BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Wednesday, the Twenty First day of December Two Thousand Eleven PRESENT The Hon`ble Mr.Justice V.PERIYA KARUPPIAH CRL OP(MD) No.15632 & 15708 of 2011 1. P.PAULPANDI 2. T.KAILASH KUMAR : PETITIONERS/ACCUSED NOS.1 & 2 IN CRL.O.P.No.15632/11 3. K.NARENDRA BABU : PETITIONERS/ACCUSED NO.3 IN CRL.O.P.No.15708/11 P.P.SELVAM : INTERVENOR IN BOTH THE PETITIONS Vs. THE STATE REP.BY THE SUB INSPECTOR OF POLICE VADASERI POLICE STATION, NAGERCOIL, KANYAKUMARI DISTRICT. IN CR.NO.2943 OF 2011 : RESPONDENT/COMPLAINANT IN BOTH THE PETITIONS For Petitioner : Mrs. HEMA SAMPATH Senior Counsel for Mr. N.VIJAYARAJAN Advocate in both the petitions For Respondent : Mr. K.S.DURAI PANDIAN Additional Public Prosecutor in both the petitions For Intervenor : Mr.S.SURESH KUMAR, Advocate PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- Crl.O.P.No.15632 of 2011: This petition has been filed by the petitioner, who are ranked as A1 & A2 seeking Anticipatory Bail for the alleged commission of offences under Sections 406 and 420 of IPC in Crime No.2943 of 2011, on the file of the respondent police. Crl.O.P.No.15708 of 2011: This petition has been filed by the petitioner, who is ranked as A3 seeking Anticipatory Bail for the alleged commission of offences under Sections 406 and 420 of IPC in Crime No.2943 of 2011, on the file of the respondent police. https://hcservices.ecourts.gov.in/hcservices/ 2.Heard, Mrs.Hema Sampath, learned Senior counsel appearing for Mr.N.Vijayarajan, learned counsel appearing for the petitioner in both the petitions, Mr.S.Sureshkumar, learned counsel appearing for the intervenor and Mr.K.S.Duraipandian, learned Additional Public Prosecutor, appearing for the respondent. 3.The learned senior counsel would submit in her argument that the petitioners in both the petitions are A1 to A3 for the alleged offences punishable under Sections 406 and 420 IPC, in Crime No.2943 of 2011 and they apprehend arrest at the hands of the respondent police. She would further submit in her argument that the fourth accused executed a power of attorney and registered the same in favour of the first accused, in respect of the land belonging to him on 08.02.2007 and the first accused in turn executed a sale deed in favour of the second accused through a registered sale deed dated 26.4.2007. 4.The learned Senior Counsel would further submit in her argument that the fourth accused appeared to have dishonestly cancelled the said power deed on 18.04.2007, but it was not communicated to the first accused and it was actually communicated only on 7.5.2007, long after the execution of sale deed by A1 in favour of A2. She would further submit that the fourth accused had filed a suit in O.S.No.128 of 2011 on the file of Sub Court, Nagercoil against the accused Nos.1 and 2, defacto complainant and ten others for declaration of title, for injunction and for recovery of possession of certain parts of the properties and it is pending. She would further submit that the fourth accused did not publish the cancellation of power so as to communicate the public as well as to the first accused. The validity of the sale deed executed by A1 in favour of A2 as well as the cancellation power deed by A4 are to be tested in the suit filed by fourth accused in O.S.No.128 of 2011 and it is purely a civil dispute and there is no criminality for the purpose of incriminating the petitioners in the case. She would further submit in her argument that the petitioners are having permanent residence and root in the society and therefore, they will not abscond from the clutches of law and they are ready to co-operate with the investigation whenever they are called for interrogation. She would request the Court to grant anticipatory bail to the petitioners and they are ready to abide any conditions likely to be imposed by this Court. 5.The learned counsel appearing for the intervenor would submit in his argument that the cancellation of power given to first accused by the fourth accused was very much known to first accused and in order to cheat the fourth accused as well as the defacto complainant only, the first accused had executed the sale deed despite the power given to him was cancelled and therefore, there is an element of criminality in the act of the first accused and the other accused, since they have co-operated with the first accused for committing such an offence. 