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Fir against former minister quashed full order. THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN CRL.O.P.Nos.17212, 20904 & 17871 of 2022 and Crl.M.P.Nos.10422, 13683 & 11442 of 2022. For Petitioner           : Mr.A.Natarajan, Senior Counsel for Ms.A.Madhumathi     For Respondents For R1      : Mr.E.Raj Thilak Additional Public Prosecutor For R2                      : Mr.P.Anandan for M/S.Majestic Law Firm Crl.O.P.No.20904 of 2022 N.Jayapriya      … Petitioner

by · Published · Updated

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON :  13.09.2022

PRONOUNCED ON :          .09.2022

CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

 

CRL.O.P.Nos.17212, 20904 & 17871 of 2022 and Crl.M.P.Nos.10422, 13683 & 11442 of 2022

Crl.O.P.No.17212 of 2022;-

D.Jayakumar    … Petitioner

Vs.

1.The State rep. by its

The Inspector of Police,

Central Crime Branch,

Team 16, Anti Land Grabbing Cell,     Vepery, Chennai.

(Crime No.49 of 2022)

2.P.Magesh      … Respondents

PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C. praying to call for the records of the case pending investigation in Crime No.49 of 2022, on the file of the respondent police and quash the same as against the petitioner.

For Petitioner           : Mr.A.Natarajan, Senior Counsel for

Ms.A.Madhumathi     For Respondents

For R1      : Mr.E.Raj Thilak

Additional Public Prosecutor

For R2                      : Mr.P.Anandan for

M/S.Majestic Law Firm Crl.O.P.No.20904 of 2022

N.Jayapriya      … Petitioner

Vs.

1.The State rep. by

The Inspector of Police,    Central Crime Branch-1,    Chennai.

2.P.Magesh      … Respondents

PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C. praying to call for the records in FIR in Crime No.49 of 2022 dated 24.02.2022 and quash the same against the petitioner.

For Petitioner           : Mr.V.Karthick, Senior Counsel for

Mr.M.Aravind Subramanyam

For Respondents

For R1      : Mr.E.Raj Thilak

Additional Public Prosecutor

For R2                      : Mr.P.Anandan for

M/S.Majestic Law Firm Crl.O.P.No.17871 of 2022

P.Naveen Kumar         … Petitioner

Vs.

1.The State rep. by

The Inspector of Police,    Central Crime Branch-1,    Chennai.

2.P.Magesh      … Respondents

PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C. praying to call for the records in FIR in Crime No.49 of 2022 dated 24.02.2022 and quash the same against the petitioner.

For Petitioner           : Mr.V.Karthick, Senior Counsel for

Mr.M.Aravind Subramanyam

For Respondents

For R1      : Mr.E.Raj Thilak

Additional Public Prosecutor

For R2                      : Mr.P.Anandan for

M/S.Majestic Law Firm

COMMON ORDER

These criminal original petitions have been filed to quash the FIR in

Crime No.49 of 2022, on the file of the first respondent for the offences under Sections 120-B, 447, 326, 397, 506(ii) and 109 of IPC.

  1. The case of the prosecution is that in the year 1996, the defacto complainant had purchased a vacant land ad-measuring to an extent of 8 ¾ grounds and he was enjoying the said property as an owner. In the year 1993, the defacto complainant and his family members joined together and formed a firm called M/S.Aswan Fishnet. In order to expand the business of said M/S.Aswan Fishnet, and on the request made by his father, the said land, which has been purchased by the defacto complainant, was selected to run the business on monthly rental basis. In the year 2012, his father and another brother discontinued from the partnership firm. Thereafter, the defacto complainant and the first accused had been running the partnership firm.
    • While that being so, the second accused, after becoming a

Minister for Fisheries in the year 2016, decided to start JFN Fishnet Manufacturers Company and instigated the first accused, who is the son-in-law of the second accused, to close the defacto complainant’s business firm. On 10.08.2016 at about 3.00 p.m, the first accused along with other henchmen trespassed into his property and threatened him to go away and they have also disconnected  power connection and threatened all the labourers to go out from the factory. When it was questioned by the defacto complainant, he was dragged out from the factory and threatened that he will be under the influence of second accused. Further, they have also looted all important documents, computers and locked the premises.

