Anu Basheer v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN MONDAY
Judgment Date: 2023-02-13
Court Decision / Holding: The bail application is allowed. The petitioner is enlarged on bail on the following conditions: surrender before the Investigating Officer within ten days; once arrested, produced before the jurisdictional court on the date of arrest; bond of Rs.30,000 with two solvent sureties each for Rs.30,000; cooperation with investigation; availability for interrogation as directed; no intimidation of witnesses; no offences during the currency of bail.
Final Disposition: Anticipatory bail granted; petitioner released on bail with specified conditions.

Parties to the Case

Appellants / Petitioners

Anu Basheer

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Adv Ajeesh M Ummer

Counsels for Respondents

• SMT T V Neema, Sr. Public Prosecutor

Case Synopsis & Summary

This is a bail application (B.A.No.803 of 2023) under Section 438 CrPC filed by the sole accused Anu Basheer in Crime No.49 of 2023 at Kalady Police Station, Ernakulam. The prosecution alleges that the petitioner cheated by selling a Toyota Innova Crysta and receiving an advance of Rs. 5,30,000, with the sale to be completed after settling a loan, but the vehicle and its records were allegedly withheld by the accused without refunding the advance. The case forms the basis for a potential offence under Section 420 IPC. The petitioner’s counsel contends the defacto complainant is a moneylender and that the alleged transaction is not established; a civil suit (O.S.No.30 of 2023) for realisation of Rs.5,30,000 based on a cheque has been filed, suggesting a civil remedy. It is argued that the petitioner borrowed money and that custodial interrogation is unnecessary; the investigation can proceed with cooperation. The Public Prosecutor disputes bail, highlighting involvement in other crimes (Nos.29, 31, 32 of 2023) and asserting that custodial interrogation and recovery of money are essential to the investigation. After considering the materials, the court held that arrest and custody were not necessary and granted anticipatory bail with conditions for cooperation, surrender, bonds, and non-interference with witnesses.

Provisions of Law Cited

Section 438 of the Code of Criminal ProcedureSection 420 IPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the alleged sale of the Innova Crysta and the advance payment of Rs.5,30,000 are not established; the defacto complainant is a moneylender, and the civil suit for realisation indicates the remedy lies in civil process. He argues that custodial interrogation is not necessary and that cooperation with investigation suffices; the motive is to secure relief rather than prejudice the investigation.

Contentions of Respondents

The Public Prosecutor opposes bail, citing involvement in other crimes (Nos.29, 31, 32 of 2023) and contends that custody and money recovery are essential to the investigation; the authenticity of the alleged sale and the cheque-based liability are focal points for investigation.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 BAIL APPL. NO. 803 OF 2023** **CRIME NO.49 OF 2023 OF KALADY POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED :** **ANU BASHEER AGED 38 YEARS, S/O.BASHEER E K, ETTIYATTARA (H), CHENGAL KARA, KALADY P.O., KALADY, PIN - 683574** **BY ADV AJEESH M UMMER** ## **RESPONDENT/STATEV:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031** **BY SMT T V NEEMA, SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.803 of 2023 ..2.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------B.A.No.803 of 2023 -------------------------------------------------------Dated this the 13[th] day of February, 2023** ## **O R D E R** This is an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure, by the petitioner who is sole accused in Crime No.49 of 2023 of Kalady Police Station, Ernakulam. 2. Heard the learned counsel for the petitioner and also the learned Public Prosecutor. 3. I have perused the relevant materials forming part of the case diary produced by the learned Public Prosecutor. B.A.No.803 of 2023 ..3.. 4. The prosecution allegation is that, the accused herein offered to sale his Toyota Innova Crysta car for a total sale consideration of Rs.15,30,000/- and as agreed between the parties, as on 11.02.2022, the defacto complainant herein given Rs.5,30,000/- as advance to purchase the car. According to the defacto complainant, it was agreed between them that the sale of the car would be materialised after closing the loan subsists. The further case is that, though vehicle and records were handed over on this premise, thereafter the accused herein obtained back the vehicle and its records, even without repaying Rs.5,30,000/- received as advance. Accordingly, offence punishable under Section 420 of the Indian Penal Code is alleged to be committed. 5. The learned counsel for the petitioner would submit that the defacto complainant is a money B.A.No.803 of 2023 ..4.. lender and the petitioner borrowed some amount from him. That apart, the defacto complainant filed suit viz. O.S.No.30 of 2023 before the Munsiff Court, Perumbavoor on dishonour of the cheque for the said sum of Rs.5,30,000/-. The allegations as to sale of the vehicle and receipt of advanced sale consideration to the tune of Rs.5,30,000/- are absolutely false and the prosecution case as to commission of offence punishable under Section 420 of IPC by the accused not at all established. According to the learned counsel, in the said circumstances, the petitioner is liable to be released on anticipatory bail. 6. The learned Public Prosecutor opposed bail and submitted that the petitioner has involvement in Crime Nos.29 of 2023, 31 of 2023 and 32 of 2023, were also he alleged to have committed offence punishable B.A.No.803 of 2023 ..5.. under Section 420 of IPC. Therefore, the learned Public Prosecutor submitted that this is not a fit case to grant anticipatory bail, since custodial interrogation and recovery of money are essential part of investigation. 7. The learned counsel of the petitioner placed copy of plaint in O.S.No.30 of 2023 filed by the defacto complainant against the petitioner herein for realisation of Rs.5,30,000/- narrating the sale agreement as stated in the FIS. The above suit has been filed for realisation of Rs.5,30,000/- based on a cheque alleged to be issued by the petitioner herein to discharge the liability towards the advanced sale consideration, as contended. 8. Eventhough the learned Public Prosecutor not produced records pertaining to Crime Nos.29 of 2023, 31 of 2023 and 32 of 2023, copies of FIR in the above crimes have been placed by the learned counsel for the B.A.No.803 of 2023 ..6.. petitioner. In the above crimes, the allegation was that the petitioner herein borrowed amounts from the respective defacto complainants and offered a job in UK and thereby, they were cheated. According to the learned counsel for the petitioner, the above crimes were settled by repaying the amount. 9. In this case, the specific allegation is nonpayment of advance sale consideration to the tune of Rs.5,30,000/- based on a sale agreement for the alleged sale of Innova Crysta car. The petitioner already instituted a suit to realise the same on dishonour of the cheque alleged to be issued by the petitioner for payment of the said amount. 10. Having noticed the above facts, I am of the view that arrest and custodial interrogation of the petitioner in this case are not necessary. The investigation B.A.No.803 of 2023 ..7.. could be materialised by directing the petitioner to cooperate with the investigation. Therefore, the bail application is allowed and the petitioner can be enlarged on bail on the following conditions: i. The petitioner shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioner. In the event of his arrest, the Investigating Officer shall produce the petitioner before the jurisdictional court on the date of arrest itself. ii. On such production, the jurisdictional court shall release the petitioner on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only) by himself and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court. iii. The petitioner shall co-operate with B.A.No.803 of 2023 ..8.. investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. iv. The petitioner, shall not, intimidate the witnesses or interfere with the investigation in any manner. - v. The petitioner shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted. Sd/- **A.BADHARUDEEN, JUDGE** rkj B.A.No.803 of 2023 ..9.. ## **APPENDIX OF BAIL APPL. 803/2023** **PETITIONER ANNEXURES ANNEXURE-1** **A TRUE COPY OF THE FIR AND FIS IN CRIME 49/2023 OF KALADY POLICE STATION, ERNAKULAM DATED 17.01.2023.**