BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Saturday, the Twelfth day of November Two Thousand Eleven PRESENT The Hon`ble Mr.Justice S.NAGAMUTHU CRL OP(MD) No.14427 of 2011 1 SAKTHIVEL 2 VINOTH ... PETITIONERS/ACCUSED Vs THE STATE REP BY THE INSPECTOR OF POLICE S.S.COLONY POLICE STATION, MADURAI CITY IN CRIME NO. NOT KNOWN OF 2011 ...RESPONDENT/COMPLAINANT M.SUNDARARAJAN ..INTERVENOR For Petitioner : M/S. M.AJAMAL KHAN Advocate For Respondent : Mr.K.S.DURAI PANDIAN Govt. Advocate ( Crl. Side) For Intervenor : Mr.NIRANJAN S.KUMAR, Advocate PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- The petitioners are accused in Crime Number 17 of 2011 on the file of the respondent police for offence under Sections 406, 420 and 506(i) of I.P.C. Apprehending arrest, at the hands of the respondent police, the petitioners are before this Court seeking anticipatory bail. 2.According to the case of the prosecution, the first petitioner borrowed a sum of Rs.2 lakhs and duly executed a promissory note in favour of the de facto complainant. But he failed to repay the said amount. Thereafter when the de facto complainant approached the first petitioner demanding the said amount as promised, the petitioners threatened the defacto complainant of dire consequences. With these allegations a complaint was preferred before the learned Judicial Magistrate No.5, Madurai , who in turn referred the same under Section 156 (3) Cr.P.C. to the respondent police for registration of the case. Based upon the same, the respondent has registered a case for the offences punishable under Sections 420, 406 and 506(i) of I.P.C. https://hcservices.ecourts.gov.in/hcservices/ 3.The de facto complainant filed M.P.No. 1 of 2011 seeking to intervene in this matter. The said petition is allowed. I have heard the learned counsel for the de facto complainant. He would only reiterate the allegations in the F.I.R. 4.The learned Additional Public Prosecutor would support the case of the prosecution and oppose the grant of bail. 5.In view of this narration of allegations in the FIR, I am of the view that this FIR is a clear absue of process of law. The learned Judicial Magistrate No.5, Madurai. I apprehend, has not bestowed the required amount of attention, which she is expected of to do in discharge of her constitutional obligations. In a simple case of money transaction, based on a promissory note, I do not understand as to how the learned Magistrate was of the view that the failure to pay the amount as promised under the promissory note would make out an offence under Section 406 of I.P.C. Thus, the reference under Section 156(3) Cr.P.C itself, in my considered opinion, prima facie may not be correct. 6.The Police Officer, who registered the case, does not appear to have shown any attention to the facts of the case. He has simply registered the case under Sections 406, 420 and 506 (i) of I.P.C. I do not understand as to how Section 406 of I.P.C. can be blindly invoked, when there is no entrustment of money. Similarly Section 420 of I.P.C. could not have been invoked, when the allegation is as per the promise under a promissory note, the amount has not been repaid. Even a student of law who has got elementary knowledge in Law could have known that failure to repay the amount due under a promissory note will not amount to cheating. I wonder as to how it did not strike the mind of the Inspector of Police. 7.When the learned Additional Public Prosecutor was requested by this Court to explain as to whether these provisions of Sections 406, 420 and 506(i) of I.P.C. can be invoked in this case, he is not in a position to explain. 8.The above narration of facts and legal position would go to show that the de facto complainant, I apprehend , has clearly abused the process of law. In such view of the matter, I am inclined to grant anticipatory bail to the petitioners. 9.Accordingly, the petitionres are ordered to be released on bail, in the event of arrest or on their appearance before the learned Judicial Magistrate No.V, Madurai, on each 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 respondent police or the police officer who intends to arrest or to the satisfaction of the learned Magistrate concerned and on further condition that the petitioners shall report before the respondent police as and when required. The petitioners shall comply with the condition stipulated under Section 438 Cr.P.C. Scrupulously. https://hcservices.ecourts.gov.in/hcservices/ 10.The Registry is directed to forward a copy of this order to the learned Judicial Magistrate No.5, Madurai as well as to the Commissioner of Police, Madurai. So that the Commissioner of Police, can instruct the officials to bestow the required attention for registering a case at least in future. sd/- 12/11/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO 1.THE JUDICIAl MAGISTRATE NO.5 MADURAI 2.DO THROUGH THE CHIEF JUDICIAL MAGISTRATE MADURAI DISTRICT 3.THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MARAS HIGH COURT, MADURAI 4.THE INSPECTOR OF POLICE S.S.COLONY POLICE STATION, MADURAI CITY COPY TO:- THE COMMISSIONER OF POLICE, MADURAI +1. CC to M/S. M.AJAMAL KHAN Advocate SR.No.39530 rl/7c – 16.11.2011 ORDER IN CRL OP(MD) No.14427 of 2011 Date :12/11/2011 https://hcservices.ecourts.gov.in/hcservices/