1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT (Criminal Jurisdiction) Thursday, the Third day of November Two Thousand Eleven PRESENT The Hon`ble Mr.Justice S.NAGAMUTHU CRL OP(MD)No.13501 of 2011 1 A.P.NATARAJAN 2 MALUVENTHAN @ MALAIVENTHAN :PETITIONERS / ACCUSED 1,2 -Vs- THE STATE REP. BY THE INSPECTOR OF POLICE, SHOLAVANDAN POLICE STATION,MADURAI DISTRICT. :RESPONDENT / COMPLAINANT T. PANDIARAJAN :INTERVENOR (MP(MD)1/11) For Petitioner : M/S. N.JEYAKUMAR Advocate For Respondent : MR.K.S.DURAIPANDIAN, ADDL. PUBLIC PROSECUTOR. For Intervenor : MR.P.SHANMUGARAJASETHUPATHY, Advocate. PETITION FOR ANTICIPATORY BAIL Under Sec.438 Cr.P.C. ORDER:The Court Made the following order:- The petitioners are accused Nos.1 and 2 in Crime No.185 of 2011 on the file of the respondent police for offences under Section 457 and 380 I.P.C Apprehending arrest at the hands of the respondent police, the petitioners have come up with this petition seeking anticipatory bail. 2.According to the case of prosecution, the coir factory in question was owned by the first petitioner. He had obtained loan from the Tamil Nadu Industrial Investment Corporation Limited, Madurai by mortgaging the said property. Since he did not repay the amount, the property was brought for sale by the said Corporation and in the said open auction, the de-facto complainant became the successful bidder. The sale was therefore completed by the Corporation in favour of the de-facto complainant in the year 2003 and therefore, the possession was also handed over to the de-facto complainant and patta was also transferred in the name of the de-facto complainant. While so, it is alleged that these two petitioners trespassed into the property on 09.03.2011 and took away the machineries, iron rods and all that properties worth Rs.10,00,000/-. Though a complaint was preferred to the respondent, no case was registered. Thereafter, on the direction issued by this Court, the present case has been registered. So far as the second petitioner is concerned, he is the watch man of the said property. 3.The learned counsel appearing for the petitioners would submit that though it is true that the property was brought for sale in public auction by the Tamil Nadu Industrial Investment Corporation Limited, Madurai, the first petitioner could not participate in the auction. Because, the first petitioner had earlier filed a petition under the provisions of the Insolvency Act, seeking to declare himself as an insolvent. Therefore, according to the learned counsel, the first petitioner gave money by mobilizing the same from various friends and wanted the de-facto complainant to proceed with the auction. Accordingly, the de-facto complainant participated in the auction. Subsequently, when the de-facto complainant started to deny the right of the first petitioner, a suit was filed by the first petitioner in O.S.No.35 of 2009 before the learned District Munsif, Vadipatti, the said suit is pending. He would further submit that there is https://hcservices.ecourts.gov.in/hcservices/ 2 also a criminal case pending against the de-facto complainant. In these circumstances, according to the learned counsel appearing for the petitioners, the petitioners are innocent and since the first petitioner has got rival claims over the property, they are entitled for anticipatory bail. 4.The learned Additional Public Prosecutor, reiterating the allegations made in the F.I.R would oppose for the grant of anticipatory bail to the petitioners. 5.The de-facto complainant filed M.P(MD)No.1 of 2011 seeking to intervene in this matter. The same has been allowed. 6.The learned counsel appearing for the intervenor would bring to my notice that the sale was completed and the possession was also handed over to the de-facto complainant. He would further submit that initially, the police did not take any action on the complaint preferred by the petitioners and with great difficulty, a direction was obtained from this Court for registering a case and in which, the investigation is in progress. 7.The learned counsel appearing for the intervenor would further submit that worth of the properties stolen away by the petitioners is more than Rs.10,00,000/-. 8.I have considered the above submissions. 9.As of now, there is no dispute that the de-facto complainant is the auction purchaser in the public auction conducted by the Tamil Nadu Industrial Investment Corporation Limited, Madurai. Thereafter, possession was also handed over to the de-facto complainant. Now the claim of the petitioners is that money was paid only by the first petitioner to the de- facto complainant to participate in the auction and thus, the de-facto complainant is only a benamidhar. It is doubtful whether it is available for the first petitioner to make such a claim that the de-facto complainant is only a benamidhar, in view of Section 4 of the Benami Transactions (Prohibition) Act, 1988. Further, it is seen that earlier, the first petitioner filed I.P.No.4 of 1999 before the III Additional Sub-Court, Madurai, for declaring himself as an insolvent. When that be so, simply because of filing of the suit in O.S.No.35 of 2009, the petitioners cannot take law in their own hands. In any event, the stolen articles worth about Rs.10,00,000/- have not been recovered so far. Therefore, in my considered view, there is a prima facie case made out against the petitioners and if the petitioners are granted anticipatory bail, the same would surely hamper the further investigation and the custodial investigation is very much essential in this case. 10.In view of the above, I am not inclined to grant anticipatory bail to the petitioners. Hence, this Criminal Original petition is dismissed. sd/- 03/11/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) TO: 1.THE PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. 2.THE INSPECTOR OF POLICE, SHOLAVANDAN POLICE STATION, MADURAI DISTRICT. +1CC TO MR.D.SHANMUGARAJASETHUPATHI, ADVOCATE. SR.NO.37883. RP/04.11.2011/2p/4c. ORDER IN CRL OP(MD) No.13501 of 2011 Date :03/11/2011. https://hcservices.ecourts.gov.in/hcservices/