C. Subbian @ Kadambur Jayaraj vs Superintendant Of Police

judgment dated 23rd April, 2018 passed by learned Single Judge of

the Madras High Court, Madurai Bench dismissing the

CRL.O.P.(MD) No. 3846 of 2013 preferred by the appellants herein

seeking quashing of proceedings of Criminal Case No. 250 of 2012

pending in the Court of learned Judicial Magistrate No. II,

Kovilpatti for offences punishable under Sections 420 read with

Section 120B, Section 294(b), Section 506(ii) read with Section 114 1 of the Indian Penal Code, 1860(hereinafter being referred to as the

‘IPC’).

Brief facts:-

3. Respondent No. 3(hereinafter being referred to as the

‘complainant’) lodged a complaint in the Court of learned Judicial

Magistrate No. II, Kovilpatti alleging inter alia that he was having

a qualification of M.Sc., MD Graduate. He was appointed as a

Government teacher on 8th October, 2007. Before being appointed

as a Government teacher, the complainant was doing real estate

business for earning his livelihood for past 16 years.

4. The complainant was knowing Kannabiran(hereinafter being

referred to as ‘A-3’) who was working as a Manager in the State

Bank of India(SBI), Kovilpatti Branch. While being engaged in the

real estate business, the complainant came into contact with

Subbiah @ Kadambur Jeyaraj(hereinafter being referred to as ‘A-

1’) and his wife A. Vijaya(hereinafter being referred to as ‘A-2’).

Through A-1 and A-2, the complainant came into contact with

Chandrasekar(hereinafter being referred to as ‘A-4’), his son

Pandiyaraj(hereinafter being referred to as ‘A-6’), his wife(S.

Pandiyammal, hereinafter being referred as ‘A-5’), and his brother

2 (K.Shanmugiah, hereinafter being referred as ‘A-8’) who were also

engaged in real estate business.

5. The complainant claimed that he always trusted his partners

in business. Taking undue advantage of the trusting nature of the

complainant, the accused persons induced him to join their real

estate business claiming that they had strong political

connections. The accused allured and induced the complainant to

enter into land deals with the intention to defraud the complainant

right at the inception of the transactions. The complainant was

told that the documents need not be registered in his own name

and instead the registration may be carried out in the name of his

sister-in-law. An alternative option was given that if the documents

were registered in the names of the accused, the plots could be

sold immediately to earn higher profits. By flaunting their political

connections, the accused influenced the complainant to make

investments into lands assuring that he would reap huge benefits

out of these deals.

6. The complainant was also fraudulently induced to believe

that out of the chunks of lands so purchased, smaller plots would

be carved out and sold to different persons which would frequently

require physical presence of the seller and since the complainant 3 was a teacher, he would face inconvenience if the land parcels were

to be registered in his name. In this manner, the complainant was

not allowed to get the purchased properties registered in his name

despite he making the investments. The complainant was given

assurances that the plots would be sold for huge profit in a very

short duration and he would be given his share. By using this

mode of inducement, A-1, A-3, A-4, and A-6 infused a sense of

trust in the complainant with the ulterior motive to defraud him

and to commit breach of trust.

7. It was further alleged that before the complainant had come

in touch with the accused, he and his brother-in-law

Chandrasekar, S/o Krishnasamy Naicker had entered into an

agreement for sale with A. Sairam in respect of a chunk of land at

Allampatti village, admeasuring 8 acres, but the sale could not be

finalized because a suit was pending in the District Court,

Tuticorin in respect of the said land. In the meantime, the

complainant was appointed as a teacher. The suit pending before

the District Court, Tuticorin was disposed in favour of A. Sairam.

8. Having given the fraudulent allurements to the complainant,

the accused got registered a sale deed in their name as Document

No. 1839 of 2008 dated 27th February, 2008 on the file of Sub 4 Registrar Office, Kovilpatti in respect of some plots of land situated

in the Allampatti village of total area 7.618 acres. The complainant

invested a sum of Rs. 1,01,47,800/- towards this transaction

whereas, the accused invested proportionately much lesser

amounts in the said land deal. A-1, A-3, A-4, and A-6 along with

the complainant, purchased the said parcel of land from A. Sairam

for a total consideration of Rs. 3,08,33,600/-. However, as per the

complainant, the accused never gave him the plots equivalent to

the investment made by him and thereby, committed fraud and

breach of trust.

9. The complainant further alleged that A-2 and A-5 had

conspired with A-1, A-3, A-4, and A-6 to cheat him. The accused

made the complainant believe that the business of real estate is

generally carried on by word of mouth and trust. However, at a

later point of time, the accused started indulging in criminal

breach of trust with the ulterior motive of cheating the

complainant.

10. A-1, A-3, A-4 and A-6 invested the amount provided by the

complainant towards his share in the land deal and completed the

sale of the suit property on 27th February, 2008 with A. Sairam.

However, despite the assurances, the accused conspired and

5 refused to give the due share of plots to the complainant thereby

committing breach of trust. Therefore, a Panchayat meeting was

convened on 19th July, 2010 and a settlement deed was also

executed wherein, it was agreed that 52 plots admeasuring 256.51

cents would be handed over by A-1 and A-2 to the complainant

towards the investment made by him.

11. Under the same settlement, A-4 and A-6 were given 45 plots

to the extent of 233.50 cents for the investment made by them after

deducting land to the extent of 16.50 cents towards the passages.

On the very date of execution of the settlement deed, all the

accused entered into an agreement with Dharamraj(hereinafter

being referred to as ‘A-7’), brother-in-law of A-4 and executed a

General Power of Attorney(GPA) in his favour after receiving a sum

of Rs. 30,00,000/- towards plots Nos. 68, 69, 70 and 71 which

were a part and parcel of the settlement deed.

12. The complainant alleged that the accused failed to pay a sum

of Rs. 19,00,000/- which would be the share amount due to the

complainant out of the sale price of Rs. 30,00,000/-. Thus, the

accused persons despite being signatories to the settlement deed

did not act as promised under the settlement and thereby,

committed breach of trust.

6

13. The accused had also promised to execute the sale deeds of

some plots in favour of the persons to be nominated by the

complainant. The complainant provided names of three persons

for these plots. Three sale deeds were got prepared on stamp

papers worth Rs. 90,000/-. The accused gave their photographs

and ID-proofs and signed the sale deeds, but they failed to appear

at the Sub-Registrar Office, Kovilpatti at the scheduled time for

registration of the sale deeds. When the complainant enquired

from A-1 and A-3 as to why they were indulging in such fraudulent

acts, they abused the complainant and threatened to get rid of

him. A-1 threatened the complainant that if the matter is reported

to the police, he would shoot and kill the complainant and his

family members by using a revolver. While saying so, A-1

brandished a revolver and handed it over to A-3.

14. It was further alleged that A-1 further induced the

complainant to pay a sum of Rs. 41,00,000/- on 14th November,

2011, whereafter, the sale deed for one of the properties forming a

part of the settlement memorandum was executed. However, for

some of the properties, the accused were not abiding by the terms

of the memorandum and had fraudulently transferred the same to

7 other investors. Some land brokers were also present at the time

when this incident occurred.

15. Being aggrieved of these continued criminal activities of the

accused, the complainant submitted a complaint dated 29th June,

2010 at the Kovilpatti West Police Station but no action was taken

thereupon. Having failed to get any action on his complaint, the

complainant approached the Madras High Court, Madurai Bench

by filing CRL.O.P.(MD) No. 1396 of 2011 and as per the directions

of the High Court, he submitted a fresh complaint to the District

Superintendent of Police, Tuticorin, but still the FIR was not

registered. Ultimately, the complainant was compelled to file a

complaint in the Court of the Jurisdictional Magistrate with a

prayer to forward the same to the police under Section 156(3) of

Code of Criminal Procedure, 1973.

16. Under the direction of the learned Magistrate, the complaint

was forwarded to Police Station Kovilpatti West, where FIR No. 305

of 2011 dated 6th March, 2011 came to be registered. After

investigation, the Investigating Agency, proceeded to file a charge

sheet against eight accused with the following conclusions: -

“By these Criminal Acts accused 1 to 6 have made to believe the complainant by their honey coated words have purchased lands, along with the complainant, in Alampatti Village in

8 Survey No.218/B - 1.5 Acres, Survey No. 219 - 2.74 Acres, Survey No.218/1 - 1 Acre, Survey No.221/1 - 2.37 Acres totaling in all 7 Acres 61 cents which are valued Rs.6,18,500/- as per guideline value but paid Rs.3,08,33,600/- and registered the sale deed as Doc.No.1839/08 on the file of SRO Kovilpatti, out of the said sale consideration have paid the complainant Rs.10,00,100/- as per his proportionate share of his investment and without paying the balance sale consideration of Rs.91,47,700/- towards his share received from the sale consideration or by not giving the proportionate land in alternate, they indulged in cheating activities. Therefore the acts committed by the accused or criminal nature and they appear to have committed the criminal acts which are punishable under the following Sections:

The 1st accused punishable under Section 420 IPC r/w. 120(B) IPC and Section 294(b), 506(ii) of IPC. The 2nd accused punishable under Section 420 IPC r/w Section 120(B) IPC.

The 3rd accused punishable under Section 420 IPC r/w. 120(B) IPC and Section 294(b), 506(ii) of IPC r/w 114 of IPC. The 4th accused punishable under Section 420 IPC r/w Section 120(B) IPC.

The 5th accused punishable under Section 420 IPC r/w Section 120(B) of IPC.

The 6th accused punishable under Section 420 IPC r/w Section 120(B) of IPC.

The 7th accused punishable under Section 420 IPC r/w Section120(B) of IPC.

The 8th accused punishable under Section 420 IPC r/w Section 120(B) of IPC.”

17. It may be mentioned that for the very same set of allegations,

the complainant had also filed a civil suit by impleading A-1 to A-

6 as defendants which is pending on the file of District Judge,

Tuticorin in O.S. No. 06 of 2012.

9

18. A-1, A-2, A-3, A-4, A-5, A-6, A-7, and A-8 being the appellants

herein, approached the Madras High Court, Madurai Bench for

assailing the FIR and the charge sheet by filing a CRL.O.P.(MD) No.

3846 of 2013. The learned Single Judge of Madras High Court

proceeded to dismiss the said petition preferred by the appellants

vide order dated 23rd April, 2018 which is subject matter of

challenge in this appeal by special leave.

Submissions on behalf of appellants: -

19. Learned senior counsel, Mr. Dama Seshadri Naidu

representing the appellants vehemently and fervently contended

that even if the allegations set out in the FIR and the charge sheet

are treated to be true on the face of record, the same do not

constitute the necessary ingredients of the offences alleged. He

contended that looking at the admitted facts as set out in the

complaint, the dispute, if any, between the parties is purely of civil

nature and thus, continuance of the proceedings pursuant to the

charge sheet filed against the accused appellants would

tantamount to gross abuse of process of law. The charge sheet

clearly spells out that a part of the sale proceeds from the land

deals were paid to the complainant, but the entire amount as per

his entitlement was not paid. Thus, as per Shri Naidu, for alleged

10 part performance of contractual obligations, the tool of criminal

law has been misused by the complainant.

20. He further submitted that the complainant being a teacher

serving in the Government establishment was not entitled to

indulge in property transactions and thus, at his own risk, he

made the investments through the accused appellants herein and

when the profit sharing quotient towards the land deals did not

work out to the complainant’s satisfaction, the process of criminal

law was misused so as to launch a purely frivolous prosecution

against the accused appellants.

21. The contention of the learned senior counsel was that there

is no material whatsoever on the record of the case to show that

the intention of the accused appellants was to defraud the

complainant right at the time of the inception of the transactions.

Furthermore, since the allegation of the complainant is regarding

disproportionate sharing of profits enuring from the land deals

which he entered with the accused appellants with open eyes, the

offence of criminal breach of trust would also not be made out

against the accused appellants.

22. He urged that the essential ingredients of the offences alleged

are not made out from the highest allegations levelled by the

11 complainant as set out in the charge sheet warranting

continuation of the criminal proceedings against the accused

appellants. He placed reliance on the judgments of this Court in

State of Haryana and Others v. Bhajan Lal and Others1;

Indian Oil Corpn. v. NEPC India Ltd. and Others2 and Anand

Kumar Mohatta and Another v. State(NCT of Delhi),

Department of Home and Another3 in support of his contentions

and buttressed that the criminal proceedings sought to be taken

against the appellants as a consequence to the charge sheet are fit

to be quashed as the same amount to a sheer abuse of process of

Court apart from the fact that the charge sheet does not disclose

the necessary ingredients of any cognizable offence.

