Baby K. Thomas and Others v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** ## **BAIL APPL.NO.1998 OF 2019** ## **CRIME NO.139/2019 OF KOTTAYAM WEST POLICE STATION , KOTTAYAM** ## **PETITIONERS/ACCUSED NO.1 TO 4:** - **1 BABY.K.THOMAS, AGED 72 YEARS, S/O.K.K.THOMAS, PARTNER, M/S.GALLANT RUBBERS, KADAMPANATTU HOUSE, MANGANAM.P.O., KOTTAYAM-686018.** - **2 BIJU KURIAN, AGED 51 YEARS, S/O.K.T.KURIAN, PARTNER, M/S.GALLANT RUBBERS, KADAMPANATTU HOUSE, PUTHUPPALLY.P.O., KOTTAYAM-686011.** - **3 MRS.BIJI KURIAN, AGED 48 YEARS, W/O.BIJU KURIAN, PARTNER, M/S.GALLANT RUBBERS, KADAMPANATTU HOUSE, PUTHUPPALLY.P.O., KOTTAYAM-686011.** - **4 K.U.THOMAS, AGED 40 YEARS, S/O.BABY K.THOMAS, KADAMPANATTU HOUSE, MANGANAM P.O., KOTTAYAM-686018.** - **BY ADVS.SRI.S.SREEKUMAR (SR.)SMT.ROSHNI MANUEL, SRI.ALBERT V.JOHN,SRI.VIJU ABRAHAM** ## **RESPONDENTS/COMPLAINANT:** - **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - ***ADDL. 2 SAJAN K.THOMAS, MANAGING DIRECTOR, PARGON POLYMER PRODUCTS PRIVATE LTD, P.B.NO.61, PARAGON BUILDINGS, SREENIVASA IYER ROAD, CHALAKUNNU, KOTTAYAM-686001.** - ***IS IMPLEADED AS PER ORDER DATED 29.3.2019 IN CRL.M.A.NO.1/2019 IN BA. NO.1998/2019.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1, SRI.G.HARIKUMAR(GOPINATHAN NAIR), ADVOCATE FOR R2, SRI.SANTHOSH MATHEW, SHRI.AKHIL SURESH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. -------------------------------B.A. No. 1998 of 2019 -------------------------------Dated this the 17[th] day of July, 2019 ## O R D E R The petitioners herein have been arrayed as accused Nos. 1 to 4 in Crime No.139/2019 of Kottayam West Police Station, which has now been re-registered as Cr.40/CR/KTM/R/2019 of Crime Branch, Kottayam, alleging offences punishable under Secs.120B, 403, 406, 408, 468, 471, 420 r/w 34 of the IPC. The investigation of the abovesaid crime has now been entrusted to the Crime Branch of the State Police, and it is on this account the crime has been re-registered as aforesaid. 2. The gist of the prosecution case is that, the defacto complainant herein was the Managing Director of M/s.Paragon Polymer Products (Pvt.) Ltd. the relevant time, and the said company is engaged in the manufacture and sale of footwear products. Third party job work of the said company have been entrusted to various units including those of the petitioners. The crux of the allegation in the above FIS/complaint is that, by mid 2017, the company had received information from sub B.A. No. 1998 of 2019 ..3.. contractors/job workers in the matter of over charging the company, and to determine the alleged loss, the company had appointed M/s.Deloitte Touche Tohmatsu India LLP (hereinafter referred in short as “Deloitte”) for investigation. In its report M/s.Deloitte is said to have reported some irregularities, the gist of which is that the expenses details were not collected in the format aligned to the intended use, and it was alleged that there was an excess payment to the tune of about Rs.5.44 Crores to the subcontractors/job workers from 2011-12 to 2015-16. The abovesaid complaint has been filed by the abovesaid Managing Director against the accused persons, which has now led to the registration of the instant crime, which has now also been transferred from the local Police to the Crime Branch of the Police Department. The instant bail application is one filed by accused Nos.1 to 4, seeking the benefit of pre-arrest bail in terms of Sec.438 of the Code of Criminal Procedure. 3. Heard Sri.S.Sreekumar, learned Senior counsel instructed by Sri.Viju Abraham, learned counsel appearing for the petitioners/accused, Sri.Saigi Jacob Palatty, learned Prosecutor B.A. No. 1998 of 2019 ..4.. appearing for the 1[st] respondent State of Kerala and Sri.Harikumar Gopinathan Nair, learned counsel appearing for the 2[nd] respondent defacto complainant, Sri.Santhosh Mathew, learned Advocate who is appearing for some of the Directors of the company has also been heard, and though he sought time for filing a formal application for impleadment of his parties as additional respondents, this Court felt that it is not so necessary, in the nature of the orders that is proposed to be passed in this petition. 4. Now it is common ground that, the abovesaid disputes in relation to the functioning of the company is now pending adjudication before the National Company Law Tribunal, Chennai Bench, in which the said Tribunal has now passed Anx.G order dated 28.2.2019 in C.P.No.172/2019 in the matter in Sajan Thomas & 3 others v. Paragon Polymer Products Pvt. Ltd. In Anx.G order, the Tribunal has appointed the Hon'ble Justice (Rtd.) Ms.Chitra Venkataraman, former Judge of the Madras High Court, for the purpose of examination of the report of M/s.Deloitte, and to give opinion and suggest course of action to be followed by the respondent company. It appears that, the B.A. No. 1998 of 2019 ..5.. Hon'ble Justice (Rtd.) Ms.Chitra Venkataraman, has already given an interim report in the matter and further by Anx.G order rendered on 28.2.2019 in C.P.No.172/2019, the National Company Law Tribunal, Chennai Bench, has also _inter alia_ directed that the investigating authorities in the instant crime shall not proceed in the matter till the report is filed by the Hon'ble Justice (Rtd.) Ms.Chitra Venkataraman, and considered by the said Tribunal. In order to ascertain more details in the matters arising out of Anx.G, this Court had requested the Registry of this Court to request the Registry of the said Tribunal to give certain factual details, as regards the issuance of Anx.G order and also as to whether any modification has been made to the said order not to proceed with the investigation in the abovesaid crime, and also as to whether the reports of the Hon'ble Justice (Rtd.) Ms.Chitra Venkataraman has been submitted in the matter, etc. 5. Now the Registry of the National Company Law Tribunal, Chennai Bench, has now furnished a letter dated 4.7.2019 addressed to the Registry of this Court, wherein it has been _inter alia_ stated that the abovesaid order dated 28.2.2019 B.A. No. 1998 of 2019 ..6.. rendered by the Tribunal, is still in force, and further that the Tribunal vide order dated 4.6.2019 has granted permission to the Hon'ble Justice (Rtd.) Ms.Chitra Venkataraman to engage an independent Chartered Accountant to carry out the Forensic Audit of the respondent company for the period in question, and the Tribunal has also further directed that the Chartered Accountant shall prepare a draft report within a period of 4 months, which will be provided to both the parties for filing objection, if any, and thereafter, the Chartered Accountant shall submit the final report to the Hon'ble Justice (Rtd.) Ms.Chitra Venkataraman, who will then convey her opinion and submit a report to the Tribunal, etc. 6. In view of the abovesaid aspects, the learned Prosecutor appearing for the respondent State would submit on the basis of instructions that, so long as the abovesaid order issued by the National Company Law Tribunal, Chennai Bench, interdicting the continuance of further proceedings in abovesaid crime including investigation, the investigating agency (Crime Branch of the Police Department), will not proceed further in the matter B.A. No. 1998 of 2019 ..7.. of the abovesaid crime including its investigation and further steps, and that unless due clearance is obtained in that regard, the further steps in the investigation will be kept in abeyance. Since that is the position of the State as well, there is no point to keep this anticipatory bail application pending, as it cannot be said that the basic jurisdictional fact required for the maintainability of anticipatory bail application regarding the apprehension of imminent arrest exists now in the fact scenario of the case. Therefore, as of now there is no necessity to consider the prayers in this anticipatory bail application. 7. Accordingly it is ordered that, as and when the investigating agency gets the required clearance to proceed further with the investigation of the crime, they may do so, but then in that eventuality, prior notices under Sec.41A of the Cr.P.C. shall be issued by the Investigating Officer to the petitioners herein, and thereafter the matter may be proceeded further in accordance with law. At that point of time, it will be certainly open to the petitioners to seek other appropriate remedies including the filing of a fresh anticipatory bail application, etc in the manner known to law. B.A. No. 1998 of 2019 ..8.. Needless to say, all issues and all contentions raised by either side are also left open to be raised and decided in appropriate proceedings at appropriate stage. With these observations and directions, the above Bail Application will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG