Bail Appl. No.9365 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.9365 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CMP 9599/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHERTHALA** **CRIME NO.3205/2019 OF Cherthala Police Station, Alappuzha** ## **PETITIONERS/ACCUSED NOS. 1, 2 AND 9:** - **1 P.S.SREEKUMAR,AGED 57 YEARS S/O. SREEDHARAN ANJUA BHAVAN, CHERTHALA KIZHAKKUMMURI, CHERTHALA P.O. ALAPPUZHA DISTRICT.** - **2 ANUJA SREEKUMAR,AGED 53 YEARS W/O. SREEDHARAN ANJUA BHAVAN, CHERTHALA KIZHAKKUMMURI, CHERTHALA P.O. ALAPPUZHA DISTRICT.** - **3 V.T. PURUSHOTHAMAN,AGED 67 YEARS S/O. THANKAPPAN, VELIKKAKATH VEETTIL, THIRUNALLOOR P.O. CHERTHALA, ALAPPUZHA DISTRICT.** - **BY ADVS. SRI.V.V.NANDAGOPAL NAMBIAR SMT.SMITHA (EZHUPUNNA) SRI.DHEERAJ KRISHNAN PEROT SMT.CHITRA JOHNSON** **RESPONDENTS/COMPLAINANT/STATE:** - **1 STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682 031.** - **2 THE STATION HOUSE OFFICER, (CRIME NO. 3205 OF 2019 ) CHERTHALA POLICE STATION. ALAPPUZHA DISTRICT 688 001.** - **3 ADDL.R3 THIRUNNALLOOR SERVICECO-OPERATIVE BANK LTD NO.1250, THIRUNNALLOOR P.O, CHERTHALA, ALAPPUZHA DISTRICT-688557. IS IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED 6/2/2020 IN CRL.MA NO. 1/2020 IN BA-9365/2020. R3 BY ADV. SRI.V.SHYAM R3 BY ADV. SRI.S.AADHIRITHIQ R3 BY ADV. SRI.P.ARUN** - **OTHER PRESENT: 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.9365 OF 2019 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.9365 of 2019 ------------------------------Dated this the 24[th] 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. Petitioners are accused Nos. 1, 2 and 9 in Crime No.3205 of 2019 of Cherthala Police Station. Above case is registered against the petitioners and others alleging offences punishable under Section 406, 407, 409, 420, 467, 468, 471 and 120B read with Section 34 of IPC. The case is registered based on a private complaint filed by the defacto complainant-bank before the jurisdictional court which is forwarded to the police under Section 156 (3) Cr.P.C. 3. The prosecution case is that the 1[st] accused/ 1[st] petitioner was the Secretary of Thirunnalloor Service co- B.A.No.9365 OF 2019 3 operative Bank. The 2[nd] petitioner is his wife. The 3[rd] petitioner was the president of the Society for a long time. According to the bank, the 1[st] petitioner knowing that certain lands are paddy land, disbursed loan with wrong entry in 'Gahan' register. It is the case of the prosecution that, the 1[st] petitioner noted the property in the 'Gahan' as garden land. But actually the property is a paddy land. According to the prosecution, about 25 lakhs is disbursed to accused Nos.4 to 8 by the petitioners and others. It is also alleged that the property mortgaged includes the property of the 2[nd] petitioner, who is the wife of the 1[st] petitioner. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. The defacto complainantbank is impleaded in this case and a counsel appeared on behalf of the defacto complainant also. 5. The counsel for the petitioners submitted that, when a new committee took charge, a false case is B.A.No.9365 OF 2019 4 registered against the Secretary and the old office bearers. All the allegations against the petitioners are false. 6. The defacto complainant submitted that, there is documentary evidence to prove cheating, forgery etc. The counsel submitted that, this court may not entertain an application under Section 438 of Cr.P.C. 7. The learned Public Prosecutor also opposed the bail application and submitted that the presence of the petitioners are necessary for completing the investigation. 8. After hearing both sides, I think this bail application can be allowed on stringent conditions. This bail application was filed on 19.12.2019. An earlier posting petition was filed by the defacto complainant on 22.07.2020. The investigation of the case is pending from 2019 onwards. According to the prosecution, the cheating, forgery etc. are committed by the accused and it is evident through records. All the records are available in the bank. Now the complaint is filed by the new Secretary. He is the B.A.No.9365 OF 2019 5 custodian of the records. The Investigating Officer was not able to arrest the petitioners because, of the pendency of this bail application. There was an interim order also from this Court restraining the Investigating Officer in arresting the accused. At this distance of time, there is no purpose in dismissing this bail application. There can be a direction to the petitioners to surrender before the Investigating Officer and co-operate with the investigation. Considering the entire facts and circumstance of this case, I think this bail application can be allowed on stringent conditions. 9. 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. B.A.No.9365 OF 2019 6 10. 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. 11. 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 petitioners shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. (ii) After interrogation, if the B.A.No.9365 OF 2019 7 Investigating Officer propose to arrest the petitioners, they 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 each to the satisfaction of the officer concerned. (iii) The petitioners shall appear before the Investigating Officer on all Mondays at 10.00 a.m. till final report is filed. The petitioners shall co-operate with the investigation and shall not threaten or attempt to influence the witnesses or tamper with the evidence. (iv) The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of B.A.No.9365 OF 2019 8 social distancing in the wake of Covid 19 pandemic. (v) 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. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** VPK