Munu Adhi vs Vettiver @ Ettisingh

Pratap Singh, J.—Accused No. 3 in C.C. No. 2506/90 on the file of Judicial Magistrate, Tambaram, has filed this petition under Section482 Cr.P.C. praying to call for the records in the above case and quash the same.

Short acts are: The respondent has filed the private complaint against four persons, arraying them as accused 1 to 4, out of whom the petitioner is the third accused for offenses u/s 403, 420 and 423 read with 34 I.P.C. The allegations in it are briefly as follows:

The complainant belongs to narikuravar community. He belong to ''Jamu'' Sub-Caste which is enjoined with the duty of praying to God by the said community. The accused had planned to cheat him and had taken the idols and other things used for prayers from the complainant. The said idols were with Narikuravar Community for about 80 years. It was in the family of Silambathur an from generation to generation. In 1957, he handed over the same to the complainant and since then the complainant is in custody of the same and has been doing prayers with those idols. About four months ago, with a view to grab the above idols and the property, with the assistance and instigation of A3, A1 and A2 had acted in concert with fourth accused. Accused 1 and 2 represented to the complainant that prayers are to be done and the complainant that prayers are to be done and the complainant believed it. He conducted prayer with that idol. On that night A. 1 and 2 persuaded the complainant to drink large quantity of arrack and while he was in a drunken state, with the aid of the third accused, they got the this impression of the complainant in the signed paper, without his knowledge as if the complainant had sold them. When the complainant regained consciousness he found the idol and properties missing. He was made to believe that they are in the house of the third accused and it is the only safe place. Thus, they that acted with the common intention of committing breach of trust and had dishonestly obtained possession of the idol and other properties. Hence, the complaint.

Mr. M. Karpagavinayagam, the learned counsel, appearing for the petitioner, would submit that the complainant had earlier filed a private complaint with regard to the same occurrence and in that complaint he had impleaded the present accused 1 and 2 as the only accused and in that complaint no allegations whatsoever were made against this petitioner that the said complaint was forwarded by the learned Magistrate to the Police for investigation u/s 156(3) Cr.P.C. The police had referred the case as ''mistake of fact'' and that now again the second complaint is filed, impleading the petitioner for the first time and that would clearly go to show that this complaint is frivolous and mala fide. He would also submit that on the very day on which the complainant filed private complaint on the first occasion, he also gave a report to the police and in that report also he had not made any whisper against the petitioner and that would again go to show that only now, for the first time, he had filed this complaint against the petitioner without any materials whatsoever and the present allegations are clearly an after thought, made for harassing him. Per contra, Mr. T. Sudanthiram, the learned counsel appearing for the respondent, would submit that the allegations made in the fist complaint do not rule out the allegations made now in the second complaint and that it cannot be characterized as an after thought. He would further submit that allegations are available in the complaint to make out the offence as against the petitioner and while so, it cannot be quashed at threshold.

I have carefully considered the submissions made by rival counsel. To consider the sub-missions certain facts need be stated. The respondent had earlier filed private compliant against the present accused 1 and 2 alone in the court of Judicial Magistrate, Tambaram, for offences u/s 420 and 406 I.P.C. read with 34 I.P.C. with regard to the same occurrence. In it, it is stated that accused 1 and 2 had requested the complainant to come to their village and do the prayers (Samiyattam) and promised to give substantial amount. The complainant believed their representation and went to their village along with the properties which are given in detail in the complaint. On the date of occurrence, they made him consume large quantity of arrack and obtained his thumb impressions, in various papers and while he was in an unconscious state, left the place with the idol and the properties. When the complainant regained consciousness and questioned the accused, he refused to deliver back the idols and the properties. The idols and the properties are priceless properties. Here, the complaint. Absolutely no whisper was made against the present petitioner in that complaint. It is his positive case in the first complaint that when he regained consciousness and questioned the accused, they had positively told him that they would not deliver back the idols and those properties. That was filed on 26.7.90. That was forwarded to the police by the learned magistrate for enquiry and report by 20.8.1990. On 26.7.1990 the complainant had given a report to the Sub-Inspector of Police, Tambaram. In it, he had made allegations against accused 1 and 2 alone. It is also relevant to mention that according to the first complaint, the occurrence was fours months prior to the filing of that first complaint. So it is not as if that was given in a hurry and there was omission to make allegations against the present petitioner. Then the second complaint was given on 12.9.1990, which is the impugned complaint. In Para 4 of the second complaint, he has stated that after he retained consciousness and when the questioned about the idol and properties, he has told that they are in the house of third accused and they further told that it was the safe place. But in the first complaint, he has stated that when he regained consciousness and questioned accused 1 and 2, they told clearly and positively that they would not return those idols and properties. From the above facts it is obvious that the second complaint has been filed only in a frivolous manner against the petitioner. It is also relevant to mention that in the second complaint, there is absolutely no explanation as to why the name of the third accused/petitioner herein was not mentioned in the first complaint. Neither there is any allegation that he came to know about the part played by the third accused only after the filing of the first complaint.

That would again point out that the present allegations against the petitioner in the impugned complaint were all made with mala fides.

In Manikandan v. Jayaraman (1987) M.L.J.(Crl.) 385 : 1987 L.W.(Crl.) 385), Justice Padmini Jesudurai had quashed the proceedings as against the person, whose names do not find a place the F.I.R. In Chandrasekara Pandian v. Muthukaruppa Thevar (1983 MLJ (Crl.) 554 : 1983 L.W. (Crl.) 347) Justice M.N. Moorthy had taken a similar view and quashed the proceedings, whose names were later included in the private complaint, while their names do not find a place in the F.I.R. The ratio of those rulings is applicable to the case on hand.

In the result, the petition is allowed and all further proceedings in C.C. No. 2506/90 on the file of Judicial Magistrate, Tambaram, shall stand quashed as against the petitioner/accused No. 3 in the court below.