Kerala High Court
Emil James vs State Of Kerala on 16 February, 2021
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
Bail Appl..No.8023 OF 2020
CRIME NO.659/2020 OF MARADU POLICE STATION, Ernakulam
PETITIONER/ACCUSED:
EMIL JAMES
AGED 31 YEARS
CHERIPURATH,KOTTAYADU,
KAVALA,ALAKKODU,
VELLAD -670571
BY ADV. SRI.K.R.VINOD
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA
682031
2 MATHEW JOHN M
AGED 41 YEARS
GENERAL MANAGER FINANCE SHINRAI YAMAHA,
SHINRAI AUTOMOBILES
PVT.LTD, MARADU
R1 BY SRI.SANTHOSH PETER SR. PUBLIC PROSECUTOR
R2 BY ADV. SRI.JOLLY JOHN
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
16.02.2021, ALONG WITH Bail Appl..8033/2020, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.8023 OF 2020 &
Bail Appl..No.8033 OF 2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
Bail Appl..No.8033 OF 2020
CRIME NO.659/2020 OF MARADU POLICE STATION , Ernakulam
PETITIONERS/ACCUSED:
1 NISHAD K.H
AGED 40 YEARS
KAVUNGUM KOTTATHIL HOUSE
ELAMAKKARA P.O,
KOCHI-682026
2 NISHA NISHAD
AGED 34 YEARS
KAVUNGUM KOTTATHIL HOUSE
ELAMAKKARA P.O,
KOCHI-682026
3 P.H MOHAMMED SHAMIM
AGED 48 YEARS
SERANG MOTORS, PLOT NO.14A,
KOCHI FISHERIES HARBOUR COMPLEX,
NEAR THOPPUMPADY POLICE STATION
4 ANISH JAMES
AGED 36 YEARS
PAVRAVARA HOUSE,CANAL ROAD,
THYKOODAM,VYTILA P.O
BY ADV. SRI.K.R.VINOD
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA -682031
Bail Appl..No.8023 OF 2020 &
Bail Appl..No.8033 OF 2020
3
2 MATHEW JOHN M
AGED 41 YEARS
GENERAL MANAGER FINANCE
SHINRAI YAMAHA,SHINRAI AUTOMOBILES PVT.LTD, MARADU
R1 BY SRI.SANTHOSH PETER SR PUBLIC PROSECUTOR
R2 BY ADV. SRI.JOLLY JOHN
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
16.02.2021, ALONG WITH Bail Appl..8023/2020, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.8023 OF 2020 &
Bail Appl..No.8033 OF 2020
4
ORDER
[ Bail Appl..8023/2020, Bail Appl..8033/2020 ] Dated this the 16th day of February 2021 The applicant in B.A. No. 8023/2020 is the 1st accused. While the applicants in B.A. No. 8033/2020 accused Nos. 3,4,5 & 6 in crime No. 659/2020 of Maradu Police Station, for having allegedly committed offences punishable under Sections 406 and 420 r/w Section 34 of the IPC.
2. Prosecution case in brief is that the 1 st accused, supposed to be the Manager(Finance) of the defacto complainant company namely Shinrai Yamaha Automobiles, Pvt. Ltd., Thoppumpadi, allegedly sold vehicles to the other accused who are sub agents of the company and he did not remit the amounts received from the purchases of the vehicle, during the period 2017-2020 and thus misappropriated the amount due to the company and cheated them.
3. The applicants state that they are innocent and the Bail Appl..No.8023 OF 2020 & Bail Appl..No.8033 OF 2020 5 allegations are not true. The 1st accused admits that he was an employee of the defacto complainant company and was a mere Accountant. He had already sold the vehicles and also not received any amount from the sub agents, the remaining accused. It is stated that he resigned from the company and thereafter started his own business. Irked by that, after he left the company, a false and frivolous case has been registered against him and the others. The other accused on the other hand would say that they are sub agents and they had some disputes regarding transacting with the defacto complainant company as is evident from the lawyer notice they have received and the reply notice sent to him. It is stated that it is true that certain amounts were due from the sub agents to the company but there is also other amounts due from the company to the sub agents, which means to be settled and it has been made clear in the reply notice they had send. Under the circumstances, it is submitted that this is a clear civil instigation, which has been sorted out by a Civil Court of competed jurisdiction and it is not a criminal Bail Appl..No.8023 OF 2020 & Bail Appl..No.8033 OF 2020 6 offence. The dispute is regarding the payment of money and it is not of misappropriation as is revealed from the complaint filed by the defacto complainant. Hence, the applicants pray that they are entitled to pre-arrest bail. They are not likely to abscond and are willing to cooperate with the investigation, and answer to any queries that may be put to them regarding the alleged transaction with the defacto complainant company. Hence, the application for anticipatory bail.
4. Heard the learned counsel appearing for the applicants, the learned counsel appearing for the defacto complainant and also the learned Public Prosecutor.
5. The learned Public Prosecutor submits that a sum of Rs. 1,49,00,000/- have been misappropriated by the 1 st accused and sub agents of the defacto complainant company and the offence alleged against them are very grave. Hence, they are not entitled for the exceptional remedy of the pre- arrest bail.
6. After having heard the submissions, I find that the Bail Appl..No.8023 OF 2020 & Bail Appl..No.8033 OF 2020 7 alleged misappropriation took place during the year 2017
-2018 and it is rather surprising that how the defacto complainant company was not able to identify the alleged misappropriation, despite being a company having a proper accounting system. The accounts have to be submitted before the Registrar of Companies and it is not possible to sell the vehicles without receiving a proper consideration for those items sold to the sub agents. Prima facie, it is difficult to accept the allegations made by the defacto complainant. It is true that there appears to be some disputes between the sub agents and the defacto complainant company, which needs to be sorted out by the appropriate forum. Therefore, I find that the custodial interrogation of the applicants may not be necessary as they are willing to co-operate with the investigation. Moreover, it is documentary evidence, which is required to prove the defacto complainant, which they are in possession of.
Hence the application is allowed, and the applicants are directed to surrender before the Investigating Officer within Bail Appl..No.8023 OF 2020 & Bail Appl..No.8033 OF 2020 8 two weeks. After interrogation and recovery, in the event of their being arrested, they shall be released on bail on execution of a bond for Rs. 50,000/-(Rupees Fifty Thousand only) each with two solvent sureties for the like amount each to the satisfaction of the Investigating Officer and on following conditions:
(i) They shall appear before the Investigating Officer as and when called for.
(ii) They shall not tamper with evidence, intimidate or influence witnesses.
(iii) They shall not get involved in similar offences during the bail period.
In case of the breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail.
Sd/-
ASHOK MENON JUDGE avs