S.Mahaveer.... v. State rep.by The Inspector of Police,CCB, Team IX-A,Egmore, Chennai-8,.....

N THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02.09.2010CORAM:THE HON'BLE MR.JUSTICE C.T. SELVAMCrl.O.P.No.19963 of 2010andM.P.Nos.1, 2 and 3 of 2010S.Mahaveer.... Petitioner Vs.State rep.by The Inspector of Police, CCB, Team IX-A,Egmore, Chennai-8,..... RespondentPrayer : Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to set aside the order of the ChiefMetropolitan Magistrate, Egmore, Chennai, dated 25.08.2010 in Crl.M.P.No.2538 of 2010 and to reject the application for police custody preferred by the respondent in Crime No.519 of 2009.For Petitioner : Mr.N.R.Elango, Senior Counsel Mr.A.Ramesh, Senior Counsel, Mr.P.Krishnanfor Mr.K.SurendarFor Respondent : Mr.Paul Nobel Deva Kumar, Government Advocate (Crl. Side) For defacto Complainant : Dr.G.KrishnamoorthyO R D E RThe petitioner seeks a direction to set aside the order of the learned Chief Metropolitan Magistrate, Egmore, Chennai, dated25.08.2010 in Crl.M.P.No.2538 of 2010 and to reject the application for police custody preferred by the respondent in Crime No.519 of2009, registered under Section 406, 417, 420 IPC and Section 4 of theTNPCEI Act, 2003.

The complaint in the case reads as follows: "I P.Ramesh Babu am preferring the present complaint both on my behalf and on behalf of my wife. I am a Civil Contractor by profession and was awarded projects at Nagercoil and to execute https://hcservices.ecourts.gov.in/hcservices/ the said projects I needed money urgently as aresult Mr.Mahaveer agreed to lend me a sum ofRs.35,00,000/- (Rupees Thirty five lakhs only) at36% per annum interest and the said loan was secured by title deed of the property owned by meat Thiruvanmiyur and Thirukazhukundram valuing more than 3 Crores. I had also executed a power of attorney for the property in question and also for collecting the dues from the Government after the execution of the project aforementioned. Inaddition, I have given blank signed promissory notes, blank signed cheques, blank signed stamp papers and blank signed white and green papers and handed over the same to the said Mr.Mahaveer.

The power of attorney for collection of moneyswas executed as document No.256 of 2004, dated27.04.2004, at S.R.O.Kanyakumari and the power of attorney for the property at Thiruvanmiyur and Thirukazhukundram was registered as documentNo.974 of 2004, dated 17.05.2004 at S.R.O.NorthChennai. Thereafter, I had come to know that the saidMahaveer had misused the blank signed stamp paper and blank signed green paper created a fresh power of attorney without my knowledge to the effect that he had power to carry out the work, operate bank account, etc with an intention of defrauding me when the Superintending Engineersent a letter to me dated 24.11.2004. Further, the said Mr.Mahaveer had using the Power of Attorney Document No.974 of 2004 and executed an agreement for sale dated 31.05.2004 in favour of one Mr.Roopchand Kothari, for the Thiruvanmiyurproperty and executed another agreement for sale dated 31.05.2004 in favour of Mukesh Kothari for the Thirukazhukundram property.

Having come to know of the evil designs and intentions of the said Mr.Mahaveer I had cancelled the Power of Attorney given in his favour in document No.256of 2004 by cancellation deed vide document No.15of 2004, dated 31.12.2004 at S.R.O.Nagercoil andI also cancelled the Power of Attorney in document No.974 of 2004 vide cancellation deed in document No.2411 of 2005, dated 27.12.2005 and intimated the said cancellation to the saidMahaveer vide a legal notice dated 28.12.2005.Thereafter, I gave the matter no thought andon 25.03.2008 I settled the Thirukazhukundram https://hcservices.ecourts.gov.in/hcservices/ property to my wife vide settlement deed and Ifurther settled the property at Thiruvanmiyur tomy wife on 23.06.2008.But clearly knowing that the power of attorneys granted in his favour was revoked the said Mahaveer had executed a sale deed in favour of his daughter in law Priyadarshana on26.03.2008 and on 30.07.2008 he had executed the sale deed for the Thiruvanmiyur property in favour of his wife Vijaya Kawar.

This clearly shows that the said Mahaveer, his wife Vijaya Kawar and his daughter in lawPriyadarshana acted together with an intention to cheat me and cause me wrongful loss and in the process cause wrongful gain to themselves. Theirintention should be interfered from the fact that the said Mahaveer had executed the sale deed in favour of his relatives despite knowing that the power given to him has been cancelled and thereby criminally breached the trust placed upon him byme and thereby with a dishonest intention cheated me. "

Mr.N.R.Elango, learned senior counsel appearing for the petitioner submitted that the entire action of the defactocomplainant was malafide and that the respondent was aiding him in such exercise. The defacto complainant had earlier preferred apolice complaint before the Commissioner of Police in respect of the very same matter on 29.12.2008 in complaint No.2676/PG Vision 08,which was forwarded to the Central Crime Branch in Ref. No.2155/2009,was enquired into and closed, finding no wrong on the part of the petitioner. In such circumstance, the petitioner, who had moved apetition for anticipatory bail in Crl.O.P.SR.No.1694 of 2009 had not pursued the same. Thereafter, the defacto complainant had preferred the same complaint on 08.09.2009 after a period of about ten months, before the Central Crime Branch, Chennai. C.S.No.289 of 2009 on the file of this Court had been filed by the defacto complainant and his wife against the petitioner, his wife and daughter-in-law.

This Court, in Application No.1541 of 2009 in C.S.No.289 of2009 was dealing with a prayer to grant interim direction to therespondents/defendants to return all the original title deeds, cheques, signed stamp papers, blank stamp papers, blank cheques, https://hcservices.ecourts.gov.in/hcservices/ blank green sheets etc., to the applicants pertaining to the suit properties and also schedule mentioned items A and B lying with the defendants more fully described in the Judges Summons. Inapplication under O.A.No.318 of 2009, this Court was dealing with aprayer to grant interim injunction restraining therespondents/defendants, their men, agents, servants or any one acting under them, in proceeding or doing any action regarding the suit schedule mentioned A and B immovable properties in any manner. Byway of common order dated 21.01.2010, this Court had ordered as follows: That (1) S.Mahaveer, (2) H.Vijaya Kawar, and (3)V.Priyadarshana, respondents/defendants 1 to 3herein in O.A.No.318 of 2009 be and are hereby directed to the limited extent of injuncting the respondents not to create any further alienation on the suit property more fully set out in the schedule hereunder.

The emphasis of the learned senior counsel is that the Courthad not ordered the return of original deeds, cheques etc., as sought for by the defacto complainant. While so, the petitioner has preferred the present complaint on 08.09.2009 suppressing the earlier complaint, which was enquired into and closed as also the fact of thependency of the suit on the original side of this Court and the orders passed therein. The case was registered in FIR No.519 of2009, on 23.10.2009. Almost ten months thereafter the petitioner suddenly was arrested on 21.08.2010. There is no explanation why the respondent chose to keep quiet for a such long time and even in the remand report of the petitioner, there is no allegation of his having been absconding.

The petition seeking police custody of the petitioner had been moved before the Chief Metropolitan Magistrate, Egmore on24.08.2010. The learned counsel for the petitioner had pointed out certain defects therein and finding that legal formalities were not complied with, the lower Court granted time upto 25.08.2010 to file appropriate petition. Thereafter, fresh petition was filed on25.08.2010. The Chief Metropolitan Magistrate by orders in Crl.M.P.No.2538 of 2010, dated 25.08.2010 rejected the contention on behalf of the petitioner that this Court had rejected the prayer for return of documents and the Police were trying to use the investigative machinery to get over the order of this Court and do that which had not been favourably considered by this Court. Thelower Court reasoned that the police wanted to seize the documents for purposes of investigation and not for returning it to thedefacto-complainant. Further, police wanted custody of the petitioner not only for seizing the documents return of which was not https://hcservices.ecourts.gov.in/hcservices/ directed by this Court but also other documents and to collect evidence since offence under Sec.5 of TNPCEI Act, 2003 also was attracted. Having decided so, the lower court had asked the Superintendent of the Central Prison, Puzhal to cause production of the accused on 26.08.2010 at 11.00 a.m.

Learned senior counsel would point out that while in the original application seeking custody before the Chief MetropolitanMagistrate, the reasons stated were as follows:1.To seize the case related original property document. 2. To secure his wife, daughter-in-law and manager of his company. 3. To accompany the accused to his native placeTindivanam and at Chennai few places. 4. For the purpose of thorough investigation, in the subsequent affidavit, the reasons stated were as follows: 1. To seize the case related original property document. 2. To take the accused go to Tindivanam for his native place to collect case documents and other facts. 3. To accompany the accused to his native placeTindivanam and at Chennai few places. 4. For the purpose of thorough investigation. Therefrom, it was clear that the primary object of the respondent was to secure documents relief in respect of which had been denied by this Hon'ble Court. The learned senior counsel would inform that besides the above facts and circumstances which would require this Court to consider the bonafides of the application seeking police custody, the very application did not inform sufficient grounds, necessitating police custody. Grant of police custody was a serious matter, since it involved infringement of the fundamental right guaranteed under Article 21 of the Constitution of India and personal liberty of the individual and that in the absence of just and reasonable causes put forth through valid material, police custody could not be granted.

The learned senior counsel relied upon the decision of the Division Bench of this Court in G.K.Moopanar and Others v. The Stateof Tamil Nadu, 1990 L.W.113, wherein it had been observed that https://hcservices.ecourts.gov.in/hcservices/ remand by a Magistrate was not automatic and sufficient grounds must exist for a Magistrate to exercise powers of remand. He also relied upon the observations of a Division Bench of this Court in CriminalAppeal No.740 of 2007, which are as follows: "15. Before considering the second submission it would be appropriate to consider the last submission viz., whether the application for police custody has to be granted automatically or any order passed for such police custody should be supported by materials. The police custody is concerned about the infringement of right of an individual, more particularly fundamental right guaranteed under Article 21 of the Constitutionof India.

The contention of the learned Senior Counsel on Rule 76 of the Criminal Rules of Practice and Circular Orders, 1958 can be understood by reproducing Rule 76. " 76. Remands : (1) Magistrates shall not grant remands to police custody unless they are satisfied that there is good ground for doing so, and shall not accept a general statement made by the investigating or other Police Officer to the effect that the accused may be liable to give further information. A request for remand to Police custody shall be accompanied by an affidavit setting out briefly the prior history of the investigation and the likelihood of further clues which the Police expect to derive by having the accused in custody, sworn to by the investigating or other Police Officer, not below the rank of a Sub-Inspector of Police. Magistrates may decide after perusal of the affidavit. Magistrates shall personally see and satisfy themselves about the accused being soundin mind and body before entrusting him to Policecustody and also at the end of the period of custody by questioning him whether he had in anyway been interfered with during the period of custody. When the object of a remand is verification of the statement of an accused, heshall, whenever possible, be remanded to the charge of a Magistrate; and the period of remandshall be as short as possible. (2) When application for remand is made to aMagistrate of a class lower than the second class, the Magistrates shall direct the Police togo to a Magistrate of a higher class. (3) It is the duty of Magistrates, who remand accused person to custody other than that https://hcservices.ecourts.gov.in/hcservices/ of Police, and of Magistrates in exclusive charge of sub-jails to which the accused persons are remanded, to guard with the greatest care against the possibility of any undue influence. (4) Where an accused, detained in hospital, is not in a position to be removed and produced before the Magistrate concerned the appropriate procedure would be for the Magistrate to proceed to the hospital, see the accused person and order an extension of the remand. "

Learned senior counsel would submit that while in the earlier affidavit filed for remand, one of the purposes stated was of securing the petitioner's wife, daughter-in-law and Manager of the Company, purposes, which directly had been held to be impermissible under order of the Division Bench of this Court in Criminal AppealNo.740 of 2007, the requisite of the rule particularly that which called for the reproduction of the prior history of the investigation and likelihood of further clues being obtained through police custody had not been spoken about in the affidavit. He would take strong exception to the prosecution not having placed the entire materials before the lower Court for its consideration, particularly that of related suit pending before this Court and of the earlier complaint against the petitioner on the very same issue earlier having been closed by the respondent. He also would point out the averments made in the counter of the respondent, which informed the undue interest shown in the case by the respondent. Relevant portion of the same reads as follows:8.It is respectfully submitted that in the meantime, on behalf of the accused/respondentherein today (26.08.2010) a Memo was filed before the Hon'ble Chief Metropolitan Magistrate, Egmore, Chennai-8, in which it is stated that they have filed an application under Section 482Cr.P.C.before this Hon'ble Court vide Crl.O.P.SR.No.35703/2010, dated 26.08.2010praying not to grant any police custody in CrimeNo.519/2009.9.It is respectfully submitted that the petition filed by the accused respondent was subsequently numbered as Crl.O.P.No.19963 of 2010and the counsel for accused/respondent herein was permitted to move the petition as Lunch Motiontoday 26.08.2010.

It is respectfully submitted that though Lunch Motion permission was granted by this Hon'ble Court, neither the counsel for theaccused/respondent herein nor the Hon'ble HighCourt Registry has furnished any information https://hcservices.ecourts.gov.in/hcservices/ relating to the filing of the application subsequent numbering of application in Crl.O.P.No.19963 of 2010 and listing the matter by 2.15 p.m. Today 26.08.2010 before this Hon'bleCourt. I further submit that since the magnitude of the case is very huge the accused/respondentherein had suppressed material facts and obtain this stay order.11.I further submit that my subordinateviz., Thiru R.Ranjith Kumar, Sub-Inspector of Police attached to my Team was also deputed to give proper instructions to the Office of the Public Prosecutor, High Court, Chennai and till3.30 P.M. Today (26.08.2010), the papers from the Registry was not forwarded.10. Learned senior counsel would impress the over zealousness of the respondent to watch over proceedings in this Court, when the interests of the state were being take care of by a duly appointed law officer. The learned senior counsel would impress upon this Court that we are now witnessing repeated instances, wherein persons are taken into police custody with the primary purpose of settling disputes between parties.

This Court has expressed its disconcert at avermentsimplying that the respondent was kept in the dark. An affidavit in apology stands filed and accepted.

The learned Government Advocate would submit that it was not only for the return of documents, that police custody was sought. The same also was required in respect of other important matters relating to investigation and this Court would restrict the period of remand, if considered appropriate.

Mr.G.Krishnamoorthy, learned counsel appearing for thedefacto complainant would state that the order of interim stay passed by this Court was pre-emptive in nature. The aggrieved person had preferred a complaint and taking a person into police custody was apart of the investigation process which this Court would not interfere with. It was not for the accused to inform the manner investigation is to be conducted. Merely because police custody was ordered, it would not mean that the end of recovery of documents would be achieved. It was open to the accused to refuse to hand over the same. He would also touched upon Section 83 of the Trusts Act. 14. Considering the rival submission, this Court finds that the petition would have to be allowed for more reasons than one. In the first place, the fact of an earlier similar complaint having been https://hcservices.ecourts.gov.in/hcservices/ enquired into and closed is not disputed. In circumstance, where the complaint has been preferred on 08.09.2009 registered on 23.10.2009and nothing immediately has been done, after an order of this Courtdated 21.01.2010, which had in effect rejected the prayer of thedefacto complainant requiring the accused to produce documents, the respondent has woken up after long slumber on 21.08.2010 and caused arrest of the petitioner. That, towards serving the very same purpose, relief where regards had been refused by this Court viz.,recovery of documents, the respondent had sought custody on24.08.2010 is to be viewed with some consternation. As rightly informed by the learned senior counsel, many are the cases, wherein the criminal process is being resorted to, to achieve oblique purposes and the facts and circumstances of the present case lead usto believe that this is one such case. As regards the submissions made by the learned Government Advocate that the purpose of seeking police custody is not only to obtain the return of documents, it has to be stated that one would have to draw the gold from the dross. The present is a case of all dross and no gold.

Mr.G.Krishnamoorthy's submissions are more on general principles, which we agree with but which would have no bearing on the facts of the present case. His contention that as against the order of police custody, the proper course would be to move this Court by way of Criminal Revision, and not by way of criminal original petition, stands rightly met by Mr.N.R.Elango, SeniorCounsel by placing reliance on decision reported in 2004 SupremeCourt Cases (Cri)1722. Finding that the order of the lower court has been obtained on suppression of relevant facts, this Court would allow this petition and set aside the order of the Chief MetropolitanMagistrate, Egmore, Chennai, dated 25.08.2010 in Crl.M.P.No.2538 of2010. Consequently, connected miscellaneous petitions are closed.

Copies of this Court shall be forwarded to allMetropolitan/Judicial Magistrates. A copy shall be forwarded to the Director General of Police, for appropriate action, particularly sensitizing the force and issuing guidelines as considered necessary. Sd/-Asst. Registrar/True Copy/Sub. Asst. Registrarkrk https://hcservices.ecourts.gov.in/hcservices/ To1.The Inspector of Police, CCB, Team IX-A, Egmore, Chennai-8, 2. The Public Prosecutor, High Court, Madras.3. The Chief Metropolitan Magistrate Egmore, Chennai4. The Director General of Police Mylapore.5. The Section Officer F.Section High Court Madras+ 1 cc to Mr.A. Thirymaran, Advocate ,SR.65114+ 1 cc to Mr.K. Surendar, Advocate Sr.65029Crl.O.P.No.19963 of 2010TRM(CO)Eu 18.1.11