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2019 Supreme(Mad) 2121
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
V. BHARATHIDASAN, J.
Dawoodkhan - Appellant
Versus
The State and Ors - Respondent
Crl. O.P. (MD) No. 15262 of 2014, M.P. (MD) Nos. 1 and 2 of 2014
Decided On : 22-08-2019
Advocate Appeared:
For the Appellant : M. Ajmal Khan, Senior Counsel for J.Sulthan Basha
For the Respondent: K.K. Ramakrishnan, Additional Public Prosecutor and S. Vinayak for N. Anandakumar
Headnote:
Indian Penal Code - Sections 406, 420 and 447 – Jurisdiction – Claim of compensation - Quashing the criminal proceedings - Site or pay cost of the land - Learned Senior Counsel appearing for the petitioner would contend that there is a dispute between the petitioner and the second respondent regarding the alleged encroachment of the second respondent property second respondent, based on some measurement made by a Surveyor, in his absence, claimed that the petitioner has encroached his property petitioner purchased property in thereafter, he has obtained a planning permission from the Local Body in and put up a construction in the year 1993, and residing therein - Now, after second respondent filed a complaint as if petitioner has encroached his property. Even assuming that the petitioner has encroached his property it is only a civil dispute between the parties, only remedy available to him is to approach the Civil Court concerned, and he cannot give a criminal to the civil dispute and file the present complaint - learned Senior Counsel appearing for the petitioner further submitted that even assuming that the entire allegations made in the complaint are true, no case has been made out for the offences punishable under Sections 406, 420 and 447 of the Indian Penal Code, and the present complaint has been filed only in total abuse of process of law learned Senior Counsel also submitted that the petitioner never made any promise to the second respondent accepting the alleged encroachment and promised him to provide alternate site or pay the cost of land – Held, Jurisdiction under Section 482 of Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law - Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter - This Court has laid down certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of process of any court or otherwise to secure the ends of justice – Recently Supreme Court, in similar circumstances, in Criminal Appeal Commissioner of Police and Ors has held as follows - Having heard the learned counsel appearing on behalf of the parties at length and considering the material on record, we are of the opinion that the criminal proceedings initiated by Respondent original complainant is nothing but an abuse of the process of law for settling a civil dispute - Even considering the nature of allegations in complaint Court are of the firm opinion that no case is made out for taking cognizance of offence under Section 420/34 Indian Penal Code case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law - Apart from that for an offence under Section 406 of Indian Penal Code there is no material available on record to show that the petitioner has been entrusted with any property and he has misappropriated the same - Petition allowed
ORDER :
V. BHARATHIDASAN, J.
1. This petition has been filed to quash the criminal proceedings in C.C. No. 239 of 2013, on the file of the Judicial Magistrate Court No. I, Madurai. The petitioner is the sole accused and he stood charged for the offences punishable under Sections 406, 420 and 447 of the Indian Penal Code.
2. The case of the prosecution, in brief, is as follows:
One Mrs. Vairamani was the owner of the landed property in Re-Survey No. 56/3H, to an extent of 5 cents at Vilangudi Village, Madurai. The second respondent, who is none other than the father of the said Vairamani and her power of attorney, has given a complaint alleging that, the petitioner/accused, is an adjacent house site owner in Re-Survey No. 56/3I, and the petitioner encroached the second respondent property to an extent of 97 square metres. When the second respondent questioned the same, the petitioner disputed it. Hence, the second respondent measured the property with the help of a Surveyor and confirmed that there was an encroachment to an extent of 97 Square metres. Then, he approached the petitioner, and the petitioner also agreed that, he has encroached the property and he promised him to provide alternate site or pay the cost of the land. But, he failed to keep up his promise. Thereafter, the second respondent has given a complaint before the District Crime Branch Police, Madurai, and an enquiry has been conducted by them, wherein, the petitioner has admitted that he has encroached the second respondent property and also promised to give alternate site. But, he failed to provide alternate site. In the above circumstances, the complaint has been filed before the first respondent police. Based on that, a First Information Report was registered for the offences under Sections 447, 406 and 420 of the Indian Penal Code. After investigation, a final report has been filed, which was taken cognizance by the learned Judicial Magistrate No. I, Madurai, and now, pending trial in C.C. No. 239 of 2013. To quash the same, the present petition has been filed by the petitioner.
3. Mr. M. Ajmal Khan, learned Senior Counsel appearing for the petitioner would contend that there is a dispute between the petitioner and the second respondent regarding the alleged encroachment of the second respondent property. The second respondent, based on some measurement made by a Surveyor, in his absence, claimed that the petitioner has encroached his property. The petitioner purchased the property in the year 1990, thereafter, he has obtained a planning permission from the Local Body in the year 1991 and put up a construction in the year 1993, and residing therein. Now, after 20 years, the second respondent filed a complaint as if the petitioner has encroached his property. Even assuming that the petitioner has encroached his property, it is only a civil dispute between the parties, the only remedy available to him is to approach the Civil Court concerned, and he cannot give a criminal flavour to the civil dispute and file the present complaint.
4. The learned Senior Counsel appearing for the petitioner further submitted that even assuming that the entire allegations made in the complaint are true, no case has been made out for the offences punishable under Sections 406, 420 and 447 of the Indian Penal Code, and the present complaint has been filed only in total abuse of process of law. The learned Senior Counsel also submitted that the petitioner never made any promise to the second respondent accepting the alleged encroachment and promised him to provide alternate site or pay the cost of the land. Except the oral statement of the second respondent, absolutely, there is no material available on record to substantiate the same and hence, he prayed for quashing the criminal proceedings.
5. Per contra, Mr. S. Vinayak, learned counsel appearing for the second respondent vehemently contended that, the petitioner has encroached the property belonging to the second respondent to an e
