Advocates:
['M/S K S KARTHIKRAJA', '', 'A ESAKKIAPPAN', 'M/S K VENKATASUBBAN']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 09.04.2021

CORAM

THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

Crl.OP.No.6001 of 2016

and

Crl. MP No. 3082 of 2016

1.C.Kanchana,

2.C.Sivakumar

... Petitioners

Versus

T.Maharajan

... Respondents

Criminal Original Petition is filed under Section 482 of

Criminal Procedure Code, to call for the records in C.C.No.448

of 2015 on the file of the Judicial Magistrate -V, Coimbatore

and quash the same.

For Petitioner

: Mr.K.S.Karthik Raja

For Respondents : Mr.K.Venkatesubban

ORDER

This Criminal Original Petition has been filed to call

for the records in C.C.No.448 of 2015 on the file of the

Judicial Magistrate -V, Coimbatore and quash the same.

2.The case of the petitioners herein is that they are

the owner of the property on D.No.130-A, Samy Iyer New Street,

Coimbatore -01. On 04.04.2014, the petitioners herein have

entered into an usufructuary mortgaged with the respondent as

per which a sum of Rs.2,75,000/- was received by the

petitioners herein from the respondent. On the basis of the

usufructuary mortgage, the de-facto complainant/respondent is

residing in the premises along with his family members. While

so, Tamil Nadu Mercantile Bank has filed a case against the

petitioners for recovery of the mortgage loan amount payable by

the petitioners. For the purpose of recovery of the loan

amount, the Bank has filed a case before the Debts Recovery

Tribunal and the Tribunal issued a notice to the respondent

herein, who is residing in the property, as a tenant.

According to the respondent, the petitioners, without

disclosing the earlier mortgage with the Tamil Nadu Mercantile

Bank, has entered into a Usufructuary mortgage with the

respondent and received amount on 04.04.2014. In this context,

the respondent has filed a private complaint under Section 200

of Cr.PC before the learned Judicial Magistrate No.V,

Coimbatore. The Court after taking the complaint on file,

https://hcservices.ecourts.gov.in/hcservices/

issued summons to the petitioners. Challenging the same, the

petitioners are before this Court with this Petition to quash

the complaint in C.C.No.448 of 2015 on the file of the Judicial

Magistrate -V, Coimbatore.

3.The learned counsel for the petitioners submitted that

the complaint does not make out a case against the petitioners

herein and the same will not fall within Section 140 of Cr.PC.

The de-facto complainant/respondent herein approached the

petitioners for lease of the property through a broker. The

broker in turn approached the petitioners for leasing out the

property by entering into a usufructuary mortgage. Therefore,

the petitioners have no direct link with the de-facto

complainant and the question of cheating or suppression of

material facts will not arise.

4. It is further stated that the Petitioners, as owner

of the property, entered into a usufructuary mortgage with the

respondent and received lease amount, which has to be returned

to the respondent at the time of vacating the premises without

any interest. It is not the case of the respondent that the

petitioners refuse to return the lease amount of Rs.2,75,000/-.

It is the case of the respondent that the petitioners, by

suppressing the subsistence of mortgage with Tamil Nadu

Mercantile Bank has entered into the usufructuary mortgage with

him on 04.04.2014. Thus, it is evident that the dispute

between the petitioners and the respondent is purely a civil

dispute which has to be resolved through a competent Civil

Forum, but, the de-facto complainant is trying to convert the

civil claim into criminal claim. The petitioners also agreed to

return the mortgage amount of Rs.2,75,000/- to the respondent

before the Commissioner of Police, B1 Police Station,

Coimbatore, within a period of 4 months. Even though the

petitioners