Challenging the order, dismissing the petitioner's application in Crl.M.P.No.2415 of 2015 in C.C.No.452 of 2014 on the file of District Munsif cum Judicial Magistrate Court, Sriperumbudur on 15.04.2016, this Criminal Revision Case been filed. 2. The petitioner is the third accused in the private complaint filed by the first respondent in C.C.No.452 of 2014 on the file of the District Cum Judicial Magistrate, Sriperumbudur. The first respondent filed the above complaint on the ground that he is the son of one Kanniappa Naicker and his father purchased 1.09 acres of land in Survey No.1179/5 at Sriperumbudur Village by means of a registered sale deed. Subsequently his father Kanniyappa Naicker died on 29.11.1994. After his death, he and his mother and sisters were enjoying the property. Subsequently, he came to know that the first and second accused in that case claiming to be the legal heirs of the deceased Kanniyappa Naicker, obtained a bogus death certificate and also a legal heirship certificate. Thereafter, they sold the property in favour of the third accused by means of a registered sale deed dated 26.09.2007. According to the first respondent, all the three accused joined together with an intention to grab the property, created forged documents and cheated him.
3. The court below has taken cognizances of the offences and also issued summons to all the accused. Thereafter, the petitioner/ third accused filed an application under Section 245(2) of Cr.P.C. to discharge him from the criminal charge on the ground that there is no prima facie case against him and he is only a bonafide, innocent purchaser. At the time of purchase, A1 and A2 in that case informed that it is their ancestral property of the first accused and it belongs to her father Kanniyappa Naicker and after his death, she has been in enjoyment and possession of the property. He also produced death certificate of Kanniyappa Naicker and legal heirship certificate of Kanniyappa Naicker issued in favour of first accused and also the patta, which stands in the name of Kanniyappa Naicker. He purchased the property for a valuable consideration. There is no prima facie material available on record to disclose any offence against the petitioner. The above application was contested by the first respondent, denying all the allegations made in the petition.
4. The court below, dismissed the petition filed by the petitioner/third accused holding that from the materials available on record, it shows that the first accused is not the legal heir of Kanniyappa Naicker and she is not entitled to sell the said property to the petitioner and there is a material to presume that the petitioner in collusion with A1 and A2 purchased the property from A1, who is not at all the legal heir of Kanniyappa Naicker and there are prima facie materials available to make out the offences of cheating and forgery. Challenging the same, the present Criminal Revision Case has been filed by the petitioner.
5. Learned counsel for the petitioner/third accused would submit that the petitioner is a bonafide purchaser of the property and at the time of purchase, the first accused had produced death certificate of Kanniyappa Naicker and also the legal heriship certificate and patta issued in the name of Kanniyappa Naicker claiming that the property is his ancestral property. The petitioner also applied for an Encumbrance Certificate which also confirmed the title of late Kanniyappa Naicker and believing the words of the first and second accused, he purchased the property for a valuable consideration. Apart from the averments made in the petition, no prima face case, is made out against the petitioner and the court below dismissed the petition only on the ground that there arise a presumption that the petitioner has purchased the property colluding with first and second accused.
6. Per contra, Mr.V.R.Kamalanathan, learned counsel for the first respondent/ defacto complainant would contend that the first respondent Veeraraghavan is the legal heir of Kanniyappa Naicker and the Kanniyappa Naicker purchased the property through registered sale deed and he is the legal heir of Kanniyappa Naicker and after the demise of Kanniyappa Naicker, he has been enjoying the property along with his sisters. Now, the first and second accused, who are no way related to the Kanniyappa Naicker, obtained a bogus death certificate and legal heirship certificate of Kanniyappa Naicker and in collusion with the petitioner/third accused, they sold out the property, standing in the name of late Kanniappa Naicker in favour of A3 for under value and the petitioner knowing well that the property do not belong to the first and second accused had deliberately purchased the property, thereby committed offence.
7. I have considered the rival submissions made by Mr.R.Karthikeyan, learned counsel for the petitioner and Mr.V.R.Kamalanathan, learned counsel for the first respondent.
8. The petitioner / third accused in this case, filed an application under Section 245(2) of Code of Criminal Proceure to discharge him from the criminal case, on the ground that there is no prima facie case made out against him. It is the settled law that while considering the discharge petition, the court below is bound to consider whether any prima facie case is made out against the accused or not, from the complaint, materials, as well as the evidence produced by the complainant.
9. In the instant case, from the complaint filed by the first respondent/ complainant and the sworn statement, this court could find nothing against this petitioner to show that he had knowledge that the first and second accused are not the owners of the property and he deliberately purchased the property in collusion with A1 and A2 and also paid lessor price for the property. It is only stated in the complaint that first accused had obtained bogus legal heirship certificate and also death certificate of Kanniyappa Naiker and thereby claiming to be the owner of the property, executed the sale deed in favour of the third accused.
10. From the materials on record, there is no allegation made against the petitioner prima facie to show that the petitioner also committed offence. But the court below, dismissed the application merely by holding that there is a ground to presume that the petitioner and the first and second accused colluded with each other and the petitioner purchased the property from the first accused. It is the settled law that no person can be implicated as an accused on a mere presumption, unless there are any materials on record to show that there is a prima facie case made out against him from the complaint as well as the other evidence produced by the complainant. In the instant case, there is no such material available on record prima facie to show that the petitioner also committed the offence. In the above circumstances, the order passed by the court below is liable to be set aside and the petitioner is entitled for discharge from all the charges levelled against him.
11. At this juncture, the learned counsel appearing for the first respondent would submit that the criminal case has been pending from the year 2014 and therefore, he sought for early disposal of the criminal case.
12. In the result, this Criminal Revision Case is allowed and the order dated 15.04.2016 passed in Crl.M.P.No.2415 of 2015 in C.C.No.452 of 2014 by the learned District Munsif cum Judicial Magistrate, Sriperumbudur is set aside and the petitioner is discharged from all the charges levelled against him. Since, the case is of the year 2014, the court below is directed to proceed with the trial as against the other accused and dispose the criminal case in C.C.No.452 of 2014 within a period of three months from the date of the receipt of the copy of the order. Consequently, connected miscellaneous petition is closed.
16.06.2017
mst Index : yes/no Internet : yes/no Speaking order/non-speaking order To The District Munsif cum Judicial Magistrate Court, Sriperumbudur.
V.BHARATHIDASAN. J.
mst Crl.R.C.No.934 of 2016 and Crl.M.P.No.7262 of 2016 16.06.2017