6. He would further submit in his argument that the defacto complainant had sustained much damages and the accused persons who are liable to be prosecuted are also bound to pay the compensation to the defacto complainant. He would further submit that the https://hcservices.ecourts.gov.in/hcservices/ investigation is not completed and therefore, anticipatory bail plea of the petitioners may not be granted. 7. The learned Additional Public Prosecutor would submit in his argument that the investigation is pending and the first accused had clandestinely executed a sale deed in favour of second accused knowing full well that the power given by A4 was cancelled. He would also submit that the cancellation was done on 18.04.2007, but the sale deed was executed by A1 on the foot of the power on 26.04.2007 and therefore, there is a criminality in the mind of the first accused and other accused persons for committing the offence. The investigation is still pending and there may be a custodial interrogation necessary for the petitioners and therefore, the anticipatory bail plea of the petitioner may not be considered at this stage. 8. Considering the submissions made by all the parties, I could see that the crucial point to be determined in the investigation is whether the execution of sale deed, dated 26.04.2007 executed by first accused in favour of A2 was with the knowledge of the cancellation of power deed said to have been cancelled on 18.04.2007 by the fourth accused. Admittedly, notice was issued to the first accused by the fourth accused on 7.5.2007 intimating the cancellation of power. It is also an admitted fact that no publication has been made in respect of the cancellation of power given in favour of first accused. In such circumstances, the suit in O.S.No.128 of 2011 pending on the file of the Sub Court, Nagercoil comprises all of them as parties to the suit and the fourth accused has prayed for declaration of his title to the suit property and for other consequential reliefs. The identical issue which are to be decided in the investigation is now, the subject matter to the decision of the Court in that said suit. When the civil case is pending, naturally investigation to await the result of the civil suit and to be proceeded further, on the finding given as to the knowledge of cancellation of the power deed by the first accused, at the time of execution of the sale deed in favour of the second accused on 26.04.2007. It can be construed only then that there was an offence made out and it has to be investigated further as to whether there was a prima facie for the commission of the offence made out or not. Till then, no criminality can be attached against the petitioners. In the said circumstances, I could see that there is a prima facie for the grant of anticipatory bail to the petitioners in both the petitions. 9.Considering the facts and circumstances of the case, this court is inclined to grant anticipatory bail to the petitioners. Accordingly, the petitioners are directed to be released on bail in the event of arrest or on their appearance before the learned Judicial Magistrate No.II, Nagercoil 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 Judicial Magistrate NO.II, Nagercoil and on further condition that the petitioners shall appear before the respondent police daily at 10.30 a.m until further orders. The petitioners shall comply with the condition stipulated under Section 438 Cr.P.C. scrupulously. https://hcservices.ecourts.gov.in/hcservices/ 10.The petitioners shall appear before the Magistrate concerned within a period of 15 days, failing which, the anticipatory bail granted shall stand automatically cancelled. sd/- 21/12/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO 1. THE JUDICIAL MAGISTRATE NO.2, NAGERCOIL. 2. -DO- THRO' THE CHIEF JUDICIAL MAGISTRATE KANYAKUMARI DISTRICT AT NAGERCOIL 3. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. 4. THE SUB INSPECTOR OF POLICE VADASERI POLICE STATION, NAGERCOIL, KANYAKUMARI DISTRICT. +2 CCs to M/S. N.VIJAYARAJAN Advocate SR.Nos.45128 & 45129 ORDER IN CRL OP(MD) Nos.15632 & 15708 of 2011 Date :21/12/2011 NSV/22.12.11/4P/7C https://hcservices.ecourts.gov.in/hcservices/