Submissions on behalf of respondents-complainant and State:-

23. Per contra, learned counsel for the respondent complainant

as well as the learned Standing Counsel representing the State

vehemently and fervently opposed the submissions advanced by

the learned counsel for the appellants. It was contended that, the

accused appellants won over the trust of the complainant by using

honey quoted language, and thereby, fraudulently induced him to

1 1992 Supp(1) SCC 335 2 (2006) 6 SCC 736 3 (2019) 11 SCC 706

12 make huge investments in land deals. The complainant was

assured time and again by the accused that he would be given his

due share of profits or the plots from the lands, as the case may

be, which would be purchased in the name of the accused because

the complainant being a Government teacher could not indulge

into such transactions. The complainant fell for the allurements

given by the accused appellants and invested huge sums of money

for land deals placing blind faith on the assurances given by

accused. However, the accused appellants resiled from their

promises and defrauded the complainant by failing to give him the

requisite number of plots which would fall in his share

commensurate with the investment made by him. The

complainant was also deprived of his rightful share in the profits

reaped after some of the plots had been sold.

24. They submitted that merely because the complainant has

also availed civil remedy for the same grievances, that by itself

cannot disentitle him from invoking jurisdiction of the criminal

Court to prosecute the accused appellants for their fraudulent acts

because the allegations set out in the complaint constitute both

the civil wrong as well as criminal offences and thus parallel

proceedings can continue. On these grounds, learned counsel for

13 the complainant and the learned Standing Counsel for the State

implored the Court to dismiss the appeal.

Consideration of submissions and material on record: -

25. Heard the learned counsel for the parties at length and

perused the impugned order as well as the complaint and the

charge sheet filed against the accused appellants.

26. The arguments were heard, and the judgment was reserved

on 16th February, 2024. Thereafter, we thought it fit to seek a

clarification from the learned counsel for the parties because on

going through the material available on record, we were prima facie

of the opinion that the case presents sufficient material to direct

inquiry under the provisions of Section 13(1)(b) and Section 13(2)

of the Prevention of Corruption Act, 1988(hereinafter being

referred to as ‘PC Act’) because, manifestly, the complainant being

a public servant had indulged in large scale benami land

transactions without disclosing the same to his employer.

Accordingly, learned counsel for the complainant was put to notice

and he has submitted a short clarificatory note mentioning therein

that the complainant is an Income Tax assessee from the year

2000. It is also submitted in the note that the complainant started

the business of real estate from the year 2004 onwards and had

14 acquired significant wealth during the course of this business. The

complainant was appointed as a teacher in the Government School

only in the year 2007 when he was nearly 45 years of age. He has

superannuated in the year 2022 without any pensionary benefits.

Thus, it was submitted that whatever money the complainant

invested in the disputed land deals entered into with the accused,

were genuine investments made by using his valid and declared

sources of income and savings. A chart was also set out along with

this explanation regarding the sources from where the

complainant received various amounts which he claims to have

invested in the disputed land deals.

27. Being satisfied with the explanation so offered, we do not find

any justifiable cause so as to direct an enquiry against the

complainant for the offences under the PC Act.

28. Now, we proceed to appreciate the merits of the present

appeal.

29. At the outset, we may note that the complainant has come

out with a clear case that he was already involved in real estate

business before being selected as a Government teacher in the year

2007. Hence, it can safely be assumed that he was well versed with

the nitty gritties of such business and the innocence and ignorance

15 feigned by him in the complaint qua pros and cons of fallouts of

property dealings cannot ex facie be countenanced.

30. The complainant has alleged in the FIR, that the accused

fraudulently allured him into buying the lands by using honey

quoted words and that they also took advantage of the fact that

the complainant was a teacher serving in a Government institution

and hence he was persuaded to get the lands registered in the

name of the accused. However, these allegations are one sided and

do not present the true picture. The complainant after having been

appointed in Government service would be conscious that

indulging in land deals may land him in departmental proceedings.

It was precisely for that reason, the complainant must have agreed

that the lands to be purchased may not be registered in his name.

On the face of the record, the property deals allegedly made in the

names of other persons by using the funds partially provided by

the complainant were benami transactions.

31. We may, at this stage, refer to the relevant provisions of the

Benami Transactions (Prohibition), Act 1988(hereinafter being

referred to as the ‘Benami Act’)(applicable at the time of the alleged

transactions), and particularly Section 2(a), Section 2(c) and

Section 4 thereof: -

16

“2. Definitions- In this Act, unless the context otherwise requires,--

(a) benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person;

(b) …….

(c) property means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property

“4. Prohibition of the right to recover property held benami-

(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

(3) Nothing in this section shall apply,--

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.”

32. As per Section 2(a), any transaction in which property is

transferred to one person for a consideration paid or provided by

another person would be a “benami transaction”.

17

33. As per Section 2(c), “property” means property of any kind,

whether movable or immovable, tangible or intangible, and

includes any right or interest in such property.

34. Sections 3 of the Benami Act have been declared

unconstitutional by this Court in the case of Union of India v.

Ganpati Dealcom (P) Ltd4. A review petition is, however, pending

against the said judgment.

35. Section 4(1) of the Benami Act makes it clear that no suit,

claim or action to enforce any right in respect of any property held

benami against the person in whose name the property is held or

against any other person, shall lie or on behalf of a person claiming

to be real owner of such property. Such person cannot raise a

defence based on any right in respect of any property held benami

either against the person in whose name the property is held or

against any other person. Section 4(2) prohibits the institution of

any suit, claim or any other action by and on behalf of a person

claiming to be the real owner of such property.

(emphasis supplied)

36. It is, thus, clear that the complainant in spite of having made

investments in the land deals which were evidently benami

4 (2023) 3 SCC 315

18 transactions, could not have instituted any civil proceedings for

recovery against the person(s) in whose name, the properties were

held which would be the accused appellants herein. Since by

virtue of the provisions contained in Sections 4(1) and 4(2) of the

Benami Act, the complainant is prohibited from suing the accused

for a civil wrong, in relation to these benami transactions, as a

corollary, allowing criminal prosecution of the accused in relation

to the self-same cause of action would be impermissible in law.

37. Going by the allegations as set out in the FIR and the charge

sheet, it is apparent that it is the admitted case of the complainant

that the accused appellants made over a part of the purchased

lands/plots to the complainant and also paid a part of the profits

to him. However, when the exact share of the investment on pro-

rata basis was not being given to the complainant, he was

compelled to convene a Panchayat meeting wherein a

Memorandum of Settlement was arrived at. Even despite the

settlement, the actual share of the lands and profits enuring to the

complainant was not paid to him. The relevant extract from the

complaint is reproduced hereinbelow: -

“10. As a per the Memorandum of Settlement it has been ensured that a Plot measuring 169 cents in the Property Item No.5 should be given to the complainant for his investment. It is also been assured that 32 cents to the 3rd accused Kannabiran and 55.50 cents to the 1st accused Subbiah @

19 Kadambur Jeyaraj. Upon the continuous insistence of the complainant to register the sale on 169 cents in his favour, the 1st and 3rd accused and all other accused informed the complainant that they will come on 9.9.2010 to register the complainant's share. But on 9.9.2010 the 3rd accused Kannabiran only came to the Sub - Registrar Office, Kovilpatti. The complainant asked the 3rd accused about the other accused, he replied that he did not know about them and he said the complainant pays the entire amount for 32 cents he is ready to execute the sale deed and therefore the complainant paid the entire amount for 32 cents and after receiving the same on 09.09.2010 the 3rd accused executed a sale deed in respect of his 1/4th undivided share and the same was registered as Doc. No.8124 of 2010 then he left. For the investment amount made by the complainant, he has to get 169 cents, adding the plots to the extent of 32 cents settled by the 3rd accused Kannabiran the complainant has to get in total 201 cents. Out of this Kannabiran has got right to sell his 1/4th undivided share which is equivalent to 103 cents only. The 1st accused C.Subbiah @ Kadambur Jeyaraj can execute the Plots only to an extent of 100 cents to the complainant. But having committed the breach of trust and cheating the complainant without coming to the Sub Registrar Office on 9.9.2010 and keeping the 1 acre without executing in favour of the complainant, he is not only committing a breach of trust but also intimidating the complainant by threatening the complainant continuously with dire consequences that he is having political influence and no one can do anything.

11. Since the 1st Accused expressed his willingness to execute a sale deed in respect of the Property Item No.2 in the Memorandum of Settlement dated 19.10.2010 which is plots situate in Nehru Maha College Road, Malumichampatti Village, Kovai Corporation, if the complainant pays a sum of Rs.41,00,000/- to the 1st Accused. Believing his words the complainant on 14.1.2011 paid a sum of Rs.41,00,000/- to the 1st Accused and completed the sale. And also gave an assurance that they will act in accordance with the Settlement and on the very same date executed an Agreement of Execution. But they have been cheating the complainant without transferring the complainant's share in the Property Item No.5 as per the settlement dated 19.07.2010. Also it is found in the Memorandum of Settlement dated 19.7.2010 that as for as the Item No.1 concern only the 1st accused has to get the release after paying Rs.31,52,000/- to the Complainant. The 1st accused is cheating even without executing the same. And as per the Memorandum of Settlement dated 19.7.2010 as for as the 3rd Item is concern they have to divide the property in

20 proportionate to their respective investments. Item No.4 has already been sold by the investors.”

38. It is thus clear that from the complaint, there is no such

allegation therein which can persuade the Court to hold that the

intention of the accused appellants was to defraud the

complainant right from the inception of the transactions. The

accused appellants have unquestionably, passed on some plots as

well as part profits from the land deals to the complainant but the

dispute is regarding the quantification of profits and full

satisfaction of the share claimed by the complainant proportional

to the investments made by him.

39. These allegations can at best give a cause to the complainant

to sue the accused appellants in a civil Court. However, as

discussed above, such remedy is barred by Section 4 of the Benami

Act.

40. The complainant has clearly alleged that the accused caused

him monetary loss because the appropriate share of profits was

not passed on to him after some plots from the entire chunk had

been sold. This Court in the case of Sarabjit Kaur v. State of

Punjab and Anr5 observed that: -

5 2023 SCC OnLine SC 201

21 “A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up the promise will not be enough to initiate criminal proceedings”.

41. Similarly, in the case of Vijay Kumar Ghai v. State of W.B.6,

this Court while tracing the earlier decisions on the subject

observed as under:

24. This Court in G. Sagar Suri v. State of U.P. [G. Sagar Suri v.

State of U.P., (2000) 2 SCC 636] observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature.

25. This Court has time and again cautioned about converting purely civil disputes into criminal cases. This Court in Indian Oil Corpn. [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736] noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that : (Indian Oil Corpn. case [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736)

“13. … Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.”

42. Thus, we are of the firm view that the necessary ingredients

of the offences punishable under Section 406 and Section 420 IPC

are not made out against the accused appellants from the admitted

allegations set out in the complaint and the charge sheet. It cannot

be doubted that a dispute which is purely civil in nature has been

6 (2022) 7 SCC 124

22 given a colour of criminal prosecution alleging fraud and criminal

breach of trust by misusing the tool of criminal law.

43. The Investigating Officer has also applied offences under

Section 294(b) and Section 506(ii) read with Section 114 IPC in the

charge sheet. On going through the entire charge sheet, we do not

find any such material therein which can justify invocation of the

offence under Section 294(b) IPC which reads as below: -

“294. Obscene acts and songs.—Whoever, to the annoyance of others,

(a) ….

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.”

44. The complainant alleged that the accused abused him by

using profane language. Section 294(b) IPC would clearly not apply

to such an act. Apart from a bald allegation made by the

complainant that A-1 abused him and intimidated him on 28th

July, 2010, there is no material which can show that the accused

indulged in criminal intimidation of the complainant so as to

justify invocation of the offence punishable under Section 506(ii)

IPC.

45. We have to be conscious of the fact that the complainant has

tried to misuse the tool of criminal law by filing the patently

23 frivolous FIR dated 6th March, 2011, wherein the allegation is

levelled regarding the so-called incident of criminal intimidation

dated 28th July, 2010. The said allegation otherwise is also belied

for the reason that in the FIR, the complainant states that he filed

a complaint dated 29th July, 2010 in Kovilpatti West Police Station,

but the RTI reply from the said police station clearly states that no

such complaint was ever received.

46. Thus, we are persuaded to accept the contention of learned

counsel for the accused appellants to hold that the criminal

prosecution instituted against the accused appellants in

pursuance of the totally frivolous FIR tantamounts to sheer abuse

of the process of law.

47. At the cost of repetition, it may be reiterated that in view of

the clear bar contained in Section 4 of the Benami Act, the

complainant could not have sued the accused appellants for the

same set of facts and allegations which are made the foundation

of the criminal proceedings. Since, if such allegations do not

constitute an actionable civil wrong, in such circumstances,

allowing the prosecution of the accused appellants for the very

same set of facts, would tantamount to abuse of the process of law.

24

48. Consequently, the impugned order whereby the petition filed

by the appellants seeking quashing of the Criminal Case No. 250

of 2012 and FIR No. 305 of 2011 was dismissed, does not stand to

scrutiny, thus, the same is hereby quashed and set aside.

49. As a result, all proceedings sought to be taken against the

appellants in pursuance of the charge sheet dated 10th August,

2011 are also quashed.

50. The appeal is allowed accordingly.

51. Pending application(s), if any, shall stand disposed of.

………………….……….J. (B.R. GAVAI)

………………………….J. (SANDEEP MEHTA) New Delhi;

May 15, 2024

25