Anil Kumar M.K. and Sindhu Anil Kumar v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942 Bail Appl..No.865 OF 2020** **AGAINST THE ORDER IN CRMC 47/2020 DATED 29-01-2020 OF SESSIONS COURT,THRISSUR CRIME NO.15/2020 OF Vadanappally Police Station , Thrissur** ## **PETITIONERS/ACCUSED:** **1 ANILKUMAR M.K. AGED 46 YEARS S/O.KOCHUNNI, MAKKAL HOUSE, MARUTHAYOOR P.O., PAVARATTY, PIN-680507, CHAVAKKAD, THRISSUR DIST. 2 SINDHU ANIL KUMAR, AGED 43 YEARS W/O.ANIL KUMAR, MAKKAL HOUSE, MARUTHAYOOR P.O., PAVARATTY, PIN-680507, CHAVAKKAD, THRISSUR DIST.** **BY ADVS. SRI.RENJITH B.MARAR SRI.SADCHITH.P.KURUP SMT.LAKSHMI.N.KAIMAL** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 THE SUB INSPECTOR OF POLICE, VADANAPPILLY POLICE STATION, PIN CODE-680614.** **Bail Appl..No.865 OF 2020** **2** **3 ADDL.R3 HARIS K.H. AGED 39 YEARS S/O HANEEFA, KOMALATH HOUSE, VADANAPPALLY VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN-680614.** **IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 2/3/2020 IN CRL.MA 2/2020 IN BA-865/2020.** **R3 BY ADV. SRI.M.K.ABOOBACKER R3 BY ADV. SRI.D.M.NOWFAL** **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.865 OF 2020** **3** ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No. 865 of 2020 ------------------------------- Dated this the 16[th] day of September, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioners are accused in Crime No.15 of 2019 of Vadanappally Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 406, 420 r/w 34 IPC. 3. The above case is registered based on a private complaint filed before the jurisdictional court which was forwarded under Section 156 (3) of the Cr.P.C. 4. The prosecution case is that on 20.06.2018 petitioners offered the defacto complainant to make him in their business as a partner and believing the words the defacto complainant paid an amount of Rs.1,10,30,000/-. The allegation is that the petitioner cheated the defacto complainant by not making him as a partner. The amount **Bail Appl..No.865 OF 2020** **4** was also not returned. 5. Heard the counsel for the petitioners and the learned Public Prosecutor. 6. The counsel for the petitioners submitted that the allegations against the petitioners are not correct. The counsel submitted that even if the entire allegations are accepted, no offence is made out. The counsel submitted that the defacto complainant already filed a money suit as O.S.No.232/2019 before the jurisdictional Civil Court. According to the counsel actually the money is due to the petitioners. A cheque was issued by the defacto complainant. The same was dishonored. Hence a notice under Section 138 of the Negotiable Instruments Act was issued on 04.10.2019. Defacto complainant replied to it on 22.10.2019. Thereafter a complaint was filed before the jurisdictional court. Subsequently the present complaint is filed with false allegations. The counsel for the petitioners submitted that the petitioners are ready and willing to abide any conditions, if this Court grant them bail. The defacto complaint is impleaded in **Bail Appl..No.865 OF 2020** **5** this case. A counsel appeared for the defacto complainant. Defacto complainant seriously opposed the bail application . The counsel submitted that huge amount is misappropriated by the petitioners. It is a clear case of cheating. The counsel submitted that, not only this case, some other cases are also registered against the petitioners. The learned counsel for the defacto complainant submitted that this Court may not pass orders under Section 438 of Cr.P.C. of this case. 7. The Public Prosecutor also opposed the bail application. The Public Prosecutor submitted that the custodial interrogation of the petitioners are necessary. 8. After hearing both sides, I think, this bail application can be allowed on stringent conditions. Admittedly there is some monitory dispute between the petitioners and the defacto complainant. Money suit is pending before the Civil Court. Prosecution under Section 138 of the Negotiable Instrument Act is also pending before the Criminal Court. I do not want to make any observation **Bail Appl..No.865 OF 2020** **6** about the merit of the case. The crux of the prosecution case is that the defacto complainant invested certain amount in the business run by the petitioners. The business collapsed. But the amount is not returned. Considering the entire facts and circumstances, I think this Bail Application can be allowed on stringent conditions. 9. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 10. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870),** after considering **Bail Appl..No.865 OF 2020** **7** all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 11. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. The petitioners shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs,.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned. **Bail Appl..No.865 OF 2020** **8** 3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and 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 them from disclosing such facts to the Court or to any police officer. 4. Petitioners shall not leave India without permission of the Court. 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. 6. The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. 7. Petitioners shall surrender their passports before the Investigating Officer. If there is no **Bail Appl..No.865 OF 2020** **9** passport, they will file an affidavit to that effect before the Investigating officer. 8. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **nak**