BA 8464/2022 & BA 8542/2022 (Sarath S. v State & De facto Complainant; Akhil S. v State & De facto Complainant)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 BAIL APPL. NO. 8464 OF 2022** **AGAINST THE ORDER/JUDGMENTCRMC 1578/2022 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CRIME NO.471/2022 OF KOLLAM WEST POLICE STATION, KOLLAM PETITIONER/ACCUSED NO.2:** SARATH.S, AGED 31 YEARS S/O SAHADEVAN, VILAYIL, NEDUMONKAV P.O., KOODAL, PATHANAMTHITTA, PIN – 689693. BY ADV MANAS P HAMEED ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031. 2 ADDL R2 : G.VENUGOPALA PILLAI S/O.GOPALA PILLAI, TRA 206, THEVALLY, KOLLAM WEST, KOLLAM. IMPLEADED AS ADDL R2 AS PER ORDER DATED 14.11.2022 IN CRL MA 3/2022) BY ADVS. PUBLIC PROSECUTOR SMT.SHEEBA THOMAS S.ABHILASH K.SIJU ANJANA KANNATH SRI P G MANU(SENIOR PUBLIC PROSECUTOR) THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27.01.2023 ALONG WITH B.A.NO.8542/2022, THE COURT ON 10.02.2023 DELIVERED THE FOLLOWING: _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 BAIL APPL. NO. 8542 OF 2022** **AGAINST THE ORDER/JUDGMENT CRMC 1393/2022 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CRIME NO.471/2022 OF KOLLAM WEST POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED:** AKHIL.S, AGED 32 YEARS S/O SAJEEV, VETTATHETHUVEEDU, VALLIKODE, PATHANAMTHITTA, PIN - 689648 BY ADV MANAS P HAMEED ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031. 2 ADDL R2 G.VENUGOPALA PILLAI S/O.GOPALA PILLAI, TRA 206, THEVALLY, KOLLAM WEST, KOLLAM (IMPLEADED AS ADDL R2 AS PER ORDER DATED 14/11/2022 IN CRL MA 2/2022) BY ADVS. PUBLIC PROSECUTOR S.ABHILASH K.SIJU ANJANA KANNATH SRI PG MANU(SR PUBLIC PROSECUTOR) THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27.01.2023 ALONG WITH B.A.NO.8464/2022, THE COURT ON 10.02.2023 DELIVERED THE FOLLOWING: _B.A.No.8464/2022 & B.A.No.8542/2022_ 3 ## _**A.BADHARUDEEN, J.**_ ================================ _B.A.No.8464 of 2022 and B.A.No.8542 of 2022_ ================================ _Dated this the 10[th] day of February, 2023_ ## _**O R D E R**_ The 2nd accused in Crime No.471/2022 of Kollam West Police Station, is the petitioner in B.A.No.8464/202 and he seeks anticipatory bail in the above crime. The 3rd accused in the above crime has also filed bail application – B.A.No.8542 of 2022, seeking the same relief. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. **==> picture [36 x 56] intentionally omitted <==** 3. Short facts as alleged by the prosecution : It is alleged by the prosecution that accused 1 to 3 after sharing common intention cheated and defrauded the defacto complainant by _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 4 offering job of a Salesman to the son of the defacto complainant in KELTRON. The specific case is that the 3rd accused, who is the Secretary of CITU [a trade union under the auspicious of CPI(M), introduced the 2nd accused as a person employed in the H.R Department of KELTRON and accordingly accused Nos.1 to 3 agreed to arrange an employment to the son of the defacto complainant as Sales Manager in KELTRON in the quota provided to CITU in KELTRON. Thereafter, the 2nd accused received Rs.32,92,000/- and the 3rd accused received Rs.15,80,000/- each from the defacto complainant to satisfy the trade union leaders and labourers. But the job offered was not provided and money also was not given back. Thus the prosecution alleges commission of offences punishable under Sections 406, 420 r/w 34 of IPC. 4. Apprehending arrest at the hands of the Kollam West Police, the petitioners had approached the Sessions Court, Kollam and the Sessions Judge dismissed the bail application as per Annexure-2 order. The learned counsel for the petitioners would _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 5 submit that the defacto complainant is a retired Assistant Commissioner in Central Excise, Government of India and who is well aware of the procedure for appointment in public institutions. Therefore, it could not be held that he had transferred this huge sum in the name of the 2nd and 3rd accused believing the promise that the accused would give an employment to the son of the defacto complainant as Sales Manager in KELTRON. Further, the money was transferred in between 9 months period and therefore, it could not be held that the accused cheated the defacto complainant. It is pointed out that there is delay in lodging F.I.R and as per the F.I statement there was mediation talk at the office of the Commissioner of Police during 2022. Further, in view of the mediation talk, cheque for an amount of Rs.8 lakh was issued and therefore, the defacto complainant could initiate prosecution under Section 142 of the Negotiable Instruments Act, in case of dishonour of the cheque. According to the learned counsel for the petitioners, no offence of cheating under Section 406 and 420 IPC would attract in the facts of _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 6 the given case and, therefore, the petitioners are liable to be released on anticipatory bail. The learned counsel has placed certain decisions along with argument note filed by him. The same as such is extracted hereunder: _“i. Vijay Sharma & Ors. Vs State of Bihar, = MANU/BH/1310/2010 2011(1)PLJR 780_ _The facts were similar in this case. Money was obtained from the defacto complainant offering recruitment in the Police Force by influencing the appointing officer by payment of money. Cognizance was taken by the jurisdictional Magistrate under S.406 of IPC which was later challenged before the High Court of Patna, resulting in setting aside the charges. Paragraphs 10 and 11 of the Judgment are extracted below._ _“10. A bare perusal of the complaint reveals that even if the allegations are (sic) the parties were in pari delicto to commit an offence. Employment in the Government is available on advertisement and selection and not purchased by money. Such appointment is outright illegal appointment. If two persons agreed to commit an act, which is an offence under the Indian Penal Code and the agreement fails because the crime could not be committed can it be said that it constitutes an offence under the Indian Penal Code when under the Penal_ _B.A.No.8464/2022 & B.A.No.8542/2022_ 7 _Code the agreement itself was an offence._ _11. Section 23 of the Indian Contract Act declares void a contract which is contrary to the law or opposed to public policy. Therefore, even under the civil law the agreement between the parties was unlawful in its very inception. Both had agreed to do some which was prohibited in law. The contract ex facie being unlawful, both parties can be said have intended to exploit the law for an illegal purpose. The reliance by the complaint on Section 65 of the Indian Contract Act may create a civil finding for the maintainability of any such claim under an illegal contract which shall have to be decided on its own merits in an appropriate civil proceeding. It can however never constitute a criminal offence.”_ _ii. Santosh Kumar Trivedi Vs. State of Bihar, 2019 KHC 3701_ _The facts were that: the accused assured the complainant a job in the Railways for which he had demanded Rs.2,50,000/- to be paid to the authorities. But neither the appointment was made nor money was returned. The High Court quashed the charge relying on Vijay Sharma (supra)._ _iii. Bharat B. Kurbetti & Ors. Vs. State of Karnataka, 2000 KHC 2760_ _There was an agreement between the complainant and accused in terms of which the complainant had to withdraw his candidature in an election of Board of Directors of Bank, on deposit of some amount_ _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 8 _by the accused persons. The complainant withdrew his candidature but amount was not deposited by the accused hence complaint was filed and the jurisdictional Magistrate took cognizance under Sections 417, 120B read with 34 of IPC. The said proceedings was considered to be manifestly illegal and liable to be set aside. Relevant paragraph from the judgment is shown below._ _“8. As such, on the very allegation found in the complaint and speaking to the same in the sworn statement and as the complainant has admitted in clear terms that he withdrew his candidature from contest only after he entered into an agreement with the petitioners who had promised him to pay certain amount for such withdrawal. The agreement in my view, is not only an illegal agreement or contract, but also opposed to public policy. Such agreement is illegal and unenforceable under the law. Even if the art of the agreement is realized by the other side, the complainant cannot allege the offence of cheating by the other side. For example, can a person be permitted to come before the Court or file complaint alleging that he had entered into an illegal contract with another for killing somebody on payment of money or for kidnapping certain person or for engaging a minor or a woman for prostitution and come before the Court, file a criminal complaint that the other party has not kept his promise by nonpayment and hence liable to be punished for cheating or breach of trust? In my view, when a person enters into an illegal contract, he cannot complain of cheating against the other party for not = fulfilling t 1975 ILR (1) P&H 398he obligation. The penal_ _B.A.No.8464/2022 & B.A.No.8542/2022_ 9 _provision is not meant for such persons.”