1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.03.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.1253 and 1812 of 2011 K.S.Palanisamy ... Petitioner in both petitions Vs. State through The Inspector of Police, Economic Offence Wing, in crime No.6 of 2010 Madurai. ... Respondent in both petitions PRAYER: These Criminal Original Petitions are filed under Section 482 of the Code of Criminal Procedure, to modify the conditions imposed by the Special TNPID Court, Madurai dated 10.01.2011 in Crl.M.P.No.3 of 2011 and Crl.M.P.No.2468 of 2010 respectively in crime No.6 of 2010. For Petitioner in both petitions :Mr.R.Venkatesh For Respondent :Mr.L.Murugan Govt. Advocate (Crl.side) For intervenor in M.P.(MD) No.1 of 2011 in Crl.O.P.No.1253 of 2011 and 1812 of 2011 : Mr.T.Lajapathi Roy(Amicus Curiae) For intervenor in M.P.(MD) No.2 of 2011 in Crl.O.P.No.1812 of 2011 :Mr.K.P.S.Palanivel Rajan O R D E R This petition has been filed by the petitioner to modify the conditions imposed by the Special TNPID Court, Madurai dated 10.01.2011 in Crl.M.P.No.3 of 2011 and Crl.M.P.No.2468 of 2010 respectively in crime No.6 of 2010. 2.Heard Mr.R.Venkatesh, learned counsel for the petitioner in both petitions and Mr.L.Murugan, learned Government Advocate (criminal side) appearing for the State and Mr.T.Lajapathy Roy, Amicus Curiae for the intervenor viz., Paazee Nidhi Niruvanathal Bathikapattore Nala Sangam in both petitions and Mr.K.P.S.Palanivel Rajan, learned counsel for the intervenor in M.P.(MD) No.2 of 2011 in Crl.O.p.(MD) No.1812 of 2011. 3.The learned counsel appearing for the petitioner would submit in his argument that the petitioner is an accused in crime No.6 of 2010 on the file of the respondent police and the petitioner was not granted bail under Section 437 Cr.P.C., he was in custody for more than the statutory period and since the respondent police did not file charge sheet within the time allowed by law, the petitioner had applied for statutory bail under Section 167(2) Cr.P.C. and the same was ordered by the lower Court. https://hcservices.ecourts.gov.in/hcservices/ 2 4.He would further submit in his argument that while the lower Court is ordering bail, it has imposed conditions of executing personal bond for a sum of Rs.5 lakhs along with two sureties and also to deposit a sum of Rs.2 lakhs to the credit of the said crime Number and also to surrender the original title deeds for the purpose of releasing the petitioner on bail. 5.He would further submit that the imposition of condition that the petitioner has to execute the bond for a sum of Rs.5 lakhs along with two sureties would be sufficient and the condition of depositing a sum of Rs.2 lakhs as well as the surrendering of original title deeds belonging to the petitioner are onerous. 6.He would further submit that the petitioner has complied with the condition of depositing a sum of Rs.2 lakhs to the credit of the crime Number and he is only asking for the modification of condition of surrendering the original title deeds. He would further submit that the said title deed are not at all necessary for the purpose of the case so as to secure the presence of the petitioner. 7.He would further submit in his argument that the petitioner had mortgaged the property with third persons and he had surrendered the said title deeds with him and the same are not available with the petitioner. In such circumstances, he would request the Court that the condition of depositing sum of Rs.2 lakhs to the credit of the crime number as well as the surrender of title deeds may be modified and he would request the Court to pass suitable orders. 8.The learned Government Advocate (criminal side) would submit in his argument that the petitioner was granted statutory bail under Section 167(2) Cr.P.C. with conditions considering the gravity of the offence he has committed. He would further submit that the total number of Depositors cheated would be more than 20,000 and the claim of the Depositors would run to several Crores and considering the quantum of the amount cheated by the petitioner, the conditions imposed are very much reasonable. Therefore, he would request the Court to dismiss the modification petitions. 9.The Amicus Curiae appointed by this Court for the intervenor in M.P.(MD) Nos.1 of 2011 in both petitions would submit in his argument that the petitioner is the accused, who had cheated more than 20,000 Depositors and the deposit would run to several Crores. Even though the properties have been attacked under Section 3 of the TNPID Act, the petitioner was directed to produce the original title deeds as one of the conditions for the grant of bail. 10.He would further submit that the said condition cannot be considered as onerous since the title deeds are essential for the secured repayment of the deposited money to the Depositors. He would further submit that the submission of the learned counsel for the petitioner that the original title deeds have been mortgaged with third persons would go to show that he is secreting the original title deeds instead of producing those deeds. https://hcservices.ecourts.gov.in/hcservices/ 3 11.He would further submit that if really, he is interested to get bail by complying with the condition, he would discharge the mortgage and get the title deeds and produce the same into Court. Apart from that, the petitioner has not furnished any details of third party mortgagers nor any dates of registration of such mortgages. 12.He would further submit that the unregistered mortgages are not sustainable in law except an equitable mortgage, but the petitioner has not stated that he has mortgaged the properties through equitable mortgage. Therefore, the allegations made by the petitioner cannot be relied upon. He would further submit that the conditions imposed by the Court are not onerous and therefore, the judgment cited by the learned counsel appearing for the petitioner would not be applicable to the facts of this case. The Depositors are largely awaiting for salvation from and out of the estate of the petitioner and if the condition is relaxed, the rights of the Depositors will be defeated and the provisions of the TNPID Act are likely to be taken away. 13.He would further submit that the object of the direction to surrender title deeds is to protect the interest of the Depositors and the conditions imposed against the petitioner are therefore not onerous. He would also submit that even though the petitioner has asked for the modification of the condition of deposit of Rs.2 lakhs into the Court has voluntarily paid and it would show the petitioner is also having the custody of the original documents and he has come forward with the false plea that he has mortgaged the properties to some other third parties. Therefore, he would request that there is no truth in the allegations made by the petitioner and therefore, the petitions have to be dismissed. 14.The learned counsel appearing for the intervenor in M.P.(MD) No.2 of 2011 in Crl.O.P.(MD) No.1812 of 2011 would submit in his argument that the conditions imposed by the Court under Section 167(2) Cr.P.C. is permissible since the Court can impose conditions under Section 167(2) Cr.P.C., like the conditions to be imposed under Section 437 Cr.P.C. He would further submit that the special provisions contained in TNPID Act would protect the depositors from the evil designs of the petitioner and therefore, the condition imposed by the lower Court is perfectly right and there is no necessity for modification or relaxation of the condition imposed against the petitioner. 15.I have given anxious thoughts to the arguments advanced on either side. 16.According to the petitioner's counsel, the conditions imposed are onerous. He has also cited the judgment in support of his argument reported in (2009) 4 Supreme Court Cases 45 in between Munish Bhasin and others Vs. State (Government of NCT of Delhi) and another, wherein it has been held that onerous conditions shall not be imposed. The relevant portion would run thus: "Para 10. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. There is no manner of doubt that the court having regard to the facts and https://hcservices.ecourts.gov.in/hcservices/ 4 circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code." For the same proposition of law, he has cited yet another judgment reported in (2009) 12 Supreme Court Cases 721 in between Ramathal and others Vs. Inspector of Police and another and the relevant passage would run as follows: "Para 16. It is not disclosed from the record that the High Court considered the entire facts of the case in proper perspective and proceeded to dispose of the prayer for anticipatory bail oblivious of the facts of the case and contrary to correct legal position with regard to law relating to grant of anticipatory bail. The High Court should have considered the entire facts of the case including the gravity of the offence alleged and in the light thereof should have considered the prayer for grant of anticipatory bail. In that view of the matter, we feel that the entire order passed by the High Court is required to be set aside and the matter to be reconsidered in accordance with law and in terms of observations made therein." 17.On a careful perusal of the said decisions of the Hon'ble Apex Court, we could see that the conditions should not be onerous and at the same time, the interest of the complainant should be protected and all necessary facts should have been appraised before imposing any condition. As far as this case is concerned, the bail obtained by the petitioner is upon a special legislation viz., TNPID Act and the provisions of TNPID Act are applicable for the given case. The procedures contemplated under the said Act would go to show that the properties belonging to the accused shall be liquidated and it should have been distributed to all the Depositors and therefore, the Depositors are entitled to the proceeds of the said properties. This is a peculiar circumstance happened in this case and therefore, suitable directions have to be made for the repayment of dues to all the Depositors from and out of the properties. 18.No doubt, it is true that the Depositors were not paid with the money they deposited. However, the petitioner has come forward with the plea that he has mortgaged the properties with the 3rd parties and therefore, he is not having any title deeds. As rightly pointed out by the learned Amicus Curiae and also the counsel for the intervenor in M.P. (MD) No.2 of 2011 in Crl.O.P.(MD) No.1812 of 2011, the petitioner has not come forward with any particulars of date, amount, records and the description of property to which he has mortgaged and the particulars of persons (i.e.) mortgagees . 19.Under such circumstances, the rights of parties, viz., the Depositors are to be protected by virtue of the imposing of condition to produce the title deeds and therefore, they cannot be considered as onerous. The mere allegation that those title deeds were with the mortgagees of the petitioner cannot be accepted. However, the requirement of depositing the title deeds in an offence committed under TNPID Act cannot be considered as onerous. https://hcservices.ecourts.gov.in/hcservices/ 5 20.Admittedly, the petitioner has complied with the condition of depositing a sum of Rs.2 lakhs to the credit of crime No.6 of 2010. In such circumstances, the claim for relaxing the condition of depositing of a s um of Rs.2 lakhs is not necessary to the petitioner. The lower Court has also detailedly discussed regarding the imposing of conditions against the petitioner, even though it is a statutory bail under Section 167(2) Cr.P.C, and had correctly imposed the conditions to be complied with for the grant of bail. Therefore, those conditions imposed by the lower Court cannot be considered as onerous in the light of the judgment of the Hon'ble Apex Court. Therefore, the claim of the petitioner to modify the conditions imposed regarding the deposit of sum of Rs.2 lakhs to the credit of the crime number as well as to surrender the title deeds belonging to the petitioner cannot be modified or set aside. The lower Court had imposed the condition of surrendering the title deeds of all the properties of the petitioner for complying with the condition for bail. This Court is further clarifying that all the title deeds of the properties belonging to the petitioner shall be surrendered before the trial Court for obtaining bail as granted to the petitioner. 21.For the forgoing discussions, this Court is not inclined to modify the condition imposed against the petitioner or to set aside the same and the petitions are liable to be dismissed and accordingly, the same are dismissed. Sd/- Assistant Registrar (T&P) /True copy/ Sub Assistant Registrar To 1.The Inspector of Police, Economic Offence Wing, Madurai. 2.The Special Court for TNPID Cases, Madurai. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +2CC TO MR.T.LAJAPATHI ROY, ADVOCATE SR.11365 & 11366 arul SR : 19.07.2011 : 5p/6c Crl.O.P.(MD)No.1253 and 1812 of 2011 03.03.2011 https://hcservices.ecourts.gov.in/hcservices/