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2019 Supreme(Mad) 2814
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
Narayanamma & Ors. – Petitioners
Versus
Chikka Venkateshaiah – Respondent
CRL.O.P.No.336 of 2015
Decided On : 13-08-2019
Advocate Appeared:
For the Petitioners: Mr. R. Jayaprakash
For the Respondents: Mr. A. Balamurugan
Headnote:
Criminal Procedure Code,1973 - Section 439(2) – Indian Penal Code,1860 - Sections 420, 465 and 468 – FIR – Quash - Counsel appearing on behalf of respondent submitted that he has an intimation from respondent to effect that respondent is withdrawing and has directed counsel not to appear in this case -Therefore counsel for respondent expressed his helplessness and submitted that he cannot appear for respondent and make his submissions - In view of above development this Court has to decide this case on basis of materials available on record and after taking into consideration submissions made by counsel For Respondents petitioners Court below while converting protest petition into a private complaint failed to take note closure report filed police and statements recorded from witnesses by police and therefore cognizance taken by Court below is illegal - counsel for petitioners further submitted that even if entire allegations made in complaint are taken as it no offence of forgery and cheating is made out and therefore proceedings before Court below liable to be quashed by this Court –Held, Case of also what was observed was it is not very clear as to whether Magistrate has chosen to treat protest petition as complaint - This observation would not mean that every protest petition must necessarily be treated as & complaint whether it satisfies conditions of complaint or not - A private complaint is to contain complete list of witnesses to examined - A further examination complainant made Section - If Magistrate did not treat protest petition as complaint protest petition not satisfying all conditions of complaint to his mind would not mean that case has become complaint case in majority of cases when a final report is submitted Magistrate has to simply consider whether on materials in case diary no case is made out as to accept final report whether case diary discloses a prima facie case as to take cognizance police after investigation have filed B report complainant wants to protest is thereby inviting Magistrate to take cognizance Section on a complaint - If it were be so protest petition that he files shall have to satisfy requirements of complaint defined in and that should contain that constitute offence for which Magistrate is taking cognizance Section - Instead if it to be simply styled as a protest petition without containing all those necessary particulars that normal complaint has contain then cannot be construed as complaint for purpose of proceeding petition fulfills requirements of complaint Magistrate may treat protest petition as a complaint and deal with same required Section read with Section Code - In this case there is no list of witnesses as such in protest petition - Prayer in protest petition is to set aside final report and to allow application against the final report - While Court are not suggesting that form must entirely be decisive of question whether amounts to complaint or liable to be treated as a complaint Court would think that essentially protest petition this case is summing up of objections second respondent against final report Magistrate wants to convert protest petition into private complaint he has jurisdiction do - However at time of taking cognizance Magistrate has to necessarily apply his mind on closure report filed by police and statements recorded by police during the course of investigation - This exercise has not been done by Court below while converting protest petition in to private complaint and taking cognizance of the same – Petition allowed
ORDER :
PRAYER: Criminal Original Petition filed under Section 439(2) of Criminal Procedure Code, to call for the records pertaining to C.C.No.56 of 2013 pending on the file of the Judicial Magistrate No.I, Hosur, Krishnagiri District and quash the same as illegal, incompetent and ultravires by allowing the present criminal original petition.
1. This petition has been filed seeking to quash the proceedings in C.C.No.56 of 2013, pending on the file of the Judicial Magistrate-I, Hosur, Krishnagiri District.
2. The respondent filed a complaint before the Inspector of Police, Berigai Police Station, Krishnagiri, against the petitioners and an FIR came to be registered in Crime No.129 of 2008 on 24.06.2008, for the offences under Sections 420, 465 and 468 of IPC.
3. The FIR was investigated and a closure report came to be filed by the concerned police on 24.07.2009 before the Judicial Magistrate-I, Hosur.
4. After nearly two years, a protest petition came to be filed by the respondent against the petitioners. The protest petition was converted into a private complaint and the Court below took cognizance of the private complaint and issued process to the petitioners under Section 204 of Cr.P.C.
5. The learned counsel for the petitioners submitted that the Court below while converting the protest petition into a private complaint, failed to take note of the closure report filed by the police and the statements recorded from the witnesses by the police and therefore the cognizance taken by the Court below is illegal. The learned counsel for the petitioners further submitted that even if the entire allegations made in the complaint are taken as it is, no offence of forgery and cheating is made out and therefore the proceedings before the Court below is liable to be quashed by this Court.
6. The learned counsel for the petitioner in order to substantiate his submissions, relied upon the following judgments:
1. (2009) 8 SCC 751 Mohammed Ibrahim & ors Vs. State of Bihar anr
2. (2010) 4 SCC 185 Ramesh Pandurao Hedau Vs State of Gujarat
3. (2018) 4 MLJ (Crl) 392 T.Muthuramalingam Vs. The Inspector of Police, DCB and ors
4. (2019) 1 LW (Crl) 771 A.Rajendra and ors, Vs. The State and ors
5. (2019) SCC Online SC 877 Vishnu Kumar Tiwari Vs. State Of Uttar Pradesh
7. The learned counsel appearing on behalf of the respondent submitted that he has recieved an intimation from the respondent to the effect that the respondent is withdrawing the vakalat and has directed the counsel not to appear in this case. Therefore, the learned counsel for the respondent expressed his helplessness and submitted that he cannot appear for the respondent and make his submissions.
8. In view of the above development, this Court has to decide this case on the basis of materials available on record and after taking into consideration the submissions made by the learned counsel For the Respondents petitioners.
9. The case of the respondent is that, the property at Sy.No.55/2B, Muduguriki Village, Krishnagiri District, belonged to his father-in-law. After his demise, property vested on his wife. However, the petitioners executed a registered gift deed dated 28.05.2007, in favour of the Commissioner/BDO, Shoolagiri, for construction of a school under a scheme. While executing the gift deed, the property belonging to the wife of the respondent was also included in the gift deed. Therefore, according to the respondent, the petitioners have committed an offence of forgery and cheating.
10. The Sub Inspector of Police, Berigai Police Station, who conducted the investigation, took the statement of the witnesses, filed a closure report on the ground that the property belonging to the wife of the complainant is intact and there is no construction put up in the property. The investigating officer has further stated that the dispute is purely civil in nature and therefore the closure report was filed as "mistake of fact".
11. The protest petition that was filed by the respondent was converted int
