Kerala High Court
Arun Sagar vs State Of Kerala on 3 March, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941
Bail Appl..No.9061 OF 2019
CRIME NO.1354/2019 OF North Parur Police Station , Ernakulam
PETITIONER/S:
1 ARUN SAGAR
AGED 32 YEARS
S/O.DHANAVAN,PARAMBATHERIL HOUSE,
NEDUVANNUR,ALUVA.
2 P.R.DHANAVAN,
AGED 63 YEARS
S/O.RAJAPPAN,PARAMATHERIL HOUSE,
NEDUVANNUR,ALUVA.
3 SUJADHANAVAN,
AGED 61 YEARS
W/O.DHANAVAN,PARAMBATHERIL HOUSE,NEDUVANNUR,ALUVA.
BY ADVS.
SRI.K.RAMAKUMAR (SR.)
SRI.T.RAMPRASAD UNNI
SRI.S.M.PRASANTH
SRI.G.RENJITH
SMT.R.S.ASWINI SANKAR
SRI.T.H.ARAVIND
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,KOCHI-31.
2 ADDL.R2 DR.K.M.NAZAR
AGED 54 YEARS, S/O MOIDEENKUTTY, KARUKAPPADATH HOUSE,
UC COLLEGE PO,
ALUVA VILLAGE, ALUVA TALUK,
ERNAKULAM DISTRICT-683102.
IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 9.1.2020
IN CRL.MA NO.1/2020 IN BA -9061/2019.
3 BONEY.T.A
SOUGHT TO BE IMPLEADED
Bail Appl..No.9061 OF 2019 2
R2 BY ADV. BABU KARUKAPADATH
R2 BY ADV. SMT.M.A.VAHEEDA BABU
R2 BY ADV. SRI.P.U.VINOD KUMAR
R2 BY ADV. SRI.AVINASH P RAVEENDRAN
R2 BY ADV. SMT.ARYA RAGHUNATH
R3 BY ADV. THOMSTINE K.AUGUSTINE
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.9061 OF 2019 3
ALEXANDER THOMAS, J.
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B.A. No. 9061 of 2019
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Dated this the 3rd day of March, 2020
ORDER
The petitioners herein have been arrayed as accused Nos.1 to 3 among the 4 accused in the instant Annexure-A1 crime No.1354/2019 of North Paravur Police Station, Ernakulam District which has been registered for the offences punishable under Secs. 406, 420, 468, 471 and 34 of the IPC on the basis of the FIS given by the 2 nd respondent lady defacto complainant on 24.11.2019 in respect of the alleged incidents which happened for the period from 01.08.2019 to 31.10.2019.
2. The 1st petitioner herein (A1) is the son of the 2nd petitioner herein (A2) and the 3rd petitioner herein (A3) is the wife of the 2 nd petitioner (A2) and the mother of the 1 st petitioner (A1). The accused No.4 in this case is a real estate broker in the transaction as between accused Nos. 1 to 3 and the 2nd respondent/defacto complainant.
3. The core of the allegations disclosed against the accused persons in this case is that the accused persons with the common intention to cheat the 2nd respondent/defacto complainant and to make unlawful Bail Appl..No.9061 OF 2019 4 gain to themselves and to cause wrongful loss to the defacto complainant and entered into agreement for sale dated 1.8.2019 in respect of the property owned by the accused Nos. 2 and 3 in survey No.176/5 of Paravur Village having an extent of 30.59 Ares along with a commercial building having 3000 sq.feet thereon. That the accused Nos.1 to 3 had collected an amount of Rs. 45 lakhs on different occasions. Later on the request of the accused persons, the 2nd respondent/defacto complainant parted with an additional amount of Rs. 20 lakhs to the accused persons after receiving a total sale consideration of Rs. 65 lakhs. The accused Nos. 1 to 3 have not registered the property comprised in survey No.176/5 of Paravur Village in favour of the defacto complainant. It is further alleged that the defacto complainant had filed a civil suit as O.S.No.107/2019 against accused Nos. 2 and 3 before the Sub-Court, N.Paravur for specific performance of the abovesaid agreement for sale. The said accused persons with the intention to cheat the defacto complainant and win the said case in which they are arrayed as defendants and had caused a sale agreement purportedly executed on 5.1.2019 as between the 2nd respondent/defacto complainant and his wife on the one hand with accused Nos. 2 and 3 on the other hand. Further that, it is alleged that the signatures of both the defacto complainant and that of his son is false and fabricated accordingly and that the accused Nos. 2 and 3 had produced the said forged agreement in Bail Appl..No.9061 OF 2019 5 original suit O.S.No.107/2019 filed by the defacto complainant herein before the Sub-court, North Paravur.
4. That on the basis of the FI statement given by the 2 nd respondent/defacto complainant, the instant Annexure-A crime No.1354/2019 of North Paravur Police Station was registered, in which three petitioners herein have been arrayed as accused Nos. 1 to 3 respectively and the real estate broker in respect of the transaction has been arrayed as accused No.4. That as to the statement given by the defacto complainant, a total amount of Rs. 52,00,000 (Rupees Fifty Two lakhs only) was transferred by him to the bank accounts of accused Nos.2 and 3 and Rs.13,00,000/- (Rupees Thirteen lakhs only) was paid by the defacto complainant to the accused persons by way of cash.
5. The investigating officer has filed a detailed statement in this case dated 16.1.2020. It is stated therein that to ascertain veracity of the said allegations, that the defacto complainant has paid a total amount of Rs. 65,00,000/- (Rupees Sixty Five Lakhs only), the bank details of the defacto complainant, his wife and son, Ajmal was verified and that the following details have been prevailed. That on 3.8.2019, from the account No. 122101000066985 of Sabeena KA, (wife of defacto complainant), Federal Bank, Thottakattukara branch, an amount of Rs. 14,00,000/- (Rupees Fourteen Lakhs only) was given to the 3 rd petitioner (A3) vide Bail Appl..No.9061 OF 2019 6 cheque No.10115560 and it has encashed by the accused.
"On 03.08.2019 from the account No.12210100066985 of Sabeena KI (wife of defacto complainant) Federal Bank, Thottakkattukara Branch, an amount of Rs.14,00,000/- (Fourteen lakhs) given to the third petitioner, Suja vide cheque No.10115560 And it encashed by the accused."
6. Hence, it is pointed out on behalf of the investigating officer that a total amount of Rs. 52,00,000/- (Rupees Fifty Two Lakhs only) was given by the defacto complainant, his wife Sabeena and his son Ajmal through bank transactions to the accused Nos.2 and 3. Further, as per the statements of the defacto complainant, his wife Sabeena and son, Ajmal, an amount of Rs. 13,00,000/- (Rupees Thirteen lakhs only) were also given by them to the petitioners herein by cash. It is stated thereby by the Prosecutor that the evidence adduced by them regarding the cash payments are said to be ascertained and collected by the investigating agency. Further that, a copy of the sale deed covered by sale agreement executed between the parties has also been obtained. It is further pointed out that now a request has already been made by the investigating agency to the sub-court, North Paravur for getting certified copy of the sale agreement dated 01.08.2019 allegedly said to have been submitted by the defacto complainant and also to get certified copy of the sale agreement dated 05.01.2019 submitted by the accused persons herein as produced in original suit O.S. No. 107/2019 before the Sub-Court, N.Paravur. It is stated that the investigating officer has now collected the specimen Bail Appl..No.9061 OF 2019 7 signatures and writings of the defacto complainant as well as his wife and son.
7. The main contentions urged by Sri.K.Ramkumar, senior counsel instructed by Sri.T.H.Aravind, learned counsel appearing for the petitioners herein (accused Nos. 1 to 3) are to the effect that even going by the prosecution case, the entire case is build up on documents in relation to bank transactions, copy of sale agreement produced before the civil court etc and therefore there is no necessity for the Police to have custodial interrogation of the accused persons and the accused persons have fully co=operated with the investigating agency and that therefore, in the absence of any necessity for the custodial interrogation, this Court may grant anticipatory bail to them. Further, it is pointed out that the allegation of production of forged documents before the civil court is not a matter which can be investigated by the Police and that the procedure under Sec.195 of the Cr.P.C. is to be adhered to, through the court concerned before whom the alleged forged document has been produced etc.
