BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Thursday, the Twenty Second day of September Two Thousand Eleven PRESENT The Hon`ble Ms.Justice R.MALA CRL OP(MD) Nos.12421 & 12448 of 2011 PALANI KUMAR : PETITIONER/ACCUSED NO.3 IN CRL OP NO.12421/11 J.SAMUEL : PETITIONER/ACCUSED NO.2 IN CRL OP NO.12448/11 Vs. 1. THE STATE REP.BY THE INSPECTOR OF POLICE CITY CRIME BRANCH, (LAND GRAB PREVENTION CELL) TIRUNELVELI CITY. (CRIME NO.36 OF 2011) : 1st RESPONDENT/COMPLAINANT IN BOTH THE PETITIONS 2. THE COMMISSIONER OF POLICE TIRUNELVELI CITY, TIRUNELVELI. : 2nd RESPONDENT/COMPLAINANT IN CRL OP NO.12448/11 For Petitioner in Crl.O.P No.12421/11 : M/S. R.ANAND Advocate For Petitioner in Crl.O.P No.12448/11 : M/S. N.DILIP KUMAR Advocate For Respondent : Mr. A.RAMAR Additional Public Prosecutor in both the petitions For Intervener : Mr. M.MUTHU GEETHAYAN Advocate in both the petitions PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- The petitioners/A2 and A3 apprehend arrest at the hands of the respondent police for the alleged offences punishable under Sections 120(b), 420, 465, 467, 468, 471, 384 and 506(i) of IPC in Crime No.36 of 2011 and hence,seek anticipatory bail. 2. The learned counsel for the petitioners would submit that on the basis of the complaint given by the defacto complainant namely, Ashok Pandiyan, this case has been registered in Crime No.36 of 2011 against four named accused and others. The learned counsel further submitted that originally, the properties belonging to mother of A2 and he executed power of attorney in favour of his son A2 and he executed the sale deed in favour of Matheesa Pandiyan on 3.11.1986 and he executed another sale deed in favour of Durai Pandian on https://hcservices.ecourts.gov.in/hcservices/ 6.11.1986. Since it is a unregistered document, the said Matheesa Pandiyan and Durai Pandiyan have filed two suits O.S.Nos.230 of 1995 and 232 of 1995 against A2 and his mother and others for mandatory injunction directing them to give Income Tax clearance certificate enable them to register the document. The said Matheesa Pandiyan sold the property in favour of Ashok Pandian on 27.11.1986 and therefore, A2 filed O.S.No.64 of 1998 for declaration that the Sale Deed is null and void and for other consequential relief and all the three suits were tried jointly and the suit filed by A2 was dismissed but the suit filed by Matheesa Pandiyan and Durai Pandiyan has been decreed, against which, appeals have been preferred in A.S.Nos.214 and 215 of 1999 and 18 of 2000 and those appeals were allowed against which, the said Durai Pandiyan and Matheesa Pandian filed Second Appeal before this Court. During the pendency of the Second Appeal, Mathessa Pandiyan filed a Memo stating that he has withdrawn the case and in that Second Appeal, the defacto complainant filed a application to implead himself as a party and since, he is the purchaser of the property, that application was allowed on 7.3.2010. 3. He further submitted that during the interregnum period, three complaints were given and one complaint was given by the defacto complainant and other complaint was given by the said Durai Pandiyan and another complaint was given by Matheesa Pandian and on the basis of the complaint given by the defacto complainant, the case in Crime No.464 of 2011 has been registered and subsequently, that has been quashed. In the present complaint, it is stated that A1 who is the earlier ruling party M.L.A. has intervened the matter and the defacto complainant has taken to A1's office wherein A1 has threatened the defacto complainant to receive one crore rupees and withdraw the Second Appeal. Hence, the complaint has been given and the alleged occurrence has been taken place in the year 2007. There is a delay in preferring the complaint and the complaint has been given only on 13.9.2011 with the same set of facts in Crime No.464 of 2004, which was quashed. A3 is the bona fide purchaser from the lawful owner and the petitioners apprehend for arrest and they come forward with this application and prays for enlargement on anticipatory bail. 4. The learned counsel for the intervener submitted that the property originally belongs to Stella Vedhavalli who is the mother of A2 and she executed power in favour of her son A2-Samuel on 30.7.1986 and A2 executed Sale Deed in favour of Matheesa Pandiyan on 3.11.1986 and Durai Pandiyan on 6.11.1986 and because of the registration of document and the value of the property is Rs.50,000/-, Matheesa Pandiyan and Durai Pandiyan requested A2 to produce Income Tax clearance certificate and therefore, they are forced to file suit O.S. Nos. 230 and 232 of 1995 directing A2 to produce Income Tax clearance certificate and also for restraining them not to alienate the property till the disposal of the suit. After that only, in the year 2007, problem arose and since the defacto complainant was threatened to withdraw the Second Appeal and sold the property to close aide of A1, the present complaint was given. The bail application filed by A1 was dismissed and now they are going to file bail application before the District and Sessions Judge and investigation is in initial stage and A3 is the purchaser during the pendency of the Second Appeal and hence, he prays for dismissal of this application. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned Additional Public Prosecutor submitted that A2 executed the Sale Deed in favour of Matheesa Pandiyan on 3.11.1986 but the document is not registered because A2 has not produced Income Tax clearance certificate. Matheesa Pandian executed the sale deed in favour of defacto complainant on 27.11.1986. Since the documents in favour of Durai Pandiyan and Matheesan Pandiyan were not registered for want of Income Tax clearance Certificate, they have filed the suit O.S. Nos. 230 and 232 of 1995 for mandatory injunction directing A2 to produce Income Tax clearance certificate and also for permanent injunction not to encumber the property till the disposal of the suit. Pending Second Appeal, in the year 2007, A1 called the defacto complainant to his house and his brother Durai Pandian and Kannan who is the friend of the defacto complainant and at that time, A2 was also present. They threatened the defacto complainant that after the receipt of 1 crore rupees, to withdraw the Second Appeal and A2 executed Sale deed in favour of A3, who is the close relative of A1 and A4 and A3 sold the property to some other parties. The total value of the property is 9 crore rupees and the delay in giving complaint has been properly mentioned in FIR and hence, he prays for dismissal of this application. 6. Considering the rival submissions made by both sides, it could be seen that the property belongs to the second accused mother Stella Vedavalli and she has executed power of attorney in favour of A2 on 30.7.1986 and in pursuance of the power of attorney, the second accused executed the sale deed in favour of one Matheesa Pandiyan on 3.11.1986 and another portion to Durai Pandian on 6.11.1986 who is none other than the brother of the defacto complainant and because of want of Income Tax clearance certificate, the documents were not registered and they are kept pending before the Registration Department. On 27.7.1986, the defacto complainant has purchased the property from one Matheesa Pandian. Matheesa Pandiyan and Durai Pandian have filed the suits O.S. Nos. 230 and 232 of 1995 against A2 and his mother and brothers and sister for mandatory injunction directing them to produce the Income Tax clearance certificate and also for permanent injunction not to alienate or encumber the property till the disposal of the suit. A2 also filed another suit in O.S.No.64 of 1988 for declaration that the Sale deed in favour of Matheesa Pandiyan and Durai Pandiyan are null and void and all the three suits were jointly tried and the suit filed by A2 was dismissed and suit filed by Durai Pandiyan and Matheesa Pandiaya were decreed against which A2 has preferred appeals and the appeals were allowed, against the dismissal of the appeals, Durai Pandiyan and Matheesa Pandiyan have preferred the Second Appeal and during the pendency of the Second Appeal, Matheesa Pandian filed a Memo for withdrawing the Second Appeal and at this juncture, the defacto complainant has filed the application to implead himself as a party to the Second Appeal. That application was allowed on 7.3.2003 and during the interregnum period, three complaints have been given and one complaint was given by Matheesa Pandiyan another by the defacto complainant herein. Admittedly, Crime No.464 of 2004 has been preferred by the defacto complainant and subsequently, that was quashed by this Court. Now the case of the prosecution is in the year 2007, during the pendency of the Second Appeal, A1 who was the sitting M.L.A. in the previous Government has called the defacto complainant and his brother Durai Pandiyan to his house at that time, one Kannan also accompanying them and A2 was present there and A1 has threatened the defacto https://hcservices.ecourts.gov.in/hcservices/ complainant and his brother to withdraw the Second Appeal after receipt of Rs.1 crore but the value of the property is more than 9 crores. But admittedly, no complaint has been given immediately. For the said incident, complaint has been given on 13.9.2011. At this juncture, it is appropriate to consider the arguments advanced by the learned Additional Public Prosecutor that the reason for delay in preferring the complaint is because of A2 is ruling M.L.A. during the year 2007 he was unable to give complaint. But admittedly, the scenario has been changed in the month of May and the complaint has been given on 30.9.2011 and there is a delay of four months and no explanation has been given for they delay of four months. It is pertinent to note that Second Appeal is pending and the petitioner has filed writ petition W.P.No.9123 of 2009 for registration of documents. Considering all those things, since it is purely a civil dispute and the suits are pending, there is a delay in preferring the complaint, I am inclined to grant anticipatory bail to the petitioners with certain conditions. 7. Accordingly, the petitioners are ordered to be released on bail in the event of arrest or on their appearance before the learned Judicial Magistrate No.I, Tirunelveli, and each of them executing a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties each for a like sum to the satisfaction of the learned Magistrate concerned and on further condition that the petitioners shall appear before the concerned court daily at 10.30 a.m. until further orders. The petitioners shall comply with the condition stipulated under Section 438 Cr.P.C. Scrupulously. 8. The petitioners shall appear before the concerned Magistrate within a period of 15 days from the date on which the order copy made ready, failing which, anticipatory bail petition stands dismissed. Sd/- 22/09/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO 1. THE JUDICIAL MAGISTRATE NO.1, TIRUNELVELI. 2. -DO- THRO' THE CHIEF JUDICIAL MAGISTRATE, TIRUNELVELI. 3. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. 4. THE INSPECTOR OF POLICE, CITY CRIME BRANCH, TIRUNELVELI CITY. +1 CC to M/S. N.DILIP KUMAR Advocate SR.No.32733 +1 CC to M/S. M.MUTHU GEETHAYAN Advocate SR.No.32709 +2 CCs to M/S.R.ANAND Advocate SR.No.32728 ORDER IN CRL OP(MD) Nos.12421 & 12448 of 2011 NSV/23.9.11/4P/9C Date :22/09/2011 https://hcservices.ecourts.gov.in/hcservices/