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2015 DIGILAW 2392 (MAD)

Junaid Abid Ali v. Mohammed Yaseen

2015-07-07

R.SUBBIAH

body2015
ORDER The Criminal Original Petition has been filed seeking to cancel the bail granted to the 1st respondent herein/accused by the learned XI Metropolitan Magistrate, Saidapet, Chennai, vide order dated 06.09.2014 in Crl.M.P.No.4375 of 2014 in respect of CCB Crime No.255 of 2014 pending on the file of the 2nd respondent-Police. 2. The brief facts, as stated by the petitioner in the affidavit filed in support of this petition, which are necessary to decide this petition, are as follows_ 2.1 The petitioner herein/defacto-complainant lodged a complaint with the 2nd respondent/Police as against the 1st respondent herein and others stating that they cheated the petitioner by promising to sell the land measuring to an extent of 77 cents or 14 grounds comprised in Survey No.87/1 (T.S.No.23/25) at Block No.34, Thiruvanmiyur Village, situated at Avvai Nagar, Thiruvanmiyur, Chennai. It was claimed by the 1st respondent/accused that one Ramesh and Sivagami are the owners of the said property and that the 1st respondent/accused has been appointed as their power agent. The 1st respondent/accused offered to sell the said property to the petitioner for a total sale consideration of Rs.17,50,00,000/- and xerox copies of some documents claiming to be the title deeds of the said land were given to the petitioner for scrutiny. 2.2 Believing the representations made by the accused persons, the petitioner herein agreed to purchase the property for the said sale consideration. Subsequently, a sale agreement dated 01.07.2011 was entered into between the petitioner and the 1st respondent, as Power of Attorney Agent of the said Ramesh and Sivagami. The petitioner had paid a sum of Rs.25 lakhs as advance towards sale consideration and it was agreed that the entire sale transaction should be completed within a period of three months. Thereafter, the petitioner made payments to the accused to the tune of Rs.3,30,00,000/- as demanded by the accused. 2.3 Even after payment of such huge sums of money, the accused persons were not coming forward to register the sale deed as per the agreement. Whenever the petitioner demanded registration of the sale deed, the accused persons were giving only evasive replies. Only then, the petitioner realized that they were not the actual owners and their intention was only to cheat him. Whenever the petitioner demanded registration of the sale deed, the accused persons were giving only evasive replies. Only then, the petitioner realized that they were not the actual owners and their intention was only to cheat him. On enquiry, the petitioner came to know that the said land was owned by a trust and the above said persons, including the 1st respondent, had no right, title or interest over the said land at any point of time. When the petitioner told them that he is initiating legal proceedings against them for their illegal acts, they immediately came forward to settle the matter amicably. The 1st respondent/accused promised to settle the matter by repaying the entire amount of Rs.3,30,00,000/- and a deed of cancellation date 18.06.2013 was made to that effect, thereby cancelling the agreement of sale. The 1st respondent issued seven cheques for a total sum of Rs.3,30,00,000/- and they also took back copies of all the documents handed over to the petitioner for scrutiny. But, the cheques issued by the 1st respondent/accused were returned dishonourned and when the petitioner insisted that the accused should make the payment immediately, the petitioner was threatened by the 1st respondent with dire consequences, if the petitioner pursues the same. 2.4 All the accused persons had conspired and colluded with each other, made a false representation that they were absolute owners of the said property with absolute power to alienate the same. Knowing fully well that they had no semblance of any right or title over the said property, they induced the petitioner to part with huge sum of money and entered into a fraudulent sale agreement and thus, they cheated the petitioner. 2.5 Hence, the petitioner lodged a complaint with the Deputy Commissioner of Police, Central Crime Branch, Chennai and on the basis of his complaint, a case was registered by the 2nd respondent-Police in Crime No. 255 of 2014 under Sections 406 & 420 r/w 34 IPC. The 1st respondent was arrested by the 2nd respondent- Police on 21.08.2014 and he was remanded to Judicial custody. Thereafter, the 1st respondent/accused filed Crl.M.P.No.4375 of 2014 before the learned XI Metropolitan Magistrate, Saidapet, Chennai seeking bail. During the pendency of the bail application, the 1st respondent/accused filed an affidavit, duly attested by the Jailor of Puzhal Prison, before the learned XI Metropolitan Magistrate, Saidapet, Chennai in support of his bail petition. Thereafter, the 1st respondent/accused filed Crl.M.P.No.4375 of 2014 before the learned XI Metropolitan Magistrate, Saidapet, Chennai seeking bail. During the pendency of the bail application, the 1st respondent/accused filed an affidavit, duly attested by the Jailor of Puzhal Prison, before the learned XI Metropolitan Magistrate, Saidapet, Chennai in support of his bail petition. In the said affidavit, the 1st respondent/accused had given an undertaking that he will settle the amounts due to the petitioner by executing a Sale Deed conveying his property in Permabur in favour of the petitioner within seven days from his coming out on bail. Based on the said undertaking, the learned XI Metropolitan Magistrate, Saidapet granted bail to the 1st respondent/accused by an order dated 06.09.2014. But, the 1st respondent did not come forward to settle the amounts due to the petitioner. The 1st respondent filed an application before the learned XI Metropolitan Magistrate, Saidapet, seeking extension of time by three months to settle the amounts due to the petitioner and the said application was allowed. But, even thereafter the 1st respondent has not settled the amount due to the petitioner till date as per the undertaking given by him. Hence, the petitioner has filed the present petition seeking cancellation of bail. 3. The learned counsel for the 1st respondent herein/accused has filed a counter stating that he has entered into a sale agreement with the petitioner and in the capacity of Power Agent of Ramesh and Sivagami, he signed the documents and the petitioner paid a sum of Rs.25 lakhs. Even at the time of entering into Sale Agreement, the petitioner knew the entire history of the property. As per the Sale Agreement, if any dispute arose it should be proceeded as per Indian Arbitration and Conciliation Act. But, without invoking the arbitration proceedings, the petitioner had got the signature in the Deed of Cancellation of sale and obtained 7 cheques to the tune of Rs.3,30,00,000/- from the 1st respondent by threat and coercion with the help of hired hooligans. On the other hand, the petitioner has made false and bald allegations against the 1st respondent as if he had threatened him with dire consequences. In fact, the 1st respondent has transferred three properties worth over Rs.1,25,00,000/- in favour of the relatives of the petitioner as per his request. On the other hand, the petitioner has made false and bald allegations against the 1st respondent as if he had threatened him with dire consequences. In fact, the 1st respondent has transferred three properties worth over Rs.1,25,00,000/- in favour of the relatives of the petitioner as per his request. The 1st respondent is only a power agent of one Ramesh and Sivagami; but, purposely the petitioner has targeted only the 1st respondent herein. Even after one year of registration of the case, the petitioner and the 2nd respondent are not interested in arresting the said Ramesh and Sivagami due to vested interest. Suppressing all the material facts, the petitioner has preferred a complaint in Crime No.255 of 2014 on the file of the 2nd respondent, who in turn without verifying the real facts had registered the case under Sections 406 & 420 r/w 34 IPC and arrested the 1st respondent and remanded him to judicial custody on 21.08.2014. When the 1st respondent was in judicial custody, he was forced to execute an affidavit to come out on bail and accordingly, he executed an affidavit. Immediately after coming out on bail, the 1st respondent's father-in-law Mr.N.O.H.Ayub Khan gave a property worth over Rs.2,00,00,000/- to the petitioner as collateral security along with all the original documents pertaining to the property including the Sale Deed dated 08.03.2010 and he is also willing to execute the Sale Deed in favour of the petitioner to save the 1st respondent from the case. But, the petitioner did not mention the above facts before the Court. Thus, the learned counsel for the 1st respondent sought for dismissal of the present petition. 4. Heard the submissions made by the learned counsel for the petitioner, the learned counsel for the 1st respondent and also the learned Government Advocate (Crl.Side) and perused the materials available on record. 5. So far as the cancellation bail is concerned, the question that has to be decided is whether the petitioner has complied with the undertaking given by him before the Court below for obtaining bail and whether the petitioner has complied with the conditions imposed by the Court at the time of granting bail. 5. So far as the cancellation bail is concerned, the question that has to be decided is whether the petitioner has complied with the undertaking given by him before the Court below for obtaining bail and whether the petitioner has complied with the conditions imposed by the Court at the time of granting bail. Though very many contentions were raised by the learned counsel appearing for the 1st respondent with regard to the transactions that had taken place between the parties, in my considered opinion all those contentions are not relevant to consider the issue involved in this cancellation of bail petition. While considering the bail application of the 1st respondent herein, the learned XI Metropolitan Magistrate, Saidapet, has relied upon the affidavit of undertaking filed by the 1st respondent herein/accused to the effect that he would execute a Sale Deed in favour of the petitioner herein. The relevant portion in the affidavit given by the 1st respondent reads as follows_ “ 5. I hereby undertake to execute a Sale Deed conveying my property viz., Land and Building situated at Plot No.8-C, Door No.18A, New No.21, Perambur High Road, Perambur, Chennai, comprised in R.S.No.266/1 (as per Patta R.S.No.266/20) of Perambur Village admeasuring an extent of 1166 sq.ft in favour of the defacto-complainant within seven days from the date of coming out on bail. 6. My uncle Mr.N.O.H.Ayub Khan, S/o.N.O.Hameed has agreed to stand guarantee for due repayment of the amounts due to the defacto-complainant by me in the aforesaid manner and towards the same he has agreed to deposit title deeds of his property viz., Block No.123, Plot No.6 (MIG) at Manali New Town, comprised in S.No.261 part of Sadayankuppam Village, Thiruvallore District, measuring an extent of 1875 sq.ft situated within the Registration District of North Chennai and Sub- Registration District of Thiruvottiyur, as security. I understand that the defacto-complainant has agreed to return the title deeds of Mr.N.O.H.Ayub Khan once I execute Sale Deed in his favour. 7. I understand that the defacto-complainant has agreed to return the title deeds of Mr.N.O.H.Ayub Khan once I execute Sale Deed in his favour. 7. I submit that now I am confined in the Central Prison at Puzhal in Chennai and I undertake to clear the existing encumbrance over my property before conveying the property to defacto-complainant and not to create any further encumbrance over the said property till it is conveyed to the defacto-complainant.” By relying upon the said affidavit of undertaking given by the 1st respondent herein, the learned XI Metropolitan Magistrate, Saidapet has granted bail to the first respondent. The relevant portion of the order passed by the learned XI Metropolitan Magistrate, Saidapet reads as follows_ A reading of the affidavit of undertaking given by the 1st respondent/accused as well as the order passed by the Court below would show that by taking note of the affidavit of undertaking given by the 1st respondent/accused, the Court below has granted bail to the 1st respondent/accused; but, after coming out on bail, the 1st respondent/accused has not come forward to execute the sale deed as per their undertaking. 6. It is the main submission of the learned counsel appearing for the 1st respondent that executing a sale deed in favour of the petitioner was not a condition imposed by the Court below while granting bail; that so far as the bail order granted by the Court below is concerned, there were two conditions imposed by the Court below – (i) the 1st respondent herein/accused shall execute a bond for a sum of Rs.10,000/- along with two securities; (ii) he shall report before the 2nd respondent-Police daily at 10.30 am until further orders. According to the learned counsel appearing for the 1st respondent/accused, since execution of the sale deed in favour of the petitioner herein was not made as a condition for bail, it cannot be said that the 1st respondent herein/accused has violated the conditions imposed by the Court below; that under such circumstances, question of cancelling the bail does not arise. 7. But, in my considered opinion, the Court below had taken the affidavit of undertaking filed by the 1st respondent/accused into consideration for granting bail to him. Had the undertaking not been given by the first respondent, the Court below might not have granted the bail on 06.09.2014. 7. But, in my considered opinion, the Court below had taken the affidavit of undertaking filed by the 1st respondent/accused into consideration for granting bail to him. Had the undertaking not been given by the first respondent, the Court below might not have granted the bail on 06.09.2014. In fact, the Court below had taken the affidavit of undertaking given by the 1st respondent as a basis for granting bail. When that being so, after coming out on bail, if the 1st respondent/accused has gone back from his undertaking, certainly the bail is liable to be cancelled. In this regard, a reference could be placed in the judgment reported in 2006(2) MWN (Cr.) 408 (DB) [The State, rep. by Inspector of Police, Crime Branch CID, Sivagangai Dist Vs. Palani and another], wherein a Division Bench of this Court it has been held as follows_ “14. Now, it has to be pointed out that the Proviso (2) to Sub-section (1) of Section 389 of Cr.P.C. as per the amended Act, reads thus: “389. Suspension of sentence pending the Appeal; release of appellant on bail_ (1)......... Provided............... Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.” Thus, it would be quite clear that the prosecution, even in case of grant of bail by the Appellate Forum, can make an Application seeking for cancellation of bail. Accordingly, this Petition has been brought forth. Once the law provides that the Application can be filed by the prosecution for cancellation of bail pending the Appeal, it would indicate that the Court can entertain the Application and pass orders on the merits of the matter. In the instant case, the fact that these respondents have violated the conditions imposed by this Court at the time of grant of bail, would be suffice to cancel the bail granted to them. That apart, whenever there is conflict between the social order and the individual liberty, needless to say the Court must give paramount importance only to the social order and not to the individual liberty. In the instant case, bail has been granted, and they have flouted the conditions which were attached to the bail order, by committing such a grave offence which is brought to the notice of the Court by the State. 15. In the instant case, bail has been granted, and they have flouted the conditions which were attached to the bail order, by committing such a grave offence which is brought to the notice of the Court by the State. 15. Now, at this juncture, it has to be pointed out that the contentions put forth by the learned Senior Counsel for the respondents that the facts can be distinguished from the decision of the Supreme Court, which is relied on by the State and referred to above cannot be countenanced. What is all to be seen is that once bail is granted in an Appeal against the judgment of a grave case and while the conditions are imposed and being performed, if the respondents have allegedly committed any other offence of grave nature, whether they can be allowed to be on bail or not. In the instant case, when they were granted suspension of sentence and they were on bail and while performing the conditions, they were accused of committing an offence of grave nature as one referred to above. Apart from that, the test to be applied is whether the liberty given to the respondents herein is misused by them. In the instant case, no doubt, this Court is of the view that the liberty given by way of suspension of sentence and granting bail pending the Appeal, is misused and misutilised by them. In such circumstances, this Court is of the considered opinion that the bail granted in favour of the respondents has got to be necessarily cancelled. Accordingly, it is cancelled, and the respondents are directed to be rearrested forthwith and committed to jail-custody.” The dictum laid down in the above Judgment squarely applicable to the facts of this case also. Even in this case, the petitioner has misused the concession given to him by going back from the undertaking given by him for obtaining bail. 8. It is yet another submission of the learned counsel for the 1st respondent/accused that while the 1st respondent was in judicial custody, he was forced to execute an affidavit to come out on bail and accordingly, he executed an affidavit. 9. But, in my considered opinion, though the learned counsel for the 1st respondent/accused submitted the 1st respondent was forced to give an affidavit of undertaking; but subsequently he has not chosen to initiate any action against the petitioner herein. 9. But, in my considered opinion, though the learned counsel for the 1st respondent/accused submitted the 1st respondent was forced to give an affidavit of undertaking; but subsequently he has not chosen to initiate any action against the petitioner herein. After availing the benefit of bail by giving an undertaking, the 1st respondent/accused cannot turn around and say that the affidavit of undertaking was obtained forcibly, particularly when there is no complaint as against the petitioner herein stating that the affidavit was obtained by force. For the foregoing reasons, I am of the opinion that bail granted to the 1st respondent in Crl.M.P.No.4375 of 2014 in respect of CCB Crime No.255 of 2014 by the learned XI Metropolitan Magistrate Court, Saidapet, Chennai, by an order dated 06.09.2014, is liable to be cancelled and accordingly, the same is cancelled. The criminal original petition is allowed.