1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Thursday, the Eighteenth day of August Two Thousand Eleven PRESENT The Hon`ble Ms.Justice R.MALA CRL OP(MD) No.10265 of 2011 C.SUBBAIAH @ KADAMBUR JEYARAJ ... PETITIONER/ACCUSED No.1 Vs THE STATE REP.BY THE SUB-INSPECTOR OF POLICE KOVILPATTI WEST POLICE STATION, KOVILPATTI,THOOTHUKUDI DISTRICT. ( CRIME NO.205 OF 2011 ) ... RESPONDENT/COMPLAINANT LAKSHMIPATHY ... INTERVENOR For Petitioner : M/S. A.THIRUVADIKUMAR Advocate For Respondent : ADDL.PUBLIC PROSECUTOR ( Crl. Side) For Internenor : M/S.SIVA AYYAPPAN, Advocate PETITION FOR BAIL Under Sec. 439 Cr.P.C. ORDER : The Court Made the following order :- The petitioner / A1 is arrayed as an accused and he was arrested and remanded to judicial custody on 26.07.2011 for the alleged offence punishable under Sections 120(B), 294(b), 406, 420, 506(i) read with 35 IPC., and Section 25(1)(A) of the Indian Arms Act,in Crime No. 205 of 2011 on the file of the respondent police and hence, seeks bail. 2. The learned counsel appearing for the petitioner would submit that A1 to A3 and the defacto complainant were jointly doing real estate business from 27.02.2008 to 28.07.2010. While sharing the profits of the real estate business, there was a misunderstanding between the parties and hence, they are entered into a settlement on 19.07.2010 and on that basis, a release deed to be executed by A3. He would further submit that the petitioner is a teacher and it is unbelievable that the defacto complainant has invested a sum of Rs.1,01,47,800/-. Which is against the Government Servants Rules. He would further submit that the complaint has been registered on 06.03.2011 and the investigation is considerable over and since the petitioner is in judicial custody from 26.07.2011 and similarly placed accused were also enlarged on anticipatory bail, he prayed for the enlargement of bail. 3. Repudiating the same, the learned counsel appearing for the intervenor/defacto complainant would submit that the defacto complainant has invested a sum of Rs.1,01,47,800/- for real estate business and while sharing the profit, there was a misunderstanding and they have entered into a settlement on 19.07.2010. He would further submit that it was admitted that at the time of entering into the settlement, the accused persons were willing to give 169 cents in favour of the defacto complainant. Later, the defacto complainant came to know that A1/ the petitioner herein and A3 sold 4 plots to others. Even though, the Court has given a direction on 27.06.2011 to return the original unregistered sale deeds, which were filed by the defacto complainant before this court for the purpose of getting those sale deeds to registered by the executant, the petitioners have not obeyed the order of this Court. He would further submit that the petitioners have already filed a petition https://hcservices.ecourts.gov.in/hcservices/ 2 in Crl OP(MD)No. 1397 of 2011 for anticipatory bail, which was dismissed as withdrawn. He would further submit that the defacto complainant initially has done the real estate business and then only, he joined as Teacher and he borrowed the said money from relatives and friends and invested for real estate business. He would further submit that the petitioner herein is having the Gun and Fired and hence, the defacto complainant is having life threat and hence, he prayed for the dismissal of the bail application. He would rely on various decisions of the Apex Court to substantiate his case. 4. The Learned Additional Public Prosecutor would submit that the occurrence has been taken place in between 27.02.2008 and 28.07.2010 and a case has been registered on 06.03.2011 for the offences under Sections 120(B), 294(b), 406, 420, 506(i) read with 35 IPC., and Section 25(1)(A) of the Indian Arms Act in Crime No. 205 of 2011, on the basis of the complaint forwarded by the Judicial Magistrate No.II, Kovilpatti under Section 156(3) Cr.P.C. He would further submit that the investigation is going on and hence, he prayed for the dismissal of the bail application. 5. Considering the rival submissions made by the learned counsels and perusing the materials available on records, admittedly, A1/the petitioner herein and A3 and the defacto complainant were doing real estate business and as per the version of the learned counsel appearing for the intervenor/defacto complainant, the defacto complainant has invested a sum of Rs.1,01,47,800/- for the business purpose. But, while, sharing the profit, there was a misunderstanding between them and admittedly, they have entered into a settlement on 19.07.2010 and the accused persons agreed to give 169 cents of land to the defacto complainant. Later, A1/ the petitioner herein and A3 sold 4 plots to others. 6. Perusal of the Memorandum of settlement would show that the defacto complainant has made investment and the accused persons are agreed to give 1 acre 69 cents to the defacto complainant. But, they had executed the sale deed in favour of third parties and they have not executed the settlement deed in fovour of the defacto complainant as per the agreement made in the settlement dated 19.07.2010, but A1/ the petitioner herein and A3 sold 4 plots to third parties. 7.It is appropriate on the part of this Court to consider the decision relied upon by the counsel for the intervenor/defacto complainant in Chaman Lal Vs. State of U.P. and another reported in 2004 (3) Crimes 225(SC), it is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are: 1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; 2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. 3. Prima facie satisfaction of the court in Support of the Charge." But, as already stated, while sharing the profit from the real estate business only, the problem has been arisen and they have also entered https://hcservices.ecourts.gov.in/hcservices/ 3 into a memo of understanding on 19.07.2010 and hence prima facie, it is a case of civil in nature. 8. The learned counsel appearing for the intervenor relied upon the following decisions: 1. State of Madhya Pradesh Vs. Kajad reported in 2001 Supreme Court Cases (Cri) 1520, wherein the Apex court allowed the appeal preferred by the State against the granting of bail to the accused by the High Court, without mentioning any change in the circumstances. But, here the petitioner has already filed application only for anticipatory bail and during the pendency of the anticipatory bail application, he was arrested and hence, the same was dismissed as infructuous. Now, he has filed a fresh application for granting of bail. Hence, the said decision is not applicable to the facts of the present case. 2. Masroor Vs.State of U.P. and another reported in 2009(2) Crimes 281 (SC), wherein the Apex Court has held in para 12 as follows: “It is trite to state that the Court granting bail has to exercise its discretion in a judicious manner with care and caution and not as a matter of course. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided but there is a need to indicate in such order reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail, they are: “a. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. b. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. c. Prima facie satisfaction of the Court in support of the charge.” 3. In the decision in Gobarbhai Naranbhai Singala Vs.State of Gujarat and others reported in 2008(1) Crimes 274(SC), the Apex Court has held that while considering the application for bail, what is required to be looked is, (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of section; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of https://hcservices.ecourts.gov.in/hcservices/ 4 course, of justice being thwarted by grant of bail. 4. In the decision of Vaman Narain Ghiya Vs.State of Rajasthan reported in AIR 2009 Supreme Court 1362, the Apex Court has held as follows: “While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his case has been prejudged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. (See Niranjan Singh and another V.Prabhakar Rajram Kharote and others. AIR 1980 SC 785). Where the offence is of serious nature the question of grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public. (See State of Maharastra V.Anand Chaintaman Dighe AIR 1990 SC 625 and State V.Surendranath Mohanty 1990(3)OCR 462).” 9. Considering the above decisions along with the facts of the present case, admittedly, the transaction between both the parties were taken place between 27.02.2008 and 28.07.2010. The present petitioner, A3 and the defacto complainant were doing real estate business. As per the version of the defacto complainant, he has invested a sum of Rs.1,01,47,800/- for the business purpose. But, while sharing the profits, there was a misunderstanding between them and they have entered into a settlement on 19.07.2010 and the petitioner and other persons are agreed to give 169 cents to the defacto complainant. Later, A1/the petitioner herein and A3 sold 4 plots to the third parties. Then only, the complaint, has been given on 06.03.2011 and then, A1 was arrested and remanded to judicial custody. In such circumstances, since, the similarly placed accused were released on anticipatory bail, I am inclined to grant bail to the petitioner/A1. 10. Accordingly, the petitioner/A1 is ordered to be released on bail on executing a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties for a like sum to the satisfaction of the learned Magistrate No.2, Kovilpatti concerned and on further condition that the petitioner/A1 shall report the Court concerned daily at 10.30 a.m. until further orders. sd/- 18/08/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) TO 1 THE JUDICIAL MAGISTRATE NO.II,KOVILPATTI,THOOTHUKUDI DISTRICT. 2 DO-THRO' THE CHIEF JUDICIAL MAGISTRATE, THOOTHUKUDI. 3 THE PUBLIC PROSECUTOR,MADURAI BENCH OF MADRAS HIGH COURT MADURAI. 4 THE SUB-INSPDECTOR OF POLICE, KOVILPATTI WEST POLICE STATION, KOVILPATTI,THOOTHUKUDI DISTRICT. 5 THE SUPERINTENDENT OF CENTRAL PRISON, PALAYAMKOTTAI CENTRAL PRISON, PALAYAMKOTTAI +1 CC to M/S. A.THIRUVADIKUMAR Advocate SR.No.28055 ORDER IN CRL OP(MD) No.10265 of 2011 PA/18.08.2011/4P/7C Date :18/08/2011 https://hcservices.ecourts.gov.in/hcservices/