8. Further,it is pointed out that even going by the allegations in the FI statement there are no serious allegations as raised as against either 3rd petitioner (A3) who is the wife of A2 or as against the 1 st petitioner herein (A1), who is the son of A2. The learned Prosecutor would point out that it is now well established by the decision of the larger bench of the Bail Appl..No.9061 OF 2019 8 Apex Court in the celebrated case of Iqbal Singh Marwah v.Meenakshi Marwah [2005 (4) SCC 370] that it is only in a case where a document, which is otherwise genuine is produced in a court and when the document is in the custody of the court, the accused person concerned has done forgery or fabrication in such document in the custody of the court, that the Police is barred from investigating the case. Further that, in a case where the allegations to the effect that the document was already forged before production in the court and later, produced in the court, then the Police has the jurisdiction to register a crime and investigate the case on the basis of the FI statement registered which discloses such cognizable offences. That in the instant case, the specific allegation is to the effect that the accused persons had forged the document concerned and then produced it before the civil court concerned and that therefore, the Police is not denuded of the jurisdiction to register a crime in a case like this based on the FI statement registered, which discloses the cognizable offences concerned.
9. Further, it is pointed out by the Prosecutor that the accused persons are quite influential and are not cooperating with the investigation process at all and that the custodial interrogation of the three petitioners herein is highly imperative and necessary for the smooth conduct of the investigation. In this regard, it is particularly urged by Sri.Saigi Jacob Bail Appl..No.9061 OF 2019 9 Palatty, learned Prosecutor that the investigation agency has now been able to collect proper evidence to show that at least a total amount of Rs.52,00,000/- (Rupees Fifty Two lakhs only) has been received by accused 2 and 3 through bank transactions from the defacto complainant, his wife and son. Further that on verification, it has been found that two cheques for an amount of Rs.18,00,000/- (Rupees Eighteen lakhs only) and Rs. 3,00,000/- (Rupees Three lakhs only) was given to the 2 nd petitioner (A2) was found to be dishonoured, but the said amount was transferred by the defacto complainant by way of RTGS to the account of the 2nd petitioner immediately thereafter. That therefore, it is now crystal clear that the accused persons have received at least an amount of Rs. 52,00,000/- (Rupees Fifty Two lakhs only) through bank transactions and still, admittedly, they have not honoured the sale transaction and therefore, a strong prima facie case is made out regarding a serious case of cheating committed by the petitioners herein.
10. That in view of the seriousness of the offence committed by the petitioners and as many other details in the case has been meticulously collected, the custodial interrogation of the petitioners is highly imperative and necessary for the smooth conduct of the investigation. Further that, the investigation is only at the threshold stage and evidence has to be collected as regards the fabrication of the document and the forgery committed by Bail Appl..No.9061 OF 2019 10 the accused persons etc. Further, it is pointed out that the 2 nd petitioner (A2) is a history sheeter and inveterate offender beyond correction and that his criminal history since 1973 reveals that he has been involved in 26 cases in different police stations and details of the said crime have been mentioned in para 9 on pages 4 and 5 of the statement dated 16.9.2019 filed by the investigating officer in this case, which reads as follows :
1) Angamaly PS Crime No.217/73 (CC 1819/73, SMC Perumbavoor) - convicted RI for 3 months on 10.1.73
2) Angamaly PS Crime No.219/73 (CC 1843/73, SMC Perumbavoor) - convicted RI for 3 months on 15.11.73
3) Munambam PS Crime No.51/73 (CC 584/73, SMC North Paravoor) - convicted RI for 3 months on 30.1.74
4) Vadakkanchery PS Crime No.73/74 (CC 346/74, SDMC Aluva) - convicted RI for 3 months on 16.06.75.
5) Vadakkanchery PS Crime No.117/74 (CC 741/74, SDMC Kunnamkulam) - convicted RI for one year on 04.04.75.
6) Vadakkanchery PS Crime No.118/74 (CC 740/74, SDMC Kunnamkulam) - convicted RI for one year on 04.04.75.
7) Pattambi PS Crime No.103/74 (CC 154/74, JFCM Pattambi) - Convicted RI for one month
8) Njarakkal PS Crime No.114/79 (MC 17/79, JFCMC North Paravoor) Fined Rs.500/-
9) Ettumanoor PS Crime No. 44/88, U/s 420 IPC, CC 228/88 LP:2/91 CC 217/01 acquitted u/s 248(1) Cr.PC on 14.12.2005
10) Vengara PS Crime No.67/95, U/s.420 IPC CC 325/00, acquitted U/s 248(1) Cr.PC on 14.12.2005
11) Hill Palace PS Crime No.269/99 U/s.420 IPC pending Trial in CC 70/14
12) Nadapuram PS Crime No. 297/03 U/s.420 IPC CC 47/05, case disposed on 16.7.2005
13) Thalipparambu PS Crime No.269/85, U/s 420, 34 IPC
14) Thalipparambu PS Crime No.270/85, U/s 420, 34 IPC
15) Chendara PS Crime No.227/04, U/s.420, 34 IPC CC 1510/13
16) Chittoor PS Crime No.67/00, U/s.397 IPC
17) Ottappalam PS Crime No.118/89 U/s 406, 420 IPC
18) Shornoor PS Crime No.192/88, acquitted U/s.320(8) Cr.PC on 02.12.1993
19) Kozhinjampara PS Crime No.37/01, U/s.420, 34 IPC CC 111/06, acquitted U/s 248(1) CrPC on 30.03.2006
20)Kozhinjampara PS Crime No.156/01, U/s 379, 420, 465, 468, 471 IPC, the case was transferred to Pazhayannur PS on 10.06.2001 (Pazhayannur PS Crime No.115/01)
21) ET South PS, Crime No.367/04, U/s 379, 463, 464, 468, 420, 34 IPC CC 1738/08
22) Vadakkanchery PS Crime No.85/93, U/s 379 IPC CC 309/00
23) Cherthala PS Crime No.2057/16 U/s. 419, 406, 420 IPC pending trial CC 1591/17
24) Kozhikode Medical College PS Crime No.894/16, U/s 420 IPC pending trial CC 49/19
25) North Paravoor PS Crime No.91/82 U/s 452, 394 IPC CC 88/87
26) North Paravoor PS Crime No.699/16 U/s.420 IPC, charge sheeted on 20.04.17. Bail Appl..No.9061 OF 2019 11
11. Further, it is also pointed out that the 2 nd petitioner is also involved in various civil cases across the State. In that regard, it is strongly urged by the learned Prosecutor that there is a strong prima facie case borne out from the investigation that the accused persons with the intention to cheat the defacto complainant and to cause unlawful game to the accused persons and thus to cause unlawful loss to the defacto complainant have entered into an agreement of sale and collected large amounts and that the accused persons have ventured to even execute forged document and that therefore, the investigation can now proceed further only after securing custody of the petitioners. Further that there is every chance of the petitioners will intimidate and influence the witnesses, if they are let out on bail. It has been reliably learnt on enquiry that the petitioners have executed yet another agreement in respect of the same property with another person and that therefore, the dishonest interest of the accused persons is blatant and clear like the day light.
12. Sri.Babu Karukappadath, learned counsel appearing for the 2 nd respondent has also been heard in extenso and he has made various submissions which are broadly in tune with the submissions made by the learned Prosecutor appearing for the investigation agency in this case. It is also pointed out by the learned counsel for the 2 nd respondent that recently Bail Appl..No.9061 OF 2019 12 the Court of the Additional Chief Judicial Magistrate, Ernakulam has convicted the 2nd and 3rd petitioners herein (accused 2 and 3 herein) for the offences as per Secs. 465, 468 and 420 r/w Sec. 34 of the IPC in calendar case C.C.No.1738/2008 as per judgment dated 25.7.2019 etc. This Court had directed the Registry to get a report in that regard from the Additional Chief Judicial Magistrate's Court as to the veracity of the said factual submission made on behalf of the 2nd respondent. Now, the Additional CJM's Court, Ernakulam has filed a report dated 22.2.2019 that the said court has convicted the Arun Sagar, S/o Dhanavan and Sri. Dhanavan (accused 2 and 1 respectively herein as per the judgment in CC No.1738/2008 for the offences as per Secs. 465, 468 and 420 r/w Sec.34 of the IPC and that they have been acquitted for the other alleged offence as per Sec. 379 of the IPC etc.) . The details of the said case are also dealt with in the abovesaid report dated 22.2.2019 rendered by the Additional CJM's court.
13. After hearing both sides and after careful evaluation of the facts and circumstances of this case, this Court is of the considered view that the allegations raised as against the 3rd petitioner (A3), who is the wife of A2, does not appear to be very serious so as to warrant her custodial interrogation. Moreover, the 3rd petitioner is lady who is a senior citizen, aged more than 61 years. So also, this Court is also inclined to take a Bail Appl..No.9061 OF 2019 13 sympathetic view that the allegations as against the 1 st petitioner herein (A1) may not necessarily imply the imperativeness of the custodial interrogation. The 1st petitioner (A1) is a young man, hardly the age of 32 years. It appears that the main case of the prosecution as revealed from the FI statement as well as from the investigation so far effected is that the main accused person in this case is 2 nd petitioner herein (A2). In the light of these aspects, this Court is also inclined to take the view that the custodial interrogation of A1 (1st petitioner ) also may not really be necessary. However, the 1st petitioner herein (A1) as well as the 3 rd petitioner herein (A3) will have to fully co-operate with the process of interrogation by the investigating agency concerned and necessary direction in that regard will be separately rendered.
14. However, the case of 2nd petitioner (A2) appears to be on a different footing altogether. A strong prima facie case has certainly been disclosed in the investigation so far done. The investigation agency has been able to get clear and cogent materials to show that at least an amount of not less than Rs.52 lakhs has been received by the 2 nd petitioner from the defacto complainant as well as his wife and son in respect of the abovesaid property transaction. Prima facie, it reveals a serious case of cheating. Of course, some of the said money has also been transferred to the bank accounts of the 1st petitioner and 3rd petitioner. But going by the Bail Appl..No.9061 OF 2019 14 prosecution case, the kingpin of this case appears to be the 2nd petitioner (A2). Going by the submissions made by the learned Prosecutor on behalf of the investigation agency, this Court is not now having any objective materials to overrule the considerable stand of the investigating officer that the custodial interrogation of the 2nd petitioner (A2) is highly imperative for the further smooth conduct and progress of the investigation in this crime. There are no objective materials now available to this Court in any manner to weaken or discredit the said professional assessment made by the investigating officer about the high necessity and imperativeness to secure custodial interrogation of the 2nd petitioner (A2). Therefore, this Court is not in a position to accede to the plea of the 2 nd petitioner (A2) for grant of anticipatory bail. The contentions of the petitioner based on Sec.195 of the Cr.P.C. are not tenable in view of the dictum laid down by the larger bench of the Apex Court in Iqbal Singh Marwah's case(supra) [2005 (4) SCC 370] in the facts of this case.
15. After hearing all the parties concerned, this Court is of the considered view that this is not a fit case in the matter of exercise of extra ordinary discretion under 438 of the Cr.P.C. in the matter of grant of anticipatory bail to the 2nd petitioner (A2) and the plea of the 2 nd petitioner (A2) for grant of anticipatory bail will stand thus declined. However, in the case of the 1st petitioner (A1) as well as the 3 rd petitioner (A3), the following Bail Appl..No.9061 OF 2019 15 directions and orders are passed :
(1) The 1st petitioner herein (A1) as well as the 3rd petitioner herein (A3) will immediately personally appear before the investigating officer (IO) concerned in the instant crime for interrogation process without any further delay.
(2) However, the learned Prosecutor would point out that in view of the allegations raised in this case it may be better that the interrogation of the 1st petitioner and the 3rd petitioner are conducted on separate days. That is a matter on which the formation of opinion is to be primarily effected by the investigating officer concerned.
Accordingly, it is ordered that the investigating officer will issue notice to the 1st petitioner and 3rd petitioner as to the day and time on which the 1st petitioner herein (A1) and 3 rd petitioner (A3) herein should appear before the investigating officer for interrogation purposes.
(3) Upon receiving such notice from the investigating officer, the 1 st petitioner herein (A1) and the 3 rd petitioner herein (A3) will personally appear before the investigating officer on the day and time as notified in the said notice issued by the investigating officer. Thereupon, the said accused persons 1 and 3 will fully co-operate with the IO in the process of interrogation. After the interrogation Bail Appl..No.9061 OF 2019 16 process is over, in case the IO arrest the 1st petitioner herein (A1) and the 3rd petitioner herein (A3), then accused 1 and 3 shall be released on bail on their separately executing bonds for Rs. 40,000/- each and separately furnishing two solvent sureties for the likesum both to the satisfaction of the investigating officer concern ed.
16. However, the grant of bail in that eventuality in the case of 1 st petitioner herein (A1) and 3rd petitioner herein (A3) will be subject to following conditions :
(1) They shall fully co-operate with the IO in the investigation process and shall also appear before the investigating officer for further interrogation purposes in the conduct of the investigation or for any other steps.
(2) They shall appear before the investigating officer on subsequent occasions as and when directed by the IO.
(3) They shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever.
(4) They shall not involve in any criminal offences of similar nature. (5) If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned will stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time.
17. However, it is made clear that the plea of the 2 nd petitioner (A2) for grant of anticipatory bail will stand rejected.
With these observations and directions, the above bail application will stand disposed of. Sd/-
ALEXANDER THOMAS, JUDGE SKS