Madras High Court
The vs State Of Maharashtra And Others) on 5 October, 2012
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05/10/2012 CORAM THE HON'BLE MR. JUSTICE G.M.AKBAR ALI Common Order in CRL. OP. Nos.20546, 20655,20675, 17246, 16763, 16764, 17474, 22919 of 2012 and M.P.No.1 of 2012 ORDER
The petitioners in the above petitions were alleged to have committed the offences as detailed below, seek anticipatory bail on the file of the respondent police:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Cr.No & Date of Date of the Offences Occurrence complaint Complainant Property Vendor Purchaser ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 154/2012 31.03.1999 21.03.2012 ANUKUL VIJ Plot Nos.693 Mr.J.Shanmugam Plot No.693 420, 465, & 694 Power of Ms.T.Subbu 467, 468, VGP Golden Attorney of lakshmi 471 & Beach, Seema Malhotra Plot No.694 120(B) IPC Uthandi Ms.T. Yamini ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 233/2012 17.05.2007 23.04.2012 M. Rajaiah Plot No.297 M.Dhanalaxmi T.Subbulakshmi 419, 467, measuring POA of w/o of the 468, 471 12000 sq.ft Mr.Naveen petitioner & 120(B) (5 grounds) chandra IPC Sholinga Kampani nallur village ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 315/2012 05.06.2007 29.05.2012 Upendra Plot No.277 M.Dhanalaxmi T.Subbulakshmi 419, 420, Motilal measuring POA of w/o of the 467, 468, Dalal 12000 sq.ft Shri.Mothilal petitioner 471 & (5 grounds) Karsondas 120(B) Sholinga Dalal IPC nallur and Shri Gunvant Lal Karsondas Dalal ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
2. The petitioners are husband, wife and daughter. For convenient sake, the main petitioner in Crl.O.P.Nos.20546, 20655 and 20675 of 2012, Mr.Thukkaiandi, is referred as petitioner and the others are referred as petitioner's wife and daughter.There are three crime numbers registered against the petitioners by the respondent police for the offence of land grabbing.
3. The petitioner is an IPS Officer who has worked in various positions in the Tamil Nadu Police. He retired as Chief Vigilance Officer, State Express Transport Corporation, Chennai. He also worked as Superintendent of Police, CB CID.
4. In 2006, he was Inspector General of Police, Vigilance and Anti Corruption. He is residing with his family in Plot No.263, 8th Avenue, Seasore Town, Panaiyur, Sholinganallur. In the same locality, opposite to the plot owned by the petitioners, there are two plots, Plot No.277 and Plot No.297.
5. In VGP Golden Beach, Uthandi there are two plots 693 and 694 which belong to Seema Malkothara and Sandeep Malkothara. They have purchased the property by a sale deed dated 18.3.1981 under two sale deeds registered in the Office of Sub Registrar, Saidapet.
6. One Anukul Vij, the husband of Seema Malkothara and brother-in-law of Sandeep Malkothara forwarded a complaint dated 21.7.2011 to the Superintendent of Police, Kancheepuram stating that his wife and brother-in-law had purchased plots 693 and 694 in the year 1981 and it has come to their knowledge that somebody had forged the documents and sold the property.
7. The Inspector of Police, Central Crime Branch found that on preliminary enquiry, one Shanmugam had created bogus power of attorney and has sold the property to the petitioner's wife and daughter. He has registered a case in Cr.No.154 of 2012 on 21.3.2012.
8. The name of the petitioners are not mentioned in the First Information Report. However, the petitioners have been arrayed as accused along with Shanmugam for the offences as stated above.
9. One Mahendra Kumar N. Kampani and Malani Mahendra Kumar Kampani purchased plot No.297 at Sholinganallur village under a sale deed dated 25.2.1967. This property is situate directly opposite to the plot belonging to the petitioner.
10. A power of attorney is said to have been executed by the Mahendra Kumar N. Kampani in favour of one Dhanalakshmi w/o Mahalingam on 12.4.2007 registred in the Sub Registrar's Office, Trichy. On the strength of the said power of attorney, a sale deed was executed by the said power of attorney Dhanalakshmi in favour of petitioner's wife on 17.5.2007.