_ ## _iv. Ramji Lal vs State of Haryana, MANU/PH/0291/1972_ _The accused agreed to give his younger daughter in marriage in consideration of pecuniary gain but some other girl was given. The question arisen was whether the accused was guilty of offence under S.420 of IPC. The accused was acquitted on the ground that the consideration for the agreement between the accused and the complainant was opposed to public policy and therefore, the agreement was void and the complainant was not entitled to obtain any relief for breach of agreement from a civil court, consequently no offence under S.420 of IPC was made out against the accused._ ## _v. Jadhunandan Rai & Anr Vs. State of Jharkhand, 2009 KHC_ _110_ _The accused obtained Rs.70,000/- from complainant’s relatives on assurance that the accused would get certain land settled in their name, but failed to fulfill the promise. The accused was convicted under S.420 of IPC by the Sessions Judge. The High Court held that the accused were not authority under law to settle land in favour of complainant’s relatives and that they had entered into an illegal contract and a party to an illegal contract should not be allowed to prosecute a criminal charge when such agreement cannot be performed under law by a civil jurisdiction. vi. Emperor Vs. Jani Hira, MANU/MH/0045/1912_ _The facts were: the accused agreed to let her daughter on hire to the complainant for concubinage and accepted some money_ _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 10 _out of total consideration. But later the accused refused to carry out the_ _contract or to return the advance. It was decided that “the accused and the complainant had entered into a contract which was clearly void for immorality. Therefore the complainant would not be entitled to obtain any relief from a Civil Court for its breach. That is no reason why he should be allowed to prosecute the accused on a charge of cheating.”_ 5. He also submitted that as per the interim order dated 11.01.2023 passed by this Court interim bail was granted to the petitioners with the direction to appear before the Investigating Officer, vide order dated 16.01.2023, in between 9 a.m and 6 p.m for interrogation. 6. The learned Public Prosecutor would submit that as per the prosecution case, the allegation is that the 3rd accused misrepresented the defacto complainant that the petitioner is employed in the H.R Department of KELTRON and offered to arrange the job of a Sales Manager in the KELTRON to the son of the defacto complainant. Further, accused Nos.1 to 3 wrongfully convinced and believed the defacto complainant that the job could _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 11 only be procured if the trade union leaders and the labourers of CITU were to be satisfied, and one post of Sales Manager is the quota available to CITU, as the appointment in KELTRON being done by them. Accordingly, in order to satisfy the trade union and labourers of CITU, the defacto complainant was asked to pay huge amount to the accused. Accordingly, Rs.32,92,000/- was transferred by the defacto complainant to the bank account of the 2nd accused and Rs.15,80,000/- was transferred to the bank account of the 3rd accused. According to the learned Public Prosecutor, since the materials available in this case would go to show that the amounts were transferred to the bank accounts of accused 2 and 3 and the bank statements justifying the said transfers were also collected during investigation, the offence of criminal breach of trust punishable under Section 406 as well as cheating punishable under Section 420 r/w 34 of IPC is made out and, therefore, grant of anticipatory bail to the petitioners would stall the investigation. He also pointed out the necessity of arrest, custodial interrogation and _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 12 recovery of the huge amount obtained by accused Nos.2 and 3. 7. Per contra, the sum and substance of the argument at the instance of the petitioners is that, since the money was given by the defacto complainant for illegal purpose, ie. to get an employment without opting the procedure for selection, the entire contractual terms are illegal and unenforceable. Therefore, no offences would attract in this matter. 