Ajith Kumar Menon v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ``` ## `BAIL APPL. NO. 3669 OF 2023` ``` CRIME NO.302/2021 OF CBCID, THRISSUR, THRISSUR ``` ## `AGAINST THE ORDER IN CRMC NO.411 OF 2023 OF DISTRICT COURT & SESSIONS COURT,THRISSUR` ## `PETITIONER:` ``` AJITH KUMAR MENON, AGED 66 YEARS S/O. P K G NAIR, KAKKOT HOUSE, ORUMANAYOOR P O, THRISSUR DISTRICT, PIN – 680512 ``` ``` BY ADVS.S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. ``` ## `RESPONDENTS:` - `1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN – 682031` - `2 DETECTIVE OFFICER, CRIME BRANCH,THRISSUR, PIN – 680631` - `3 GOWTHAM BOSE, S/O BOSE,KAMBALATH HOUSE, ANNANAD DESHAM, ANNANAND, KALOOR, VADAKKUMURI VILLAGE, THRISSUR IS IMPLEADED AS ADDL R3 AS PER ORDER DATED 15/12/23 IN CRL MA 2/23` ## `OTHER PRESENT:` ``` SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3669/2023_ _-:2:-_ Dated this the 1[st] day of March, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the accused No.17 in Crime No.302/CB/TSR/D/2021 of the Crime Branch, Thrissur, registered against the accused for allegedly committing the offences punishable under Sections 406, 420, 409, 465, 468 & 471 read with Section 34 of the Indian Penal Code, 1860(‘IPC’, for short). 3. The essence of the prosecution is that: the de-facto complainant had approached the Karuvanoor Service Co-operative Bank to avail a loan. The first accused was working as the Manager and the second accused, who was the member of the said bank, volunteered to a loan for the de-facto arrange complainant. Accordingly, the accused Nos.1 to 4 _B.A.No.3669/2023_ _-:3:-_ forged documents of the de-facto complainant and presented the same before the bank and secured a loan for Rs.50,00,000/-. The entire amount was transferred to the bank account of the 17[th] accused/petitioner. The 17[th] accused is none other than the father-in-law of the second accused. The accused withdrew a substantial amount on the date the loan amount was credited to his account. The accused only disbursed to the de-facto complainant an amount of Rs.2,00,000/-. Thereafter, they did not pay any further amount and also failed to return the title deeds of his property. Thus, the accused have committed the above offences. 4. Heard; Sri. S. Rajeev, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the _B.A.No.3669/2023_ _-:4:-_ accusations levelled against him. He has been falsely implicated in the crime. A reading of AnnexureA-I First Information Report[FIR] and the First Information Statement would reveal that the offence under Section 420 of the IPC will not be attracted, so far as the petitioner is concerned. The petitioner's father-in-law (second accused) and the first accused have committed the offences. The petitioner has not benefited anything out of the alleged transaction. Annexure-V statement would reveal that the entire amount that was transferred to the petitioner's bank account was diverted on the very same day to different accounts of the creditors of the second accused. The petitioner’s custodial is not and no interrogation necessary recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail _B.A.No.3669/2023_ _-:5:-_ objection report. He has submitted that the accused in furtherance of their common intention had cheated the de-facto complainant. There are several other cases of similar nature of the said bank. There are incriminating materials to substantiate the complicity of the petitioner. The petitioner’s custodial interrogation is necessary and the recovery is to be effected. Annexure-V bank statement by itself shows that the substantial amount of money was credited to the petitioner’s bank account and the same was withdrawn on the very same day. This act by itself prima-facie establishes the involvement of the petitioner that the petitioner has involved in the crime. If the petitioner is granted an order of pre-arrest bail, it would hamper with the full and proper investigation of the case. Hence, the application may be dismissed. 7. The specific prosecution allegation against the petitioner is that he along with the other accused _B.A.No.3669/2023_ _-:6:-_ had deceived the de-facto complainant on the assurance that they would secure a loan for him. Consequently, when the loan was sanctioned on the strength of the collateral security offered by the de-facto complainant, the loan amount was transferred to the bank account of the petitioner, who diverted the loan amount to different accounts and the de-facto complainant was only paid an amount of Rs.2,00,000/-. 8. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: **111.** No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are _B.A.No.3669/2023_ _-:7:-_ ## bound to respect and honour. **112** . The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be _B.A.No.3669/2023_ _-:8:-_ considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. **126** . We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 9. In **Jai Prakash Singh v. State of Bihar and** **Anr.** [(2012) 4 SCC 379] the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra-ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is _B.A.No.3669/2023_ _-:9:-_ being misused. ## 10. In P. **Chidambaram v. Directorate of Enforcement** [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed thus: “69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the prearrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 11. After bestowing my anxious consideration to the facts, the rival submission made across the Bar, the materials placed on record, and especially after comprehending the seriousness, gravity, and nature of the economic offences alleged against the petitioner, _B.A.No.3669/2023_ _-:10:-_ that the investigation in the case is in the preliminary stage, that the petitioner’s custodial interrogation is necessary and that the recovery is to be effected, I am convinced that there are prima-facie materials to substantiate the accusations levelled against the accused and, therefore, this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/01.03.24 //True copy// P.A. To Judge