Vijaynataraj , V. Rajesh and V. Shanthi vs State

G.M. Akbar Ali, J.—By consent, the matter is taken up for final hearing. This petition is filed seeking for a direction to call for the records

pertaining to the proceedings in Cr. No. 94 of 2009 taken on file by the Inspector of Police, City Crime Branch, Coimbatore City on 7.11.2009

on the complaint lodged by the 2nd Respondent/defacto-complainant for the alleged offences under Sections 120B and 420 IPC, and to quash the

same.

For better appreciation, the factual backdrop involved is briefly outlined herein:

The 2nd Petitioner is the son of the Petitioners 1 and 3, who are said to be the owners of the property in S. Nos. 26/2B and 26/2C. The allegation

is that by representing to the defacto-complainant that they would sell to him 33 cents of property for a sum of Rs. 95,09,459/-, the Petitioners

made him to believe that there was no encumbrance in the property and believing such representation, the defacto-complainant purchased the

same for a valid consideration under registered sale deeds in the year 2007. After purchase, when the defacto-complainant was taking steps to sell

the property, he came to know that the entire extent was already earmarked for public road as per the orders of the local planning authority and

thereby, he was deceitfully cheated by the Petitioners, which resulted in setting in motion the present criminal proceedings.

The learned Counsel for the Petitioners Mr. S. Vijayakumar, by pointing out that the Petitioners had sold the property after furnishing all the

relevant details and by well apprising the Scheme in G.O. Ms. No. 661, Housing and Urban development Department dated 12.10.1994,

whereby the Scheme to form a public road itself was abandoned in terms of Section 38 of the Tamil Nadu Town and Country Planning Act, and

would submit that thus, absolutely there was never an encumbrance in respect of the property and further, the Registering Authority had also

registered the sale thereby, confirming that the scheme has been rendered redundant. The learned Counsel further pointed out that the property

was sold as early as during April 2007 and consequently, mutation of records was also effected and such being the position, the complaint lodged

2 1/2 years after the transaction only with a view to harass the Petitioners can never be sustained in the eye of law as there is no element of

cheating or deception as contemplated u/s 420 IPC.

The learned Counsel referred to Section 38 of the Town and Country Planning Act and also the Notification dated 12.10.1994 and also placed

reliance on the following decisions:

Raju S. Jethmalani and Others Vs. State of Maharashtra and Others, .

(2008) 3 L.W 982 (Karpaga Nagar Nala Urimai Sangam v. Municipal Administration and Water Supply Department and Ors. (2008) 3 L.W 982

K.S. Kamakshi Chetty, P. Ponnappan, P. Dharmarajan and P. Shivakumar Vs. The Commissioner, Aruppukottai Municipality and The Director,

Town and Country Planning, .

Md. Ibrahim and Others Vs. State of Bihar and Another,

Harmanpreet Singh Ahluwalia and Others Vs. State of Punjab and Others,

(2009) (5) SCALE (Hira Lal and Ors. v. State of UP and Ors. 2009 (5) SCALE)

M.N. Ojha and Others Vs. Alok Kumar Srivastav and Another, .

2009 (7) UJ SC 3292 (Dalip Kaur and Ors v. Jagnar Singh and Anr. 2009 (7) UJ SC 3292

Per contra, Mr. G.L. Ramshankar, learned Counsel for the 2nd Respondent/defacto-complainant would submit that having known well that the

subject matter of the property was earmarked for the public road by the authorities, the Petitioners had fraudulently sold the property by

suppressing such vital aspect with the sole intention to cheat the defacto-complainant. By stating that the encumbrance certificate, dated

19.4.2007, did not reflect any encumbrance, the learned Counsel further submitted that the conduct of the parties would show that from the

inception, they obsessed with the intention of cheating the defacto-complainant, the Petitioners suppressed the material facts to the adverse interest

of the defacto-complainant and if the criminal proceedings launched are stalled or quashed at this crucial stage, much prejudice would be caused to

the defacto-complainant. Therefore, he pleads that this Court need not interfere with the investigation, which is at the initial stage.

The point for consideration is that as to whether the the allegation would constitute an offence that the Petitioners have acted dishonestly to

deceive the defacto-complainant to purchase the property which has already encumbranced thereby causing damage to the defacto-complainant.

Indisputably the Petitioners have purchased the property under two sale deeds dated 6.3.89. The Government of Tamil Nadu by a Government

Order in G.O. Ms. No. 661 dated 12.10.1994 notified for preparation of a Master Plan for Coimbatore local planning area, whereunder, the

property in question, viz., 32 cents and 23 1/2 sq.ft seemed to have been earmarked for a public road. The Petitioners approximately sold 40

cents of land to one Rajkumar and to one Senthil Kumar. The balance extent covered under the two sale deeds dated 6.3.89 is the disputed

property. According to the complainant, knowing well that the said property was already set apart for formation of public road, the Petitioners

have deceitfully sold the same to him.

In that back ground, the stand of the Petitioners with reference to Section 38 of the Act which reads as follows may be looked into

Section 38 of the Act reads as follows:

Section 38. Release of land: If within three years from the date of the publication of the notice in the Tamil Nadu Government Gazette u/s 26 or 27.

(a) No declaration as provided in Sub-section (2) of Section 37 is published in respect of any land reserved, allotted or designated for any

purpose specified in a regional plan, master plan, detailed development plan or new town development plan covered by such notice

or

(b) such land is not acquired by agreement, such land shall be deemed to be released from such reservation, allotment or designation.

According to the Petitioners, since there is no acquisition of property and handing over of the same for the purpose of laying road within three

years from the date of Notification, the Scheme itself is rendered redundant and thereby nothing prevented them in dealing with the property.

At this juncture, it will be of much relevant to refer to the following case laws the Hon''ble Supreme Court held as follows:

There is no prohibition for preparing the development plan comprising of private land but than plan cannot be implemented unless the said private

land is acquired by the Government for development purpose. In the present case, the area comprising in Plot No. 438 belonged to the Appellants

and that no steps were taken to acquire the said land by the State Government or by the Municipal Corporation of Pune and the Municipal

Corporation had already expressed their inability to acquire that land and therefore, the said land has been dereserved by the State Government.

Therefore, the present case has no semblance to that of Bangalore Medical Trust case. The question is whether without acquiring the land the

Government can deprive a person of his use of the land. This in our opinion, cannot be done.

In this Court held as follows:

Ratio Decidendi

When there was no acquisition proceeding taken within three years after the Notification issued u/s 14(3) of the old Act 7 of 1920 and even after

the new Act of 1971 has come into effect, no step has been taken within the stipulated period for acquiring the property for the purpose of ""open

space"" stated to have been reserved under the said Scheme, in view of Section 38 of the Act 1971, the property would be deemed to be released

from such reservation.

In the Apex Court held as follows:

There is a fundamental difference between a person executing a sale deed claiming that the property conveyed in his property, and a person

executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on

owner''s behalf. When a person executes a document conveying a properly describing it as his, there are two possibilities. The first is that he bona

fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he

knows that it is not his property. But to fall under first category of ''false documents'', it is not sufficient that a document has been made or executed

dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such

document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.

In a Division Bench of this Court has held

Keeping in view the scheme or the Tamil Nadu Town and Country Planning Act, it is obvious that if any private land is to be included in the

Development Plan as contemplated in the Tamil Nadu Town and Country Planning Act, steps are required to be taken as contemplated in Sections

37 or 38.

Now, coming to the scope of the Town and Country Planning Act, Section 36 thereof provides that any land required, reserved or designated

in a detailed development plan shall be deemed to be needed for public purpose. u/s 37(1) appropriate planning authority is empowered to take

such lands. The Scheme provided in Section 38 of the Act will make the position succinctly clear that, within three years from the date of

publication of notice if any land so designated is not acquired such land shall be deemed to be released from such allotment or designation.

Now bearing in mind the ratio laid down in the above case laws as well as the Scheme as provided in the Act, this Court shall proceed to

examine as to whether the claim of the Petitioners that the Scheme itself was rendered inoperative is correct or in any way advance his case.

The argument of the learned Counsel for the Respondent seems to be that the proposal of the scheme has, in fact, not been abandoned, for

once a land is designated for laying a road i.e., for public purpose, there is no question of acquisition of land as in such cases the land would be

treated as a gift by the land owner to the authority for a public cause.

According to the Respondent, the Petitioners have suppressed the material fact that the property was designated or earmarked for public road.

The learned Counsel submitted that the deception is at the initial stage which undoubtedly attracts an offence u/s 420 IPC. The Respondents have

also relied on the two sale deeds executed by the Petitioners in favour of one Senthil Kumar and Raj Kumar on 11.6.2001, wherein, in the

boundary description the disputed property is shown as the ""Scheme Road"".

Having regard to the counter submission made by the learned Counsel for the Respondent/defacto complainant, it would be quite apposite to

quote below the observation of the Apex Court in :

it is not necessary that a false pretence should be made in express words by the accused. It may be inferred from all the circumstances including

the conduct of the accused in obtaining the property. In the true nature of things it is not always possible to prove dishonest intension by any direct

evidence. It can be proved by number of circumstances from which a reasonable inference can be drawn.

Similarly, in respect of the scope of Section 420 IPC, the Apex Court, in ), ruled thus:

Section 420 deals with certain specified classes of cheating. It deals with the cases whereby the deceived person is dishonestly induced to deliver

any property to any person or to make, alter or destroy, the whole or any part of a valuable security or anything which is signed or sealed and

which is capable of being converted into a valuable security. Section 415 defines ""cheating"". The said provision requires, (i) deception of any

person (ii) whereby fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain

any property or (iii) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and

which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of any person is

common to the second and third requirements of the provision. The said requirements are alternative to each other and this is made significantly

clear by use of disjunctive conjunction ''or''. The definition of the offence of cheating embraces some cases in which no transfer of property is

occasioned by the deception and some in which no transfer occurs. Deception is the quintessence of the offence. The essential ingredients to

attract Section 420 are: (i) cheating (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything

which is sealed or signed or is capable of being converted into a valuable security and the (iii) mens rea of the accused at the time of making the

inducement. The making of a false representation is one of the ingredients for the offence of cheating u/s 420.

Assessing the case on hand in the light of the principles laid down in the above cited case laws, it could be seen that even though the emphatic

claim of the Petitioner is that the scheme for acquisition of the land was dropped, equally, the case of the defacto complainant is that once the

property is declared to be acquired for a public cause, it would never be returned to the land owner. Further, the Respondent, in a way,

demonstrated before this Court about the existence of element of deception from the inception by stating that in the sale deeds executed by the

Petitioners in favour of one Senthilkumar, the disputed property is shown to be the scheme road, which aspect would definitely stare at the stand of

the Petitioners. That being the situation, this Court cannot simply acting upon the arguments of the Petitioner, order quashing of the proceedings

since a prima facie case is made out for a thorough investigation as only after the outcome of such full-fledged investigation, the actual state of

affairs would come to surface and in that event, if the Petitioners are right in their claim, the defacto complainant would not have any case against

them. In such view of the matter, this Court finds no reason much less valid reason to interfere with the proceedings at this initial and crucial stage.

In the result, the criminal original petition stands dimissed.