Abul Sathar and Muthalib Karayil v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY,THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941 Bail Appl..No. 2172 of 2019** **CRIME NO. 259/2018 OF Thaliparamba Police Station , Kannur** ## **PETITIONERS/ACCUSED NO 1 & 2:** **1 ABUL SATHAR AGED 49 YEARS KOYAKKARA, PUTHIYAPARAYIL, AMINA MANZIL, MATTOL AMSOM, MATTOL NORTH, KANNUR. 2 MUTHALIB KARAYIL, AGED 47 YEARS S/O. KUNHARAMU, KARAYIL HOUSE, PALARIVATTOM P.O, EDAPPALLY NORTH VILLAGE, ERNAKULAM. BY ADVS. SRI.PREMCHAND M. SRI.S.SREEKUMAR (SR.)** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-31. 2 STATION HOUSE OFFICER, THALIPARAMBA POLICE STATION, KANNUR-670141.** ## **SMT MAYA M N PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON 03.04.2019 PASSED THE FOLLOWING:** B.A.No.2172/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ B.A.No.2172 of 2019 -----------------------------------------Dated this the 3[rd] day of April, 2019 ## **O R D E R** This is the second application for anticipatory bail filed by the petitioners under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). 2. The petitioners are the second and the first accused respectively in the case registered as Crime No.259/2018 of the Taliparamba police station under Sections 419, 468 and 471 read with 34 I.P.C and also under Section 120B I.P.C. 3. The case against the accused has been registered on the basis of the complaint filed by the de facto complainant in the Magistrate's Court concerned, which was forwarded to the police for investigation under Section B.A.No.2172/2019 3 156(3) Cr.P.C. The allegations raised against the accused in this complaint can be briefly stated as follows: The first and the second accused are persons conducting real estate business. The de facto complainant owned 7.250 acres of property at Taliparamba. She decided to sell the aforesaid property. The first and the second accused approached her expressing their willingness to purchase the property from her. Nellimoottil Joseph, the cousin of the de facto complainant also owned seven acres of property at Taliparamba. He had also a plan to sell his property. The first and the second accused approached T.M. Mathew, the power of attorney holder of Nellimoottil Joseph, expressing their willingness to purchase that property. A memorandum of understanding (for short 'MOU') was entered into by the de facto complainant and T.M.Mathew and the first and the second on 16.3.2017 to the effect that the property of the complainant shall be sold to the first and the second accused for a consideration of Rs.60,000/- per cent and that the B.A.No.2172/2019 4 property of Nellimoottil Joseph shall be sold to them for a consideration of Rs.50,000/- per cent. The MOU was signed on 16.03.2017 by the complainant, T.M.Mathew and the first accused. The second accused was not present then and he had agreed that he would sign the MOU without delay. As per the terms of the MOU, the agreement for sale of the properties had to be executed by the parties within ten months and the first and the second accused had to deposit an amount of one crore rupees as earnest money in three instalments, Rs.25,00,000/- on or before 18.3.2017, another Rs.25,00,000/- on or before 30.04.2017 and Rs.50,00,000/- on or before 30.6.2017 with the complainant and T.M. Mathew. After the execution of the MOU, the first and the second accused issued three cheques to the complainant for a total amount of Rs.25,00,000/-. However, they did not pay the second and the third instalments of the amount as stipulated in the MOU. They represented that they would arrange the entire balance consideration within B.A.No.2172/2019 5 30.11.2017. Even after 30.11.2017, the first and the second accused did not pay the amount. Then the complainant obtained the encumbrance certificate of the property from the Sub Registrar's Office, Taliparamba. On perusal of the same, she was shocked to see that three documents were got registered at the Sub Registrar's Office, Taliparamba, purporting to be sale deeds executed by her in favour of the first and the second accused. The accused had hatched a criminal conspiracy to forge documents and to grab the property of the complainant. It is understood that the accused forged the photograph, the identity card and all other documents for creating the sale deeds. The complainant has never executed or registered any document assigning her property in favour of the first and the second accused. The assignment deeds were created by the accused by substituting another lady as the complainant at the Sub Registrar's Office. Accused No.7 was the Sub Registrar at the relevant time. Accused Nos. 3 and 5 are the persons B.A.No.2172/2019 6 who have signed the sale deeds identifying another lady as the complainant in the office of the Sub Registrar at the time of registration of the documents. Accused 3 to 5, who claimed to have identified the executor of the documents, are total strangers to the complainant. The accused might have produced some other person instead of the complainant at the Sub Registrar's Office and got the sale deeds executed and registered. The accused have forged documents and cheated the de facto complainant. 4. The petitioners had filed B.A.No.1831/2018 before this Court seeking the relief of pre-arrest bail. The aforesaid application was dismissed by this Court as per the order dated 22.06.2018. The petitioners have again approached this Court seeking the relief of pre-arrest bail on the ground that some of the other accused in the case surrendered before the Investigating Officer and they were enlarged on bail as per the order of this Court. B.A.No.2172/2019 7 5. Heard learned counsel for the petitioners and the learned Public Prosecutor. 6. The earlier application for anticipatory bail filed by the petitioners was dismissed by this Court as per the order dated 22.06.2018. The petitioners had filed S.L.P. (Crl) No.5784/2018 before the Hon'ble Supreme Court challenging the aforesaid order of this Court. The special leave petition was dismissed by the Hon'ble Supreme Court as per order dated 07.08.2018. 7. An accused has a right to make successive applications for grant of bail. But, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications (See **Kalyan Chandra Sarkar v. Rajesh Ranjan : AIR 2004 SC 1866** ). B.A.No.2172/2019 8 ## 8. In **Kalyan Chandra Sarkar v. Pappu Yadav : AIR** ## **2005 SC 921** , the Apex Court has held as follows: _“Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application”._ (emphasis supplied). 9. The aforesaid principles have been highlighted by this Court in **Vineeth v. State of Kerala : 2015(5) KHC 224** and **Pandi v. State of Kerala : 2018(4) KHC 782 : 2018(4) KLT 249.** 10. In the instant case, the only change in the fact situation of the case since the dismissal of the earlier application for anticipatory bail filed by the petitioners before B.A.No.2172/2019 9 this Court is that some of the other accused surrendered before the Investigating Officer and they were produced before the trial court and they were enlarged on bail by the trial court. The petitioners have produced a copy of the order of this Court (passed by another learned Judge of this Court) in B.A.No.7107/2018, directing one of the accused to surrender before the Investigating Officer and directing the Investigating Officer to produce that accused before the jurisdictional Magistrate on the same day. The fact that one or more of the other accused in the case surrendered before the Investigating Officer and on production of them before the Magistrate concerned, they were released on bail by the Magistrate, pursuant to the order, if any, passed by this Court, is not a sufficient ground to grant pre-arrest bail to the petitioners. It does not constitute a change in the fact situation of the case as far as the petitioners are concerned. What is important is the role of the petitioners in the commission of the offences. In the earlier order dismissing the application for B.A.No.2172/2019 10 anticipatory bail, this Court had observed that custodial interrogation of the petitioners would be absolutely necessary to unearth the details of the conspiracy hatched by the accused and that granting pre-arrest bail to the petitioners would hamper and derail the investigation. There is no change in the aforesaid circumstance of the case. In the absence of, any change of circumstances since the dismissal of the earlier application for anticipatory bail filed by the petitioners, this second application for the same relief cannot be entertained. The petition is liable to be dismissed. In the result, the prayer for granting anticipatory bail to the petitioners is rejected and the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge