Madras High Court
K.P.Ravikumar vs Inspector Of Police on 29 April, 2021
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.No.6500 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.04.2021
CORAM
THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.6500 of 2021
and
Crl.M.P.Nos.4288 & 4289 of 2021
K.P.Ravikumar ... Petitioner
vs.
1.Inspector of Police,
Central Crime Branch,
Team IV, EDF – II,
Vepery,
Chennai – 600 007.
2.Branch Manager,
Catholic Syrian Bank Ltd.,
Purasaiwalkam High Road,
Perumalpet,
Purasaiwakkam,
Chennai – 600 012.
3.Branch Manager,
State Bank of India,
No.7, Anantharaman Street,
Radha Nagar,
Chrompet,
Chennai – 600 044.
4.K.Mariyappan ... Respondents
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https://www.mhc.tn.gov.in/judis/
Crl.O.P.No.6500 of 2021
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to issue direction to the first respondent to defreeze
the petitioner Bank Accounts bearing A/c.No.0059-00135786-195001 &
A/c No.303156575820 being maintained in the Second and Third
Respondent Banks respectively within the time stipulated by this Court.
For Petitioner : Mr.B.Vijay
For R1 : Mr.M.Mohammed Riyaz,
Additional Public Prosecutor
For R4 : Mr.T.Sundaravadanam
*****
ORDER
This Criminal Original Petition has been filed to issue direction to the first respondent to defreeze the petitioner Bank Accounts bearing A/c.No.0059-00135786-195001 & A/c No.303156575820 being maintained in the Second and Third Respondent Banks respectively within the time stipulated by this Court.
2.The petitioner is the first accused in Crime No.110 of 2019, who has been prosecuted the offence under Sections 406, 409, 420 r/w 34 of 2/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 Indian Penal Code. During the course of investigation, the first respondent i.e. the Inspector of Police, Central Crime Branch, Team IV, EDF-II, Vepery, Chennai – 600 044, by communication dated 09.04.2019 had directed the second respondent Branch Manager, Catholic Syrian Bank Ltd., Purasaiwakkam, Chennai to freeze the A/c.No. 0059- 00135786-195001 of the petitioner and the first respondent by communication dated 10.04.2019 had directed the third respondent to freeze the A/c.No.303156575820 of the petitioner/VIP Grand Enterprises.
3.The gist of the case is that the fourth respondent/defacto complainant was owing the property in Old Door No.25, New Door No.18, Gokulam Colony, Triplicane measuring to an extent of 750 Sq.ft., in which he had put-up a construction upto three floors and let out a lease for 4% and in one portion the fourth respondent/defacto complainant was residing with his family. His friend Mr.Premkumar introduced the petitioner and his wife on 20.03.2015 and also informed that the said persons were running a business in the name of M/s.VIP Facility Management Services, Triplicane. If the fourth respondent/defacto complainant joins them he would make good income and further informed 3/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 that the petitioner has got good influence with the bank and he can arrange loan for the fourth respondent, who was immediately in need of Rs.7,00,000/- (Rupees seven lakh only).
4.The petitioner and his wife had promised the fourth respondent/defacto complainant that they can tied him out of the financial crisis by arranging loan. For the said loan, the bank officials visited the house and made an inspection. The officials of Dewan Housing Finance Limited had inspected the property on 02.11.2015. Thereafter, the fourth respondent/defacto complainant was asked to come to Axis Bank, Saligramam, where he was insisted to open a bank account. Thereafter, on 08.12.2015, the petitioner and his wife had received a pass book and the signed cheques from the fourth respondent and promised that within three days Rs.13,00,000/- (Rupees thirteen lakh only) will be credited in his account. The loan would be sanctioned on 10.12.2015, a sum of Rs/13,00,000/- (Rupees thirteen lakh only) would be deposited in his account and as agreed earlier a sum of Rs.8,00,000/- (Rupees eight lakh only) was withdrawn and handed over to Murugan, Agent and Rs.4,90,000/- had been withdrawn by way of self.
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5.On 11.12.2015, the fourth respondent was taken to the Sub Registrar Office, Mylapore and several signatures were obtained from him. The fourth respondent signed the same for the loan of Rs.7,00,000/- (Rupees seven lakh only). When he questioned petitioner/A1 about the loan amount of Rs.7,00,000/-, the petitioner/A1 was informed that the amount will be deposited to his bank account within a period of two days. On 23.09.2017, the DHFL agent informed him that the EMI for the loan amount of Rs.7,00,000/- not paid properly and recovery proceedings to be initiated against petitioner/A1 and his wife on the fourth respondent property, since he had transferred his property to the name of the petitioner/A1.
6.Immediately on 25.09.2017, the fourth respondent approached the Corporation Officials, informed that the property and the property tax stands in the name of the fourth respondent to be retained and not to be changed. For which on 07.05.2018, a reply was received stating that the petitioner made a claim for name change, basing claim on the registered Sale Deed Document No.3546/2015 dated 11.12.2015, the fourth 5/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 respondent already sold the property to the petitioner, thereafter the above said property mortgaged with DHFL for a sum of Rs.55,10,146/- (Rupees fifty five lakh ten thousand one hundred and forty six only), when the fourth respondent questioned them instead of mortgaging the property in the name of the fourth respondent it is shown as a Sale Deed, created in the name of the petitioner and thereafter mortgaged it for a huge sum of money has been made is not proper, when questioned, petitioner informed that the fourth respondent was not having good credit rating, hence the property was changed in the name of the petitioner and thereafter, the loan was obtained, the petitioner shall repay the loan, discharge the mortgage and shall re-convey the property to the fourth respondent.
7.During the above said process, petitioner handed over some signed cheques and pro-notes, when the cheques were presented the same got dishonoured and thereafter, when the fourth respondent approached the petitioner he threatened the fourth respondent and informed that fourth respondent would be thrown away from the property since the property now stands in the name of the petitioner and thereafter the fourth respondent, lodged a complaint before the Sub Inspector of Police, 6/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 Royapettah and thereafter, he lodged a complaint to the Commissioner of Police, who forwarded the same to the Sub Inspector of Police, CCB, who arrested the accused. During the investigation two bank accounts of the petitioner were freezed under Section 102 Cr.P.C.
8.The petitioner submits that the fourth respondent had offered to sell his property for a sale consideration of Rs.70,00,000/- (Rupees seventy lakh only) to meet his family expense. After mutual negotiation, the sale consideration for the property was fixed as Rs.70,00,000/-. Accordingly, the petitioner has decided to purchase the property by availing a mortgage loan of Rs.52,00,000/- (Rupees fifty two lakh only) from Dewan Housing Finance Limited (DHFL). The necessary loan process was made by obtaining consent letter from the land owner. The Dewan Housing Finance Limited (DHFL) after completion of due diligence on the property, a loan of Rs.52,00,000/- sanctioned. The DHFL directed the petitioner to pay balance consideration of Rs.18,00,000/- out of his own funds. Through RTGS the petitioner transferred Rs.13,00,000/- on 10.12.2015 and paid another Rs.5,00,000/- by way of Demand Draft. Thereafter, the DHFL had transferred Rs.52,00,000/- directly to the 7/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 account of the fourth respondent by way of cheque bearing No.15081 dated 11.12.2015.
9.On receipt of the entire sale consideration, the fourth respondent had executed a registered Sale Deed on 11.12.2015 vide Document No.3456/2015. On the same day, the mortgage of the property with DHFL vide Document No.3457/2015 was done by the petitioner. Four years thereafter on 25.03.2019, the above complaint now lodged by the fourth respondent. The first respondent police without properly conducting preliminary enquiry, registered the FIR, by giving criminal colour to a civil dispute.
10.The petitioner was arrested and remanded to Judicial custody on 09.04.2019 and thereafter he came out on bail. The first respondent had sent a communication to the Catholic Syrian bank and State Bank of India for freezing the bank account of the petitioner. The fourth respondent in the meanwhile filed a Civil Suit in O.S.No.2798 of 2019 before the XVII Assistant Judge, City Civil Court, seeking declaration that the sale deed executed by the fourth respondent in favour of the petitioner as null and 8/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 void and to declare the deposit of title deed executed by the petitioner in favour of M/s.Dewan Housing Finance Limited as null and void and for a consequential permanent injunction restraining the petitioner from interfering with the peaceful possession and enjoyment of the property. The said suit is still pending for adjudication. The defacto complainant had himself admitted in the plaint that he has sufficient knowledge that he was called upon to execute the sale deed for his property but there was no consensus-ad-idem. This plea was raised before the Civil Court to sustain the plea of non est factum, which was available only to an illiterate person and not to the fourth respondent. The Order of the Investigating Officer for freezing the bank accounts of the petitioner suffers from serious legal infirmities and is grossly in violation of mandatory compliance as contemplated under Section 102 Cr.P.C.
11.The petitioner is a registered contractor running a business in the name of VIP Grand Enterprises. He had been allotted work by the Southern Railway for maintenance of comprehensive cleanliness of Tanjavur Railway Junction, Karur Railway Station, Tiruvallur Railway Station and Mambalam Railway Station etc. The concerned Divisional 9/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 Office of the Southern Railway, upon completion of the contractual obligations has directly deposited the payment for the work executed by the petitioner to his bank accounts. The fund available in the bank account were deposited by the Southern Railway, as it can be seen from the banks statement of account produced.
12.From the letter of the first respondent i.e. the Investigating Officer to the Banks, it is seen that the Investigating Officer had not shown how he had found the prima facie, that the funds available in the bank accounts of the petitioner are out of the crime proceeds, which warrants freezing to preserve the subject matter of crime.
13.Further submitted that the prohibitory order of freezing of the account was not served to the petitioner. He also informed that the first respondent failed to comply with the mandatory requirements under Sub Sections (1), (2), (3) of 102 Cr.P.C. before and after seizure of the account. The amount of Rs.8,96,892/- stands freezed in the bank account of State Bank of India and Rs.27,72,128/- was lying in the credit of Catholic Syrian Bank Limited pursuant to the issuance of impugned order of 10/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 freezing of the bank account. The petitioner's hard earned money was freezed by the Investigating Officer for more than two years due to the seizure and prohibitory order issued by the Investigating Officer, the petitioner is unable to operate his account and the same has affected his entire business. The petitioner is facing severe financial constraints on account of the impugned order of freezing the bank account by the Investigating Officer.
14.From the statement of accounts and from the facts of the case, it is clearly seen that there is no nexus or circumstances, to suspect the money is earned out of commission of any offence. In support of his contention, he filed the typed set of papers.
15.The fourth respondent filed his counter and typed set of papers and submitted that on 02.11.2015, due to financial crunch and faced exorbitant interest to be paid, to get relieved from the said financial problem he approached the petitioner and his wife, who introduced themselves as business personals running VIP Facility Management Service at Triplicane, doing house keeping services and lured the fourth 11/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 respondent to join their firm to earn more money and get rid of his financial problems. When the fourth respondent visited the petitioner's office, the petitioner informed that they are doing house keeping at present in MAC Cricket Stadium and submitted that he has good contacts with the influential persons, including bank officials, can arrange loan at the lowest interest. Believing the words of the petitioner, the fourth respondent pledged his house property to tied over the financial crisis and also signed all the documents and papers produced by the petitioner on good faith.
16.The petitioner and the fourth respondent had mutually come to an understanding that the fourth respondent shall give his property, for property purchase loan and the petitioner applied for a purchase loan with DHFL with the property of the fourth respondent for a sum of Rs.70,00,000/- on the security of which the respondent obtained a loan of Rs.55,00,000/- which shall be divided into two halves and utilized by both separately towards their development of respective business. It is further submitted that the loan shall be repaid in equal shares and after completion of repayment the petitioner shall again reconvey the schedule property to fourth respondent, after completion of his loan dues repaid fully within a 12/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 period of five days. The fourth respondent had entered into the Memorandum of Understanding dated 23.12.2015, prior to it there was some sale agreement dated 14.09.2015, this sale agreement was projected, produced before the bank officials for the purpose of loan and nothing more.
17.On the contrary, on 11.12.2015, a sale deed has been created in favour of the petitioner, after registration of the above sale deed the rough mortgage deed said to have been shown for registration was given to the fourth respondent without registration and the fourth respondent was not aware of the same, since everything was done in a hasty manner during the closure hours of the Sub Registrar Office.
18.The fourth respondent was taken to Axis Bank and there opened a bank account, and the cheque leaves were received by the petitioner, who promised, gave confidence by showing that the initial payment of Rs.13,00,000/- was made by the petitioner and thereafter obtained the mortgage loan. The petitioner and the fourth respondent would share the same and also pay the EMI for their respective shares. Though the amount 13/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 was received the fourth respondent cannot utilize the loan amount, since all the cheque leaves were with the petitioner and the petitioner had used the property of the fourth respondent, the fourth respondent paid the EMI for the loan amount for certain period, latter defaulted. DHFL has taken steps to attach the property and also bring the property for auction, throw away the petitioner and his family from their residence.
