M. Gunasekaran v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Thursday, the Nineteenth day of March Two Thousand Fifteen PRESENT The Hon`ble Mr Justice P.N.PRAKASH CRL OP(MD) No.19399 of 2014 1 M. GUNASEKARAN 2 R. RAVICHANDRAN 3 R. JEYAKUMAR ..PETITIONERS/ACCUSED 1 to 3 RAJASIVABALAN ..INTERVENOR Vs.

STATE REP.BY THE INSPECTOR OF POLICE NAGAIAHPURAM POLICE STATION, PERAIYUR TALUK, MADURAI DT.

CR.NO.192 OF 2014 ..RESPONDENT/COMPLAINANT For Petitioner : M/S.M.GURURAJ Advocate For Respondent : Government Advocate (Crl.Side) For Intervenor : Mr.S.BALAJI, Advocate PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- The petitioners, who apprehend arrest at the hands of the respondent police for the alleged offences punishable under Sections 406, 419, 471 and 420 IPC in Crime No.192 of 2014 on the file of the respondent police, seek anticipatory bail.

2. Heard the learned counsel for the petitioners, the learned counsel for the Intervenor and the learned Government Advocate (Crl.Side) appearing for the State.

3. Initially, this matter was referred to the Mediation Centre and a failure report dated 06.02.2015 has been received.

4. The defacto complainant in this case is one Raja Sivabalan, who is the son of Venkatammal and Subba Reddy. The property in question is 7 acres 92 cents of land in Gowndanpatti Village, Peraiyur Taluk (hereinafter referred to as "the subject property"). According to the defacto complainant, the subject property and other properties belonged to the father of Venkatammal by name Mahalingam. It is stated in the complaint that Venkatammal and her sister Baradha acquired title to the subject property by virtue of an oral partition, that is supposed to have been held amongst the family members of Mahalingam. It is relevant to state here that there is no date given in the complaint as to when the oral partition took place.

5. After acquiring the subject property, Baradha and Venkatammal mortgaged the property to one S.Kasthuri on 04.10.1979 by way of a deed of mortgage registered as Doc.No.1762 of 1979 on the file of Peraiyur Sub Registrar Office. The said mortgage was continuing as it is and Venkatammal died on 08.10.1995. After the death of Venkatammal, it is alleged by the defacto complainant that the petitioners herein had

created a discharge of mortgage by registering a document on 17.08.2006 as Doc.No.1612 of 2006, executed by Kasthuri, who is the mortgagee.

6. Learned counsel for the defacto complainant places heavy reliance on the averments made in the said document, wherein it is stated that Kasthuri has received Rs.8,000/- from Venkatammal and Baradha towards discharge of the mortgage on 17.08.2006. It is the contention of the defacto complainant that Venkatammal died on 08.10.1995 and therefore, the document dated 17.08.2006 in which such averments, as if the mortgage amount was paid to Venkatammal, find place, would itself go to show that the petitioners have created a fabricated document. The defacto complainant is claiming title to the subject property as a legal heir of Venkatammal.

7. On the contrary, it is the case of the petitioners that the subject property belonged to Mahalingam and sometime in the year 1992, there was a partition amongst male and female heirs of Mahalingam, whereby all the immovable properties were given to the male members and in lieu of which all movable properties, gold ornaments etc., were given to female members. Male members were not aware of this mortgage deed dated 04.10.1979 and when they wanted to sell the property, only then they knew about the existence of encumbrance and therefore, they brought Kasthuri to the Registrar's office for executing the document dated 17.08.2006.

8. It is the case of the petitioners that the Document Writer, in a mechanical manner has used a format in which it has been inadvertently stated that Kasthuri had received Rs.8,000/- from Venkatammal and Baradha on 17.08.2006. It is also the case of the petitioners that for the purpose of registering the discharge document, mortgagors need not be present.

9. It is not the case of the defacto complainant that Kasthuri, whose photo is affixed in the document, is an impersonator. The document also does not contain any reference about the presence of Venkatammal during registration. Therefore, learned counsel for the petitioners contends that a small mistake committed by the Document Writer, while preparing the discharge document, is being blown out of proportion to make it look as if these petitioners have fabricated the document. Learned counsel for the petitioners further contends that Baradha and Subba Reddy (father of the defacto complainant) would also vouchsafe to the fact that, pursuant to the oral partition in 1992, male members were given immovable properties and female members were given movable properties.

10. Learned counsel for the defacto complainant has refuted this allegation and submitted that after attaining majority and becoming worldly wise, the defacto complainant came to know about the document dated 17.08.2006 and hence, he lodged the present complaint.

11. Learned counsel for the defacto complainant filed a written objection in which he has stated that all the accused colluded together to cheat the defacto complainant.

12. Learned Government Advocate (Crl.Side) produced the statement of Baradha that was recorded by the Police on direction by this Court. In her statement, she has clearly stated that she had given up all the claims of immovable property in accordance with their family custom in lieu of her brothers and father giving her substantial amount of money at the time of her marriage. She has also categorically stated that she has no claim over the property in dispute.

13. Under such circumstance, this Court is of the view that this is a fit case to grant anticipatory bail to these petitioners. Accordingly, the petitioners are ordered to be released on bail in the event of arrest or on their appearance, within a period of fifteen days from the date of receipt of a copy of this order, before the learned Judicial Magistrate, Peraiyur, Madurai District, on condition that each of the petitioner shall 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 respondent police or the police officer who intends to arrest or to the satisfaction of the learned Magistrate concerned and on further condition that:

[a] the petitioners shall report before the respondent police daily at 06:30p.m. for a period of two weeks and thereafter as and when required for interrogation.

[b] the petitioners shall not tamper with evidence or witness either during investigation or trial.

[c] the petitioners shall not abscond either during investigation or trial.

[d] On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioners in accordance with law as if the conditions have been imposed and the petitioners released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560].

sd/- 19/03/2015 / TRUE COPY / Sub-Assistant Registrar (C.S.) TO 1 THE JUDICIAL MAGISTRATE, PERAIYUR, MADURAI DISTRICT. 2 -DO-THRO'THE CHIEF JUDICIAL MAGISTRATE, MADURAI. 3 THE ADDL.PUBLIC PROSECUTOR,MADURAI BENCH OF MADRAS HIGH COURT,MADURAI. 4 THE INSPECTOR OF POLICE, NAGAIAHPURAM POLICE STATION, PERAIYUR TALUK, MADURAI DISTRICT.

+1. CC to M/S.M.GURURAJ Advocate SR.No.13148 +1CC to M/s.S.BALAJI, Advocate in SR.13362 ORDER IN CRL OP(MD) No.19399 of 2014 Date :19/03/2015 PBK 20/03/2015 ::3P-7C: