B.A. Nos. 8858 & 9332 of 2022 (Bail Applications)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 31[ST] DAY OF JULY 2023 / 9TH SRAVANA, 1945 BAIL APPL. NO. 8858 OF 2022 CRIME NO.694/2022 OF KONDOTTY POLICE STATION ``` ## **`PETITIONERS/ACCUSED 1 & 3`** ``` 1BINU GOPI AGED 55 YEARS DEVI ESTATE, SHOLAYAR P.O., AGALI, PALAKKAD DISTRICT, PIN - 678581 2SALEELA AGED 52 YEARS DEVI ESTATE, SHOLAYAR P.O., AGALI, PALAKKAD DISTRICT, PIN - 678581 BY ADV T.K.KUNHABDULLA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY ADV M.P.SUNITHA BEEGUM ``` ## **`OTHER PRESENT:`** ``` SMT. MAYA M.N., PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.07.2023, ALONG WITH Bail Appl..9332/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.8858 & 9332 of 2022 **2** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 31[ST] DAY OF JULY 2023 / 9TH SRAVANA, 1945 BAIL APPL. NO. 9332 OF 2022 ``` ## **`PETITIONER/ACCUSED NO.8:`** ``` MUHAMMED ASIF S/O. BASHEER, PROPRIETOR, ADZ 360 SOLUTION, HEAD OFFICE, NEW DELHI, RESIDING AT TC 6/430(6) VARA 270, SANAM, ARAPPURA LANE, VATTIYOORKAVU, THIRUVANANTHAPURAM, PIN - 695013 BY ADV T.K.KUNHABDULLA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ADV.MAYA M.N., PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.07.2023, ALONG WITH Bail Appl..8858/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.8858 & 9332 of 2022 **3** ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------B.A.Nos.8858 & 9332 of 2022 ---------------------------------------------Dated this the 31[st] day of July, 2023** ## **ORDER** These Bail Applications are filed under Section 438 of Criminal Procedure Code (Cr.P.C.) 2. Petitioners are the accused in Crime No.694/2022 of Kondotty Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 420, 465 and 468 read with Section 34 IPC. 3. The prosecution case is that during the period in between 21/12/2020 and 07/12/2021, with an intention to cheat the defacto complainant, accused Nos.1 to 8 obtained a total amount of Rs.2.5 crores from him offering to arrange an agency for issuing smart ration cards under the Central Government Scheme of "One India One Ration" and cheated him by not arranging the said agency and also by not repaying the amount. It is also stated that they issued him some forged documents claiming them as issued from Central Government B.A.Nos.8858 & 9332 of 2022 **4** Departments. Hence it is alleged that the accused committed the offence. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. When B.A.No.8858/2022 came up for consideration on 10.11.2022, this Court passed the following order: “Learned Public Prosecutor seeks time to get instruction especially with regard to the forged documents submitted by the petitioners to the defacto complainant. In the meanwhile the petitioners shall appear before the investigating officer in Crime No.694 of 2022 of Kondotty Police Station, Malappuram on 15.11.2022 and shall cooperate with the investigation and subject themselves for interrogation on that day or on any other day or days as directed by the investigating officer. Petitioners shall not be arrested in the meanwhile.” 6. When B.A.No.9332/2022 came up for consideration on 08.12.2022, this Court passed the following order: “This is an application for anticipatory bail. 2. The petitioner is accused No.8 in Crime No.694 of 2022 of Kondotty Police Station, alleging commission of offences punishable under Sections 420, 465 and 468 r/w Section 34 of the Indian Penal Code. 3. The prosecution allegation is that during the B.A.Nos.8858 & 9332 of 2022 **5** period in between 21.12.2020 and 07.12.2021, the petitioner and 7 other accused promised the defacto complainant to get the contract of making “One India One Ration Card” (smart card) by Govt. of India) and for that contract this petitioner and other accused persons collected Rupees 2.5 crores from the defacto complainant and cheated him by not arranging the contract and also by not repaying the amount. The accused forged some documents claiming them as issued from Central Govt. Departments and thereby the accused have committed the aforesaid offences. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the charges levelled against him and further that he is ready and co-operate with the investigation. The petitioner shall appear before the investigating officer in Crime No.694 of 2022 of Kondotty Police Station on 12.12.2022 and shall cooperate with the investigation and subject himself for interrogation on that day or on any other day or days as directed by the investigating officer. Petitioner shall not be arrested in the meanwhile.” 7. It is submitted that the petitioners surrendered before the Investigating Officer based on the above order and they were already interrogated. The Investigating Officer B.A.Nos.8858 & 9332 of 2022 **6** want more details of the Delhi Account where the amount is transferred. For that purpose alone, the bail applications of the petitioners need not be rejected. The petitioners can be directed to surrender before the Investigating Officer and cooperate with the investigation. It is true that the allegations against the petitioners are very serious. But considering the facts and circumstances of the case, I think these bail applications can be allowed on stringent conditions. 8. Moreover, it is a well accepted principle that, the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram P. v. Directorate of Enforcement** (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that, the accused has the opportunity of securing fair trial. 9. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: B.A.Nos.8858 & 9332 of 2022 **7** 1. Petitioners shall appear before the Investigating Officer within ten days from today and shall undergo interrogation; 2. After interrogation, if the Investigating Officer proposes to arrest the petitioners, they shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned; 3. Petitioners shall appear before the Investigating Officer on all Mondays at 10 am for a period of one month after their surrender. Thereafter the petitioners shall appear before the Investigating Officer as and when required. The petitioners shall co-operate 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 so as to dissuade them from disclosing such facts to the Court or to any police officer; B.A.Nos.8858 & 9332 of 2022 **8** 4. Petitioners shall not leave India without permission of the jurisdictional Court; 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected; 6. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** B.A.Nos.8858 & 9332 of 2022 **9** ## **`APPENDIX OF BAIL APPL. 9332/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1A PHOTOCOPY OF THE F.I.R. AND F.I.S. STATEMENT Annexure A2A PHOTOSTAT COPY OF THE AUTHORIZATION LETTER DATED 6TH MANY, 2022 ISSUED BY NATIONAL FEDERATION TOURISM AND TRANSPORT CO-OPERATIVES OF INDIA LTD., NEW DELHI ISSUED TO THE DEFACTO COMPLAINANT Annexure A3THE PHOTOSTAT COPY OF THE ORDER DATED 15/10/2022 PASSED BY THE COURT OF SESSIONS, MANJERI ``` B.A.Nos.8858 & 9332 of 2022 **10** ## **`APPENDIX OF BAIL APPL. 8858/2022`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`Annexure A1`|`PHOTOCOPY OF THE F.I.R. WITH F.I.`| ||`STATEMENT DATED 05/09/2022 REGISTERED`| ||`BY KONDOTTY POLICE STATION AS CRIME`| ||`NO. 694/2022`| |`Annexure A2`|`PHOTOCOPY OF THE CONSULTANCY AGREEMENT`| ||`EXECUTED BETWEEN THE DEFACTO`| ||`COMPLAINANT AND THE 1ST PETITIONER`| |`Annexure A3`|`PHOTOCOPY OF THE CONSULTANCY AGREEMENT`| ||`EXECUTED BETWEEN THE 1ST PETITIONER`| ||`AND THE 8TH ACCUSED`| |`Annexure A4`|`PHOTOCOPY OF THE APPLICATION DATED`| ||`31/12/2020 ADDRESS TO THE HON'BLE`| ||`UNION MINISTER, MINISTRY OF CONSUMER`| ||`AFFAIRS, FOOD AND PUBLIC DISTRIBUTION`| ||`BY THE TATI CONSTRUCTION (P) LTD.`| |`Annexure A5`|`PHOTOCOPY OF THE CONSULTANCY AGREEMENT`| ||`DATED 22/03/2022 EXECUTED BETWEEN THE`| ||`DEFACTO COMPLAINANT AND THE 8TH`| ||`ACCUSED`| |`Annexure A6`|`PHOTOCOPY AUTHORIZATION LETTER ISSUED`| ||`BY THE NATIONAL FEDERATION OF TOURISM`| ||`AND TRANSPORT CO-OPERATIVES OF INDIA`| ||`LTD. TO THE DEFACTO COMPLAINANT`| ||`AUTHORIZING THE DEFACTO COMPLAINANT AS`| ||`THE OPERATOR AB-PMJAY PROJECT IN`| ||`DISTRICTS CHANDRAPUR, HINGOLI,`| ||`PARBHANI AND WASHIM IN MAHARASHTRA`| ||`STATE`| |`Annexure7`|`PHOTOCOPY OF THE CERTIFICATE DATED`| ||`06/05/2022 ISSUED BY THE UTI`| ||`INFRASTRUCTURE TECHNOLOGY AND SERVICES`| ||`LTD. TO APPOINTING NATIONAL FEDERATION`| ||`OF TOURISM AND TRANSPORT CO-OPERATIVES`| ||`OF INDIA LTD. AS AN AUTHORIZED`| ||`BUSINESS ASSOCIATES FOR ISSUANCE OF`| ||`AB-PMJAY E-CARDS.`| |`Annexure A8`|`PHOTOCOPY OF THE LAWYER NOTICE DATED`| ||`19/07/2022 SENT BY THE 1ST PETITIONER`| ||`TO THE DEFACTO COMPLAINANT.`| B.A.Nos.8858 & 9332 of 2022 **11** |`Annexure A9`|`PHOTOCOPY OF THE REPLY NOTICE DATED`| |---|---| ||`12/09/2022 SENT BY THE DEFACTO`| ||`COMPLAINANT TO THE 1ST PETITIONER`| |`Annexure A10`|`CERTIFIED COPY OF THE ORDER DATED`| ||`15/10/2022 PASSED BY THE COURT OF`| ||`SESSION, MANJERI IN CRL. M.C. NO.`| ||`1028/2022`| |`RESPONDENT ANNEXURES`|| |`Annexure R2(a)`|`TRUE PHOTOCOPY OF THE FIR DATED`| ||`09.05.2022 OF kONDOTTY POLICE STATION`| ||`IN CRIME NUMBER 694/2022`| |`Annexure R2(b)`|`TRUE PHOTOCOPIES OF THE PHOTOGRAPHS OF`| ||`THE ACCUSED`| |`Annexure R2(c)`|`True photocopy of the agreement dated`| ||`02.03.2021entered between the 4th`| ||`accused and Food Corporation of India`| |`Annexure R2(f)`|`True photocopy of the letter dated`| ||`09.07.2021 addressed to Director,`| ||`Consumer Affairs, Food and Public`| ||`distribution, Krishi Bhavan, New Delhi`| |`Annexure R2(e)`|`The true photocopy of the Bank`| ||`Statement dated 05.07.2022 of HDFC`| ||`Bank from 01.10.2019 to 31.03.2022`| |`Annexure R2(g)`|`True photocopy of the MEMORANDUM OF`| ||`UNDERSTANDING dated 20.07.2021 between`| ||`the 4th accused (brother of the 1st`| ||`petitioner in the above Bail`| ||`Application) and Consumer Affairs,`| ||`Food and Public Distribution, Krishi`| ||`Bhavan ,New Delhi`| |`Annexure R2(h)`|`True photocopy of the paper cutting`| ||`dated 30.06.2021 in Mathrubhumi Daily`| ||`News paper`| |`Annexure R2(d)`|`True photocopy of the agreement dated`| ||`26.07.2021 between Binu Gopi (1st`| ||`accused) and Tamam Consultancy Pvt Ltd`|