Bail Appl. No.2943 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942** ## **Bail Appl..No.2943 OF 2019** **AGAINST THE ORDER IN CRL.MC NO.399/2019 OF THE SESSIONS COURT, ERNAKULAM** **CRIME NO.229/2019 OF PALARIVATTOM POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **K.DELLIBABU AGED 55 YEARS S/O K.KOTHANDAN, NO 22, SELVAM NAGAR, 1ST CROSS STREET, PONNIAMMAN MEDU, VILLIWAKAM, CHENNAI-600110.** **BY ADVS. SRI.C.ANILKUMAR (KALLEESSERIL) SRI.C.Y.VINOD KUMAR SRI.P.M.MANASH** ## **RESPONDENT/COMPLAINANTS:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 ADDL. R2. MOHAMMED SHAMEER, AGED 40 YEARS S/O AMJAD, MANAGING PARTNER, SHA TRADERS, 35/2957, PALLIPADY COMPLEX, PALARIVATTOM P.O., THAMMANAM, ERNAKULAM-682 025 IS IMPLEADED AS ADDL R2 AS PER ORDER DATED 12/7/2019 IN CRL.M.A. NO. 2/2019** **R2 BY ADV. SRI.PHILIP T.VARGHESE R2 BY ADV. SRI.THOMAS T.VARGHESE R2 BY ADV. SMT.ACHU SUBHA ABRAHAM R2 BY ADV. SMT.K.R.MONISHA** ## **OTHER PRESENT:** ## **FOR R1 SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A. No.2943 of 2019 2** ## **O R D E R** ## **Dated this the 24th day of July 2020** ... **This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.** **2. The petitioner is the accused in Crime No.229 of 2019 of Palarivattom Police Station, Ernakulam District, registered alleging offences punishable under Sections 406 and 420 of the Indian Penal Code (IPC).** **3. The prosecution case is that, the de facto complainant is a scrap dealer. He was introduced to the accused who is running a business in scrap under the name and style 'Srivari Enterprises' at Chennai. Thereafter, in order to get unlawful again, the accused promised the de facto complainant to invest money in the business and he assured that, he will give share profit to the de facto complainant. Accordingly, during the period from 3.4.2018 to 3.8.2018, the de facto complainant invested an** ## **B.A. No.2943 of 2019 3** **amount of Rs.96,79,000/-. But the accused cheated the de facto complainant without giving the profit in the business or returning the amount invested. Therefore, it is alleged that, the petitioner committed the offence.** **4. This Bail Application was filed on 16.4.2019. This Court directed the petitioner to implead the de facto complainant. But he has not taken steps to implead the de facto complainant. Subsequently, even though an impleading petition was filed, notice was not issued to the de facto complainant. The Bail Application was not brought up for consideration of the impleading petition. Anyway, the de facto complainant appeared through a counsel.** **5. Heard the learned counsel for the petitioner, the learned counsel for the de facto complainant and the learned Public Prosecutor.** **6. The learned counsel for the petitioner submitted that, the allegations against the petitioner are not correct. The counsel submitted that, this is only a monetary dispute. Even if the** ## **B.A. No.2943 of 2019 4** **entire allegations are accepted, no offence under Sections 420 and 406 IPC is made out. The petitioner is ready to abide any conditions if this Court is granting bail to him. The counsel submitted that, the petitioner is now at Chennai. He will co-operate with the investigation.** **7. The learned counsel for the de facto complainant seriously opposed the bail application. The counsel submitted that, huge amount was collected by the petitioner with dishonest intention. Thereafter, he misappropriated the amount. The counsel submitted that, share profit in the business is not given to the de facto complainant. The principle amount invested by the petitioner is also not returned. The counsel submitted that, when this court directed the petitioner to produce documents to show whether the share profit is given to him, the petitioner produced forged documents before this Court. Counsel submitted that, Annexure 5 produced before this Court is a forged document. No share profit is given to the de facto complainant even now.** ## **B.A. No.2943 of 2019 5** **8. The learned Public Prosecutor also opposed the bail application. The Public Prosecutor submitted that, huge amount is involved in this case. The petitioner is settled at Chennai. The custodial interrogation of the petitioner is necessary in this case. Therefore he opposed the bail application.** **9. I consider all the facts available in this case. I perused the documents produced by the petitioner. A perusal of the facts in this case, it is clear that, the case of the prosecution is that, the de facto complainant invested certain amounts in the business concern of the petitioner on belief that, he will be given share profit. The petitioner after accepting the amount has not given the share profit to the de facto complainant. Therefore, it is alleged that, the petitioner cheated the de facto complainant. It is a monetary dispute. Whether an offence under Sections 420 or 406 IPC is made out, is a matter to be investigated by the Investigating Officer. This Bail application is pending from 16.4.2019 onwards. There is no order passed by this** ## **B.A. No.2943 of 2019 6** **Court restraining the police in arresting the petitioner. Proviso to section 438 of the Cr.P.C says that, if the High Court has not passed any interim order while entertaining an application under Section 438 Cr.P.C., there is no bar to the Investigating Officer in arresting the petitioner. For the last 1 ½ years, the investigation in this case is stand still. There is no attempt on the part of the Investigating Officer to arrest the petitioner. That itself shows that, the investigating officer has not properly investigated the matter. There is no purpose in keeping this bail application pending. A bail application is to be decided immediately. The court while considering bail applications need not consider the disputed questions involved in the bail application. Considering the entire facts and circumstances of the case, this bail application can be allowed directing the petitioner to surrender before the investigating officer within three weeks' from today. If there is any bar for the petitioner to travel to Kerala because of Covid-19, the petitioner** ## **B.A. No.2943 of 2019 7** **should get special permission from the authorities concerned and surrender before the Investigating Officer within three weeks' from today. With this condition also, this Bail application can be allowed.** **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 COVID19 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** ## **B.A. No.2943 of 2019 8** **ensure that the accused has the opportunity of 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:** **1. The petitioner shall appear before the Investigating Officer within three weeks' from today and shall undergo interrogation.** **2. After interrogation, if the Investigating Officer proposes to arrest the petitioner, he 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.** **3. The petitioner shall appear before the Investigating Officer as and when required. The petitioner shall co-operate with the investigation and shall not threaten or attempt to influence the** **B.A. No.2943 of 2019 9** ## **witnesses or tamper with the evidence.** **4. Till the investigation is over, the petitioner cannot leave the State of Kerala without the permission of the Investigating Officer.** **5. 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.** **6. 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** ## **pkk** **JUDGE**