Anoop M. v. State of Kerala and State Bank of India

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946 BAIL APPL. NO. 3986 OF 2024 ``` ``` CRIME NO.255/2024 OF KODUVALLY POLICE STATION, KOZHIKODE ``` ## **`PETITIONER/ACCUSED:`** ``` ANOOP M., AGED 38 YEARS S/O. P. KANNANKUTTY, 23/746, SREELAKAM, KUNNATHOORMEDU.P.O., PALAKKAD, PIN - 678013 ``` ``` BY ADVS. A.RAJASIMHAN VYKHARI.K.U SHARAFUDHEEN M.K. ``` ## **`RESPONDENTS/STATE:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** ``` 2DHANYA SADANADAN, REGIONAL MANAGER, STATE BANK OF INDIA, REGIONAL BUISNESS OFFICE III, JUBILY BHAVAN, ERANJIPPALAM, KOZHIKODE, IS IMPLEADED AS ADDL R2 AS PER ORDER DATED 04/07/24 IN CRL 1/24. ``` ``` BY ADV GILBERT GEORGE CORREYA ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.3986 of 2024 -:2:- Dated this the 25[th] day of July, 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 in Crime No. 255/2024 of the Koduvally Police Station, Kozhikode, which is registered against the accused for allegedly committing the offence punishable under Section 409 of the Indian Penal Code. 3. The essence of the prosecution allegation is that; during the period between 21.02.2024 to 23.02.2024, while the accused was working as a branch manager of the State Bank of India, Omassery Branch, had misappropriated Rs.2,96,000/- which was deposited in the cash deposit machine of the bank. Subsequently, when the Service Manager of the Bank verified the accounts, she traced out a cash shortage. Then, the B.A.No.3986 of 2024 -:3:- accused reported that there were some technical errors in the system, which led to the shortage. But the accused re-deposited the money in the cash deposit machine and cleared the shortage. Thus, the accused has committed the above offence. 4. Heard; Sri.A Rajasimhan, the learned counsel appearing for the petitioner, Smt. Neema. T,V, the learned Public Prosecutor and Sri. Gilbert George Correya, the learned counsel appearing for the second respondent bank. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of Annexure FIR would substantiate that the offence alleged against the petitioner will not be attracted. In fact, the petitioner had helped some of the students who availed of education loans during the relevant period of time. The petitioner had immediately re-deposited the shortfall. B.A.No.3986 of 2024 -:4:- Therefore, the bank has not sustained any loss. Annexure A2 and A3 letters would establish that, at the worst, the petitioner has only committed dereliction of duty, which can only lead to disciplinary proceedings. By no stretch of imagination can Section 409 of the IPC be attributed against the petitioner. In any given case, the petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor as well as the learned counsel for the second respondent vehemently opposed the application. They submitted that the petitioner has committed a very heinous economic offence by misappropriating public money for his personal use and committing a criminal breach of trust. In fact, during the relevant period of time, the Service Manager in charge of the cash deposit machine was on leave. It is then that the petitioner had misappropriated Rs.2,96,000/- from the cash deposit machine. It was B.A.No.3986 of 2024 -:5:- when the Service Manager resumed duty and found that there was a shortfall in the cash, the petitioner clandestinely re-deposited the money in the cash deposit machine. The act of the petitioner misappropriating the money and later re-depositing the same is evident from the CCTV footage captured by the bank. There are incriminating materials to substantiate the petitioner's involvement in the crime. The petitioner has committed the offence of criminal breach of trust. The petitioner’s custodial interrogation is necessary for the proper and full investigation of the crime. If the petitioner is granted an order of pre-arrest bail, he would torpedo the investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that, between 21.02.2024 to 23.02.2024, while the petitioner was in charge of the cash deposit machine, he misappropriated Rs.2,96,000/- and subsequently, when it was noticed, he re-deposited the money through the cash deposit machine. Prima facie, on appreciation of the B.A.No.3986 of 2024 -:6:- materials placed on record, the petitioner has complicity in the crime. However, that is a matter to be investigated and ultimately decided at the time of trial. 8. In **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxx xxx xxx 24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by B.A.No.3986 of 2024 -:7:- any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx”. 9. In **Jai Prakash Singh v. State of Bihar and another** , [(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 being misused. B.A.No.3986 of 2024 -:8:- 10. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness, and gravity of the accusations attributed against the petitioner, that there are prima facie materials to substantiate the petitioner's involvement in the crime, that the petitioner's custodial interrogation is necessary, and that the recovery is to be effected, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within a week from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, B.A.No.3986 of 2024 -:9:- consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. Sd/- **C.S.DIAS,JUDGE** mtk/25.07.24