Kerala High Court
Unknown vs By Advs on 27 February, 2019
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940
Bail Appl..No. 482 of 2019
CRIME NO. 408/2018 OF NADAPURAM POLICE STATION, KOZHIKODE
APPLICANT/ACCUSED:
SURESHKUMAR K.T., AGED 62 YEARS
S/O.GOPALAN, NANDANAM, P.O.PURAMERI,
VATAKARA, KOZHIKODE.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SMT.POOJA PANKAJ
SRI.AJEESH K.SASI
SRI.M.REVIKRISHNAN
SRI.P.M.RAFIQ
SRI.THOMAS J.ANAKKALLUNKAL
SRI.V.C.SARATH
SRI.VIPIN NARAYAN
SRUTHY N. BHAT
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM-682031.
2 * ADDL R2. SHEELA.A, AGED 56 YEARS,
D/O.SIVASANKARAN NAIR,KOUSTUBAM,
POST VADAKARA, KOZHIKODE DISTRICT
*IMPLEADED AS PER ORDER IN CRL.M.A.NO.2 OF 2019 DATED
27.02.2019.
BY ADV. SRI.R.K.MURALEEDHARAN
R1 BY SR. PUBLIC PROSECUTOR SRI. AMJAD ALI
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.02.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No. 482 of 2019 2
ORDER
This application is filed under Section 438 of the Code of Criminal Procedure.
2. The applicant herein is the accused in Crime No.408 of 2018 of the Nadapuram Police Station, Kozhikode, registered under Sections 406, 420, 468 and 471 of the IPC.
3. According to the prosecution, the applicant herein assigned two items of property to the de facto complainant by two separate assignment deeds dated 23.4.2014 and 19.5.2016 after receiving a total consideration of about Rs.10.37 lakhs. Later, she realised that the applicant had availed cash credit facility from the Bank of Baroda in the year 2012 by mortgaging the property and this fact was suppressed when the agreement of sale was entered into. She also realised that the applicant had defaulted in paying the amount and the bank had initiated securitisation proceedings to realise the amount due from the secured asset. According to the de facto complainant, she was induced to part with valuable consideration with intent to deceive her and by the acts of the applicant, she suffered wrongful loss.
4. The learned Senior counsel appearing for the applicant submitted that the allegations levelled against the applicant are Bail Appl..No. 482 of 2019 3 without basis. It was argued that the applicant and the husband of the de facto complainant were colleagues and when the applicant was in need of money, a sum of Rs.10 Lakhs was advanced to him on condition that he executes a nominal sale deed in favour of the de facto complainant. The agreement between the parties was that when the amount is paid back, the property would be re-conveyed. The sale deeds were not intended to be acted upon and are sham documents, submits the counsel. It was also argued that though the original partition deed of the property was also handed over to the Bank, no mortgage was created as it was an agricultural land. Instead, another item of property having an extent of 109 cents was placed as security. However, it was only when securitisation proceedings were initiated, the applicant realized that the Bank, with a view to corner him, has initiated steps against the said item as well. The learned counsel contended that the applicant is a sexagenarian and recovery proceedings are pending before other forums. There is no case for the prosecution that he would abscond or will be in a position to tamper with the evidence. His custodial interrogation be dispensed with and he be granted an order of pre-arrest bail is the submission.
5. The de facto complainant has filed an application seeking intervention and the learned counsel, who entered appearance, has Bail Appl..No. 482 of 2019 4 strenuously opposed the prayer. It is submitted that the fact that the property was mortgaged with the Bank in the year 2012 is an admitted fact and in that view of the matter, the applicant was bound to disclose the said fact to the de facto complainant prior to the execution of the assignment deeds. The learned counsel would produce the records of proceedings pending before the Debt Recovery Tribunal and it was contended that it is clear as daylight that the de facto complainant was defrauded. According to the learned counsel, if relief of pre-arrest bail is granted, the applicant would delay the settlement of the disputes.
6. Heard the learned Public Prosecutor, who opposed the prayer.
7. I have considered the submissions advanced and have gone through the materials on record. It is an undisputed fact that an assignment deed was executed in favour of the de facto complainant in the year 2016 and it is equally undisputed that the Bank has initiated securitisation proceedings categorizing the said property as a secured asset. However, the fact remains that litigation is pending before the Debt Recovery Tribunal and the entire documents are before the said authority. A much detailed probe into the rival contentions are not necessary in the facts of the instant case. The Bail Appl..No. 482 of 2019 5 applicant is a 62 year old man, who is a retired bank officer, and no other crimes are reported against him. Nothing is there to be recovered from the possession of the applicant for the purpose of investigation. In the facts and circumstances, I do not think that his custodial interrogation is necessary for an effective investigation in the intant case. By imposing stringent conditions to safeguard the interest of the prosecution, it is felt that the applicant can be granted an order of pre-arrest bail.
In the result, this application will stand allowed. The applicant shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. Thereafter, if he is proposed to be arrested, he shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Forty thousand only) with two solvent sureties each for the like sum. However, the above order shall be subject to the following conditions:
i) The applicant shall co-operate with the investigation and shall appear before the Investigating Officer on every Saturdays between 9 A.M and 11 A.M. for a period of two months or till final report is filed whichever is earlier.
ii) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the court or to any police officer.
iii) He shall not commit any similar offence while on bail.Bail Appl..No. 482 of 2019 6
iv) He shall surrender his passport before the court below or if he does not have the one, he shall file an affidavit to that effect within five days of his release. Application for release of the passport, if any, shall be considered by the Trial court at the appropriate stage.
In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.
Sd/-
RAJA VIJAYARAGHAVAN V., JUDGE IAP