Bail Appl. No. 6489 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 23RD DAY OF JULY 2020 / 1ST SRAVANA, 1942** **Bail Appl..No.6489 OF 2019** **AGAINST THE ORDER IN CRMP 2201/2019 DATED 16-08-2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOTTAYAM** **CRIME NO.1893/2019 OF Changanassery Police Station, Kottayam** ## **PETITIONER/ACCUSED NO.2:** **VIJAYALAKSHMI P.A., AGED 47 YEARS W/O. NARESHKUMAR RAJA, NILACKAL HOUSE, PENNOOKKARA P.O., AALA VILLAGE, CHENGANNOOR. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. (CRIME NO. 1893/2019 OF CHANGANASSERY POLICE STATION, KOTTAYAM DISTRICT).** **2 STATION HOUSE OFFICER, CHANGANASSERY POLICE STATION, KOTTAYAM DISTRICT 686 101.(CRIME NO. 1893/2019 OF CHANGANASSERY POLICE STATION, KOTTAYAM DISTRICT.)** **3 ADDL.R3 KRISHNA KUMAR, AGED 60 YEARS, S/O NARAYANA PILLA, VADASSERRIL HOUSE, VANVATHUKKARA BHAGAM, IRAMALLIKKARA POST, THIRUVANDOOR VILLAGE, CHENGANNOOR TALUK, ALAPPUZHA DISTRICT-689109. IS IMPLEADED AS PER ORDER DATED 20/2/2020 IN CRL.MA NO.1/2019 IN BA-6489/2019. R3 BY ADV. SRI.M.R.SASITH** **BY ADV.** **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **23.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.6489 OF 2019 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.6489 of 2019 ------------------------------Dated this the 23[rd] day of July, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the 2[nd] accused in Crime No.1893 of 2019 of Chaganassery Police Station. Above case is registered against the petitioner and others alleging offences punishable under Sections 406, 420 and 409 read with 34 of IPC. 3. The prosecution case is that, the 1[st] accused is the owner of Kerala Housing Finance Company Limited and the 2[nd] accused is its branch Manager at Chaganassery. The defacto complainant deposited Rs.9 Lakhs with Kerala Housing Finance Company Limited at the Chaganaserry branch during January 2010 and he gave a certificate B.A.No.6489 OF 2019 3 stating that on maturity an amount of Rs. 20,59,200/- (Rupees Twenty Lakhs Fifty Nine Thousand and Two Hundred only) will be given. Later he also deposited an amount in the name of his son Kiran Krishnakumar on 06.07.2013 and the maturity date was 06.01.2019. When he contacted the bank for getting back the amount which became matured on 06.01.2019 both accused avoided him by saying various reasons. At last on 08.03.2019 an amount of Rs.50,000/-(Rupees Fifty Thousand only) was returned. But in spite of several demands, the balance amount was not returned. Now the bank is locked. Therefore, the present complaint is filed. It is also the prosecution case that several others also deposited amount in the bank and there is complaint from those depositors also 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The defacto complainant is impleaded in this case B.A.No.6489 OF 2019 4 and I heard the learned counsel who is appearing for the defacto complainant also. 6. The counsel for the petitioner submitted that, even if the entire allegations are accepted no offence under Section 406, 409 and 420 read with 34 of IPC is made out in this case. The learned counsel also submitted that, she is only an employee of Kerala Housing Finance Company Limited and she has no connection with the transaction of the company. Therefore, the petitioner contended that, she may be released on bail under Section 438 of Cr.P.C. 7. The learned counsel for the defacto complainant submitted that, huge amount is collected by the bank and the amount is not returned. The learned counsel also submitted that, it was a reputed company and that is why the petitioner deposited the amount. Now the petitioner is in dark. The amount deposited by him is not returned and only an amount of Rs.50,000/- (Rupees Fifty Thousand only) is paid by the accused. Therefore, the learned counsel B.A.No.6489 OF 2019 5 submitted that, this Court may not entrain an application under Section 438 of Cr.P.C. in this case. 8. The learned Public Prosecutor also opposed the bail application. The learned Public Prosecutor submitted that, huge amount is collected by the company and there are several other complaints also from different persons. Therefore, this Court may not entrain an application under Section 438 of Cr.P.C. 9. After hearing both sides, I think this bail application can be allowed. Admittedly, the petitioner is only an employee of the company. It is true that the petitioner canvassed and collected deposits. It is an admitted fact that, the company collected amount and a portion of the amount is also returned to the defacto complainant. In such circumstances, whether there can be an offence under Section 406, 409 and 420 read with 34 of IPC is a matter to be investigated by the Investigating Officer. I don’t want to make any observation on merit. B.A.No.6489 OF 2019 6 Considering the fact and circumstances of this case, I think this bail application can be allowed on stringent conditions. 10. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 11. 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 B.A.No.6489 OF 2019 7 securing fair trial. 12. 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: (i) The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. (ii) After interrogation, if the Investigating Officer propose to arrest the petitioner, she shall be released on bail executing a bond for a sum of Rs,.50,000/(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned. (iii) The petitioner shall appear before the Investigating Officer as and when required. The petitioner shall co-operate B.A.No.6489 OF 2019 8 with the investigation and shall not threaten or attempt to influence the witnesses or tamper with the evidence. (iv) The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. (v) If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** VPK