Kerala High Court
Binesh Babu.V.P @ Bineesh.R. Nair vs State Of Kerala on 27 November, 2017
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY,THE 27TH DAY OF NOVEMBER 2017/6TH AGRAHAYANA, 1939
Bail Appl..No. 7207 of 2017 ()
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CRIME NO. NOT KNOWN OF ET SOUTH POLICE STATION, ERNAKULAM
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PETITIONER/ACCUSED NO.3:
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BINESH BABU.V.P @ BINEESH.R. NAIR,
S/O DAMODARAN NAIR, RESIDING AT VADAKKEPARAMEL HOUSE,
KONDAZHAY P.O, THRISSUR, PIN.679 106.
BY ADVS.SRI.PREMCHAND R.NAIR
SRI.GEORGE BRISTON
SRI.V.P.PRASANTH
RESPONDENT(S)/COMPLAINANT.:
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STATE OF KERALA,
REPRESENTED BY STATION HOUSE OFFICER,
OLLUR POLICE STATION, THRISSUR DISTRICT,
REPRESENTED THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI-31
*ADDL.R2 IMPLEADED
*ADDL.R2: SONY JOSEPH, AGED 48 YEARS, S/O.JOSEPH,
MANAGER, ITL TOURS & TRAVESL PRIVATE LIMITED,
ITL HOUSE, KOCHI BRANCH, M.G.ROAD,
RAVIPURAM, KOCHI-16.
*ADDL.R2 IS IMPLEADED AS PER ORDER DATED 27/11/2017 IN
CRL.MA.NO.11597/2017.
R1 BY PUBLIC PROSECUTOR SRI.AJITH MURALI
ADDL.R2 BY ADVS. SRI.O.V.MANIPRASAD
SRI.JOSE ANTONY
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 27-11-2017, ALONG WITH BA. NO.7268/2017, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
sts
RAJA VIJAYARAGHAVAN V, J.
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B.A.Nos.7207 & 7268 of 2017
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Dated this the 27th day of November, 2017
ORDER
1.This application is filed under section 438 of the Code of Criminal Procedure.
2.The petitioner in Bail Application No.7268 of 2017 is the second accused and the petitioner in Bail Application No.7207 of 2017 is the 3rd accused in Crime No.1539 of 2017 of the Ernakulam Town South police station registered alleging offence punishable under Sections 405, 408, 409, 415, 420 & 120(b) read with Sec.34 of the IPC.
3.It is on the basis of a complaint filed by one Sony Joseph, who is the Manager of ITL Tours and Travels Pvt. Ltd., Kochi, that the crime was registered. The 3rd accused is working as the Accounts Manager of the Complainant Company in its Kochi Branch and the 2nd accused is a sub agent. According to the prosecution, the petitioner herein with intent to cheat the de facto complainant gave credit facility to the 2nd accused , who ignoring the directives and company practices and thus caused wrongful loss to the company. It is also B.A.Nos. 7207 & 7268 of 2017 2 alleged that the petitioner herein who was entrusted with the dominion of the funds of the de facto complainant, dishonestly misappropriated the same and converted it to his own use. Specific case of the complainant is that during the period from 1.04.2017 to 12.04.2017 air tickets to the tune of Rs.15,54,528/- was arranged by the 3rd accused in favour of the customers of the 2nd accused as requested by them, though it was against accepted Company procedure and mandates. The said amount has not been repaid by the 2nd accused till date. The outstanding liability as on date is about Rs.22 lakhs, according to the de facto complainant.
4.Heard the learned counsel appearing for the petitioners, the learned counsel appearing for the defacto complainant who got himself impleaded as additional 2nd respondent and the learned public prosecutor .
5. Learned counsel appearing for the 2nd accused submitted that there have been transactions with the de facto complainant for the past several years. He suffered a slump in his business and was not able to clear off his dues within the agreed period. According to the learned counsel, this is a purely a commercial transaction between the parties and an B.A.Nos. 7207 & 7268 of 2017 3 offence under Section 420 of the IPC will not be attracted in the facts and circumstances.
6.The learned counsel appearing for the 3rd accused submitted that the 3rd accused herein was merely the accounts manager and for the fact that the sub agent has defaulted in his payment, the petitioner cannot be proceeded against. It is submitted that the computer systems are networked with easy access to all concerned and the transactions entered into by the petitioner is monitored by the senior managers. According to the learned counsel, the petitioner is being victimised for the default of the sub agent and prays for issuance of appropriate orders.
7.The prayer is opposed by the learned counsel appearing for the de facto complainant who submits that the petitioner has acted hand in glove with the 2nd accused and have managed to cause huge loss to the de facto complainant . It is submitted that though proceedings have been initiated against the 3rd accused, he has entered the establishment of the complainant and have attempted to manipulate the accounts to his advantage.
8.I have considered the submissions advanced by both sides. I B.A.Nos. 7207 & 7268 of 2017 4 have gone through the case diary as well as the materials produced. It appears to me that there are disputes between the de facto complainant and the sub agent in connection with the amounts due towards tickets purchased. The de facto complainant has himself admitted that it was usual practice to provide credit to their sub agents.
9.Having considered all the relevant aspects and taking note of the nature of transactions, it doesn't appear to me that this is a case wherein custodial interrogation of the petitioner is warranted. I am of the view that necessary conditions can be imposed to safeguard the interest of the prosecution and to ensure that the investigation is proceeded with in a free and fair manner.
10.In the result, these applications will stand allowed on the following conditions.
i). The petitioners shall appear before the investigation 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.
ii)The petitioners shall co-operate with the investigation and shall appear before the B.A.Nos. 7207 & 7268 of 2017 5 Investigating Officer on all Mondays and Saturdays between 9 a.m. and 11 a.m., for a period of two months or till final report is filed, whichever is earlier.
iii) The 3rd accused shall not make any attempt to enter the establishment of the de facto complainant or make any effort to access the computers.
iv)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.
v)The petitioners shall not commit any similar offence while on bail.
vi) If they surrender before the court concerned, this order shall not be applicable and the jurisdictional court may pass appropriate orders.
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 //TRUE COPY// P.A. TO JUDGE IAP