IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.12.2010 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN Crl.O.P.No.22599 of 2010 M.Raj Kumar .... Petitioner Vs. 1.State By: Inspector of Police Central Crime Branch Egmore, Chennai 2.M/s.Madras Madurai Properties Ltd., Rep.by its Managing Director Mr.V.Ayyadurai ..... Respondents Prayer : Criminal Original Petition filed under Section 438 of the Code of Criminal Procedure, to enlarge the petitioner on bail in the event of his arrest at the hands of the first respondent in Xcrime No.374 of 2007, pending investigation on their file. For Petitioner : Mr.A.Ramesh,Senior Counsel for M/s.Manoj Sreevalson and B.Mohan For Respondents : Mr.J.C.Durairaj, Government Advocate (Crl.Side) for R1 M/s.Sanjay Ramasamy for R2-N/A O R D E R Seeking the relief of anticipatory bail, in the event of arrest at the hands of the respondent Police, the petitioner has approached this Court, after invoking the proviso to Section 438 of Cr.P.C. 2.Totally seven accused are implicated in the case in Crime No.374 of 2007, on the file of the respondent Police, for the alleged offence under Sections 420, 465, 466, 467, 468, 471 and 120(B) of I.P.C. The petitioner herein is ranked as first accused, whereas S.A.A.Ramaiah Chettiar, P.Arumugam, M.N.Ramanathan, A.Subramanian, https://hcservices.ecourts.gov.in/hcservices/ Mani alias S.S.Manian and Ramachandran are ranked as A2 to A7. Out of which A2 S.A.A.Ramaiah Chettiar and A3 P.Arumugam had passed away on 16.10.2006 and 07.11.2007 respectively. Out of five accused A4 to A7 were arrested and remanded to judicial custody by the Additional Chief Metropolitan Magistrate, Egmore, Chennai. Subsequently, they were released on bail. The first accused, who is the petitioner herein, has not yet been apprehended by the respondent Police and hence he has come forward with this petition. 3.It is apparent that this case has been registered by the respondent Police in the year 2007 in Crime No.374 of 2007 on the basis of a complaint lodged by one Mr.V.Ayyadurai, who is the Director of M/s.Madras Madurai Properties Limited and arraigned as second respondent in this petition. 4.It is pertinent to note here that similarly placed four petitions viz.Crl.O.P.Nos.20265 of 2007, 25218 of 2007, 35081 of 2007 and 6929 of 2008 for the relief of granting anticipatory bail were dismissed on 30.07.2007, 24.07.2010, 10.01.2008 and 30.04.2008 respectively. Out of the said four anticipatory bail petitions, the third petition in Crl.O.P.No.35081 of 2007 was dismissed as withdrawn. It is obvious to note here that more or less after 2 ½ years, the petitioner has once again made his third innings, with this petition for the same relief for granting anticipatory bail in the event of his arrest by the respondent Police. 5.On perusal of earlier order passed by this Court, it is exposed that a representation was made on behalf of the respondent Police that the apprehension of the petitioner and his custodial interrogation is absolutely necessary to unearth the case behind. It is also represented that a special team has been formed to nab the petitioner. Even at the time of hearing of this petition also, a representation was made by the learned Public Prosecutor that a special team has been formed consisting of the Inspector of Police, attached to the respondent Police station and two head constables and placed informers at various places, including the petitioner's house, where he expected to come. On perusal of the materials available on record it reveals that on 13.10.2009, this Court had passed an order in Crl.O.P.21989 of 2009, granting three months time to the respondent police from 13.10.2009 to complete the investigation and to file a final report. In the said order, the Hon'ble Judge has also made an observation that the learned Public Prosecutor had submitted that the investigation was almost over and the final report would be filed at the earliest. It is pertinent to note here that this order seems to have been passed on 13.10.2009. But, even after passing of one year, the respondent police is not able to complete the investigation and file the final report, in compliance of the https://hcservices.ecourts.gov.in/hcservices/ directions issued by this Court. However, it is also revealed that the petition in M.P.No.1 of 2010 in Crl.O.P.No.21989 of 2009 was filed on 09.06.2009 seeking extension of time to a further period of five months to file the final report. But, the fate of the petition has not been disclosed. 6.Section 438(1) of Cr.P.C. contemplates that "When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors. (i) The nature and gravity or seriousness of the accusation as apprehended by the applicant; (ii) The antecedents of the applicant including the fact as to whether he has, on conviction by a court previously undergone imprisonment for a term in respect of any cognizable offence; (iii) The likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested, and (iv) The possibility of the applicant, if granted anticipatory bail, fleeing from justice, either reject the application forth with or issue an interim order for the grant of anticipatory bail: Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application." 7.The Apex Court, in the case of Gurubaksh Singh Sibbia v. State of Punjab, reported in (1980) 2 SCC 565 : (1980 Cri LJ 1125) has imposed certain restrictions for grant of anticipatory bail under Section 438 of Cr.P.C. While penning down the judgment, his Lordship Hon'ble Mr.JUSTICE Y.V.CHANDRACHUD, Chief Justice of India (as he then was) in Paragraph No.33 of the Judgment has observed that the High Court and the Court of Session have to evolve their own https://hcservices.ecourts.gov.in/hcservices/ principles and restrictions for care and caution to grant anticipatory bail to the applicants involved in serious offences. Accordingly, the category of persons, who may grant anticipatory bail under Section 438 of Cr.P.C. has been enlisted in the following manner i)Government servants, ii)Minors, iii)Women, iv)Old and infirm persons, v)Handicapped persons, vi)Persons having permanent disability and persons, who are involved in petty cases, who are likely to be harassed in police custody. It is also observed that for the other category of cases, the general law of bail is available in Section 439 of Cr.P.C. Besides this, as rightly observed in Narayansing v. State of Madhya Pradesh reported in 1996 Crl.L.J.551, the discretion of granting anticipatory bail is to be exercised sparingly in appropriate cases with due care and caution. 8.On coming to the instant cases on hand, the case of the prosecution in brief is that Mr.V.Ayyadurai, Managing Director of M/s.Madras Madurai Properties Pvt., Ltd., who is the second respondent herein had lodged a complaint on 14.06.2007 before the first respondent police alleging that his family friend and auditor Mr.M.Rajkumar, who is the petitioner herein, had induced him to purchase the property admeasuring 10 Grounds, situated at Door No.58/59, comprised in Survey No.915, Hunters Road, Vepery, Purasawalkam, Chennai-7, from one Mr.P.Arumugam, who is the power agent of Mr.S.A.A.Ramaiah Chettiar, for a consideration of Rs.4.79 Crores. A registered sale agreement, in this connection, was entered into between the complainant Mr.V.Ayyadurai and Mr.P.Arumugam, who is the power agent of Mr.S.A.A.Ramaiah Chettiar on 10.02.2006. Thereafter, on verification, it was found that the entire documents, relating to the property given by the petitioner Mr.Rajkumar, were found to have been fabricated with the fraudulent intention. It is also the case of the prosecution, that the complainant Mr.V.Ayyadurai had received Court summons from the City Civil Court, Chennai in a suit said to have been filed by one Mrs.Sharsheeta Sukumar through her power agent Mr.Vinod Kumar claiming that the entire property is belonged to her father Mr.C.M.Thiyagarajan and that her father had given a power of attorney to Mr.G.Prabhakaran in order to get the acquired lands from the Government of Tamil Nadu. 9.It is also revealed that the Commissioner of Police, Chennai had forwarded the complaint dated 14.06.2007, which was lodged by the second respondent to the then Inspector of Police CCB, Team-VI. Based on that, a case in Central Crime Branch Crime No.374 of 2007, under Sections 420, 465, 466, 468, 471 and 120(b) I.P.C. was registered by the then Inspector of Police, CCB, Team-VI, on 20.07.2007 and took up the case for investigation. As adumbrated in the forgoing paragraphs, the similarly placed four anticipatory bail petitions were dismissed by this Court. https://hcservices.ecourts.gov.in/hcservices/ 10.Now, the learned counsel for the petitioner has submitted that the petitioner Mr.M.Rajkumar is a charted accountant, having a standing practice of 27 years in the profession and that he has been commanding long list of well-reputed clientele through the years. Further, the learned counsel has submitted that the complainant to the first respondent Police Mr.V.Ayyadurai, who is the second respondent herein, is a chemical engineer and M.B.A.Graduate and he had been a client of the petitioner for about ten years and that the petitioner was also the auditor of the complainant's company viz.M/s.Millenium Software Productions India (P) Ltd., Further, the learned counsel submits that the petitioner has also added that the petitioner being a professional having wide contacts, came to know that one Mr.Murugappan Chettiar and his family were holding a prime property at Sriperumbudur measuring about 70 Acres and this was informed by the petitioner to Mr.Ayyadurai. The petitioner in view of his long association with Mr.Ayyadurai did his bit by introducing him to the said Mr.Murugappan Chettiar and therefore the complainant Mr.Ayyadurai was able to successfully acquire this property in June 2005. 11.The learned counsel has also added that prior to the alleged transaction, which is in question in this case, the complainant Mr.Ayyadurai had entered into a land deal with Mr.Ramiah Chettiar, who was in the process of selling one of his properties at M.R.C.Nagar, Chennai, measuring to an extent of 10 Grounds. The complainant Mr.Ayyadurai had also proceeded to deal with Mr.Ramaiah Chettiar directly, which resulted into a sale agreement with Mr.Ramaiah Chettiar in respect of M.R.C.Nagar property and also paid an advance of Rs.50,00,000/-. The learned counsel has also added that the said land transaction was entered into between one Mr.P.Arumugam, who is the power agent of Mr.Ramaiah Chettiar and the complainant Mr.Ayyadurai. The learned counsel has also maintained that the land deal between the Mr.Ramaiah Chettiar and Mr.Ayyadurai did not materialise primarily for the reason that there was a huge tax liability on this M.R.C.Nagar property. Another reason for not materialising the previous land deal was that an additional advance amount was sought for by the seller for which the complainant Mr.Ayyadurai was obliged. Further, the learned counsel has also canvassed that inspite of sale agreement for the M.R.C.Nagar property being called off the amount paid by the Mr.Ayyadurai was not returned by Mr.Ramaiah Chettiar and instead of taking return of this advance of Rs.50,00,000/- Mr.Ayadurai entered into another agreement with Mr.Ramaiah Chettiar for the Hunters Road property on 10.02.2006 after paying an additional sum of Rs.178 lakhs by demand draft and also mutually agreeing for an interest on Rs.50,00,000/- thus accounting for a total advance of Rs.230 lakhs, which is the subject matter of https://hcservices.ecourts.gov.in/hcservices/ crime alleged in this case. 12.Further, the learned counsel has also submitted that the petitioner herein has nothing to do with this new agreement dated 10.02.2006 entered into between Mr.Ayyadurai and Mr.Ramaiah Chettiar, through his power agent Mr.Arumugam and that it came to light that Mr.Ayyadurai had infact negotiated with the previous agreement holder namely Mr.G.Prabakaran for this subject property and got his agreement with Mr.Ramaiah Chettiar cancelled on 08.02.2006 before he enter into the agreement for this property on 10.02.2006. It is also submitted that the said Mr.G.Prabhakaran was understood to have also entered into a separate agreement with one Mr.C.M.Thiagarajan (since deceased)in respect of the Hunters Road property on an apparent rival claim to the property. The learned counsel has also adverted to that C.M.Thiagarajan's daughter Mrs.Sarsheetha had filed a suit in O.S.No.488 of 2007 for injunction against the said Mr.G.Prabhakaran, Mr.Ayyadurai and also against Mr.David of JBJ City Developers, in respect of the Hunters Road property on which Mrs.Sarsheetha is taking rival claim to title. Further, the learned counsel has also added that the petitioner being a chartered accountant is a respectable person hailing from one of the reputed families in Madurai and has deep roots in the society and has no reason whatsoever to commit a crime as falsely alleged and that if he is arrested by the first respondent police definitely he will be put into irreparable loss of reputation and hardships and his entire professional career would be spoiled. Hence, he urged to grant relief of anticipatory bail in favour of the petitioner. 13.On the other hand, the learned Public Prosecutor has submitted that the first respondent police has conducted the investigation in a fair and proper manner and that a custodial interrogation in respect of the petitioner is indispensably necessary and hence he has vehemently objected to grant anticipatory bail to the petitioner. He has also submitted that the petitioner had been abutting arrest of the first respondent police and due to this reason a Special Team has been formed to apprehend the petitioner. 14.This Court has carefully considered the submissions made on behalf of the both sides. It is apparent that there was some business transaction between the petitioner and the second respondent. It is also apparent that a sum of Rs.4.79 Crores is involved in this case. It is also pertinent to note that though the case has been registered in the year 2007 that too on 27.02.2007 on the file of the first respondent police till date the petitioner is not able to be arrested by the first respondent police. It is obvious that except the petitioner other accused were arrested and subsequently released on bail. https://hcservices.ecourts.gov.in/hcservices/ 15.The learned Public Prosecutor has submitted that the custodial interrogation of the petitioner is very much essential. This Court find some force on the arguments advanced by the learned Public Prosecutor, since this case revolving around a land dispute, which is valued at Rs.4.79 Crores, this Court has to act with due care and caution in exercising its discretionary power in granting the relief of anticipatory bail as envisaged under Section 438 of Cr.P.C. It is also important to note that already this Court has elaborately discussed while dismissing the first bail application in Crl.O.P.Nof.20265 of 2007, on 30.07.2007. But, till date it appears there is no change of circumstance. 16.It is very essential to be pointed out that this Court has specifically directed the first respondent Police to complete the investigation within the steal framed time of three months, while penning down the order in Crl.O.P.No.21989 of 2009 on 13.10.2009. But, this order has apparently been flouted by the first respondent Police, as observed by this Court in N.K.S.M.Shahul Hameed and etc., v. Mohamed Ibrahim and another, reported in 1992 Crl.L.J.227. Since the investigation is still pending and this case is of serious in nature involving a huge amount of Rs.4.79 Crores, in the absence of substantial change in the circumstances it is not proper to grant the relief of anticipatory bail to the petitioner. 17.It is also important to note that the discretion of this Court should be exercised judiciously having regard to the facts and circumstances of this case. In R.L.Jalappa v. Delhi Police Establishment, reported in 1989(3) Crimes 113, a Single Judge of Karnataka High Court has observed that power to grant of anticipatory bail under Section 438 of Cr.P.C. should be exercised with due care on the circumstance of the petition. However, the grant of bail is the rule and refusal is the exception. On coming to the instant case on hand, this Court has thoroughly gone through the materials available on record. Having regard to the submissions of both sides and also perusal of earlier orders, this Court is of the considered view that this is not the high time to grant relief of anticipatory bail to the petitioner. 18.With the above observation, this petition is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk https://hcservices.ecourts.gov.in/hcservices/ To 1.Inspector of Police Central Crime Branch Egmore, Chennai 2. The Public Prosecutor, High Court, Madras – 600 104. Crl.O.P.No.22599 of 2010 jsv(co) pmk.29.12.2010 https://hcservices.ecourts.gov.in/hcservices/