BA Nos. 6427 & 6154 of 2023: Vishnu G and Adarsh S John v. State of Kerala and Ramsheed P (Complainant)

BA Nos.6427 & 6154 of 2023 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945 BAIL APPL. NO. 6427 OF 2023 ``` ``` CRIME NO.358/2022 OF AMBALATHARA POLICE STATION, KASARGOD AGAINST THE ORDER/JUDGMENT CMP 2233/2023 OF ADDITIONAL SESSN.COURT ``` ``` (ADHOC-II)KASARAGODE ``` ## **`PETITIONER/1ST ACCUSED:`** ``` VISHNU G, AGED 29 YEARS,NAVULUNGAL HOUSE, PUDUSSERY POST, PALAKKAD, KERALA, PIN - 678651 ``` ``` BY ADVS. M.S.INSAAF MUHAMMEDU SUKUMAR NAINAN OOMMEN SHERRY SAMUEL OOMMEN NITISH SATHESH SHENOY NIDHI JACOB ``` ## **`RESPONDENT/STATE & COMPLAINANT`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2SUB-INSPECTOR OF POLICE, AMBALATHARA POLICE STATION,KASARGOD, PIN - 682031 3RAMSHEED P, AGED 26 YEARS,28/22, THONNIKA HOUSE PORKALAM, BELUR KASARGOD, KERALA, PIN - 671531 ``` ``` P G MANU MAMMALASSERY; T V NEEMA SR PP ``` BA Nos.6427 & 6154 of 2023 2 ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.10.2023, ALONG WITH Bail Appl..6154/2023, THE COURT ON 01.11.2023 DELIVERED THE FOLLOWING: ``` BA Nos.6427 & 6154 of 2023 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.`** ``` WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945 BAIL APPL. NO. 6154 OF 2023 ``` ``` CRIME NO.358/2022 OF Ambalathara Police Station, Kasargod ``` ## **`PETITIONER/5TH ACCUSED:`** ``` ADARSH S JOHN, AGED 25 YEARS,STANLY BHAVAN VARUVILA, VIRALI KULATHOOR, UCHAKKADA, KULATHOOR, THIRUVANANTHAPURAM, KERALA, PIN - 695506 ``` ``` BY ADVS. M.S.INSAAF MUHAMMEDU SHERRY SAMUEL OOMMEN SUKUMAR NAINAN OOMMEN NITISH SATHESH SHENOY ASHA ESTHER OOMMEN NIDHI JACOB ``` ## **`RESPONDENT/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2SUB-INSPECTOR OF POLICE, AMBALATHARA POLICE STATION,KASARGOD, PIN - 682031 3RAMSHEED P, AGED 26 YEARS,28/22, THONNIKA HOUSE, PORKALAM, BELUR,KASARGOD, KERALA, PIN – 671531 P G MANU MAMMALASSERY; T V NEEMA SR PP ``` BA Nos.6427 & 6154 of 2023 4 ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.10.2023, ALONG WITH Bail Appl..6427/2023, THE COURT ON 01.11.2023 DELIVERED THE FOLLOWING: ``` BA Nos.6427 & 6154 of 2023 5 ## **MOHAMMED NIAS C.P., J.** ………………………………………... B.A. Nos. 6427 & 6154 of 2023 ………………………………………... Dated this the 1[st] day of November, 2023 ## **O R D E R** These bail applications are filed under Section 438 of the Code of Criminal Procedure, 1973, seeking pre-arrest bail. 2. The petitioners in both the applications are respectively accused Nos.1 and 5 in crime No.358/2022 of Ambalathara police station, Kasaragod. 3. The prosecution case is that accused Nos.1 to 5, who are managing an institution namely ‘CIVITAAZ Learning International Pvt. Ltd.’, with an intention to cheat the de facto complainant and his friends, offered higher profit and thereby induced them to invest money and accordingly the de facto complainant and his three friends invested money from July 2020, but after that the accused cheated them without providing the borrowed amount of Rs.8,30,000/- and the profit promised by them and thereby they cheated the de facto complainant and friends. The case was registered on 22.6.2022 under Section 420 of the Indian Penal Code, based on the information provided by Ramsheed P. 4. Learned counsel for the petitioners submits that the petitioners have not committed any offence as alleged in the FIR and even if the entire allegations are true, it does not make out an offence under Section 420 of the BA Nos.6427 & 6154 of 2023 6 IPC. The learned counsel for the petitioners then submits that even if the contention of the de facto complainant is accepted of not having repaid the invested amount in full, no case of cheating can be made out as it is only a case of a subsequent failure to comply with the terms of the alleged contract. He also argues that there is no inducement in the present case, no failure to fulfil the promise and that the company against whom the allegations were made has not been arrayed as an accused. It is also pointed out that the first accused is a Law student and that since the offence itself is not attracted, the petitioners are entitled to anticipatory bail. It is also his submission that the role of each accused has not been stated and that though the first accused has an antecedent under Sections 420 and 406 IPC, the same cannot be a reason to not accept his contention that the present crime is not maintainable against them. The petitioners have all along cooperated with the investigation and therefore, he submits that there is no need for custodial interrogation and prayed for allowing the applications. 5. The learned Public Prosecutor opposes the bail applications by filing a report and states that the initial investigation revealed that the petitioners had committed the offence. They had offered higher profit falsely with an intention to cheat the de facto complainant and thereafter, after obtaining money, cheated them. The investigation revealed the payment of money by the de facto complainant. The learned Prosecutor, opposing the bail applications, submitted that the recovery is to be effected and that there is an antecedent of BA Nos.6427 & 6154 of 2023 7 a similar offence. The contention about non-impleadment of the Company is premature. 6. Having considered the rival contentions, I find substantial force in the contention of the learned counsel for the petitioners that the allegation appears to be that the invested amount was not repaid in full, which at best makes out a subsequent failure of the agreed terms. Under such circumstances, it has to be held prima facie that the contention of the petitioners has force. It is also to be noticed that the role of each accused has not been stated precisely. Considering the fact that the first accused is a Law student and also that there is a gap of nearly two years for the registration of the FIR, I hold that custodial interrogation is not required in the present case. Accordingly, the applications seeking anticipatory bail are allowed on the following conditions:- - i. The petitioners shall appear before the Investigating Officer within ten days from today and subject themselves to interrogation. - ii. After interrogation, in the event of the investigating officer deciding to arrest the petitioners, they shall be released on bail on executing separate bonds for a sum of Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like some to the satisfaction of the officer concerned. - iii.The petitioners shall appear before the investigating officer for interrogation as and when directed. BA Nos.6427 & 6154 of 2023 8 - iv.They shall also cooperate 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 to dissuade them from disclosing such facts to the court or the police officer. - v. The petitioners shall not leave India without the permission of the jurisdictional court. - vi.The petitioners shall not commit any offence while on bail. - vii.The petitioners shall appear before the investigating officer every Monday till the final report is filed. - viii.If any of the above conditions are violated by the petitioners, the jurisdictional court is empowered to cancel the bail in accordance with law. It is made clear that it is within the power of police to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners, even when the petitioners are on bail as per the judgment of the Apex Court in **Sushila Aggarwal and others v. State ( NCT of Delhi) and another [2021 (1) KHC 663]** . **Sd/-** **MOHAMMED NIAS C.P. JUDGE** okb BA Nos.6427 & 6154 of 2023 9 BA Nos.6427 & 6154 of 2023 10 ## **`APPENDIX OF BAIL APPL. 6154/2023`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure 1`|`A TRUE COPY OF THE MASTER DATA OF THE COMPANY`| ||`DATED 21/07/2023`| |`Annexure 2`|`A TRUE COPY OF THE FIR NO 358 OF 2022 DATED`| ||`22/06/2022`| |`Annexure 3`|`A TRUE COPY OF THE COMPLAINT OF THE DE FACTO`| ||`COMPLAINANT ALONG WITH THE ENGLISH`| ||`TRANSLATION`| |`Annexure 4`|`A TRUE COPY OF ORDER OF HON'BLE COURT OF`| ||`SESSIONS, KASARGOD DIVISION DATED 04.05.2023`| BA Nos.6427 & 6154 of 2023 11 ## **`APPENDIX OF BAIL APPL. 6427/2023`** ``` PETITIONER ANNEXURES ``` |`Annexure`|`1`|`A TRUE COPY OF THE MASTER DATA OF THE COMPANY`| |---|---|---| |||`DATED 21.07.2023`| |`Annexure`|`2`|`A TRUE COPY OF THE FIR NO 358 OF 2022 DATED`| |||`22.06.2022`| |`Annexure`|`3`|`A TRUE COPY OF THE COMPLAINT OF THE DE FACTO`| |||`COMPLAINANT ALONG WITH ENGLISH TRANSLATION`| |`Annexure`|`4`|`A TRUE COPY OF ORDER OF HON'BLE COURT OF`| |||`SESSIONS, KASARGOD DIVISION IN CRIMINAL MP`| |||`2233 OF 2023 DATED 04.05.2023`| |`Annexure`|`5`|`A TRUE COPY OF THE ORDER ISSUED BY HON'BLE`| |||`COURT OF SESSIONS,KASARGOD DIVISION IN`| |||`CRIMINAL MP 3863 OF 2023 DATED 20.07.2023`| |`Annexure`|`6`|`A TRUE COPY OF THE ORDER IN BAIL APPLICATION`| |||`NO 6154 OF 2023 DATED 25.07.2023`| |`Annexure`|`8`|`The extracts of recent call records with`| |||`Ambalathara police station bearing mobile`| |||`number 04672243200 - Produced as CD`| |`Annexure`|`7`|`A copy of College Identity Card of the`| |||`Petitioner/1st Accused issued by the Vaikunta`| |||`Baliga College of Law, Udupi`|