R.M. Thiagarajan vs The State

A.C. Arumugaperumal Adityan, J.—This Revision has been preferred against the order passed in C.M.P. No. 2655 of 2004 in C.C. No. 4821 of 2004 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai-15. The revision petitioner is A3 in C.C. No. 4821 of 2004. He had filed C.M.P. No. 2655 of 2004 u/s 239 of Cr.P.C., to discharge him from the said C.C. No. 4821 of 2004. The learned trial judge has dismissed the said application filed by A3 on the ground that there is sufficient ground to proceed against him in the criminal case. Against the said order of dismissal the revision petitioner/A3 has preferred this revision.

The only point to be decided in this revision is whether there is any sufficient ground made out prima facie against A3 to proceed against him in C.C. No. 4821 of 2004. Section 239 of Cr.P.C., runs as follows:

If, upon considering the police report and the documents sent with it u/s 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

So the prosecution must prove through its documents filed u/s 173 of Cr.P.C., that there is a ground against the accused to proceed against him in the criminal case.

Heard the learned Counsel Ms. P. Lakshmi Devi appearing for the revision petitioner. The learned Counsel would draw the attention of this Court to the complaint at page 72 of the typed set. The said complaint was preferred by the complainant T.N. Rajalakshmi on 16.5.2003. A mere reading of the said complaint will go to show that there is no allegation against A3 to the effect that he has cheated the complainant along with A1 & A2. The complaint would read that A1-Ramanathan had executed a sale deed in favour of his wife A2 in respect of the property belonging to the complainant T.N. Rajalakshmi and according to the complainant, she never agreed for the sale of her property by A1 in favour of A2 and that A1 & A2 have cheated her. There is absolutely no allegation against A3 that A3 also with connivance of A1 & A2 had cheated the complainant. On 12.12.2002 the complainant had executed a power of attorney in favour of A1 as seen from at page 13 of the typed set of papers. Only on the basis of the said power of attorney dated 12.12.2002, A1 had executed sale deed in favour of A2 on 23.4.2003 (page 39 to 56 of the typed set of papers). The power of attorney executed by the complainant in favour of A1 was cancelled only on 19.5.2004 (at page 92 of the typed set of papers - 161(3) statement of the complainant). It is seen that the complainant has also filed a civil suit against A1 to A3. Only on the basis of the power of attorney dated 12.12.2002 in favour of A1, A3 has purchased the property of the complainant on 14.2.2003 under a sale agreement executed by A1 in favour of A3 (page 19 to 26 in the typed set of papers). But the power of attorney was cancelled by the complainant only on 19.5.2003 i.e., subsequent to the execution of the sale agreement by A1 in favour of A3. Under such circumstances, it cannot be said that the sale agreement entered into between A3 and A1 is vitiated on the ground that with the connivance of A1 & A2 for the purpose of cheating the complainant the said sale agreement was effected by A1 in favour of A3. So there is no prima facie ground made out against A3 as contemplated u/s 239 of Cr.P.C., to proceed against A3. The edifice for a criminal case is the complaint. In the complaint preferred by the complainant Thirumathi.T.N.Rajalakshmi, there is no averment against A3. Under such circumstances, this Court is of the view that there is no ground made out prima facie against A3 to proceed against him in C.C. No. 4821 of 2004. Point is answered accordingly.

In the result, the Criminal Revision Petition is allowed and the order passed in C.M.P. No. 2655 of 2004 in C.C. No. 4821 of 2004 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai, is set aside and A3 is ordered to be discharged from the charges levelled against him in C.C. No. 4821 of 2004. The trial Court is directed to proceed against A1 and A2 in C.C. No. 4821 of 2004 and to dispose of the same within 2 months from the date of receipt of the copy of this order.