The petitioners are the original accused no. 4,5,6 and 8 in Criminal Case No. 22/2009 later on registered as private Complaint no. 1/2001. They want quashing of the said complaint filed by respondent no.2 on the ground that they have been wrongly involved in the said complaint and in any case no offence is disclosed against them.
The above-mentioned complaint has been lodged by respondent no.2 alleging inter-alia that there were certain business and land dealings between accused no.1 on one side and accused no. 3 to 11 on the other. Accused no.2 is stated to be advocate. It is further alleged that accused no.1 had felt that complainant would be able to get a deal struck with owners of accused no.3 company (i.e. accused no. 4 to 9). It is further stated that he had entered into agreement with accused no.1 on 27.12.1989 under which he was to receive additional payment of Rs. 2,75,00,000/-. Yet another agreement was entered into between him and accused no.1 on 14.6.1991 under which he was to receive 50% of the share from the said accused. It is further the say of the complainant that he had reposed full faith in accused no. 1 and 2 and had agreed to signed document giving power of attorney to accused no.1 as may be prepared by accused no.2. Accordingly, he had given such power to accused no.1 on 29.11.1989 which was prepared by accused no.2. He further alleged that accused no.1 instituted Special Civil Suit 222/1991 on 9.5.1991 on the basis of power of attorney for himself and for complainant as his attorney. Further allegation of the complainant is that though said power of attorney dated 29.11.1989 was cancelled by giving notice on 17.6.1992 and yet again on 26.9.1993, such power of attorney was utilised for withdrawing Special Civil Suit No.222/1991 on 8.11.1993.
It is the case of the complainant that such withdrawal was to defraud the complainant. All accused including the present petitioner had connived to cheat him and thereby committed offences punishable under Sections 406, 418, 420, 468, 471, 477 read with Section 114 of the IPC.
Learned Magistrate on 22.1.2001 issued summons against all the accused except original accused no.1 who had in the meantime expired.
It is this complaint and issuance of summons by the learned Magistrate which the petitioners have challenged in the present petition.
Upon hearing the learned advocates present for the parties and perusal of the documents on record, it becomes clear that even in the complaint itself, main thrust of the allegations are against original accused no.1. As already noted, it is the case of the complainant that accused no.1 had promised to pay him hefty commission for striking a deal with rest of the accused. Later on fresh agreement was entered into between him and accused no.1 to share the profit. In the process, he was persuaded to give power of attorney to accused no.1 which was prepared by his advocate accused no.2. Such power of attorney was utilised for instituting Special Civil Suit No.222/1991 .
I have perused the said suit wherein prayers were made to declare that suit properties are in possession of plaintiff no.1 i.e. accused no.1 in which the the defendants be prevented from making any obstruction. Further prayer was that the defendants be directed to clear the titles of the disputed properties and be directed to execute the sale deed in favour of the plaintiffs. Present petitioners are some of the co-defendants in said Special Civil Suit. Allegations of the complainant are that to defeat his claim for commission and other monetary payments, power of attorney which he had withdrawn by giving notice, was utilised for withdrawing the Special Civil Suit no. 222/1991. It is his allegation that even the present petitioners had conspired and connived into said illegal act.
Except for brief allegations that present petitioners and others i.e. accused no. 3 to 11 were also party to the fraud, entire complaint is directed against original accused no.1. In the Special Civil Suit also, accused no.1 was shown as plaintiff no.1. Prayers, as already noted, were in favour of plaintiff no.1 to protect his possession and to execute the sale deed of the disputed properties after clearing titles thereof in favour of plaintiff no.1. In the suit therefore, no prayer was made by the plaintiff no.2. Even if such a suit was withdrawn prima facie, it does not appear that the plaintiff no.2 i.e. present complainant would be in any way worse of.
Additionally, I also find that such withdrawal was challenged by the complainant before this Court and thereafter, before the Apex Court. Learned Single Judge of this Court in detailed judgement dated 11.4.1994 rendered in Criminal Revision Application No. 1567/1993 dismissed the revision application upholding withdrawal of the Civil Suit. This order was challenged before the Apex Court as stated by the counsel for the petitioners, wherein also SLP was dismissed. Thus on civil side this Court as well as Apex Court have found no illegality in withdrawal of the Civil suit which according to the complainant was malicious.
In any case, I am of the opinion that in the complaint also grievance of the complainant were primary against accused no.1. Withdrawal of the Civil Suit was primarily between him and accused no.1 who was plaintiff no.1 in the said Special Civil Suit. Suit which was filed jointly by the complainant and accused no.1 contained prayers for declaration and execution of sale deed in favour of plaintiff no.1 and not in favour of the complainant. Looked from any angle, no case of any of the offences mentioned above are disclosed against the present petitioners.
In the result, impugned private complaint no. 1/2001 pending before the Court of the JMFC, Surat is quashed qua the present petitioners.
Petition is disposed of. Rule made absolute accordingly.
(Akil Kureshi,J.) (raghu) Top