11. By a settlement deed dated 22.4.2008, the petitioner's wife has settled the said property in favour of the petitioner's daughter. While so, one Chandresh M. Kampani, legal heir of Mahendra Kumar N. Kampani and Malani Mahendra Kumar Kampani executed a power of attorney in the office Joint Sub Registrar, Mumbai in favour of one Ravi on 9.7.2007. The said Chandresh M. Kampani, claimed that he is the son of late Mahendra Kumar N. Kampani and Malani Mahendra Kumar Kampani.
12. The said Ravi executed a sale agreement in favour of one Rajaiah on 8.9.2008 at Sub Registrar's Office, Neelankarai. However, the said sale agreement was cancelled by the said Ravi on 15.7.2010. Though it was cancelled, the said Rajaiah gave a complaint dated 12.4.2012 before the Commissioner of Police, Chennai.
13. It is stated that after obtaining a sale agreement he verified the records only to find out that under a fake power of attorney sale deed has been executed in favour of the petitioner's wife and at the instigation of the petitioner and his wife, the said Ravi was threatened and he cancelled the sale agreement. He has stated that it is a case of land grabbing and therefore, sought for criminal action.
14. Based on the said complaint Cr.No.233 of 2012 was registered by the Inspector of Police, Crime Branch against one Dhanalakshmi and the present petitioners.
15. Plot No.277, which lies adjacent to plot No.297, was originally purchased by one Mothilal Karsondas Dalal and Gunvantlal Karsondas Dalal by a sale deed dated 28.1.1967. It is said that they executed a power of attorney dated 12.4.2007 in Joint Sub Registrar's Office, Trichy in favour of one Dhanalakshmi. She, inturn, executed a sale deed dated 5.6.2007 in favour of the petitioner's daughter Yamini.
16. One Upendra Mothilal Dalal s/o Mothilal Karsondas Dalal lodged a complaint before the Commissioner of Police, Chennai stating that Plot No.277 belong to his father Mothilal Karsondas Dalal and his brother Gunvantlal Karsondas Dalal and they died in the year 1981 and 1993 respectively.
17. While so, he came to know that some construction has been going on in the property and on going through the encumbrance certificate from the Sub Registrar's office, it was found that the property has been dealt with by forged documents and fake power of attorney.
18. On the said complaint a case in Cr.No.315 of 2012 was registred against the said Dhanalakshmi and the petitioners.
19. All the three crime numbers are being investigated by the present respondent police. Apprehending arrest, the petitioners are before this court seeking anticipatory bail.
20. Mr.N.R. Elango, learned Senior counsel appearing for the petitioner would submit that the wife and the daughter of the petitioner are the bonafide purchasers from the valid power of attorney holder. The learned Senior counsel pointed out that the property in Cr.No.154 of 2012 was purchased in the year 2001 and after ten years, a complaint has been given by the alleged husband of the original owner. He had also pointed out that the Firist Information Report itself reads that on a telephonic conversation and on the instructions from the Commissioner of Police, the complaint has been lodged.
21. The learned counsel further pointed out that the preliminary enquiry would show that one Shanmugam has committed alleged forgery and there is no allegation against either the petitioner or his wife. There is no locus-standi for the complainant to lodge a complaint.
22. The learned Senior Counsel pointed out that Cr.No.233 of 2012 relates to the property involved at plot No.297, which was purchased by petitioner's wife in the year 2007 and the complaint has been lodged in the year 2012.
23. The learned Senior Counsel pointed out that the complainant, whose sale agreement has been cancelled as early as 15.7.2010, has given the present complaint and he has no locus standi to question the title.
24. The learned Senior Counsel pointed out that the said Rajaiah had disturbed the possession of the petitioner's wife and daughter and a suit has been filed in a civil court and the petiitoner's wife and daughter obtained a valid decree against the complainant.
25. As far as Cr.No.315 of 2012 is concerned, the petitioner's daughter has purchased the property in the year 2007 and the complainant has filed a civil suit which is pending. The petitioner's daughter has filed an application to reject the plaint on the ground of 'barred by limitation' and therefore, the complainant has no locus standi to question the title of the petitioner's daughter.
26. The learned Senior counsel pointed out that the petitioner, who was the Superintendent of Police of CB CID and later Inspector General of Police, Vigilence and Anti Corruption, happened to investigate and file a final report in the case of disproprotionate asset of the present Hon'ble Chief Minister. Only to wreak vengence, the present complaints are instigated and filed and there is no truth in the complailnts.
27. The learned senior counsel pointed out that there is no allegation against the petitioner in any of the complaints and the petitioner's name has been unnecessarily dragged in only to malign his reputation.
28. The learned Senior counsel relied on a decision reported in 2011 (1) SCC 694 (Siddharam Satlingappa Mhetre vs State of Maharashtra and Others).
29. Mr.S. Shanmuga Sundaram, learned Senior Counsel appeared for petitioner's wife also submits that the complaints are politically motivated and the petitioner has subsequently sold the property to one Prakash in the year 2005.
30. Mr.Silambannan learned counsel for Chandresh M. Kampani, legal heir of Mahendra Kumar N. Kampani and Malani Mahendra Kumar Kampani, the land owner, in Plot No.297, subject matter of Cr.No.233 of 2012, pointed out that the petitioner, who was enjoying the highest position in the Police Department had masterplanned the land grabbing and instigated his own kith and kin to prepare forged documents with impersonated persons and has deceitfully grabbed the land.
31. The learned counsel pointed out that Plot No.297 situate just opposite to the petitioner's plot and having known that the original owners, died in the year 1980 and 1997, the petitioner has created forged power of attorney and thus grabbed the land.
32. The learned Senior counsel pointed out that as far as the criminal action is concerned, there is no limitation of time. When the offence came to the knowledge of Chandresh M. Kampani, he has filed a suit and the present criminal action was at the instigation of one Rajaiah, who was an agreement holder for the purchase of the property.
33. The learned counsel pointed out that the entire transaction would show that the petitioner has orchestrated the entire impersonation, forgery and fabrication in order to grab the land and granting of an anticipatory bail will hamper the investigation.
34. The learned Advocate General, who vehemently opposed granting of anticipatory bail, pointed out that plot Nos.297 and 277 are situate just opposite to the plot which belongs to the petitioner. The original owners, who hail from Bombay, died even prior to 1997. The lands were lying vacant and the petitioner has designed and conspired to grab the property from the rightful owners.
35. The learned Advocate General pointed out that as far as one Dhanalakshmi, Power of Attorney in two cases are concerned, she is none other than the mother-in-law of one Rajan, who is the brother of petitioner's wife. The said mother-in-law by name Tamilarasi had impersonated as Dhanalakshmi and a fake power of attorney has been created as if it has been executed by the original owner Mahendra Kumar N. Kampani.
36. The learned Advocate General would further point out that as far as the other plots are concerned, they belong to Dalal brothers of Bombay, who also died prior to 1997. One local person has impersonated as Mothilal Dalal who had executed power of attorney in favour of the said Dhanalakshmi, who is none other than the mother-in-law of Rajan and on the strength of the two power of attorneys the petitioner has obtained sale deeds in his wife and daughter's name.
37. The learned Advocate General would further point out that as far as the plot in VGP Garden is concerned, one Shanmugam has been directed by the petitioner to create a forged power of attorney and based on the power of attorney the petitioner has obtained a sale deed in favour of his wife.
38. The learned Advocate General also produced the paper cuttings relating to Obtiuary of Mahendra Kumar Navin Chandra Kampani and also the photograph of the Dalal Brothers.
39. The learned Advocate General has also produced the colour photographs of the persons who have signed as Mahendra Kumar Navin Chandra Kampani and also Mothilal Dalal. The learned Advocate General also produced the present photographs of one Tamilarasi and pointed out that the photograph of the said Tamilarsi is the photograph of Dhanalakshmi as found in the forged power of attorneys and in the sale deeds.
40. The learned Advocate General pointed out that power of attorneys have been created in the name of dead persons by impersonation and on forged power of attorneys, the petitioner has obtained sale deed in the name of his family members and therefore, it is a clear case of land grabbing and the investigation is at the crucial stage and opposed for granting pre-arrest bail.
41. The learned Advocate General further pointed out that the peititoner is a retired high ranking police officer in the police department and the investigating agency has obtained statement from a Constable, working in Trichy, who had pressurised one Ravi to cancel the sale agreement executed in favour of the complainant in Cr.No.233 of 2012.
42. The learned Advocate General would also point out that the statement of Sub Registrar was also obtained which would reveal that the peititoner's wife had threatened the Sub Registrar to cancel the sale agreement and therefore, it is a clear case of land grabbing involving a reputed poilce officer and there is no political motive behind registering the cases.
43. Heard the learned counsel for the petitioner, the learned counsel for the intervenor and the learned Advocate General and perused the materials available on record.
44. There are three crime numbers involving three set of properties.
45. Cr.Nos.233 and 315 relate to two plots which are situated in front of the petitioner's plot at Solinganallur village. Plot No.277 admittedly purchased by Dalal brothers of Mumbai in the year 1967. Mothilal Karsandas Dalal died on 24.9.1991 and a death certificate has also been obtained by the Investigating agency which is available in the typed set.
46. The other brother Gunvantlal Dalal died on 10.2.1993, for which, legal heir certificate was obtained in a proceeding before the High Court Mumbai.
47. Upendra Mothilal Dalal, the complainant in Cr.No.315 of 2012 is the son of Mothilal and one Pinakin is a son of Gunvantlal Dalal. Therefore, they are the rightful owners of the properties in plot No.277. However, according to petitioner, the petitioner's wife has purchased the property from one Dhanalakshmi, power of attorney of the above said Mothilal Dalal and Gunvantlal Dalal.
48. A power of attorney dated 12.4.2007 is alleged to have been executed by the above two dead brothers. The photographs of the deceased brothers are also produced and the photographs of the person, who posed as Mothilal Dalal is also produced.
49. Obviously the deceased would not have executed the power of attorney in favour of the said Dhanalakshmi and the photographs also clearly prove that there is an impersonation.
50. Similarly, plot No.297 belongs to Mahendra Kumar Kampani and Malani Kumar Khambani. It is stated that Mahendra Kumar Kampani died on 26.8.1997 and the said Malani died even prior to that. Though there is no death certificate produced, the prosecution has produced the xerox copy of the paper publication regarding the demise of Mahendra Kumar Kampani.
51. One Chandresh N. Kambani is the legal heir of Mahendra Kumar N. Kampani and Malani Mahendra Kumar Kampani. There is no dispute regarding these facts. Obviously the deceased would not have executed the power of attorney in favour of the said Dhanalakshmi and the photographs also clearly prove that there is an impersonation.
52. According to prosecution, the said Dhanalakshmi is a power of attorney for plot No.277, directly from Dalal, brothers had executed the sale in favour of the petitioner's wife. The power of attorney cannot be genuine as the Dalal brothers have already died. So both the power of attorneys in favour of Dhanalakshmi,who is the vendor of petitioner's wife, are obviously either fake or forged or obtained under impersonation. The petitioners have purchased the property only from the said Dhanalakshmi.
53. The case of the prosecution is that the said Dhanalakshmi is none other than the mother-in-law of one Rajan, who is the brother of the petitioner's wife. The prosecution has produced the photograph of one Tamilarasi wife of Kandasmay, mother-in-law of the said Rajan.
54. The learned Advocate General pursuaded this Court to compare the photographs with the photographs affixed in the sale deeds executed by the said Dhanalakshmi in favour of petitioner's wife and daughter.
55. The crux of the prosecution is based on this comparison. The respondent has seized the pension papers of the said Kandasamy, wherein, the photograph of the said Tamilarasi is affixed along with Kandasamy. According to the prosecution, the said Tamilarasi has impersonated Dhanalakshmi.
56. A comparison of these photographs would show that there is a force in the prosecution theory and there is prima facie evidence for a nexus is established. However, prosecution has to further investigate and prove this nexus beyond reasonable doubt.
57. As far as plot Nos.693 and 694 which are the subject matter of Cr.No.154 of 2012 is concerned, the complainant is one Anukul Vij and the property belong to one Seema Malkothara and Sandeep Malkothara. One Shanmugam, a power of attorney, has sold the property to the wife and daughter of the petitioner. They have in turn sold the property in favour of A.N Prakash in the year 2005. As far as this crime is concerned, the nexus between the said Shanmugam and the said purchaser has to be proved and so far the investigation has not revealed any prima facie case against the petitioners.
58. Now the question before this court is whether the petitioners are entitled for an anticipatory bail at this stage.
59. In 2011 (1) SCC 694 (Siddharam Satlingppa Mhetre vs State of Maharashtra and Others) the Hon'ble Supreme court has laid down the following parameters which have to be taken into consideration while dealing with the Anticipatory Bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The posibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck betwen two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuiness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
60. As far as the gravity of the offence relating to plot Nos.277 and 297 are concerned, prima-facie it is a case of land grabbing. However, the petitioner, who was an highest police officer in the State, is concerned, his exact role has to be examined. So far the allegation against the petitioner is concerned, the purchasers are his wife and daughter and therefore, he is the brain behind everything and he has used his power and position for this purpose.
61. Ordinarly, there will be no offence if the petitioner or his wife or his daughter had purchased the property from one Dhanalakshmi, who obtained a power of attorney even from an impersonater, provided the purchaser was not aware of the impersonation. But things will be different if the said Dhanalakshmi happened to be the close relative of the petitioners, then the nexus looms large and the purchasers cannot claim any innocence.
62. Whether the petitioner had any active role is the only question. The presumptiion may go against the petitioner for the reason that he happened to be the highest ranking police officer and nothing would have happened without his knowledge and blessings. But at the same time, presumption and assumption are not sound legal principles to accuse a person for his active role.
63. A close scruitny of the case diary and relevant records would show that a substantial investigation has already been completed and the only crucial evidence to be collected is establishing the relationship of the person who impersonated as Dhanalakshmi is the close relative of the petitioner's wife. If the relationship and the identity are established the purchaser can not plead innocence and she is the main person to be introgated.
64. Therefore, as far as the petitioner and his daughter, who is only a name lender, are concerned, their custodial interrogation is not necessary and therefore, I am of the considered view that they may be granted anticipatory bail to enable them to appear before the investigating officer to cooperate with the investigation in all the three cases.
65. As far as the petitioner's wife is concerned, she is directly involved in all the transactions and she is the only link for the said impersonated person and therefore, custodial interrogation is necessary for her.
66. As far as the contention of the petitioner, that there is a delay in lodging the complaint, the complainant has no locus-standi to give a complaint and the civil right towards title is extinguished due to limitation are concerned, they are not acceptable.
67. The petitioner in Crl.O.P.No.17246 of 2012 is a co-accused in Cr.No.315 of 2012. The only allegation against him is that he has mediated for the transaction. Therefore, there is no serious allegation against him.
68. Therefore, for the reasons stated above, I am of the considered view that the petitioner and his daughter and the petitioner in Crl.O.P.No. 17246 of 2012 are entitled for pre-arrest bail.
69. Accordingly, the the petitioner in Crl.O.P.Nos.20546, 20655 and 20675 of 2012; the petitioner in Crl.O.P.No.17474 of 2012 and the petitioner in Crl.O.P.No.17474 of 2012 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 copy of this order before the learned Judicial Magistrate, Alandur on the petitioner in Crl.O.P.No.17246 of 2012 executing a bond for a sum of Rs.10,000/-(Rupees ten thousand only) and also on the petitioners in Crl.O.P.Nos.20546, 20655 and 20675 of 2012 and the petitioner in Crl.O.P.No.17474 of 2012 executing a bond for a sum of Rs.1,00,000/-(Rupees one lakh only) each with two sureties each for a like sum to the satisfaction of the learned Magistrate concerned, or to the satisfaction of the respondent police or the police officer who intends to arrest them and and on condition that the petitioner in Crl.O.P.Nos.20546, 20655 and 20675 of 2012 and the petitioner in Crl.O.P.No.17246 of 2012 shall report before the respondent police daily at 10.00 a.m for a period of two weeks and the petitioner in Crl.O.P.No.17474 of 2012 shall appear before the respondent as and when required.
70. As far as the petitioner in Crl.O.P.Nos.16763, 16764 and 22919 of 2012, considering the serious nature of the offence, all the petitions stand dismissed.
Consequently, connected MP is closed.
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