ORDER :

G.K.ILANTHIRAIYAN, J.

The petitioner has filed the present petition to call for the records in CC.No.47 of 2022 on the file of the Judicial Magistrate No.1, Kancheepuram. The petitioner is arrayed as first accused . The respondent lodged a complaint against the petitioner/first accused who is his brother and the second accused who is the son of the first accused. While being so the father of the first accused/C.N.Sadasivam who is aged about 84 years old had executed a settlement deed in favour of the second accused/Madhan Kumar in respect of the property situated at Door No.7/2 Subbarayan Street, Kanchipuram vide settlement deed dated 01.12.1999. After execution of the settlement deed, the father of the first accused has filed a suit in O.S.No.79 of 2002 on the file of the Sub court- Kancheepuram for declaring the settlement deed dated 01.12.1999 as null and void and also seeking injunction restraining the petitioner from alienating or otherwise encumbering the plaint schedule property in favour of any third party.

2. While pending suit the father of the first accused/C.N.Sadasivam cancelled the settlement deed 01.12.1999 executed in favour of the second accused vide cancellation deed dated 07.03.2002. Thereafter, another settlement deed was executed on 24.07.2014 and the subject property was transferred in favour of the respondent. While being so on 29.06.2015 the petitioner along with all the accused persons ran-sacked the house with JCB, Bull dozer and men with crow-bars and completely dismantled the walls and the roof of the tiled house and the tiled house was erased to the ground. It is also alleged that the accused persons stolen Rs.2,00,000/- cash, 15 soverigns of jewels, dining table, fans and other household materials, utensils, Fridge Window A/c ( 1.5) ton etc. were completed removed and loaded to the goods lorry. At this juncture the settlor/father of the first accused is living in the respondent/complainant house which is situated in No.6, R.V.Selvalakshmi Nagar, Kasim Nagar, Kancheepuram. Therefore, the respondent lodged a complaint before the Inspector of Police, Siva Kanchi police station. After registration of the F.I.R it was closed as mistake of fact by the referred charge sheet. Thereafter, the respondent filed a private complaint and the same was taken cognizance under sections 448,427 and 379 of I.P.C and issued summons to the accused.

3. The learned senior counsel appearing for the petitioner submitted that after closing the F.I.R as mistake of fact it was duly accepted by the Magistrate. Thereafter, without filing any protest petition the respondent herein filed a private complaint. The occurrence took place on 29.06.2015 and the private complaint was lodged only on 12.09.2019, that apart the offence has taken cognizance only on 31.03.2022. Therefore, there was a huge delay and the same was not explained properly. Pending Trial the suit filed by the complainant was dismissed by the Principal Subordinate Court at Kancheepuram on 10.11.2025. However, so far they have not filed any appeal. Therefore, the entire proceedings can be quashed. Hence, prays to allow this petition.

4. Per Contra the learned counsel appearing for the respondent submitted that the police closed the F.I.R as mistake of fact and the same was duly accepted by the learned Magistrate. He further submitted that the complaint can be very well maintainable and to substantiate the said contention he relied on the Judgment reported in (2023) 14 Supreme Court cases 576; 2023 SCC Online SC 1082 in the case of Zunaid Vs State of Uttar Pradesh and Others He further submitted that the occurrence has taken place on 29.06.2015 and the private complaint was lodged on 12.09.2019 and thereafter the cognizance was taken on 31.03.2022. Hence, the complaint is very well maintainable and the victim cannot be suffered for the delay in taking cognizance by the Trial Court. In support of the said contention he also relied on the Judgment passed by this Cou