BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Monday, the Twenty Second day of August Two Thousand Eleven PRESENT THE HON`BLE MR.JUSTICE S.PALANIVELU CRL OP(MD) No.10938 of 2011 S.OSWALT ... PETITIONER/ ACCUSED No.3 Vs THE INSPECTOR OF POLICE THOOTHUKUDI D.C.B (P.S), THOOTHUKUDI, (CRIME NO.39 OF 2011 ) ... RESPONDENT/COMPLAINANT For Petitioner : M/S. G.R.SWAMINATHAN Advocate For Respondent : A.RAMAR, ADDITIONAL PUBLIC PROSECUTOR, ( Crl. Side) PETITION FOR BAIL Under Sec. 439 Cr.P.C. ORDER : The Court Made the following order :- This petitioner/accused No.3 prays for the grant of bail under Section 439 Cr.P.C. for the alleged offences punishable under Sections 120B, 468, 471 and 420 IPC in Crime No.39 of 2011, on the file of the respondent police. 2. The property is covered by the sale deed in question belonged to the first accused. One Sree Kumar filed a suit in O.S.No.656 of 1987 on the file of the District Munsif Court, Tiruchendur against A1 and another for specific performance of contract and the suit was decreed on 10.04.1992 directing the first accused to execute sale deed in respect of the property in favour of Sree Kumar and also to hand over the possession. Against the decree, the first accused preferred an appeal and the same was also dismissed. The said Sree Kumar levied execution proceedings before the District Munsif Court, Tiruchendur on which, the Court executed a sale deed in respect of the property in favour of Sree Kumar. 3. The first accused filed a suit in O.S.No.184 of 2009 against Sree Kumar for permanent injunction and the same is pending. On 05.04.2010, Sree Kumar executed a sale deed in favour of the de-facto complainant with respect to the above said property. A1 through A2, his power of attorney sold the property on 01.12.2010 to the petitioner herein who is the third accused. The second and third accused are brothers. On 31.07.2011, the present complaint was lodged and the petitioner was taken to custody by the police. The first and second accused filed petition for anticipatory bail application in Crl.O.P.(MD) No.10019 of 2011 which faced dismissal. 4. Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner after narrating the above said events, would contend that since Sree Kumar had failed to take possession of the property through Court in pursuance of the sale deed executed in his favour, continuously the first accused had been in possession and enjoyment of the property who also prescribed title by adverse possession and he continued to be the owner of the property and there is no wrong nor any fraud on the part https://hcservices.ecourts.gov.in/hcservices/ of the first accused to convey the property in favour of A3. It is his further submission that only if the property was taken possession through Court, Sree Kumar would be the absolute owner of the property and in the absence of taking such possession, the first accused would be the owner. 5. He also argues that even assuming that if there was an element of intention on the part of the first accused in conveying the property through second accused, as per the settled principles, no dishonest nor fraudulent intention could be inferred on his part, to fall under the category of false documents. It is not sufficient that a document has been made or executed dishonestly or fraudulently. In support of his contention, he placed much reliance upon a decision reported in 2009 (4) Crimes 13 (SC) (Md. Ibrahim and others v. State of Bihar and another) wherein Their Lordships, while dealing with the ingredients, for the criminal intention to be ascertained under the provisions Sections 420, 467 and 471 of IPC, have formulated principles, which are as follows: "12. ... When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted. 15. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint. The term 'fraud' is not defined in the Code. The dictionary definition of 'fraud' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines 'fraud' with reference to a party to a contract. In Dr.Vimla vs. Delhi Administration - AIR 1963 SC 1572, this Court explained the meaning of the expression 'defraud' thus: "The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied." The above definition was in essence reiterated in State of UP vs. Ranjit Sing - 1999 (2) SCC 617." https://hcservices.ecourts.gov.in/hcservices/ 6. The Hon'ble Supreme Court, in the said case, has proceeded further to deal with the definition of the term "fraudulently" as contained in Section 25 of IPC and concluded that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law. 7. He also garnered support from a decision of this Court reported in 2009 Cri.L.J. 4797, (C.Natarajan v. State and another) in which P.R.Shivakumar, J., has dealt with the import of the terms "cheating" and "fraudulent or dishonest intention". 8. Mr.R.Anand, the learned counsel appearing for the intervenor/de- facto complainant would contend that inasmuch as the de-facto complainant got conveyance of the sale on 31.03.1999 from Sree Kumar and also obtained possession from him, he is the real owner of the property, that in pursuance of the sale deed, the de-facto complainant has got patta mutated in his name and also other documents for possession, that he had filed a suit in O.S.No.117 of 2011, on the file of the District Munsif Court, Tiruchendur for permanent injunction against the wife of this petitioner and her brothers and also got an interim injunction in I.A.No.402 of 2011 restraining them from interfering with his possession, that a reading of the sale deed executed by A2 in favour of A3 would disclose a fact that there is a criminal intention on the part of the first and second accused in suppressing the material facts, such as the Court proceedings, that they have fraudulently concealed the Court proceedings in the sale deed, that the petitioner is none other than the servant under first accused and the entire appreciation of the circumstances available in this case would indicate the fraudulent and dishonest intention and also the conspiracy among all the accused. 9. The learned Additional Public Prosecutor would submit that the investigation is pending, that if the petitioner is released on bail, he would tamper with the witnesses, that the investigation reveals that both second and third accused are servants under first accused, that since the anticipatory bail petition filed by the first and second accused has been dismissed by the Court, this petition may also be dismissed for the purpose of proper investigation in this case. 10. Heard all the parties with rapt attention. 11. This Court is not embarking upon a discussion with regard to the possession and whether the possession was taken by Sree Kumar nor had the first accused prescribed title by adverse possession. The parties concerned have to establish their contention before the Civil Court. Further, this is a bail application in which a detailed discussion on merits of the case need not be taken. Suffice it to see whether the petitioner is entitled for bail at this stage. Prima facie there is no material available to show that A3 also conspired with A1 and A2 to purchase the property. Even though it is stated by the learned Additional Public Prosecutor that A3 is a servant under A1, it is to be established at the time of trial. Further, the fact, whether with the dishonest or fraudulent intention, the petitioner purchased the property, has also to be seen at the time of trial. The present stage of the case shows that there is no dishonest intention on the part of the petitioner. He has been in custody since 31.07.2011. Even though he is released on bail, he may not abscond and hence some stringent conditions are imposed upon him. https://hcservices.ecourts.gov.in/hcservices/ 12. In view of the above said observations and findings, this Court is of the view the petitioner is entitled for getting bail in this stage. The dismissal of the anticipatory bail petition filed by A1 and A2 may not be a bar for considering this application since they stand in a different footing. 13. Accordingly, the petitioner is ordered to be released on bail on his 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 Judicial Magistrate No.II, Madurai, and on further condition that the petitioner shall report before the Court concerned daily at 05.00 p.m. until further orders. sd/- 22/08/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO 1. THE JUDICIAL MAGISTRATE NO.II, MADURAI 2. THE CHIEF JUDICIAL MAGISTRATE, MADURAI 3. THE INSPECTOR OF POLICE THOOTHUKUDI D.C.B (P.S),THOOTHUKUDI, 4. THE OFFICER IN CHARGE, SUB JAIL, SRIVAIGUNDAM 5. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI +1. CC to M/S. G.R.SWAMINATHAN Advocate SR.No.28694 GH : 24.08.2011 : 4P/7C ORDER IN CRL OP(MD) No.10938 of 2011 Date :22/08/2011 https://hcservices.ecourts.gov.in/hcservices/