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High Court of Judicature at Madras
P. DEVADASS, J.
Uma Maheswari & Another
Versus
The State rep. by The Inspector of Police, Central Crime Branch, Egmore & Another
Criminal O.P.Nos. 15467, 15573, 15982 & 15983 of 2013 & M.P.No.1 of 2013 in Crl.O.P.No. 15467 of 2013
Decided On : 20-12-2013
FIR Quashing - Criminal Proceedings - Section 156(3) Cr.P.C. - Section 482 Cr.P.C. - Section 105(E) Cr.P.C. - Section 102 Cr.P.C. - Bank Account Freezing - Joint Development Agreement - Cheating - Criminal Breach of Trust - Prima Facie Case - Mandatory Reporting to Magistrate - Quashing of FIR - Defreezing of Bank Accounts
Fact of the Case:
The petitioners filed criminal original petitions to quash the FIR and defreeze their bank accounts. The allegations involved a joint development agreement, cheating, and criminal breach of trust. The defacto complainant alleged that the petitioners misrepresented their authority over the property and misappropriated funds. The petitioners argued that the allegations were false and the matter was purely civil in nature.
Finding of the Court:
The court held that the FIR could not be quashed as the allegations disclosed a prima facie case of cheating and criminal breach of trust. The court also found that the freezing of the bank accounts was vitiated due to the failure to report it to the magistrate as required by law. Consequently, the bank accounts were defreezed.
Issues: The issues involved the quashing of the FIR and the defreezing of the bank accounts. The court had to determine whether the allegations disclosed a prima facie case and whether the freezing of the bank accounts was in accordance with the law.
Ratio Decidendi: The court emphasized that the power under Section 482 Cr.P.C. to quash criminal proceedings should be sparingly exercised and that the court cannot analyze the evidence like a trial court. The court also highlighted the mandatory reporting requirement to the magistrate for the freezing of bank accounts under Section 102 Cr.P.C.
Final Decision: The court dismissed the petition to quash the FIR and allowed the petitions to defreeze the bank accounts. The court emphasized that the investigating officer could freeze the accounts again, following the provisions of Section 102 Cr.P.C.
Since the four criminal original petitions are connected on facts, they were heard together and are being disposed of by this common order.
2. Kailashkumar, the intervenor, lodged a private complaint under Section 200 Cr.P.C. as against the 2nd petitioner(A-2), his wife, the first petitioner (A-1) and her mother(A-3). Under Section 156(3) Cr.P.C., the learned Chief Metropolitan Magistrate, Chennai directed the respondent police to register a case and investigate. Accordingly, the respondent registered a case in Crime No.99 of 2013 for offences under Section 406, 420, 120(B) IPC as against A1 to A3.
3. On the written requisition of the Investigation Officer, the Repco Home Finance Ltd, Anna Nagar, Chennai, the Central Bank of India, Anna Nagar, Chennai and Indian Bank, Kilpauk Branch, Kilpauk, Chennai have freezed the Bank accounts maintained by the petitioners.
4. To quash the F.I.R. the petitioners (A1 and A2) have filed Crl.O.P.No.15467 of 2013 under Section 482 Cr.P.C.
5. The petitioners have also filed Crl.O.P.Nos.15573, 15982 and 15983 of 2013 for issuance of direction under Section 482 Cr.P.C. to defreeze the said Bank accounts.
6. Mr.A.Natarajan, the learned Senior Counsel for the petitioners contended that on 1.12.2010 for the construction of six flats in a property measuring 3050 Sq.ft., a joint development agreement has been entered into between the defacto complainant and the first petitioner (A-1). The sharing of the flats and the undivided property shall be in the ratio of 50:50. In the agreement, the pre-existing mortgages on the property with certain Banks have been disclosed. As per the said agreement, within 30 days, the defacto complainant has to discharge the mortgages. Thus, time has been made as essence of the contract. However, the defacto complainant did not do so. Thus, on 13.11.2011, a supplemental agreement was executed extending the period. What was received from the defacto complainant has been remitted by A-1 to the Bank towards the discharge of the mortgage. Nothing has been burked in the joint development agreement. There was no dis-honest intention to cheat the defacto complainant at the inception of the transaction. No amount or property has been entrusted to the petitioners.
7. The learned Senior Counsel further contended that the defacto complainant had burked some material details in his complaint. Even in his supplemental agreement dated 13.11.2011 he has stated that he had paid Rs.80 lakhs to the first petitioner. However, in his complaint, he has stated that he had paid Rs.1,20,00,000/-. Further, a cheque for Rs.20 lakhs issued by him also has been bounced. Thus, even taking the allegations in the F.I.R as such they do not disclose the offences alleged. What actually is purely a civil transaction, breach of terms and conditions of an agreement. In fact, the contract was breached by the defacto complainant to cover his default. He gives a criminal colour to a civil matter. Thus, the learned Senior Counsel would submit that this is a fit case that the F.I.R. is to be quashed.
8. In support of his said submissions, the learned Senior Counsel cited the following decisions:-
(1) RAM BIRAJI DEVI AND ANOTHER Vs. UMESH KUMAR SINGH AND ANOTHER [AIR 2006 SC 2035].
(2) DALIP KAUR AND ORS. Vs. JAGNAR SINGH AND ANOTHER [AIR 2009 SC 3191].
(3) JOSEPH SALVARAJA Vs. STATE OF GUJARAT AND ORS. [2011(6) SCALE 731].
(4) M/s.THERMAX LTD & ORS. Vs. K.M.JOHNY & ORS. [2012(1) L.W.(Crl.) 367.
(5) CHANDRAN RATNASWAMI Vs. K.C.PALANISAMY AND OTHERS[2013 (6) SCC 740].
(6) SARABJIT SINGH Vs. STATE OF PUNJAB AND OTHERS [2013 (6) SCC 800].
9. The learned Senior Counsel further contended that on the written requisition of the Investigation Officer, the Bank accounts of the petitioners were freezed. As per Section 105(E) Cr.P.C. within 30 days such seizure has to be confirmed by the Court. However, in this case, this has not been done. The mandatory requirement of law has been violated. Thus, the freezing of the Bank accounts
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