BAIL APPL. NOS. 7639 OF 2020 AND 7645 OF 2020 (Crime No. 463/2020, Panangad Police Station, Ernakulam) v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 4[TH] DAY OF AUGUST 2023 / 13TH SRAVANA, 1945 ``` ## **`BAIL APPL. NO. 7639 OF 2020`** ``` CRIME NO. 463/2020 OF PANANGAD POLICE STATION, ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` 1XAVIER MATHEW AND ANOTHER AGED 66 YEARS EDAKKATTUKUDIYIL HOUSE, KOTHAMANGALAM, ERNAKULAM DIST ERNAKULAM, PIN - 686691 2ANNIE XAVIER AGED 59 YEARS EDAKKATTUKUDIYIL HOUSE, KOTHAMANGALAM, ERNAKULAM DIST, PIN - 686691 ``` ``` BY ADV P.S.SIDHARTHAN ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2ADDL.R2 MANSOOR ARAKKAL KOOTTINTAKAYIL AGED 46 YEARS CHATHUNTAKAYIN HOUSE, PUTHUMANSSERY, PARAVATHY PO, THRISSUR - 680507 NOW RESIDING IN DUBAI, UAE., IS IMPLEADED AS PER ORDER DATED 18/01/2021 IN CRL.M.A.NO.1/2020. 3ADDL.R3 THE STATION HOUSE OFFICER PANANGAD POLICE STATION, PANANGAD , ERNAKULAM DISTRICT, PIN - 682506. IS IMPLEADED AS PER ORDER DATED 18/01/2021 IN CRL.M.A.NO.2/2020. 4ADDL.R4 JALEEL HUSSAIN S/O. HUSSAIN ATHIPARAMBIL HOUSE, PONNURUNNI, VYTTILA, ERNAKULAM DIST., PIN 682019. IS IMPLEADED AS PER ORDER DATED 18/01/2021 IN CRL.M.A.NO.2/2020. R1 & ADDL.R3 BY SR.PUBLIC PROSECUTOR SRI.P.G.MANU ADDL.R2 BY ADVS.SRI.B.RAMAN PILLAI (SR.) SRI.THOMAS J.ANAKKALLUNKAL ``` ``` BAIL APPL.NOS.7639 & ``` ``` 7645 OF 2020 2 ``` ``` ADDL.R4 BY ADVS.SRI.THOMAS J.ANAKKALLUNKAL ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.08.2023, ALONG WITH BA NO.7645 OF 2020,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NOS.7639 & ``` ``` 7645 OF 2020 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 4[TH] DAY OF AUGUST 2023 / 13TH SRAVANA, 1945 BAIL APPL. NO. 7645 OF 2020 ``` `CRIME NO.` 463/2020 OF PANANGAD POLICE STATION, ERNAKULAM ## **`PETITIONER/ACCUSED:`** ``` SIRAJ MATHER AGED 59 YEARS S/O KM ABDUL RAHMAN MATHER, RESIDING AT 33/29 A, PROMENADE, PAVOOR ROAD, PADIVATTOM, EDAPPALLY P.O, KOCHI-682 024. ERNAKULAM, PIN - 682024 BY ADVS. N.ABHILASH SRI.PRAVEEN K. JOY SRI.E.S.SANEEJ SMT.M.K.SAMYUKTHA SRI.T.A.JOY SHRI.DEEPU RAJAGOPAL SRI.M.P.UNNIKRISHNAN SRI.S.SREEKUMAR (SR.) ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2ADDL.R2 MANSOOR ARAKKAL KOOTTINTAKAYIL AGED 46 YEARS CHATHUNTAKAYIN HOUSE, PUTHUMANSSERY, PARAVATHY PO, THRISSUR - 680507 NOW RESIDING IN DUBAI, UAE.,IS IMPLEADED AS PER ORDER DATED 18/01/2021 IN CRL.M.A.NO.1/2020. 3ADDL.R3 JALEEL HUSSAIN ``` ``` BAIL APPL.NOS.7639 & ``` ``` 7645 OF 2020 4 ``` ``` S/O. HUSSAIN ATHIPPARAMBIL HOUSE, PONNURUNNI, VYTTILA, ERNAKULAM DIST. PIN 682019. IS IMPLEADED AS PER ORDER DATED 18/01/2021 IN CRL.M.A.NO.2/2020. R1 BY SR.PUBLIC PROSECUTOR SRI.P G MANU ADDL.R2 BY ADVS.SRI.B.RAMAN PILLAI (SR.) SRI.THOMAS J.ANAKKALLUNKAL ADDL.R3 BY ADVS.SRI.THOMAS J.ANAKKALLUNKAL SMT.MARIA PAUL ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.08.2023, ALONG WITH BA NO. 7639 OF 2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NOS.7639 & ``` ``` 7645 OF 2020 5 ``` ## **COMMON ORDER** Dated this the 4[th] day of August, 2023 B.A.No.7645/2020 is an application for anticipatory bail, filed by the 1[st] accused in Crime No.463/2020 of Panangad Police Station, Ernakulam. Accused Nos.2 and 3 in the above crime, are the petitioners in B.A.No.7639/2020. 2. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 3. I have perused the case diary materials and documents placed by the learned counsel for the petitioners to prove their bona fides in the matter of performance of the separate agreements, alleged to be entered into between the parties, where from the entire case emanated. 4. The prosecution case is that, the 1[st] accused entered into an agreement with one Mansoor Arackal Kottintekayil, to build and hand over 3 flats in 'Nautica', an apartment complex at Kumbalam Village, Cheppanam, in the land owned by accused Nos.2 and 3. Thereby, the 1[st] accused received ``` BAIL APPL.NOS.7639 & ``` ## **`7645 OF 2020 6`** Rs.5,76,59,599/- (Rupees Five Crore Seventy Six Lakh Fifty Nine Thousand Five Hundred and Ninety Nine only) from Mr.Mansoor, for this purpose. The agreement was to handover the 3 flats in 2017. But, till now, the flat construction is not completed and the accused also failed to return the money. The further allegation is that, accused Nos.2 and 3 entered into an another agreement with the de facto complainant to sell their right in the undivided property, where the flats agreed to be constructed, for a total consideration of Rs.10,98,480/(Rupees Ten Lakh Ninety Eight Thousand Four Hundred and Eighty only). Now, the de facto complainant lodged complaint before the police, alleging that, without agreeing the terms of the agreement, accused Nos.1 to 3 committed breach of trust, misappropriation as well as cheating. 5. The learned counsel for accused No.2 and 3 submitted that, they are absolutely innocent in this crime and they have executed agreement to sell their undivided share in the property, where the flats are agreed to be constructed by the 1[st] accused and accused Nos.2 and 3 are ready to perform ``` BAIL APPL.NOS.7639 & ``` ## **`7645 OF 2020 7`** their part of contract, on payment of the balance consideration. It is submitted further that, eventhough Panchayat authorities granted permission to complete the building, in terms of the agreement executed in between the 1[st] accused and the de facto complainant, and the building construction is almost completed, in view of the objection raised by the CRZ authority, the finishing works of the building could not be completed. Therefore, the submission of the learned counsel for accused Nos.2 and 3 that the element of breach of trust and cheating, could not be found against accused Nos.2 and 3, since they to have bonafidely executed the agreement with intention perform the same. 6. Sharing the arguments advanced by accused Nos.2 and 3, the learned counsel for the 1[st] accused also submitted that, in terms of the agreement to build and hand over the flats, as per the agreement entered into between the 1[st] accused and the de facto complainant, the entire flat construction was completed, except the finishing works, and a learned Single Judge of this Court, as per judgment in W.P. ``` BAIL APPL.NOS.7639 & ``` ## **`7645 OF 2020 8`** (C).No.20293/2020, dated 21.12.2020, found that there is no CRZ violation and thereby, directed the Panchayat to renew the building permit, after satisfying the necessary conditions for the same and do the needful, for completion of the finishing works. However, the said judgment of the learned Single Judge, is under challenge before Division Bench and as per the interim order of the Division Bench also, it has been observed that the construction of the building already completed and the finishing work alone remains to be completed. In support of his contention, copy of interim order in W.A.No.676/ 2021, dated 24.9.2021, has been placed. This argument is convincing on perusal of the orders passed by this Court. 7. On perusal of the available materials, bona fide attempt on the part of the 1[st] accused to build and hand over the flats, as offered, could be gathered and now, the only rider is the objection of the CRZ authority. Similarly, 2[nd] and 3[rd] accused could not transfer their right in view of the obstruction to complete the finishing works, and for payment of the balance consideration. In such a case, there is no reason to ``` BAIL APPL.NOS.7639 & ``` ## **`7645 OF 2020 9`** detain the petitioners/accused Nos.1 to 3, in custody for the purpose of investigation. Therefore, the petitioners/accused Nos.1 to 3, can be enlarged on anticipatory bail, directing them to subject themselves for interrogation for the purpose of investigation. Accordingly, these bail applications are allowed and the petitioners/accused Nos.1 to 3, are released on bail on the following conditions: - i. The petitioners/accused Nos.1 to 3 shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question them for two days in between 10.00 a.m. to 3.00 p.m. In the event of their arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of arrest itself. - ii. On such production, the jurisdictional court shall release the petitioners/accused Nos.1 to 3 on bail, on executing bond for Rs.30,000/(Rupees thirty thousand only) each by themselves and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court. ``` BAIL APPL.NOS.7639 & ``` ## **`7645 OF 2020 10`** - iii. The petitioners/accused Nos.1 to 3 shall cooperate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. - iv. The petitioners/accused Nos.1 to 3, shall not, intimidate the witnesses or interfere with the investigation in any manner. - v. The petitioners/accused Nos.1 to 3, shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted. Sd/- ## **A. BADHARUDEEN JUDGE** Bb