Kerala High Court
Sabu Karikkassery vs State Of Kerala
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2012/28TH BHADRA 1934
Bail Appl..No. 5730 of 2012 (A)
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APPELLANT/1ST ACCUSED:
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SABU KARIKKASSERY,
(WRONGLY SHOWN IN THE PRIVATE COMPLAINT & IN THE
F.I.R AS BABU KARIKKASSERY), AGED 60 YEARS,
S/O.THOMAS, KARIKKASSERY HOUSE, SANKETHAM MURI,
ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK,
ERNAKULAM DISTRICT.
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.THOMAS J.ANAKKALLUNKAL
SMT.M.A.SHEEBA
RESPONDENT/COMPLAINANT:
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1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM - 31.
* ADDL. R2 IMPLEADED
2. VINU MANI, AGED 31 YEARS,
S/O.DR.E.J.MANI, MALABAR HOUSE,
GOPALA PRABHU ROAD, ERNAKULAM.
* ADDL. R2 IS IMPLEADED VIDE ORDER DATED 14/8/2012 IN CRL.M.A.5455/12
IN BA.5730/12
BY SRI.K.I.ABDUL RASHEED,( ADDL.DGP)
ADDL.R2 BY ADV.SRI.RAJIV NAMBISAN
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
19-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AS
P. BHAVADASAN, J.
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B.A. No. 5730 of 2012
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Dated this the 19th day of September, 2012.
ORDER
Petitioner, who is the first accused in Crime No.969 of 2012 of Njarackal Police Station, is alleged to have committed offence punishable under Section 420 read with Section 34 I.P.C.
2. The crime was registered on the basis of a private complaint filed by the second respondent herein which was forwarded to the police for investigation under Section 156(3) Cr.P.C.
3. Shorn off unnecessary details, the brief facts are as follows:
The property, over which the structure is to be put up, belongs to the petitioner. Petitioner and the second accused entered into a joint venture whereby the second accused agreed to built a multi storeyed flat structure on certain stipulations and conditions. The second respondent B.A.5730/2012. 2 opted to purchase a flat and entered into an agreement with the first accused as well as the second accused. The agreement with the first accused is produced as Annexure A and the agreement with the second accused is produced as Annexure B. Even though the construction started, it somehow went astray and the project fell through causing loss of the amounts of those who had opted for flats and invested money in the project.
4. Petitioner has produced Annexures D and E which would show that those persons who had opted to purchase flats had joined together and formed an association which had decided to carry forward the construction through another builder.
5. Learned counsel for the petitioner points out that the second respondent herein, along with his father had instituted a suit for recovery of money and in that suit though attachment of the property on which construction of the structure is intended and was carried on to some B.A.5730/2012. 3 extent, that was not granted. Petitioner says that he is a man who had roots in the society and he is unlikely to abscond and there is no reason as to why he should be detained in custody. He expresses his willingness to co- operate with the investigation and also points out that he is willing to abide by any of the conditions imposed by this court including his presence at the time of trial.
6. Learned counsel appearing for the second respondent, who is one of the persons who opted to purchase the flat and who claims to have given Rs.19 Lakhs opposed this application on the ground that this is a clear case of cheating done by the petitioner and the second accused and they should not be let off so easily. It is pointed out that the second respondent has invested nearly Rs.19 Lakhs and it does not appear that the project will be re-started at all, let alone completed. It is pointed out that they have been deprived of their money and they are left in the lurch. It is therefore pointed out that anticipatory bail B.A.5730/2012. 4 may not be granted to the petitioner. Learned counsel also relied on the decision reported in Saju K.A. V. State of Kerala (2011(3) KHC 862).
7. Heard learned Additional Director General of Prosecution. He submits that the investigation is at an infant stage and granting of anticipatory bail may have an impact on the investigation.
8. The question as to whether actually Section 420 I.P.C. is attracted to the facts of the case need not be considered at this point of time. Almost all the facts are undisputed except regarding the payments. It is contended on behalf of the petitioner that the second respondent has paid only the land value which the petitioner is bound to assign on completion of the project to the second respondent. For the construction purpose amounts were handed over to the second accused, who had issued receipts to the second respondent. The second respondent on the other hand would say that he was made to believe B.A.5730/2012. 5 that it was a joint venture by accused Nos.1 and 2 and it was upon that bona fide belief that he had entered into an agreement with accused Nos.1 and 2 and invested money in the project. Whatever that be, the fact remains that the project has not gone on as intended and planned and construction has come to a standstill. It is not in dispute that the second respondent has already instituted a suit for recovery of money due to him. This court is given to understand that the second respondent has been able to secure attachment of 10 cents of property of the petitioner herein. Strictly speaking, it would appear that the dispute between the petitioner and the second respondent is more of a civil nature.
9. It is not disputed that the petitioner has roots in the society and he is a man of considerable standing.
10. In the decision relied on by the learned counsel for the second respondent, the facts show that there were more than 100 crimes registered against the B.A.5730/2012. 6 petitioners in the said case and their creditworthiness was in doubt. It was under those circumstances that the court held in the said case that it will not be appropriate to grant anticipatory bail to the petitioners in that case.
11. The fact in this case stands on a different footing altogether. There is no apprehension expressed by the prosecution that the petitioner is likely to abscond or he is not creditworthy. Considering the various aspects, the nature of the allegations and also the willingness expressed by the petitioner to abide by any of the conditions to be imposed by this court to ensure his co-operation with the investigation and trial, it is felt that this is a fit case where the extraordinary jurisdiction can be exercised in favour of the petitioner.
This application is accordingly allowed on the following conditions:
i) Petitioner shall surrender before the Investigating Officer on or before 27.9.2012, who B.A.5730/2012. 7 after interrogation shall produce him before the JFCM concerned, which court on an application for bail being moved by the petitioner shall release him on bail on his executing a bond for a sum of Rs.20,000/- (Rupees Twenty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the said court.
ii) The learned Magistrate may ensure the identity of the sureties and the veracity of the tax receipts produced by the sureties for the purpose of executing the bond.
iii) Petitioner shall make himself available for interrogation as and when required by the Investigating Officer.
iv) Petitioner shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses.
B.A.5730/2012. 8
v) If any of the conditions are violated, bail granted to the petitioner shall automatically stand cancelled, and the JFCM concerned, on being satisfied of the said fact, may take such steps as are available to him in law.
P. BHAVADASAN, JUDGE sb.