BA Nos. 7298, 6758 & 7696 of 2022

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945** **BAIL APPL. NO. 7298 OF 2022** **(CRIME NO.1072 OF 2022 ALUVA POLICE STATION)** ## **PETITIONER/4TH ACCUSED:** AKSHAY VAIDYAN, AGED 38 YEARS S/O. LATE THOMAS ALEXANDER VAIDIAN, RESIDING AT 7, PAPPALI ENCLAVE, VAZHAKALA, ERNAKULAM DISTRICT., PIN - 682030 BY ADVS. P.JAYABAL MENON REKHA AGARWAL ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,, PIN - 682031 2 THE STATION HOUSE OFFICER, ALUWA POLICE STATION, ERNAKULAM DISTRICT., PIN - 683101 3 ABDUL LAHIR HASSAL, S/O. MUHAMMED HASSAN, AGED ABOUT 60, THAINOTH ROAD, WEST SIDE OF BYEPASS, ALUVA WEST VILLAGE, ALUWA, ERNAKULAM., PIN - 683101 BY ADVS. PUBLIC PROSECUTOR SRUTHY K.K DIRECTOR GENERAL OF PROSECUTION P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR SHRI.SAJJU.S., SENIOR G.P. P.VIJAYA BHANU (SR.) P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI SRUTHY N. BHAT RAHUL SUNIL NIKITA J. MENDEZ **OTHER PRESENT:** BA Nos.7298,6758 & 7696/2022 2 SR.PP.S.U.NAZAR; ADV.S.SREEKUMAR (SR) FOR THEAPPEALLATN IN BA 6758/22 THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.07.2023, ALONG WITH Bail Appl.6758/2022, 7696/2022, THE COURT ON 20/7/2023 DELIVERED THE FOLLOWING: 3 BA Nos.7298,6758 & 7696/2022 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945 BAIL APPL. NO. 6758 OF 2022** **(Crime No.1072 of 2022 of ALUVA POLICE STATION) PETITIONERS/ACCUSED NOS. 2 & 3:** 1 AHAMED SHAFI C.M, AGED 65 YEARS S/O K MOHAMMED KUDROLI, MANNATH CHERKALA, CHENGALA, KASARAGOD, KERALA, PIN - 671541 2 ISHA BEEVI, AGED 60 YEARS W/O AHAMED SHAFI C.M. MANNATH CHERKALA, CHENGALA, KASARAGOD, KERALA, PIN - 671541 BY ADVS. P.MARTIN JOSE HARIKRISHNAN S. S.SREEKUMAR (SR.) ## **RESPONDENT/STATE & COMPLAINANT:** 1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 2 THE STATION HOUSE OFFICER, ALUVA POLICE STATION, ERNAKULAM DISTRICT,, PIN - 683101 3 ABDUL LAHIR HASSAL, AGED 60 YEARS S/O MUHAMMED HASSAN, THAINOTH ROAD, WEST SIDE OF BYEPASS, ALUVA WEST VILLAGE, ALUVA, ERNAKULAM DISTRICT - 683 101 BY ADVS. PUBLIC PROSECUTOR NIKITA J. MENDEZ DIRECTOR GENERAL OF PROSECUTION P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR SHRI.SAJJU.S., SENIOR G.P. P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI 4 BA Nos.7298,6758 & 7696/2022 SRUTHY N. BHAT RAHUL SUNIL SRUTHY K.K P.VIJAYA BHANU (SR.) **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.07.2023, ALONG WITH Bail Appl.7298/2022 AND CONNECTED CASES, THE COURT ON 20/7/2023 DELIVERED THE FOLLOWING:** 5 BA Nos.7298,6758 & 7696/2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945** **BAIL APPL. NO. 7696 OF 2022** **(CRIME NO.1072/2022 OF ALUVA POLICE STATION)** **PETITIONER/ACCUSED NO.1:** MR.MOHAMMED HAFEEZ, AGED 24 YEARS S/O.AHAMED SHAFI C.M., MANNATH CHERKALA, CHENGALA, KASARAGOD, KERALA., PIN - 671541 BY ADV ANEESH JAMES ## **RESPONDENT/STATE & COMPLAINANT:** 1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 2 THE STATION HOUSE OFFICER, ALUVA POLICE STATION, ERNAKULAM DISTRICT,, PIN - 683101 3 ABDUL LAHIR HASSAL, AGED 60 YEARS S/O MUHAMMED HASSAN, THAINOTH ROAD, WEST SIDE OF BYEPASS, ALUVA WEST VILLAGE, ALUVA, ERNAKULAM DISTRICT, PIN - 683101 BY ADVS. PUBLIC PROSECUTOR SRUTHY K.K DIRECTOR GENERAL OF PROSECUTION P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR SHRI.SAJJU.S., SENIOR G.P. P.VIJAYA BHANU (SR.) P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI SRUTHY N. BHAT RAHUL SUNIL NIKITA J. MENDEZ **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **12.07.2023, ALONG WITH Bail Appl.7298/2022 AND CONNECTED CASES, THE COURT ON 20/7/2023 DELIVERED THE FOLLOWING:** 6 BA Nos.7298,6758 & 7696/2022 ## **V.G.ARUN J.** ------------------------------------B.A. Nos. 7298,6758 & 7696 of 2022 **---------------------------------** Dated this the 20[th] day of July 2023 ## **O R D E R** The petitioners are the accused in Crime No.1072/2022 of Aluva Police Station, registered for offences under Sections 406, 420, 468, 471,120-B, 498-A and 419 read with Section 34 of IPC. Some of the allegations raised by the third respondent, which led to registration of the crime, are as under; The first accused (petitioner in B.A. No.7696/2022) married his daughter Hajera Lahir Hasan on 22.01.2017. After marriage, the couple resided in the first accused’s residence at Kasargod for some time and thereafter shifted to Bangalore. At the time of marriage, the first accused claimed to be a B.Tech Graduate, doing business along with his parents (accused Nos. 2 and 3). Sometime after marriage, accused 1 to 3 started to harass Hajera demanding money under various pretexts. They wanted Hajera to ask her father, a wealthy businessman, to meet their monetary demands. While so, a child was born in the wedlock between the first accused and Hajera. In the year 2018, the first accused informed the third 7 BA Nos.7298,6758 & 7696/2022 respondent that he is in deep financial crisis, consequent to an income tax raid conducted in his business concern in Bangalore. Believing the words of the first accused, the third respondent transferred Rs.3,90,50,000/- to the account of the first accused. later it turned out that the story was false. In March 2020, the first accused convinced the third respondent that a building named Puma Store in Brigade Road, Bangalore is up for sale at Rs.2,10,0000/- and it will be a good buy, since the building would easily fetch Rs.4,00,000/- as monthly rent. Once again believing the words of his son-in-law, the third respondent agreed to purchase the property. Thereupon, the first accused brought an agreement for sale signed by one Umrean Nabeel, whom the first accused claimed to be the owner of the building and the third respondent transferred Rs.2,01,70,000/- to the account of one 'Building Developers'. It subsequently came to light that Umrean Nabeel is a fictitious person and the money credited to the account of 'Building Developers' was immediately transferred to the account of the first accused. Yet another instance of deception was when the first accused informed the third respondent that a prominent construction company named ‘Lodha’ is interested in purchasing the commercial property belonging to the third respondent in Kochi for Rs. 1.5 Crores. The first accused also made available a letter 8 BA Nos.7298,6758 & 7696/2022 bearing the seal and signature of the Chairman of the company 'Lodha’, offering Rs.1.50 Crores towards purchase price for the commercial space. As the offer was attractive, the third respondent decided to sell the commercial space. Thereupon, the first accused informed the third respondent that the company wanted Rs.70 Crores to be deposited in an account in India and the balance Rs.80 Crores in an account in Dubai. Some time later, the first accused met the third respondent and told him that transfer of the initial 80 Crores by the purchaser was caught by the CID at Dubai and is demanding Rs.48 Crores for hushing up the case. The first accused threatened that, unless the amount is paid, the police will come in search of the third respondent. Apprehensive of police action, the third respondent paid Rs.26,69,93,674/-. Immediately thereafter, the first accused threatened the third accused again, this time on the pretext that he had received notices from the Enforcement Directorate and the Income Tax department with respect to the Lodha deal and made the third respondent to pay him Rs. 22,98,42,730/- It was later revealed that there was no purchaser for the property and the letter from Lodha was forged and the CID and ED stories were cooked up, to embezzle money. The purported notice have been issued by the Assessment Officer of the Income Tax Department was also forged. On yet another occassion, the first 9 BA Nos.7298,6758 & 7696/2022 accused convinced the third respondent that he and his wife jointly held certain buildings in Bangalore and promised to sell that building for Rs.26 Crores. To gain the third respondent's trust, the first accused showed the sale deed prepared by him and informed that registration of the document will take some time due to the prevailing Covid situation. Believing his words, the third respondent transferred Rs.26 Crores towards sale consideration. Later, it came to light that the first accused had no such building in Bangalore. Other instances of cheating, including clandestine sale of a Range Rover Car given to Hajera by the third respondent and misappropriation, after making the third respondent invest in businesses proposed to be started with the first accused Hajera and the third respondent, are also pointed out. it is also alleged that accused 1 to 3 had mentally harassed Hajera for money, which she did not reveal initially. When the harassment became unbearable, Hajera escaped from Bangalore in April 2022 and took up residence with the third respondent in UAE. In the meanwhile, the first accused offered to sell some more buildings belonging to him and made available copies of the title deeds of those buildings. By this time, the third respondent and family suspected that they were being cheated and hence, enquired about the ownership of those buildings. It was then revealed that the first accused does not own 10 BA Nos.7298,6758 & 7696/2022 any such building. By this time, the first accused had misappropriated more than Rs.92 Crores through deception and cheating. At the intervention of mediators, a meeting of the two families was convened. In that meeting, the first accused confessed that he had committed cheating and forgery and offered to repay the money he had misappropriated and handed over ten cheques totalling Rs.90 Crores. The cheques were dishonoured on presentation. It is alleged that accused 2 and 3 had refused to return the jewellery weighing 600 sovereigns belonging to Hajera, kept by them in a Bank locker at Kasargod. It is also alleged that accused 2 and 3 are beneficiaries of the cheating committed by the first accused, as some portion of the misappropriated amount was transferred to their company account. The 4th accused is alleged to be an active participant in all instances of forgery and cheating committed by the first accused. 