The execution of sale deeds by a power agent, including to oneself, based on a power of attorney, does not constitute cheating under Sections 406 and 420 of IPC.

JUDGMENT :

(Prayer: This Criminal Original Petition is filed under Section 482 of Cr.P.C., to call for the records on the file of the Judicial Magistrate No.1, Nagapattinam pending in C.C.No.73 of 2018 and quash the criminal proceeding pending on the file of the learned Judicial Magistrate No.1, Nagapattinam in C.C.No.73 of 2018.)

1. Sole accused is the petitioner herein. Criminal Original Petition is filed to quash the criminal proceedings pending on the file of the learned Judicial Magistrate No.I, Nagapattinam, in C.C.No.73 of 2018 under Sections 406 and 420 of IPC.

2. The case of the prosecution was that the land in Survey No.616/7, Sattanathapuram, North side measuring about 7 cents was came to the possession of the 2nd respondent by way of settlement deed from his sisters and the said property was originally purchased by the father of the second respondent. The said 2nd respondent wants to give a power of attorney to sell and maintain the said property.

3. The 2nd respondent on 11.02.1997 gave a power of attorney to the petitioner and the same was registered before the concerned Sub Registrar. Later, the petitioner sold the said land to herself by a sale deed dated 29.03.2006 and the said sale deed was duly registered on the file of the Sub Registrar, Sirkali as document number 522/2006. The sale consideration was Rs.3,000/- and the said amount was also paid to the 2nd respondent. Later the said petitioner has sold the land to Anitha by a sale deed dated 09.09.2009.

4. The 2nd respondent/defacto complainant came to know about the alleged land grabbing after 17 years and after issuing legal notice, has made a complaint before the 1st respondent alleging the offence under Sections 406 and 420 of IPC and also filed a Civil Suit before the Court for declaration, to declare the sale deeds are void and for recovery of possession. The same is pending before the Principal Sub Court, Mayiladuthurai in O.S.No.81 of 2015. Meanwhile, the 1st respondent has completed the investigation, filed the charge sheet, taken on file in the above CC.

5. Heard the learned counsel for the petitioner, the learned counsel for the 2nd respondent and the learned Government Advocate (Crl.Side) appearing for the 1st respondent police.

6. The substratum of the complaint and the final report is that the defacto complainant Annadurai is the absolute owner of the 50 cents of land in S.No.616/1A3 and he gave General Power of Attorney to the accused under a document No.09/97 dated 11.02.1997. Thereafter, he came to know that in exercise of powers under the General Power of Attorney Deed, the petitioner had executed sale deed for herself under the sale deed document No.522/2006 for Rs.1000/- on 29.03.2006. Thereafter, she had executed a sale deed in favour of one Anitha, under Document No.2257 of 2009 dated 09.09.2009 for the sale consideration of Rs.50,000/-.

7. After perusing the General Power of Attorney Deed dated 11.02.1997 and Sale Deeds dated 29.03.2006 and 09.09.2009, I find that under the said registered document viz., the General Power of Attorney, the defacto complainant M.Annadurai had appointed the accused S.Sumathi as his agent, empowering the agent to negotiate the sale transaction and to receive the sale consideration and to execute the sale deed on his behalf and in exercise of such power under the said document dated 11.02.1997, it appears that the power agent had executed a sale deed in her favour on 29.03.2006. It is alleged that it is a fraud and cheating. I am unable to agree with the said finding for more than one reason.

8. As per the Power of Attorney Act, the General Power of Attorney, who got a deed in his favour by the Principal can execute a sale deed to any person nominated by the Principal or to any person as per the clause contained in the Power Deed. In the present Power Deed dated 11.02.1997, the accused who is an agent is empowered to sell to anyone. Such a power can be exercised by the power agent and in such exercise of power, she