VAMSEEDHARAN Vs. STATE

JUDGEMENT

(1.) The petitioner/A2 in C.C.No.3260 of 2018 on the file of the learned Metropolitan Magistrate [CCB and CBCID Metro Cases], Egmore facing trial along with two others for the offence under Ss. 423, 420 r/w. 34 IPC, filed this quash petition.

(2.) The case of the prosecution is that the defacto complainant lodged a complaint stating that he owns a property measuring 3450 sq.ft. at Door No.5/13, Michael Garden, Ramapuram. The defacto complainant's son was interested in producing a film for which he needed money and hence, the said property was intended to be mortgaged to raise funds. At that time, A3/friend of defacto complainant's son introduced the petitioner/A2 projecting that he would get funds for lesser interest and introduced one Haji Ali/A1 during June 2015. A1 perused the original documents and agreed to finance a sum of Rs.1.25 Crores. Further, A1 requested that a sale deed to be executed in his name with a promise that it was only a mortgage in all sense and once the mortgage amount is repaid, he would re-convey the property and the sale deed is to be used as a security which was confirmed by the other two accused. Believing the promise, a sale deed in Document No.2026/2015 was registered in favour of A1. In the sale deed document, a sum of Rs.1,20,40,000.00 was shown as sale consideration paid by Cheque No.000238 dtd. 27/8/2015 drawn on HDFC Bank, Ashok Nagar Branch. Despite recording of the same in the sale deed, no such cheque was issued. Thereafter, all the accused with common intention used this document to again pledge the document with Cholamandalam Investment Finance Company Limited, obtained loan and used the same for their own purpose and not paid to the defacto complainant. When the defacto complainant questioned the same, two cheques for a sum of Rs.50,00,000.00 and Rs.75,00,000.00 was given by A2 with a condition that only after the instruction from A2, the cheques are to be presented. Each time when the defacto complainant demanded for money, all the accused gave evasive reply. Further, it was found that one Keerthivasan, brother of A2 received around Rs.35.00 lakhs from the mortgaged amount received from Cholamandalam Investment Finance Company Limited. The defacto complainant came to know about the mortgage only after perusing the Encumbrance Certificate and the cheque which was shown in the sale consideration was in fact encashed by the brother of A2. The Bank Officials confirmed the trail of the amount from Cholamandalam Investment Finance Company Limited to the brother of A2 for a sum of Rs.35.00 lakhs and Rs.4.00 lakhs, the balance amount being utilized by A1 to make his payments and on the whole, no money was paid to the defacto complainant for the sale executed. Hence, he lodged a complaint, on registration of FIR enquiry conducted, investigation completed listing L.W.1 to L.W.12, documents collected and charge sheet filed. Against which, the present quash petition is filed.

(3.) The contention of the learned counsel for the petitioner is that the petitioner is arrayed as A2 in this case, the defacto complainant's son Kamal was interested in producing a film for which he needed some money. He would submit that the defacto complainant's son and A3 are friends, so he approached A3 for money, who introduced A2 informing that A2 can find out a financier with less interest and further, who in turn introduced A1 who is a financier, thereafter it was between the defacto complainant and A1 and the petitioner/A2 had no role whatsoever between them. He further submitted that to implicate the petitioner, a projection was made that the petitioner issued two cheques drawn on Standard Chartered Bank for Rs.50.00 lakhs and Rs.75.00 lakhs respectively. L.W.8/Pradeep, Manager of Standard Chartered Bank clearly state that these two cheques were not presented with their Bank. Had there been any cheque given by A2, the defacto complainant would have necessarily deposited the cheques in the Bank which would have either honoured or dishonoured. In this case, the positive evidence is that these two cheques projected against the petitioner/A2 never reached the Bank and it is only a ploy. He further submitted that as regards the receipt of Rs.4.00 lakhs by Keerthivasan, brother of A2 from A1 on 4/9/2015 by way of Cheque bearing No.000238 which is the cheque referred in the sale deed, the petitioner is not aware of the same. Added to it, the brother of the petitioner/A2 is neither an accused nor a witness in this case, in view of the same, this fact cannot be proved. He further submitted that the defacto complainant filed a civil suit in O.S.No.421 of 2015 and the same was dismissed, against which no steps taken. On the contrary, the defacto complainant using the criminal complaint to settle the civil dispute between the defacto complainant and A1, in the process, the petitioner was caught in the cross fire. He further submitted that apart from introducing A1, the petitioner/A2 has got nothing to do in the entire transaction. He would also submit that though the property was pledged by the defacto complainant to A1, the defacto complainant is still in possession of the property, the mortgage dispute is given a criminal colour and the petitioner was falsely implicated in this case. Hence, he prayed for quashing the proceedings against the petitioner.