2. Heard, Senior Advocate S.Sreekumar for accused Nos. 1 to 3, P.Jayabal Menon for the 4th accused, Senior Advocate P.Vijayabhanu for the third respondent and Senior Public Prosecutor S.U.Nazar for the State. 3. Senior Advocate S. Sreekumar contended that the allegations in the complaint are patently false and intended to 11 BA Nos.7298,6758 & 7696/2022 coerce and vex accused Nos. 1 to 3 to succumb to the demands raised by the third respondent in the pending matrimonial cases. The money alleged to have been misappropriated by the first accused, by committing cheating and forgery, are actually amounts credited to his account by the third respondent in connection with various partnership businesses started with the first accused, Hajera and the third respondent’s wife, along with some others, as partners. To buttress this argument, attention is drawn to the documents produced as Annexures 2 to 11 in Bail Application No. 7696/2022. 4. Even going by the third respondent's version, an amount of Rs. 5 Crores was given to the first accused, after realising that he had committed cheating. This statement according to the Senior Counsel, proves the falsity of the allegations. Further, 10 cheques for Rs.90 Crores was obtained from the first accused under duress and criminal complaints have been filed based on those cheques. Being so, there cannot be a simultaneous investigation into the allegation of cheating. The fact that Hajera, who is alleged to have been harassed, has not given any complaint indicates the real motive behind registration of the crime.The third respondent is a wealthy businessman running a chain of schools in UAE and India and it iis impossible to believe that a person with his experience will 12 BA Nos.7298,6758 & 7696/2022 repeatedly fall for the deception and part with huge amounts of money. It is submitted that, since the first accused was in Goa when the crime was registered, he moved the High Court of Goa seeking transit bail and the same was granted. In the meanwhile, a crime was got registered by the Cyber Crime Police at Bangalore and the Jurisdictional Sessions Court granted anticipatory bail to the petitioner finding that the truth has to come out after a full fledged trial. 5. In order to further harass the accused, a crime was got registered at the Crime Branch Police Station, North Goa and the first accused got arrested on 8/6/2023. The very same allegations as in the crime registered at the Aluva Police Station was raised therein also. The Jurisdictional Magistrate,took note of the fact that two FIRs are registered at the instance of the third respondent in two different States. The Court also observed that the FIRs appears to be the result of matrimonial discord. Hence, the first accused was ordered to be released on bail on the date of submission of the bail application itself. Learned Senior Counsel placed reliance on the decision of the Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtra and Others [(2011) 1 SCC 694]** to point out the parameters to be taken into consideration while dealing with applications for anticipatory bail. The decision in 13 BA Nos.7298,6758 & 7696/2022 ## **Arnesh Kumar v. State of Bihar and Another (2014 8 SCC** **273)** is pressed into service to contend that, all offences in the pending crime being punishable with imprisonment for less than 7 years, the police cannot insist upon custodial interrogation and can only issue notice of appearance in terms of Section 41A of the Code of Criminal Procedure. 6. Learned Counsel for the 4th accused submitted that except the vague allegations in the First Information Statement, there is absolutely no material to connect the 4th accused with the alleged offences. 7. Refuting the contentions urged on behalf of the accused, learned Senior Advocate P.Vijayabhanu submitted that the accused had misappropriated almost Hundred Crores pursuant to the criminal conspiracy hatched among them. For achieving this dubious purpose, the first accused had, with the aid of the 4[th] accused fabricated a B.Tech Degree Certificate, an Income Tax notice, agreements in the name of fictitious persons and sale deeds with respect to non-existent buildings. The third respondent's daughter was continuously harassed by demanding that she should get more money from her father and the harassment continued upto April 2022, till she escaped to the UAE. The fact that ten 14 BA Nos.7298,6758 & 7696/2022 cheques for Rs.90 Crores issued by the first accused indicates his complicity in the offence. It is contended that it will not be possible to elicit details of the forgery and effect recovery, without the accused being subjected to custodial interrogation. 8. Stoutly opposing the prayer for anticipatory bail, the learned Public Prosecutor submitted that accused 1 to 3 are history sheeters, involved in other crimes. The first accused has gone to the extent of fabricating the notice of the Income tax Department, for convincing the third respondent about his immediate requirement of money. The first accused even defrauded the court at Goa by producing a forged electoral identity card to claim that he is a resident of Goa. Forgery is committed with respect to the partnership deed, which is evident from absence of the signature of witnesses in some of the documents. The fact that the 4th accused is a signatory to most of the deeds, is sufficient to prove that he is an accomplice to the criminal acts committed by the other accused. It is contended that the accused are influential persons and if they are granted anticipatory bail, that would definitely hamper the investigation. 9. Indisputably, matrimonial disputes are pending between the first accused and the daughter of the third respondent. It is 15 BA Nos.7298,6758 & 7696/2022 also evident that some financial help was given by the third respondent to the first accused, being his son-in-law. The question is whether the amounts transferred/paid to the first accused by the third respondent are part of business transactions or the result of deception. The truth will come to light only after detailed investigation. Therefore, what is to be decided is whether the accused should be subjected to custodial interrogation as part of the investigation. There is merit in the contention that, for eliciting the details and recovering crucial documents, custodial interrogation of the accused is required. In this regard it is pertinent to note that the allegation against accused 1 to 4 is they they fabricated the notice of the Income tax Department. This, undoubtedly is a grave allegation. As held by the Supreme Court in **Siddharam Satlingappa Mhetr's** case, the law of bails dovetails to conflicting interests viz; the requirement of shielding society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail, as against absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. In **Arnesh Kumar's** case, the Apex issued directions with respect to arrest in offences under Section 498A IPC and offences punishable with imprisonment 16 BA Nos.7298,6758 & 7696/2022 for a term less than seven years. In my opinion, a balance can be achieved by accused Nos.1 and 4 being interrogated by treating them to be under deemed custody. The involvement of accused Nos. 2 and 3 in the alleged offences being minimal, I find them to be entitled for anticipatory bail. 10. Accordingly, the bail applications are disposed of as under; ## **B.A.Nos.6758/2022** - 1). The petitioners (accused 2 and 3) shall surrender before the Investigating officer within two weeks. 2.) Thereupon, the petitioners shall be interrogated and if arrested released on bail on their executing bonds for Rs.100,000/- with two solvent sureties for the like amount to the satisfaction of the investigating officer. - 3) The petitioners shall co-operate with the investigation and shall not attempt to influence or intimidate the witnesses in any manner. ## **BA Nos. 7696 & 6758/2022** 1). The petitioners (accused Nos. 1 and 4) shall surrender before the investigating officer within two weeks, after giving advance information. On surrender, the petitioners shall be interrogated and if arrested, 17 BA Nos.7298,6758 & 7696/2022 released on bail on their furnishing bonds for Rs.1,00,000/- each with solvent sureties for the like amount, to the satisfaction of the investigating officer and subject to the following conditions; i). The petitioners shall submit themselves to custodial interrogation from 10 am to 4 p.m on the date of surrender and the following five days. ii). The petitioners shall be under deemed custody during the said period for the purpose of recovery, if any, under Section 27 of the Evidence Act. iii). The petitioners shall surrender their passport to the investigating officer. iv). The petitioners shall not leave the limits of the Aluva Police Station during the interrogation period. 2). If the conditions are violated, this order will stand withdrawn and the investigating officer will be at liberty to seek custody of the petitioners. Sd/- **V.G.ARUN** **JUDGE** dpk