Kerala High Court
Crime No.445/Cr/Eow-Iii/Kkd/11 Of ... vs By Advs.Sri.P.S.Sreedharan Pillai on 6 March, 2018
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939
Bail Appl..No. 8916 of 2017
CRIME NO.445/CR/EOW-III/KKD/11 OF CBCID, KOZHIKODE
CRIME NO. 542/2011 OF THALASSERY POLICE STATION .
----------
PETITIONER(S)/ACCUSED NO.15
---------------------------
K.NIRMALA,
W/O. K.M BALAKRISHNAN,AGED 51 YEARS, NIMMU NILAYAM,
KAVUMBHAGAM.
BY ADVS.SRI.P.S.SREEDHARAN PILLAI
SRI.T.K.SANDEEP
SRI.ARJUN SREEDHAR
SRI.ARUN KRISHNA DHAN
SRI.ALEX ABRAHAM
RESPONDENT(S)/COMPLAINANT & STATE:
----------------------------------
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
BY PUBLIC PROSECUTOR SRI.SAJJU.S
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06-03-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
TS
RAJA VIJAYARAGHAVAN V, J.
--------------------------------------
B.A.Nos.8916 of 2017 & 8917 of 2017
--------------------------------
Dated this the 6th day of March, 2018
ORDER
1. These petitions are filed under Section 438 of the Code of Criminal Procedure.
2. The petitioners in B.A. No.8917 are accused Nos.14, 17 and 18 and the petitioner in B.A. No.8916 of 2017 is the 15 th accused in Crime No.542/2011 of the Thalassery Police Station. The aforesaid Crime was initially registered under Section 3 and 4 of the Prize Chit Money Circulation (Banning) Act 1978 ('Act 43, 1978' for short).
3. The Sub Inspector of Police, Thalassery Police Station, acting on a tip off that promotion classes for a money circulation scheme were being conducted in the Sarada Krishna Iyer Auditorium at Thalassery on 28.6.2011, raided the premises. The petitioners herein were found promoting some investment opportunities which apparently was in violation of Act 43, 1978 . A suo moto crime was registered.
4. Immediately thereafter, apprehending arrest and detention, B.A.No.8916 & 8917/2017 2 the petitioners herein approached the Court of Session and moved an application for pre-arrest bail. By order dated 20.7.2011 in Crl.M.C. 895 of 2011, directions were issued to the petitioners to appear before the Investigating Officer, within fifteen days for the purpose of interrogation and the officer was ordered to release them on bail in the event of their arrest.
5. Investigation later revealed that the petitioners herein are the canvassing agents of PACL India Ltd., a Company having its business interests in the State of Kerala. The said company had come out with numerous investment plans and had availed the service of several entrepreneurs to canvass their products among the general public and collect funds. The gullible investors were induced to part with their money by assuring them huge sums by way of interest and dividend. When the amounts were demanded back on its maturity, neither the principal nor interest was paid.
6. Taking note of the large number of investors of the State, who had been duped, directions were issued by the State Police Chief and the investigation was taken over by the B.A.No.8916 & 8917/2017 3 CBCID and the crime was renumbered as CBCID Crime No. 445/CR/EOW-III/KKD/11.
7. In the course of investigation, Sections 3 and 4 of Act 43, 1978 was deleted and section 17 of the Money Lenders Act, 1958 was added. Later, Section 17 of the Money Lenders Act was also deleted and a report was submitted before the learned Magistrate incorporating Section 420 of the IPC. On 1.4.2017, PACL India Ltd was arrayed as the 1 st accused, and its Chairman, Directors and Managers were arrayed as accused Nos. 2 to 13. The petitioners herein, who are canvassing agents and promoters of various schemes in the State of Kerala, were arrayed as accused Nos. 14, 15, 17 and 18 and a report to that effect was submitted before the learned Magistrate.
8. The learned counsel appearing for the petitioners submitted that the allegations levelled against the petitioners are absolutely untrue. The petitioners herein are neither persons who are in charge and responsible for the day-to-day conduct of the business of the Company nor are they the principal officers of the Company. They are merely B.A.No.8916 & 8917/2017 4 canvassing agents, who were also duped by the Company to act for and on their behalf and to earn income from the same. It is further argued that in the year 2011, when the crime was registered, no government regulator or authority had found any fault with the running of the schemes by the Company.
9. The learned Public Prosecutor was directed to file a statement. A statement dated 27.2.2018 of the Detective Inspector, CBCID, has been placed on record. From the statement, it appears that the role attributed to the petitioners are that they had worked as canvassing agents who had introduced various plans and schemes to the investors and persuaded them to deposit amounts. It is also stated that the petitioners had conducted more than 25 promotional classes at various places in Kannur District. The report also states that another Crime has been registered by the CBCID, as Crime No.34/CR/EOWIII /KKD/16 under Section 420 read with Section 34 of the IPC. However, the petitioners are not been arrayed as accused in the said crime. It is seen from the report that the B.A.No.8916 & 8917/2017 5 investigation has revealed that PACL India Ltd. through its Directors had collected not less than Rs.700 Crores from the Investors in the State of Kerala. They had also managed to collect about Rs.65,000/- Crores from gullible investors from all over the Country. The principal officers of the Company including the Directors have already been arrested by the CBCID in a crime registered by the CBI.
10. I have considered the submissions advanced and have gone through the statement of the Investigating Officer. The prosecution has no case that the petitioners are the persons in-charge and responsible for the day-to-day conduct of the business of the Company. The petitioners were canvassing agents who were provided with incentives to canvass the schemes and products of the Company. While the petitioners had worked as canvassing agents, no one had a case that the PACL India Ltd. was conducting a business which was illegal. More over, when the crime was originally registered, the offence alleged were under Act 43, 1978. The petitioners were also directed by the Sessions Court to cooperate with the investigation and they were granted an B.A.No.8916 & 8917/2017 6 order of anticipatory bail . The prosecution has no case that the petitioners had failed to appear or that they had refused to join investigation. Now the allegation is under section 420 of the IPC.
11. Having considered the nature and gravity of the allegations, the role attributed to the petitioners, the materials in support thereof and also the fact that the petitioner had been granted an order of anticipatory bail by the Court of Session and they had been substantially interrogated, I am of the view that their custodial interrogation is uncalled for. They can be directed to join investigation and conditions can be imposed to ensure their presence at the stage of trial.
12. In the result, this petition will stand allowed. The petitioners shall appear before the investigating officer within ten days from today and shall undergo interrogation. Thereafter, if they are proposed to be arrested, they shall be released on bail on their executing a bond for a sum of Rs.40,000/- (Rupees forty thousand only) each with two solvent sureties each for the like sum. The above order shall be subject to the following conditions.
B.A.No.8916 & 8917/2017 7
i)The petitioners shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for one month or till final report is filed, whichever is earlier.
ii)The petitioners 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)The petitioners shall not commit any similar offence while on bail.
iv) The petitioners shall surrender their passport before the court below or if they do not have one, they shall file an affidavit to that effect within five days of their 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 al/-xx