  • Again on 16.08.2016, the first accused locked the marriage hall called ”Jayashree Thirumana Mandapam” situated at Kalashethra Road. Immediately it was informed to the defacto complainant’s father by the security and when the defacto complainant’s father went to the said premises, the first accused pushed him due to which, he fell down and suffered with a fracture at his leg. He was immediately admitted in the Apollo Spectra Hospital at MRC Nagar, Chennai. Due to the said incident, he was mentally upset and fell sick.

Finally on 19.03.2020, he died. Since the second accused was a Minister of Fisheries department, no relatives came for rescue. Again on 03.06.2020, the third accused, her henchmen and the police officials came to Thoraipakkam, to the land owned by the defacto complainant and threatened the security to go out. The Assistant Commissioner of Police, Thoraipakkam, one Loganathan, and Gladson Jose, the Inspector of Police, Thoraipakkam, also accompanied with the accused persons and when the defacto complainant questioned them why should he vacate the premises, they also compelled the defacto complainant to vacate the premises. The defacto complainant went to

Thoraipakkam Police Station on next day Morning and lodged the complaint. The police officials refused to receive the complaint. Thereafter, the accused persons threatened the defacto complainant and his family members. Hence, the defacto complainant lodged a complaint to take action as against the accused persons.

  1. The learned Senior Counsel appearing for the petitioner in

Crl.O.P.No.17212 of 2022 submitted that the petitioner is arrayed as second accused and he is a politician. He was elected as Member of Legislative Assembly for five terms repeatedly from Royapuram Constituency and he had served as a Cabinet Minister for three terms in Government of Tamil Nadu and he was also functioning as a Speaker to the Tamil Nadu Legislative Assembly. He further submitted that the petitioner has been falsely implicated in this case, due to political vendetta in a family property dispute between his son-in-law and his elder brother namely the defacto complainant. The petitioner has no role in the property dispute either directly or indirectly between his son-in-law and his brother, and only to take vengeance against the petitioner, the second respondent falsely implicated the petitioner in the complaint, as if they used his name to dispossess the defacto complainant from his property.

  • The learned Senior Counsel appearing for the petitioner further submitted that the alleged incidents had taken place on 10.08.2016 and 03.06.2020, whereas the impugned complaint was lodged only on 07.06.2021, after lapse of five years from the date of occurrence. There is absolutely no explanation for the enormous delay in lodging the complaint. He further submitted that in the year 1993, the father-in-law of his daughter and the defacto complainant had promoted a partnership business in the name and style of ”Aswan Fishnet”. In the said partnership business, all the family members were partners and having 1/4th share each in the business.
  • He further submitted that at the time of purchasing the said property, the second respondent is an elder and a major and the two others are minors. In the year December 1995 and January 1996, the said vacant land admeasuring 8 ¾ grounds situated at Okkiyam Thuraipakkam was purchased in the name of second respondent by way of four sale deeds and at the time of purchasing the said properties, the second respondent was only 22 years old. Therefore, he had no income to purchase the property in his name. The said property was purchased from the joint family income on 01.11.1999 and in order to expand the partnership business it was decided to utilize the said land for the business, accordingly, a proper lease agreement was entered into between the partnership firm and the second respondent herein.
  • In the year 2012, the partnership firm was rearranged and thereby except the second respondent and the son-in-law of the petitioner, others retired from the partnership firm. Therefore, his son-in-law and the defacto complainant are having 50% equal share in the business. After demise of their father, there is difference of opinion between them and the second respondent started giving troubles to the partnership business. After formation of new Government in the month of June 2021, the second respondent, with ulterior motive had lodged the present false complaint on 07.06.2021, and also implicated the petitioner as an accused along with his son-in-law and daughter. Therefore, no offence is made out as against the petitioner and seeking quashment of FIR.
  1. The learned Senior Counsel appearing for the petitioner in Crl.O.P.Nos.17871 and 20904 of 2022 submitted that the entire allegations are civil in nature and no offence is made out under Sections 120-B, 447, 326, 397, 506(ii) and 109 IPC. The petitioner in Crl.O.P.No.17871 of 2022 and the defacto complainant are brothers, jointly carrying on business in the name of M/s.Aswan Fishnet and it is engaged in the business of manufacturing and trading of knitted fabrics for fishnet and allied products etc., for the past several years. Originally the said partnership was commenced in the year 1993 with all family members and in the year 2012, other family members retired from the partnership firm except the petitioner and the second respondent.
    • After commencement of the business in the year 1993, the

petitioner’s father decided to construct a factory to develop his business and as such, he entered into a lease agreement with the second respondent in respect of the property which was purchased in his name. Further, the said property was purchased from the joint family income and the second respondent, who is elder brother, he was only 22 years old at the time of purchasing the property and as such, he had no personal income. The second respondent had not actively participated in the business activities and he never participated in the business decision and he was interested only in collecting his share in the profits. All of a sudden, the second respondent came to the factory premises in the year 2016 and quarreled with the petitioner which constrained the workers to stage walkout and protest, which resulted in shutdown of the factory. Therefore, the second respondent developed ill will towards the petitioners and started harassing the petitioners and lodged the present false complaint for the occurrence which was took place in the year 2016.

  • He further submitted that the second respondent with an intention to grab the factory, he prevented the petitioners from entering into the factory premises with the help of police officials. Therefore, the petitioners were constrained to file a suit in O.S.No.224 of 2021, on the file of the District Munsif Court, Alandur, for permanent injunction as against the second respondent and it is pending.
  • In so far as, the third accused in concerned, she has nothing to do

 

with the alleged occurrence and she is the wife of the first accused and the daughter of second accused. She has been falsely implicated in this case, without an iota of any overt act. Even according to the case of the prosecution the alleged occurrence took place in the year 2016 and after lapse of six years the present impugned complaint has been lodged against all the accused persons.

  1. Heard Mr.A.Natarajan and Mr.V.Karthick, learned Senior

Counsels appearing for the petitioner in all the Crl.O.P.s, Mr.E.Raj Thilak, learned Additional Public Prosecutor appearing for the first respondent and Mr.P.Anandan, the learned counsel appearing for the second respondent and perused the entire materials available on record.

  1. It is seen that there are totally three accused in this case in which, the petitioners are arrayed as A2, A3 and A1 respectively. On the complaint lodged by the second respondent, the first respondent registered FIR in Crime No.49 of 2022 for the offences punishable under Sections 120-B, 447, 326, 397, 506(ii) and 109 IPC.
  2. The brief facts of the complaint is that the second accused was a Minister for Fisheries in Government of Tamil Nadu, the first accused is his son-in-law and the third accused is his daughter. All the accused persons conspired together to grab the property from the second respondent, who is none other than the brother of the first accused and trespassed into the factory premises and threatened him with dire consequences. On 16.08.2016, the accused persons conspired together and went to the other property namely ”Jayashree Thirumana Mandapam” located at Kalashetra Road, when it was questioned by the defacto complainant’s father, he was pushed down and as such, he sustained fracture on his leg.
  3. Again on 03.06.2020, the third accused and other henchmen with the help of police officials went to the second respondent’s property and threatened him with dire consequences and also directed him to vacate the premises. The said incidents culminated into registration of present impugned FIR and before traversing into the allegations laid down in the FIR, it would be appropriate to bring out a brief factual matrix and significance of the role of the petitioners herein to be prosecuted for the alleged offence in Crime No.49 of 2022.
  4. Admittedly, the second respondent and his family members were jointly carrying on business in the name of M/s.Aswan Fishnets and it is engaged in the business of manufacturing and trading of knitted fabrics for fishnet and allied products etc. It commenced in the year 1993. Except the first accused and the second respondent, others retired from the partnership firm. In the meanwhile, in the year 1999, the father of the second respondent and the second respondent have entered into a lease agreement to run the factory in the land stands in the name of the second respondent. Thereafter, there was dispute between the first accused and the second respondent in respect of their business and property. Therefore, the first accused filed suit as against the second respondent for permanent injunction restraining the second respondent from entering into the factory premises in O.S.No.224 of 2021, on the file of the District Munsif Court, Alandur.
  5. While pending the suit, the second respondent lodged the present complaint for the occurrence took place in the year 2016 and 2020. Immediately, after formation of new Government in the State of Tamil Nadu, the second respondent lodged complaint as against the former Minister for Fisheries namely the second accused and others. Again, the first accused, being the son-in-law and the third accused being the daughter, used the second accused name and with the influence of police persons to grab the property and engaged henchmen and trespassed into the property and attempted to vacate them.
  6. Admittedly, no one was injured in the alleged occurrence. It was alleged to have taken place on 10.08.2016, viz., the henchmen of the first accused had entered into the premises of the second respondent, disconnected their power supply, locked the premises and taken the key with them. On the other hand, it is also the case of the second respondent that he was informed about the alleged incident by the security guard of the fishing unit. Further his father was manhandled by the first accused and as a consequence of which, he had fallen sick and had passed away. There is nothing on record to establish that he had fallen sick only because of the manhandling and no medical report was filed in support of the said allegation. That apart, it was happened in the year 2016, whereas, the present complaint has been lodged after demise of his father on 19.03.2020. Therefore, it is clear that the above allegation is nothing but figment of imagination.
  7. Further, the case of the second respondent is that on 03.06.2020, he had visited his property on Thoraipakkam and upon his visit, the first and third accused had threatened the defacto complainant with dire consequences. During that period, the Government of India has imposed lock down due to

Covid-19 Pandemic with effect from 24.03.2020 without any relaxations whatsoever and endeavors were made by the State Government to neutralize the effects of pandemic which was spreading rapidly and causing huge fatalities. Therefore, the allegation made in this regard is unpalatable in nature and the same has been made only with an object to prosecute the petitioners by adopting unfair measures. Thus, the present impugned complaint is nothing but a clear after thought as an act of vindictiveness taking advantage of the fact that there was change of regime since May 2021.

  1. Insofar as the allegation made under Section 120-B of IPC is concerned, the question of criminal conspiracy will not arise, since there is no specific allegation to that effect that the petitioners had conspired with each other in any manner. It is relevant to extract Section 120-B IPC, which reads as follows:-

”….Section 120-B “Punishment of criminal conspiracy : Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, he punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both…..”

  1. In order to satisfy the ingredient of Section 120-B of IPC overt act should be established. On a perusal of impugned FIR it has failed to bring out the overt act of each of the petitioners. In order to bring the charge under Section 120-B, there must be an agreement between two or more persons to commit an offence or where the agreement does not amount to an offence in the doing of an act which is otherwise legal in an illegal way coupled with some overt act. Except the relationship second accused, who was a Minister and other petitioners viz., son-in-law and daughter of the second accused, there is no prima facie case to hold that there was an agreement or an overt act has been committed.
  2. It is relevant to rely upon the judgment of the Hon’ble Supreme

Court of India in the case of Ram Sharan Chaturvedi Vs. The State of

Madhya Pradesh passed in Crl.A.No.1066 of 2010 dated 25.08.2022 and the relevant portions of the aforesaid judgment is extracted hereunder;-

” 22. The principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court has to necessarily ascertain whether there was an agreement between the Appellant and A-1 and A-2. In the decision of State of Kerala v. P. Sugathan and Anr.2, this Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:

“12. …As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. …A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy…

  1. …The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not

sufficient…” (emphasis supplied)

  1. The charge of conspiracy alleged by the prosecution against the Appellant must evidence explicit acts or conduct on his part, manifesting conscious and apparent concurrence of a common 2 (2000) 8 SCC 203. design with A-1 and A-2. In State (NCT of Delhi) v. Navjot Sandhu3, this Court held:

“101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.”

Thus, it is clear that to attract the offence of criminal conspiracy, some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved and the evidence as to the transmission of thoughts sharing the unlawful act is not sufficient.

  1. The second petitioner also filed a civil suit as against the second respondent in C.S.No.101 of 2022 before this Court seeking for damages and other reliefs. He has also sought for interim injunction in O.S.No.224 of 2021 and it is pending before the Court below. That apart, the first petitioner initiated arbitration proceedings as against the second respondent in O.P.No.262 of 2022, seeking for appointment of Sole Arbitrator to decide the dispute between him and the second respondent in accordance with Clause 17 of the Partnership Agreement. While being so, the second respondent is making a statement that the accused were attempted to grab the factory which is a joint family property belonging to his father. Therefore, it is made clear that there is a civil dispute in existence between the first petitioner and the second respondent herein. While pending the civil dispute, in order to grab the property, the present impugned complaint has been lodged by the second respondent and it is nothing but a clear abuse of process of law.
  2. Insofar as the offence under Section 447 IPC is concerned, the

land on which the building now stands belongs to partnership firm in the name and style of M/s.Aswan Fishnet Manufacturing. The first accused is being one of the partner, the question of trespassing into the land belonging to the second respondent does not arise. Even according to the second respondent the subject land was leased out to M/s.Aswan Fishnets, hence, as a tenant, the question of trespassing does not exist.

  1. Insofar as the offence under Section 326 IPC grievous hurt is concerned, there is no iota of evidence to show that the defacto complainant or his father sustained any injury by the act of the petitioners. Even according to the second respondent, the alleged occurrence had taken place in the year 2016. Except the said allegation, no other prima facie evidence has been produced.
  2. Insofar as the allegation under Section 397 IPC is concerned, the dacoity is nothing but figment of imagination. The ingredients of Section 397 IPC has to be satisfied. However there are no allegation of theft or extortion even as per the FIR. It is also pertinent to note that the dacoity will never arise when only three persons have been prosecuted in the FIR and to satisfy the ingredients of dacoity, five persons are required as envisaged under Section 390 IPC.
  3. Insofar as the allegations for the offence under Section 506(ii) IPC is concerned, the acts of intimidation and threat of cause to death or grievous hurt has neither been established in the complaint nor in the FIR. It is also relevant to extract Section 506(ii) which reads as follows;

” Insofar as the offence under Section 506(ii) of I.P.C is concerned, threat should be a real one and not just a mere words when the person uttering does not exactly mean what he says and also when the person to whom threat is launched does not feel threatened actually. Whereas, in the case on hand, there is no averment to attract the offence under Section 506(ii) of I.P.C.”

Therefore, there is no allegation to attract the offence under Section 506(ii) of IPC.

  1. Hence, it is clear that all the allegations made in the FIR are vague and bald in nature. There is no explanation for lodging belated complaint that too after six years from the date of alleged occurrence which took place in the year 2016. Therefore, the impugned FIR is nothing but a clear abuse of process of law. Hence, the impugned FIR cannot be sustained as against the petitioners and it is liable to be quashed.
  2. In this regard, it is relevant to extract the judgement reported in

(1992) SCC Crl. 426 in the case of Bajanlal v. State of Haryana, wherein the Hon’ble Supreme Court of India has listed out the following category of case in which the criminal proceedings can be quashed using the inherent jurisdiction of the High Court under Section 482 Cr.P.C.:

“102……….

……………….

  1. Where a criminal proceeding is manifestly attended with malafide and/or where the proceedings is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.”

The above guidelines formed by the Hon’ble Supreme Court of India, squarely applies to the case on hand. Hence, FIR registered cannot be sustained as against the petitioners.

  1. Accordingly, these Criminal Original Petitions stand allowed and the FIR in Crime No.49 of 2022 on the file of the first respondent is hereby quashed. Consequently, connected miscellaneous petitions are closed.

.09.2022

Index : Yes / No

Speaking / Non Speaking order ata

To

1.The Inspector of Police,

Central Crime Branch,    Team 16, Anti Land Grabbing Cell,    Vepery, Chennai.

  1. The Public Prosecutor, High Court, Madras.

G.K.ILANTHIRAIYAN, J. ata

Pre-Delivery order made in

CRL.O.P.Nos.17212, 20904

& 17871 of 2022 .09.2022

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