BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Friday, the Ninth day of September Two Thousand Eleven PRESENT The Hon`ble Ms.Justice R.MALA CRL OP(MD) No.10082 of 2011 1. S.BALAMURUGAN 2. A.USHA BAI : PETITIONERS/ACCUSED NOS.1 & 2 Vs. THE STATE REP.BY THE INSPECTOR OF POLICE, CANTONMENT POLICE STATION (CRIME), TRICHY CITY. : RESPONDENT/COMPLAINANT S.M.ANANTHA PADMANABHAN : INTERVENER For Petitioner : M/S.C.DHANASEELAN Advocate For Respondent : Mr. A.RAMAR Additional Public Prosecutor For Intervener : M/S.R.SURESH KUMAR Advocate PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- The petitioners apprehend arrest at the hands of the respondent police for the alleged offences punishable under Sections 406 and 420 of I.P.C., in Crime No.1362 of 2011 on the file of the respondent police and hence seek anticipatory bail. 2. The learned counsel for the petitioners would submit that the petitioners 1 and 2 are the husband and wife and the first petitioner is working in the Police department. The case of the prosecution is that the defacto complainant's brother one S.M.Legarajan has doing a real estate business, when the petitioners were came to Kodaikannal and stayed there, at the time, both are acquaintance with each other. The de-facto complainant has paid a sum of Rs.36 lakhs for purchasing of land, but the sale agreement has been entered in the name of second petitioner i.e. A.Usha Bai. When the defacto complainant has demanded money, they have refused to pay that amount and therefore, the defacto complainant has given a complaint against the petitioners. But the true facts are that the defacto complainant wants financial help and hence the petitioners herein have made an arrangements for financier, at the time the the defacto complainant is directed to deposit a sum of Rs.10 lakhs in pursuance of that Rs.9,33,000/- has been deposited by the accused in favour of Mallika, who is the mother of de-facto complainant and on 5.1.2011, Rs.25,80,000/- has been transferred to second petitioner account. First and second petitioner has repaid a sum of Rs.3,52,000/-. The Legarajan has received a sum of Rs.1,86,500/- and he also gave an acknowledgement for the same. https://hcservices.ecourts.gov.in/hcservices/ 3. The case of the petitioner is that he has paid the entire amount, but he has not have any document to show that to pay Rs.11,08,500/-. Now the petitioners are apprehended for arrest and hence, he prays for enlargement on anticipatory bail. 4. Refuting the same, the learned Additional Public Prosecutor would submit that A1 and A2 are the husband and wife. A1 is a police constable, A2 is running a real estate business. The de-facto complainant has paid a sum of Rs.36 lakhs to the A1 and A2, to make them as a partner in the real estate business. Even though, they refused to take the defacto complainant as a partner in the real estate business. When the defacto complainant was demanded money, the petitioners have not refused to pay and threatened him and hence, the case has been registered on 02.08.2011 and the investigation going on and hence, he prays for dismissal of this application. 5. The learned counsel appearing for the intervenor would submits that the transaction of payment of Rs.36 lakhs is admitted. The averments in the complaint is correct but the arguments made by the petitioner counsel is totally wrong. He further submitted that the first petitioner has approached the defacto complainant's mother for financial assistance for purchasing of land and the defacto complainant's mother has joint Gokulam chit fund on 14.6.2010 for Rs.25 lakhs and she was taken Rs.19 lakhs and he paid the same to the accused on 5.1.2011 through her account to the second accused by way of cheque that has been honoured. Thereafter, the accused/petitioner has introduced one Palaniappan for execution of sale agreement in favour of the de-facto complainant and his mother, but instead of that the Palaniappan has executed the sale agreement in favour of the second petitioner. Even though it was questioned, they convinced the defacto complainant and it was very difficult to sell the property to the third party. On 16.12.2010 the first accused has received the jewels of the defacto complainant and pledged in his name for a sum of Rs.54,000/- and 27.12.2010 the defacto complainant pledged the jewels of his mother and received Rs.9,83,000/- and paid Rs.25,08,000/- to the petitioners, but the amount has not been repaid by the A1 and A2. The second accused is running a real estate business in the name of Shri Akshaya Promoters at Nagamangalam Village. The first accused has seriously committing the offence, he was dismissed from service twice. On his appeal, his dismissal has been set aside and the punishment has been modified. On 04.02.2011 he repaid Rs.3,52,000/- subsequently no amount has been paid and hence, he prays for dismissal of this application. 6. Considering the rival submissions made by both sides and on perusal of the documents filed by both sides, the first petitioner is the police constable and the second petitioner is his wife. The second petitioner is doing a real estate business in the name of Shri Akshaya Promoters and the first petitioner has approached the mother of the de-facto complainant for purchase of the land and the mother of the de-facto complainant has paid Rs.19 lakhs and after that he has taken chit from the Gokulam chit fund and subsequently the defacto complainant pledged the jewels of the mother and paid that amount totally he paid Rs.25 lakhs, as if the property has been purchased in the name of defacto complainant's mother and they introduced one Palaniappan, who is the land owner and the said https://hcservices.ecourts.gov.in/hcservices/ Palaniappan has executed the sale agreement in favour of second petitioner which was questioned that, the petitioner herein has convinced them. Hence there was a difference of opinion arose between them. Admittedly as per the version of the intervenor Rs.3,52,000/- has been repaid and the balance amount is yet to be repaid and hence the complaint has been given. Considering the averments in the FIR would clearly prove that it is only a money transaction and it is a civil dispute, I am inclined to grant anticipatory bail to the petitioner, with certain conditions. 7. Accordingly, the petitioners are ordered to be released on bail in the event of their arrest or on their appearance before the learned Judicial Magistrate No.II, Trichy and on each of them execute 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 report before the Court concerned 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, the petition for anticipatory bail stands dismissed. sd/- 09/09/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO 1. THE JUDICIAL MAGISTRATE NO.2, TRICHY. 2. -DO- THRO' THE CHIEF JUDICIAL MAGISTRATE, TRICHY DISTRICT. 3. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. 4. THE INSPECTOR OF POLICE, CANTONMENT POLICE STATION(CRIME), TRICHY CITY. +1 CC to M/S.C.DHANASEELAN Advocate SR.No.30791 ORDER IN CRL OP(MD) No.10082 of 2011 Date :09/09/2011 NSV/13.9.11/3P/6C https://hcservices.ecourts.gov.in/hcservices/