8. While appreciating this argument, the prosecution allegation is that accused No.3, who is the office Secretary of CITU, a trade union under the ruling party CPI(M), introduced accused No.2 as a person employed in KELTRON and offered job of Sales Manager to the son of the defacto complainant under the quota available to CITU. Thereafter accused No.2 received Rs.32,92,000/(Rupees Thirty two lakh and ninety two thousand only) and accused No.3 received Rs.15,80,000/- (Rupees Fifteen lakh and eighty thousand only) and the said money transfer is evident by the bank account details of accused Nos.2 and 3. Thus huge amount was _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 13 collected from the defacto complainant offering to arrange the job of the Sales Manager in KELTRON on the premise that the job could be arranged on satisfying the trade union leaders and trade union labourers and the said post is the quota entitled by CITU. What is the mode of selection in KELTRON is not disclosed, either by the petitioners or by the Public Prosecutor. It is true that all public appointments shall be made by following the recruitment procedure established by law applicable to a particular institution. But in Public Sector Undertaking managed by political leaders and trade union sponsored by the ruling party, appointment on receipt of ransom is not uncommon, after conducting moke selection process, to justify the same legally. Therefore, it could not be held that backdoor appointments after receiving money is not known to the citizens of India. Many complaints as regards to backdoor appointments and appointments in violation of the rules and procedures in such institutions are the subject matter of discussion in the public domain as well as before various courts of law. In Kerala, _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 14 appointment of Vice Chancellors of Universities against the norms, by giving appointments to certain persons against the UGC norms so as to provide employment to the supporters of the ruling party leaders, and interference of this Court in those appointments are matters known to legal fraternity. 9. In this case at hand, accused No.3, the responsible office Secretary of CITU Union made the offer to the defacto complainant that one post of Sales Manager in the quota of CITU, the trade union under the leading ruling party, CPI(M). If a responsible person of the ruling party, offers an employment in a trade union dominated undertaking, that too, under the quota of CITU, if the defacto complainant believed the said offer from a responsible office Secretary, it cannot be said that the defacto complainant, a person retired from Central Excise, should not have believed the same. Thus in the case at hand, the appointment offer cannot be treated as an offer from an ordinary man, but the same is at the instance of a responsible leader of the ruling party. Further, the job was offered _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 15 under the quota of CITU. It is pertinent to note that while practically admitting receipt of money as alleged by the prosecution, the petitioners have no explanation, for what purpose they had received this huge sum from the defacto complainant. 10. If a consistent view is taken during the primitive stage of investigation of a crime alleging commission of offence under Sections 406 and 420 of IPC to hold that giving money on the belief of getting some appointments in a public sector undertaking, the persons who received money, on such offer, would go out with clean hands without being subjected to the procedure of law, the same would be fatal. No doubt, such contention can be considered during trial, based on the evidence to be adduced. Here practically the petitioners do not dispute receipt of money, as I have already pointed out. In the argument note, item No.II is to the following effect: _“II. The total amount was given by the defacto complainant on 70 different occasions, over a period of 9 months._ _It is unbelievable that the defacto complainant, a senior_ _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 16 _retired officer was cheated by the accused over a long period of 9 months which made him pay money to the accused on 70 different occasions. The relevant portion of the First Information Statement (FIS) stating the same is extracted below:_ _"**** 27.08.2021_ ശരത� ആവശ�പ�ടതന�സര�ച� വപര _34_ തവണകള�ല�യ� _32,92,000/-_ ര�പ അയച� പക�ട�ത� _._ അത�ൽ _10,000/-_ ര�പ _16.04.2021 . ***** 14.08.2021_ ത�യത� ത�ര�പക തന�ര�ന� _03.11.2021_ വപര _36_ മ�തൽ തവണകള�ല�യ� _15,80,500/-_ ര�പ അയച� ## പക�ട�ത� _.”_ _The above statement shows that the defacto complainant continued to pay money to the accused till 03.11.2021 even after the accused repaid some money on 16.04.2021.”_ 8. That apart, as item No.5 it has been stated as under: _“V. The defacto complainant has an alternate remedy of filing a case under S.138 of Negotiable Instruments Act. It would reveal from the FIS that after mediation talks from the office of the Commissioner of Police, the accused had issued three cheques each for an amount of Rs.8 lakh, as security to the defacto complainant. The present FIR was filed only after it was dishonoured for insufficiency of funds. No explanation is given why he has not moved before a civil court for return of money or before a criminal court under S.138 of N.I. Act.”_ _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 17 11. Since the prosecution records would suggest transfer of huge money in the accounts of accused Nos.1 to 3, as alleged, if it is held that no offence is made out in the given facts of the case, that too, at the premature stage of the investigation, without divulging into detailed investigation, the same would be akin to honourable acquittal of the accused at the extreme initial stage of investigation. It is relevant to note that as per order of this Court dated 11.01.2023 another learned Judge of this Court granted interim bail with direction to the petitioners to surrender before the investigating officer on 16.01.2023 between 9 a.m and 6 p.m for subjecting interrogation. It is submitted by the learned counsel for the petitioners that in obedience to the said directions, accused No.2 appeared before the Investigating Officer and subjected himself for interrogation. When his arrest was recorded, he was produced before the Magistrate Court and he was released on interim bail. In fact, grant of interim bail, before consideration of the matter on merits against the petitioner, has no binding effect, while considering _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 18 bail on merits. Therefore, grant of interim anticipatory bail, without looking into the merit of the case, by itself is not a reason to grant anticipatory bail on merits. 12. It is shocking to note that the 3rd accused herein even not obeyed the interim order of this Court to subject himself for interrogation and he is a person who has least respect to the order of the Court, at least in obeying directions of this Court as per the interim order dated 11.01.2023. 13. Since procurement of a huge sum of Rs.48,62,500/involved in this case, I do not think that the petitioners deserve discretionary relief of anticipatory bail in these cases, where custodial interrogation, recovery of the money from the accused are absolutely necessary. Therefore, I am not inclined to allow these petitions. 14. Accordingly, these anticipatory bail applications at the instance of the petitioners stand dismissed. _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 19 The interim order of bail granted by this Court stands vacated and the police is at liberty to arrest and proceed with investigation without fail, ignoring the status of the petitioners as leaders/men of the ruling party. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 20 ## **APPENDIX OF BAIL APPL. 8464/2022** PETITIONER'S ANNEXURES Annexure1 TRUE COPY FIRST INFORMATION REPORT (FIR) DATED 04.07.2022 IN CRIME NO.471/2022 OF KOLLAM WEST POLICE STATION, KOLLAM DISTRICT. Annexure2 CERTIFIED COPY OF ORDER DATED 19.10.2022 IN CRL.M.C.NO.1578/2022 PASSED BY THE ADDITIONAL SESSIONS JUDGE-II, KOLLAM _B.A.No.8464/2022 &_ _B.A.No.8542/2022_ 21 ## **APPENDIX OF BAIL APPL. 8542/2022** |PETITIONER's|ANNEXURES| |---|---| |Annexure1|TRUE COPY FIRST INFORMATION REPORT (FIR)| ||DATED 04.07.2022 IN CRIME NO.471/2022 OF| ||KOLLAM WEST POLICE STATION, KOLLAM| ||DISTRICT.| |Annexure2|CERTIFIED COPY OF ORDER DATED 19.10.2022| ||IN CRL.M.C.NO.1393/2022 PASSED BY THE| ||ADDITIONAL SESSIONS JUDGE-II, KOLLAM.| |Annexure 3|A TRUE COPY OF FIS IN CRIME NO.471/2022| ||OF KOLLAM WEST POLICE STATION, KOLLAM| ||DISTRICT.| |Annexure 4|TRUE COPY OF TRANSACTION RECEIPT DATED| ||19.07.2022 SHOWING THE TRANSACTION OF| ||RS.50,000/- TO THE DEFACTO COMPLAINANT.| |Annexure 5|TRUE COPY OF TRANSACTION RECEIPT DATED| ||06.06.2022.| |Annexure 6|A TRUE COPY OF PRESCRIPTION SLIP DATED| ||07.01.2023 FROM FAMILY HEALTH CENTRE| ||KUNNAMANGALAM, KOZHIKODE DISTRICT.| |Annexure 7|A TRUE COPY OF MEDICAL CERTIFICATE DATED| ||13.01.2023<br>FROM<br>GOVERNMENT<br>TALUK| ||HOSPITAL, THAMARASSERY.|