18.The DHFL bank officials informed the same in the year 2017 to the fourth respondent at that time only the fourth respondent became aware of the fraud of the petitioner. He immediately approached the Corporation authorities, informed not to assess the property in the name of the petitioner. Thereafter, petitioner handed over cheques and pronotes, for the liability, promised to honour the same. Contrary to the understanding, the cheques got dishonoured, when the fourth respondent questioned the same, he was threatened, the property got transferred to the petitioner's name, not paid the EMI wantonly, so that property got attached, in the recovery proceedings to settle the dues, confirm the shame sale deed as genuine.
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19.Further it is seen that the entire loan amount of Rs.55,00,000/- have been taken away by the petitioner either through him or through others. The fourth respondent had not no access to the loan amount, since the pass book and cheque books were retained by the petitioner. Why the payment of EMI in full has been made by the petitioner, contrary to the MOU and no explanation given for the same.
20.Further it could be seen that the first order from the Southern Railway was after the mortgage loan amount received on the property of the fourth respondent and thereafter, many contracts received. The first and initial investment for the Railway Contract business was from the mortgage loan amount of the fourth respondent. Hence the fourth respondent lodged a complaint to the first respondent against the petitioner and other accused persons. It is further submitted that the first respondent police investigated the case in detail and found that a fraud played by the petitioner and his wife and one Premkumar, who conspired and colluded with DHFL, by cheating the fourth respondent and also grabbed the property of the fourth respondent under the guise of obtaining loan. It is submitted that if sale deed executed is genuine manner with the 15/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 knowledge of the fourth respondent, there ought to be sale consideration paid particulars, there is no sale consideration passed in this sale, it is only doubts created for loan. In the above complaint the petitioner caused legal notice dated 02.06.2018 with false particulars, as if the fourth respondent has issued the same, using this notice in all forums and successfully obtained bail, the conditional order to pay amount is not paid.
21.The fourth respondent filed a civil suit in O.S.No.2798 of 2017 before the XVII Assistant City Civil Court, Chennai challenging the sale deed dated 11.12.2015, seeking declaration of sale deed and mortgage as null and void. The Investigating Officer on finding that the petitioner's money which has been used in the business and now the property brought to attachment and sale, in a deceitful manner. The petitioner had misappropriated the entire mortgage loan amount availed in the name of the fourth respondent. The first respondent had issued prohibitory order for verification of the account and the claims made.
22.If the present petition is allowed in favour of the petitioner by defreezing the bank accounts with the funds of Rs.8,96,892/- and 16/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 Rs.27,72,128/- which was gained from the forgery and fraud played upon the fourth respondent property and the fourth respondent will be put to irreparable loss and hardships, on the other hand no prejudice will be caused to the petitioner.
23.The learned Government Advocate [Crl. Side] submitted that during the investigation of the case it was found that the petitioner had obtained the mortgage loan in a deceitful manner in the name of the fourth respondent, the property is in the name of the fourth respondent, which was inherited from his father, thereafter put up a construction for three storeyed building and leased out to several people. The fourth respondent is residing in one of the portion of the property along with his family. The fourth respondent was dealing in Kerosene business, suffered a loss. Thereafter through one Premkumar the fourth respondent was introduced to the petitioner. The petitioner and his wife at that time doing house keeping business in the name of VIP Enterprises. He informed that he had contacts with influential persons and intended to develop the business by getting contracts from Southern Railway, for which they needed some money. The fourth respondent was lured to join the firm of the petitioner 17/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 as a partner, for which his property documents received as a security to the mortgage loan. Thereafter, the business of the petitioner will get expanded and both can get benefited. Believing the words of the petitioner, the fourth respondent agreed to the same. Taking advantage of the limited knowledge of the fourth respondent, the petitioner had taken the fourth respondent to the Axis Bank, made him to open an account, received the signed cheques from him, to show his bonafide the initial amount of Rs.13,00,000/- deposited in the account and another Rs.5,00,000/- by way of Demand Draft and Rs.6,18,000/- as buyers contribution. By projecting the same got loan from DHFL, of which Rs.8,00,000/- was immediately transferred to one Murugan and another Rs.5,00,000/- by way of self withdrawal. The entire loan amount was utilized by the petitioner for his business and to settle his other dues. There was Memorandum of Understanding between the petitioner and the fourth respondent, which clearly states that the petitioner to get Rs.23,00,000/- and the petitioner states that the loan amount of Rs.55,00,000/- was divided by the petitioner and the fourth respondent. The fourth respondent alone to get Rs.23,00,000/- and the EMI amount of Rs.55,172/- have to be shared equally by them and to pay DHFL. During the investigation, it is found 18/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 that the Memorandum of Understanding was not acted upon in letter and spirit and the entire loan amount was taken away by the petitioner. The petitioner is paying the monthly EMI amount in full from 13.01.2016 to 10.09.2018 i.e., 33 installments and thereafter he had stopped making payment and the property now brought for auction. The fourth respondent latter came to know the above facts.
