ANILKUMAR GOND v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946 ``` ``` BAIL APPL.NO.1905 OF 2024 ``` ``` CRIME NO.80/2024 OF Kumbla Police Station, Kasargod ``` ``` ----------------- ``` ## **`PETITIONER/ACCUSED :-`** ``` ANILKUMAR GOND, AGED 27 YEARS S/O. BACHAN GOND, R/ AT ANANTHA COMPOUND, ANANTHAPURA TEMPLE ROAD, EDANAD.P.O., KASARAGOD, PIN - 671 321 ``` ## **`BY ADV KODOTH SREEDHARAN`** ## **`RESPONDENTS/COMPLAINANT :-`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` ADDL.2PRADEEP KUMAR SHARMA, AGED 35 YEARS, S/O.MEDEE LAL, RESIDING AT JYOTI NIVAS, PS NAGAR, SOORAMBAIL, KUMBLA, KASARAGOD DISTRICT - 671 321. ``` ``` ADDITIONAL 2ND RESPONDENT IS IMPLEADED AS PER ORDER DATED 09.04.2024 IN CRL.M.A.No.1/2024. ``` ``` BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE LEO LUKOSE KAROL MATHEWS SEBASTIAN ALENCHERRY DERICK MATHAI SAJI KARAN SCARIA ABRAHAM SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 9[th] day of April, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, (‘Code’ for short) for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.80/2024 of Kumbla Police Station, Kasaragod, registered against him for allegedly committing the offences punishable under Sections 409 and 450 of the Indian Penal Code. 3. The crux of the prosecution case is that; the de facto complainant was running a proprietary concern named Gabbana Mattresses at Nayikappu since the year 2020. The de facto complainant appointed the accused as a Marketing Manager of his business. Later, the accused gave his Google Pay Number to the customers of the de facto complainant and directed them to pay the sale proceeds directly to his bank account. Accordingly, the ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 3 :- ``` accused received a total amount of Rs.32/- lakh from the customers of the de facto complainant. Thus, the accused has committed the offences of breach of trust and cheating. 4. Heard; Sri.Kodoth Sreedharan, the learned counsel appearing for the petitioner, Smt. Neema. T.V, the learned Senior Public Prosecutor and Sri.Enoch David Simon Joel, the learned counsel for the de facto complainant/intervenor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure III complaint filed by the de facto complainant would clearly substantiate that the offences under Sections 409 and 420 will not be attracted against the petitioner. The dispute between the petitioner and the de facto complainant is purely civil in nature. A reading of Annexure II agreement would also prove that the petitioner is the proprietor of the ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 4 :- ``` concern. It is only as an arm-twisting tactic that the de facto complainant filed Annexure III complaint before the jurisdictional Magistrate and got referred to the police under Section 156(3) of the Code. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that the petitioner's custodial interrogation is necessary. She also contended that a reading of the allegations in the FIR would reveal that the petitioner has cheated the de facto complainant by collecting the sale proceeds paid by his customers through the petitioner's Google Pay account. She also contended that the investigation is only at the nascent stage and recovery is to be effected. Hence, the application may be dismissed. ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 5 :- ``` 7. The learned counsel for the de facto complainant also opposed the application. He submitted that the petitioner is only a paid employee of the de facto complainant. The petitioner deliberately gave his Google Pay number to the customers of the de facto complainant and cheated him Rs.32/- lakh. The investigation is only at the preliminary stage. If the petitioner is granted an order of pre-arrest bail, he would certainly torpedo the investigation. The petitioner's custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. 8. The prosecution allegation against the petitioner is that; he with an intention to cheat the de facto complainant, while working as his employee, gave his Google Pay number to the customers of the de facto complainant and clandestinely received Rs.32/- lakh. Thus, he committed breach of contract and cheated the de facto complainant. ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 6 :- ``` 9. A reading of Annexure III complaint would show that the de facto complainant and the petitioner had entered into Annexure II 'Investment Agreement' on 12.06.2020. As per the Annexure II agreement, the parties had agreed that the profit and loss of the business named 'Good Sleep Mattresses' would be shared equally between them. 10. On a prima facie appreciation of Annexure II agreement and Annexure III complaint, it can be deciphered that the parties had arrived an understanding regarding the sharing of profit of the business and it was the petitioner who was entrusted to run the business. Therefore, the allegations that the petitioner had fraudulently collected money from the customers of the de facto complainant does seem to be probable and the dispute is civil in nature. ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 7 :- ``` ## 11. In **Indian Oil Corporation** v. **NEPC India Ltd.** [(2006) 6 SCC 736], the Honourable Supreme Court observed in the following lines :- “13. ……. Any effort to settle civil disputes and claims, which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged”. 12. v. Similarly in **Sarabjit Kaur State of Punjab and Another** [2023 SCC Online 210] the Honourable Supreme Court held that, a mere breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up a promise will not be enough to initiate criminal proceedings. 13. **ARCI** v. Again in **Nimra Cerglass Technics (P) Ltd.** [(2016) 1 SCC 348] the Honourable Supreme Court while considering the difference between breach of contract and the offence of cheating held that the ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 8 :- ``` distinction depends upon the intention of the accused at the time of the alleged incident. Only if the the dishonest intention of the accused can be established at the time of entering the transaction the criminal liability can be attracted. 14. Recently, in **Sachin Garg** V. **State of U.P** [(2024) KHC Online 6046], the Honourable Supreme Court has again reiterated that a mere breach of contract will not constitute the offence of cheating. 15. The parameters to grant an order of pre-arrest bail have been succinctly laid down by the Hon’ble Supreme Court in **Siddharam Satlingappa Mhetre** v. **State of Maharashtra** [(2011) 1 SCC 694] in the following lines :- “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 ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 9 :- ``` 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 Satishchandra Ratanlal 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 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; ``` BAIL APPL.NO.1905 OF 2024 ``` ## `-: 10 :-` (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 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”. 16. On an overall consideration of the facts, the rival submissions made across the Bar, the materials placed on record and the law referred to in the afore cited decisions, I am prima facie satisfied that the dispute between the ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 11 :- ``` parties is more civil in nature, which is covered by Annexure II agreement, and, therefore, the petitioner's custodial interrogation is not necessary. Consequently, I am of the firm view that the petitioner has made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. In the result, the application is allowed subject to the following conditions :- - (i) The petitioner is directed to surrender before the Investigating Officer within ten days from today. - (ii) In the event of the petitioner's arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself. - (iii) On such production, the jurisdictional court shall release the petitioner on bail on his executing a bond for Rs.1,00,000/- (Rupees One ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 12 :- ``` Lakh only) with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court. - (iv)The petitioner shall co-operate with the investigation and make himself available for interrogation as and when directed by the Investigating Officer. - (v) The petitioner shall not intimidate the witnesses or interfere with the investigation in any manner. - (vi) The petitioner shall not get involved in any other offence while on bail. - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 13 :- ``` - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal** v. **State (NCT of Delhi) and another** [2020 (1) KHC 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. **Sd/-** ## **C.S. DIAS, JUDGE** Jvt/9.4.2024 ``` BAIL APPL.NO.1905 OF 2024 ``` ``` -: 14 :- ``` ## **`APPENDIX OF BAIL APPL. 1905/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure 1CERTIFIED COPY OF THE ORDER IN CRL.MC. NO. 204 OF 2024 DATED 29/02/2024 BY THE SESSIONS COURT, KASARAGODE Annexure IITRUE COPY OF THE AGREEMENT EXECUTED BETWEEN DEFACTO COMPLAINANT AND ACCUSED DATED 12/6/2020 Annexure IIITRUE COPY OF THE CMP NO. 126/2024 DATED 27/01/2024 FILED BY THE DEFACTO COMPLAINANT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD ```