Kerala High Court
Kuriakose T. P. @ Eby vs The State Of Kerala on 7 April, 2016
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938
Bail Appl..No. 1928 of 2016 ()
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CRIME NO. 198/2016 OF PUTHENCRUZ POLICE STATION,
ERNAKULAM DISTRICT
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PETITIONER(S):
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KURIAKOSE T. P. @ EBY, S/O.PAILY,AGED 44 YEARS,
AYNATTU HOUSE, KADAYIRIPPU, KOLENCHERRY,
ERNAKULAM DISTRICT.
BY ADVS. SRI.K.PAUL KURIAKOSE
SRI.A.INEES
RESPONDENT(S):
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THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI.C.RASHEED
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 05/04/2016, THE COURT ON 07-04-2016 PASSED THE
FOLLOWING:
bp
SUNIL THOMAS, J.
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B.A.No. 1928of 2016
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Dated this the 7th day of April, 2016
O R D E R
Petitioner is the sole accused in Crime No.198/2016 of Puthencruz police station for offences punishable under sections 406,409 and 420 and 120B of IPC.
2. According to the defacto complainant, he represents the company engaged in the manufacture, sale and export of spices and spice oleoresins. The accused was an employee of the complainant for the past 20 years and was in charge of the purchase Division of the company in the capacity as the Assistant General Manager and the Head of the Purchase Department. He was directly involved in the purchase of raw materials including spices, chemical solvents, packing materials, etc. He used to represent the sellers of spices and other raw materials as company's agent and negotiate with the importers for obtaining the best price possible in the market. In the course of transaction of fixing the price, the accused used to entrust with money and had absolute domain or B.A.No.1928/2016 2 control over the amount entrusted. He was also entitled to negotiate and fix the prices for purchase of raw materials required by the company including their freight charges. It was alleged that during the period from 28/5/2013 to 2015, he had entered into several clandestine dealings with other agencies with whom the company used to enter into transaction, committed criminal breach of trust, cheating and criminal misappropriation of huge amounts quantified at present as more than one Crore. Alleging that he had misused the trust reposed on him and induced the complainant to purchase the raw materials at purchase prices projecting it as best price in the circumstances and received commissions from them. It was alleged that the commission so received by him was illegal. It was further alleged that he managed to fix the price at a rate which included his unlawful commission and had routed amounts so received through the various accounts maintained in India and that of his relatives abroad, including one Shiny Joy of New Zealand. It was further alleged that a sum of Rs. 20 Lakhs was received from New Zealand routed through an account in United States and then it was transferred to New Zealand and B.A.No.1928/2016 3 thereafter through the account of Shiny Joy in violation of law. It was further stated that the amount so received were siphoned into the accounts of his wife and close relatives maintained in the various bank.
3. On the basis of the complaint lodged, crime was registered and the police is investigating. Contending that the petitioner herein is sought to be falsely implicated, that he is absolutely innocent of the crime, and that he has been following the procedure laid down in the company regarding the purchase, petitioner seeks bail. Contention of the petitioner was that he was only an Assistant General Manager and not the head of the purchase department as alleged and the CEO and the Directors were the officers superior to him. He invites quotations which are placed before the CEO and the Directors. They determine and approve the purchase orders. The prices are fixed in consonance with the prevailing market rate and on negotiations with sellers by the superior authorities in the company. Purchases are approved on definite policy and norms adhered to by the company, depending upon the prevailing market rate and the availability of the commodity. Therefore, B.A.No.1928/2016 4 there was no room to get any kickback or commission.
4. Heard the learned senior counsel for the petitioner, learned senior counsel for the defacto complainant who filed an application for impleadment and the learned public prosecutor.
5. The petitioner had placed few e mails to show that after obtaining prices, they were placed before CEO for approval. According to the complainant, since items are purchased from selected clients from whom quotations are taken and having regard to the prices offered by the limited number of sellers from various countries, it appears that certain flexibility is available, since the element of varying quality of markets in various countries are involved. The contention of the learned counsel for the defacto complaint was that the petitioner herein placed orders on the basis of utmost confidence reposed on him, over a long period of service. Certain inputs were received indicating that the petitioner herein had certain clandestine transactions and funds were flowing from abroad. It was contended thatgetting suspicious and after confirmation of his complicity from various sources, he was placed under suspension and complaint was lodged. It was found that e mails sent from the B.A.No.1928/2016 5 official computer in the official e mail had been completely wiped off. According to the petitioner herein, he had taken away laptop and i pad from which several mails were sent. They are in the custody of the petitioner herein. This contention was strongly denied by the learned counsel for the defacto complainant.
6. Learned counsel for the defacto complainant heavily relied on Annexure R (a) series of emails exchanged between the petitioner and one Tuan claimed to be one of their customers from whom bulk purchases were ordered. According to the complaint, these emails could be retrieved from the thrash bin of the computer. Series of emails sent between Tuan and the petitioner herein show that it relates to transferring amounts in dollars to the various accounts of unknown persons. It includes a request by the petitioner herein to Tuan to transfer some amounts in the name of Shiny Joy in New Zealand. There is a reference to a list of commission paid to him. Reference regarding the payment of money in cash and transfer of various amounts in various accounts are also indicated. No valid explanation is forthcoming from the petitioner herein regarding B.A.No.1928/2016 6 these crucial materials. These show that huge amounts being diverted from abroad to other countries and referring to certain unaccounted money transaction. This show highly doubtful and suspicious money transactions and e-mail communications with persons abroad. Petitioner could not explain the nature of dealings with Tuan who is stated to be a client of the company. He could also not justify what is the personal transaction and transfer of amounts by Tuan to a relative of the petitioner. This raises doubt regarding the transaction. The implication of each and every transaction, diversion of money, involvement of other persons and how fund, if any, are diverted by the petitioner herein are deposited are all matters which can be brought out only in an in depth investigation. Granting of anticipatory bail to the petitioner may hamper the effective investigation.
Petition fails and is dismissed.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.
B.A.No.1928/2016 7