24.The petitioner's contention of the amount lying in the bank account are the contractual amount of Southern Railway which cannot be accepted. The expansion of business and getting orders from the Southern Railway is only after getting the mortgage loan amount. As it could be seen from the orders issued by the Southern Railway. The petitioner with a clear intent in a deceitful manner, cheated and misappropriated the mortgage loan amount, which was obtained on the property of the fourth respondent, investigation is in the crucial stage and hence opposed the petition.
25.Considering the submissions on either side and on perusal of the materials produced, it is seen that the fourth respondent is the owner of the 19/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 property and the portion of the property has been settled by his father and another portion purchased in the year 2000 and thereafter put up construction and residing there with his family. On 11.05.2015 the sale deed has been registered in favour of the petitioner and that have taken place at about 04.25 p.m. followed by the mortgage with DHFL. The Sale Deed is document No.3546 of 2015 and mortgage deed is document No.3547 of 2015 proved the proximity. Prior to it, a bank account was opened in Axis Bank at Saligraman, wherein the petitioner contributed to avail the loan and those amount have been deposited in the bank account in the name of the fourth respondent, pass book and signed cheque leafs received from the fourth respondent, the fourth respondent was not aware of any of the transaction. The entire loan amount have been transacted by the petitioner. It is a well planned and orchestrated crime.
26.In the Memorandum of Understanding dated 22.12.2015, it is agreed that the loan amount to be shared between the petitioner and the fourth respondent equally and repayment of EMI to be shared equally. On contrary, the petitioner admits that for 33 installments he had been regularly making the full payment of EMI starting from January, 2016 to 20/24 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.6500 of 2021 September, 2018. Thereafter, he has failed to make the EMI payment. Admitting and confirming that the entire loan recovered and utilized by the petitioner. DHFL had informed the fourth respondent about the attachment and sale of the property. The petitioner had written to Corporation Authorities and who confirmed that the sale deed stands in the name of the petitioner, and property tax to be changed in the name of the petitioner. Thereafter the petitioner was questioned by the fourth respondent, at that time petitioner handed over some cheques and pro-notes and these cheques got dishonoured. The petitioner claims that both the petitioner and the fourth respondent shared the loan equally is not true and for that reason a tune of Rs.25,00,000/- given is a matter for investigation, likewise payment of full EMI for 33 installments. Further it is seen that the petitioner had expanded his business only after the receipt of the mortgage loan amount received on the property of the fourth respondent. Civil Suit now filed by the fourth respondent seeking declaration that the sale deed Doc.No.3546 of 2015 and mortgage loan Document No.3547 of 2015 as null and void.
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27.On perusal of the submission, it is seen that the petitioner's Southern Railway contract got expanded only after receipt of the mortgage loan, on the property of the fourth respondent, who has been deceived and not paid and the property to be sold because of the petitioner's act. In view of the same, this Court finds that the petitioner connivance with other persons in a deceitful manner, committed the well-orchestrated offence, taken away the entire benefits of the loan. Hence, this Court is not inclined to entertain this Criminal Original Petition.
28.Accordingly, this Criminal Original Petition stands dismissed. Further, the case is of the year 2019 and the respondent police is directed to complete the investigation, within a period of six months, from the date of receipt of a copy of this order and thereafter, the trial Court is directed to conduct the trial on day-to-day basis to complete the trial, within a period of six months. Consequently, the connected miscellaneous petitions are closed.
29.04.2021
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
ah
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Crl.O.P.No.6500 of 2021
To
1.Inspector of Police,
Central Crime Branch,
Team IV, EDF – II,
Vepery, Chennai – 600 007.
2.Branch Manager,
Catholic Syrian Bank Ltd.,
Purasaiwalkam High Road,
Perumalpet, Purasaiwakkam,
Chennai – 600 012.
3.Branch Manager,
State Bank of India,
No.7, Anantharaman Street,
Radha Nagar,
Chrompet, Chennai – 600 044.
4.The Public Prosecutor,
High Court, Madras.
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Crl.O.P.No.6500 of 2021
M.NIRMAL KUMAR, J.
ah
Crl.O.P No.6500 of 2021
29.04.2021
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