1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Tuesday, the First day of November Two Thousand Eleven PRESENT The Hon`ble Mr.Justice S.NAGAMUTHU CRL OP(MD) No.13029 of 2011 1.SHANTHI 2.KANDASAMY ... PETITIONERS/ACCUSED 2 & 3 S.PREMNATH ... INTERVENOR Vs THE STATE BY THE INSPECTOR OF POLICE DISTRICT CRIME BRANCH, DINDIGUL, DINDIGUL DISTRICT, CRIME NO.70/2011 ... RESPONDENT/COMPLAINANT For Petitioner : MR. V.KATHIRVEL, Senior counsel for M/S. D.VENKATESH Advocate For Respondent : MR. K.S.DURAI PANDIAN, Additional Public Prosecutor For Intervenor : MR. N.ANANTH PADMANABHAN, Advocate PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- The petitioners are accused Nos.2 and 3 in Crime No.70 of 2011 on the file of the respondent police for offence under Sections 406, 420, 447, 294(b), 506(i) & 120-B of I.P.C. Apprehending arrest at the hands of the respondent police, the petitioners are before this court with this petition seeking anticipatory bail. 2. According to the case of prosecution, the de-facto complainant owned a total extent of 9 acres and 70 cents of land in Survey No.337 at Thumpalampatti village in Dindigul District. On 09.11.2007, the de-facto complainant and other owners jointly executed a general power of attorney deed in favour of the first accused Mr.K.Subramania Goundar, thereby empowering him to deal with the properties mentioned therein. However, in respect of Survey No.337, power was given to sell only 4 acres. But the first accused subsequently soled away the entire extent of 9 acres and 70 cents in the said survey number in favour of the second accused on 16.09.2008. Thus according to the de-facto complainant, an extent of 5 acres and 70 cents for which no power was given by the de-facto complainant and other owners was sold away by the first accused in favour of the second accused. This according to the de-facto complainant amounts to land grabbing. With these allegations, the present case has been registered. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The above allegations are refuted by the accused. The learned senior counsel appearing for the petitioners would take me through the typed set of papers filed by the petitioners. 4. A perusal of the general power of attorney deed dated 09.11.2007, admittedly executed by the de-facto complainant and other owners, would go to show that power was given to the first accused only to deal with 4 acres of land comprised in Survey No.337. The learned senior counsel appearing for the petitioners would admit the said fact. Under the sale deed dated 16.09.2008, the entire extent of 9 acres and 70 cents was sold by the first accused viz., the power agent of the de-facto complainant in favour of the second accused. This is also not disputed by the learned senior counsel appearing for the petitioners. But all that he would submit is that without noticing the extent of the land mentioned in the power of attorney deed, the second accused purchased the total extent of 9 acres and 70 cents in Survey No.337. Later on, when the same came to light, the second accused persuaded the de-facto complainant and other owners to execute a sale deed in respect of 5 acres and 70 cents in Survey No.337 for valuable consideration. Accordingly, the de-facto complainant and other owners executed a registered sale deed on 15.03.2011 thereby transferring the title for 5 acres and 70 cents. The execution of this document is not disputed by the learned counsel appearing for the de-facto complainant/intervenor. Thus, from these two documents, as pointed out by the learned senior counsel, title has been transferred for the entire extent of 9 acres and 70 cents in favour of the second accused. 5. The de-facto complainant has come up with M.P(MD)No.1 of 2011 seeking to intervene in this matter. The same has been allowed. 6. The learned counsel appearing for the intervenor would submit that the said sale deed dated 15.03.2011 was obtained by coercion and the same is not valid. This according to the learned counsel amounts to land grabbing. 7. The learned Additional Public Prosecutor would reiterate the above facts and opposed the grant of anticipatory bail. 8. The learned senior counsel appearing for the petitioners would submit that having sold 5 acres and 70 cents, directly to the second accused by means of the registered sale deed dated 15.03.2011 and having parted away with 4 acres of land in the very same survey number, through the power agent, it is not open for the de-facto complainant at this point of time to say that the said sale deed dated 15.03.2011 was not at all executed out of free will by the de-facto complainant and other owners. 9. I find some force in the said argument advanced by the learned senior counsel appearing for the petitioners. The learned senior counsel appearing for the petitioners would further submit that the subsequent verification made by the petitioners has brought to light that the entire extent of the said land had been taken over by the Government even in the year 1976. Suppressing the same, the land was sold to the second accused. However, the second accused has now taken steps before the Land Commissioner for issuance of patta. https://hcservices.ecourts.gov.in/hcservices/ 3 10. Referring to all the above facts, the learned senior counsel appearing for the petitioners would submit that this is a case where the dispute can be resolved only by the Civil Court and absolutely there is no place for criminal prosecution. 11. I have considered the above submissions seriously. 12. As already stated, the execution of the general power of attorney deed dated 09.11.2007 and the sale deed dated 15.03.2011 are not at all under dispute. Whether the sale deed dated 15.03.2011 was executed by the de-facto complainant and other owners jointly on their own volition or out of pressure, can be resolved before the civil Court. At this stage, it is now pointed that whenever a document is registered, there is always a presumption that the same was executed out of free will. Of course, that presumption is rebuttable. For the limited purpose of deciding the anticipatory bail application, this Court cannot make a rowing enquiry to give any finding as to whether the sale deed dated 15.03.2011 is valid or not. Expression of opinion regarding the same will amount to encroaching upon the jurisdiction of the civil Court. Therefore, I do not express any opinion regarding the rival submissions made by either side and whatsoever I have made in this order shall be only for the limited purpose of anticipatory bail. 13. In view of the above, I find that the petitioners are entitled for anticipatory bail. I am inclined to grant anticipatory bail to the petitioners but with conditions. 14. 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.II, Dindigul, on executing separate 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 every day at 10.30 a.m., for a period of two weeks, without fail. The petitioners shall comply with the condition stipulated under Section 438 Cr.P.C scrupulously. sd/- 01/11/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) TO 1 THE JUDICIAL MAGISTRATE NO.2, DINDIGUL 2 THE CHIEF JUDICIAL MAGISTRATE, DINDIGUL 3 THE INSPECTOR OF POLICE, DISTRICT CRIME BRANCH, DINDIGUL, DINDIGUL DISTRICT 4 THE PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1. CC to M/S. D.VENKATESH Advocate SR.No.37410 ORDER IN CRL OP(MD) No.13029 of 2011 Date :01/11/2011 TR :03.11.2011: 3p/6c https://hcservices.ecourts.gov.in/hcservices/