V D MANICKA MUDALIAR Vs. STATE

JUDGEMENT

(1.) The petitioners herein seek to further investigation in Crime No. 2682 of 2004 on the file of the respondent police.

(2.) The relevant facts are as follows:- An agreement was entered into on 5.3.1996 between the de facto complainant and the first petitioner where under the de facto complainant was engaged for the purpose of putting up construction for the first petitioner at the rate of Rs. 330/- per sq. ft. The de facto complainant had preferred a private complaint before the learned III Metropolitan Magistrate, Chennai on 3.12.2004 informing that though he had completed the construction work, the petitioners have not made payment despite repeated demands; that the petitioners proposed to sell the built up house and misappropriate the proceeds for their wrongful gain, without paying the money to the complainant to which he is entitled to, and thus, the petitioners caused wrongful loss and cheated the de facto complainant which rendered them liable for prosecution for offences under Sections 406 and 420 read with 34 I.P.C The said private complaint was referred for investigation under Section 156(3) of the Code of Criminal Procedure and consequent thereto, a case in Crime No. 2682 of 2004 has been registered on 10.12.2004 by the respondent police.

(3.) Mr. N. Manoharan, the learned counsel appearing for the petitioners submitted that the agreement for construction was entered into between the de facto complainant and the first petitioner and the second petitioner, who is the son of the first petitioner had nothing to do with the transaction between the first petitioner and the complainant. It is further submitted by the learned counsel for the petitioners that owing to the complainant having left incomplete the work entrusted to him, the first petitioner had moved C.P.O.P. No. 139 of 1997 before the District Munsif Court, Erode. Further, as against the action of the complainant and one another trying wrongfully to interfere with the first petitioner's possession of the property wherein the construction was put up, the first petitioner had moved O.S. No. 212 of 2002 before the First Additional District Munsif Court, Erode for permanent injunction and such suit was contested and eventually decreed in favour of the first petitioner herein on 8.11.2004. It is only thereafter, a private complaint was moved by the complainant on 3.12.2004. The learned counsel for the petitioners submitted that the entire action against the petitioners is a mala fide one and at most it could have given rise only to civil proceedings and that the criminal proceedings would amount to an abuse of process of law.