The necessity to establish criminal allegations independently of civil cases and the inadmissibility of using the pendency of a civil suit as a ground for quashing criminal proceedings in cheating and fraud cases.

This petition has been filed to quash the proceedings in STC No. 30 of 2016 on the file of the learned Judicial Magistrate, Vanur.

2. The short facts of this case are as follows:

2.1. Auroville Foundation and Usha @ Usha Rani (A1) entered into a Deed of Exchange dated 16.06.1995, under which two properties were exchanged between them, by virtue of which, Auroville Foundation became the absolute owner of X property and Usha (A1) became the owner of Y property. For the reasons best known to them, they did not exchange the original title deeds which remained in the custody of the respective parties. While so, Usha (A1) executed a Gift Deed dated 16.05.2012 in respect of X property belonging to Auroville Foundation in favour of her husband Devadass (A2), taking undue advantage of the fact that the original documents of X property were in her possession. Thereafter, Devadass (A2) filed a civil suit in O.S.No.27 of 2015 before the District Munsif Court, Vanur, for declaration that the Deed of Exchange dated 16.06.1995 itself is null and void, on several grounds, particularly that Auroville Foundation does not have a valid title over X property. In the suit in O.S. No. 27 of 2015, the District Munsif Court, Vanur, appears to have granted interim injunction in favour of Devadass (A2).

2.2. Under such circumstances, Auroville Foundation filed a private complaint before the Judicial Magistrate, Vanur, for offences under Section 406 and 420 IPC alleging that Usha (A1) had committed criminal acts of breach of trust and cheating by transferring X property, which belongs to Auroville Foundation, in favour of her husband Devadass (A2) on 16.05.2012 and thereby, encumbering the property.

2.3. The Judicial Magistrate Court, Vanur, took the complaint on file and by a detailed order, has held that an offence under Sections 406 and 420 IPC is not made out and only an offence under Section 465 and 120-B IPC has been made out. Challenging the cognizance order, Usha (A1) and P.K. Devadass (A2) are before this Court.

3. Mr. N.R. Elango, learned Senior Counsel appearing for the petitioners/accused submitted that the dispute with regard to the title of X property is pending in O.S. No. 27 of 2015 before the District Munsif Court, Vanur and therefore, criminal prosecution against the petitioners is an abuse of process of law. He also submitted that the Judicial Magistrate, Vanur, ought not to have taken cognizance for an offence under Section 465 IPC, inasmuch as Usha (A1) has not created a false document as defined under Section 464 IPC.

4. This Court gave its anxious consideration to the submissions made by the learned Senior Counsel appearing for the petitioners.

5. The allegation of Auroville Foundation is that X property belongs to them by virtue of the exchange deed dated 16.06.1995, but, the title deeds of X property were with Usha (A1) in trust. By taking advantage of the fact that the title deeds were with her, the execution of gift deed in favour of her husband Devadass (A2), as if X property belongs to her, would prima facie attract Section 406 IPC.

6. In the backdrop of the said allegations, the contention of the learned Senior Counsel appearing for the petitioners/accused that the pendency of O.S. No. 27 of 2015 would be an impediment for the present criminal prosecution, cannot be countenanced. It is not a thumb rule that a civil case and a criminal case cannot co-exist and the judgments of the Supreme Court quashing criminal prosecutions, where, it is found that a criminal colour has been given to a civil dispute, are a legion. The Supreme Court, in M. Krishnan vs. Vijay Singh and another, [(2002) MLJ (Crl.) 134], has struck a note of caution as follows:-

3. . . . . . .The High Court appears to have been impressed by the fact that as the nature of the dispute was primarily of a civil nature, the appellant was not justified in restoring to the criminal proceedings.

4. Accepting such a general proposition would be against the provisions of law