Sub-Assistant Registrar ssv To, 1.The Chief Metropolitan Magistrate, Egmore, Chennai.

2.The Inspector of Police, Central Crime Branch, Team IX-A, Egmore, Chennai-600 008 3.The Public Prosecutor, Madras High Court, Madras.

+1 CC to MR.S.Ramesh Kumar Advocate. SR.NO.66377 +1 CC to MR.P.SubbaReddy Advocate. SR.NO.66557 Crl.O.P.No.28608 of 2015 M.P.No.1 of 2015 CO-GR JD 29/01/2016