A.GURUSAMY Vs. M.SINGAMUTHU

JUDGEMENT

(1.) The complainant in a private complaint is the petitioner. In this Revision Petition filed under Section 397 and 401 Cr.P.C., challenge is made to the order dated 08.04.2008 in M.P. No. 1853 of 2008 passed by the XXIII Metropolitan Magistrate, Saidapet, Chennai-15 dismissing the private complaint filed by the petitioner. The respondents were shown as the accused in the private complaint, wherein, the petitioner made a prayer to take the complaint on the file alleging that the respondents/accused committed an offence punishable under Sections 403, 406, 420, 423, 506(ii) read with Sections 34 and 109 IPC. The case of the complainant is that he is the owner of the property at K.K. Nagar, having purchased the same by a Registered Sale Deed dated 20.01.1988 and he constructed a superstructure by availing house building advance from his employer-Tamil Nadu Housing Board and created mortgage in favour of the Board to secure the loan. The mortgage was duly registered in Document No. 1304/1989. It is further stated that the complainant borrowed a sum of Rs. 3.25 lakhs from the first respondent/first accused on various dates.

(2.) It is further stated that the petitioner had divorced his wife and during 1994; he was transferred to Villupuram; at that stage, the first accused demanded for repayment of the money; therefore, the complainant on 25.05.1995 executed an agreement to sell the property, agreeing to sell the property for total consideration of Rs. 4,75,000/- and the loan amount of Rs. 3,25,000/- to be treated as advance. In terms of the agreement, the first accused undertook to discharge the mortgage loan to Tamil Nadu Housing Board and the balance amount of Rs. 1,50,000/- to be paid to the complainant. Taking advantage of the strained relationship between the complainant and his divorced wife, it is stated that the first accused demanded handing over of the possession of the property and though the divorced wife of the complainant was in possession of the property, in the agreement, there was recital that the possession was handed over to the first accused. On the date, when the agreement for sale was entered into, a Power of Attorney was executed by the complainant in favour of the second accused/wife of the first accused. In the recitals in the said Power of Attorney, it is stated as if the possession was handed over to the second accused.

(3.) It is the case of the complainant that General Power of Attorney was given only as security for the loan of Rs. 3,25,000/-. It is further stated that there was a specific understanding that the Power of Attorney would be acted only if the divorced wife of the complainant created any problem. It is stated that as against the decree of divorce, the wife filed C.M.A. No. 3865/2005 before this Court, which is stated to have been pending at the time of filing of the private complaint.