Bail Applications Nos. 4772 of 2019 and 4813 of 2019

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 04TH DAY OF AUGUST 2020 / 13TH SRAVANA, 1942** ## **Bail Appl..No.4772 OF 2019** ## **CRIME NO.772/2019 OF Peroorkada Police Station , Thiruvananthapuram** ## **PETITIONERS/ACCUSED 1 TO 3:** |**1**|**MR.JACOB SAMSON**| |---|---| ||**AGED 60 YEARS**| ||**S/O. SAMUEL JACOB,**| ||**RESIDING AT KANNIMATTAM VEEDU,**| ||**T.C.NO.6/8, T.K. DIVAKARAN ROAD,**| ||**MUTTADA, THIRUVANANTHAPURAM.**| |**2**|**MR.JOHN JACOB,**| ||**AGED 35 YEARS**| ||**S/O.JACOB SAMSON, KANNIMATTOM VEEDU,**| ||**T.C.NO.3/678, T.K. DIVAKARAN ROAD,**| ||**MUTTADA, THIRUVANANTHAPURAM.**| |**3**|**MR.SAMUEL JACOB,**| ||**AGED 26 YEARS**| ||**S/O. JACOB SAMSON,**| ||**KANNIMATTAM VEEDU, T.C.NO.3/678,**| ||**T.K. DIVAKARAN ROAD, MUTTADA,**| ||**THIRUVANANTHAPURAM.**| ||**BY ADVS.**| ||**SRI.S.SREEKUMAR (SR.)**| ||**SRI.P.MARTIN JOSE**| ||**SRI.P.PRIJITH**| ||**SRI.THOMAS P.KURUVILLA**| ## **RESPONDENTS/COMPLAINANT:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682030.**| |**2**|**MR.SAJAD KHARIM,**| ||**S/O.A ABDUL KHARIM,**| ||**RESIDING AT T.C.30/1124-1,**| ||**AMBALATHUMUKKU, PETTAH,**| ||**THIRUVANANTHAPURAM, PIN 695024.**| B.A.Nos.4772/2019 & 4813/2019 2 **R1 BY PUBLIC PROSECUTOR R2 BY ADV. SRI.M.SREEKUMAR SRI.RENJITH.T.R., PUBLIC PROSECUTOR, SRI.AJITH MURALI, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.08.2020, ALONG WITH Bail Appl..4813/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.Nos.4772/2019 & 4813/2019 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 04TH DAY OF AUGUST 2020 / 13TH SRAVANA, 1942** ## **Bail Appl..No.4813 OF 2019** **CRIME NO.772/2019 OF Peroorkada Police Station , Thiruvananthapuram** ## **PETITIONER/ACCUSED NO.4:** ## **DHANYA MARY VARGHESE** **AGED 28 YEARS W/O.JOHN JACOB, RESIDING AT KANNIMATTAM VEEDU, T.C.NO.6/8, TK DIVAKARAN ROAD, MUTTADA, TRIVANDRUM.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 MR.SAJAD KHARIM, S/O.A.ABDUL KHARIM, RESIDING AT T.C.30/1124-1, AMBALATHUMUKKU, PETTAH, THIRUVANANTHAPURAM, PIN 695024.** **R2 BY ADV. SRI.M.SREEKUMAR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.08.2020, ALONG WITH Bail Appl..4772/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.Nos.4772/2019 & 4813/2019 4 ## **O R D E R** ## **Dated this the 4th day of August 2020** These Bail Applications filed under Section 438 of Criminal Procedure Code were heard through Video Conference. 2. The petitioners are the accused in Crime No.772 of 2019 of Peroorkada Police Station. The petitioners in B.A.No.4772 of 2019 are accused Nos.1 to 3 and the petitioner in B.A.No.4813 of 2019 is the fourth accused in the above crime. The above case is registered against the petitioners alleging offences punishable under Sections 406 and 420 read with Section 34 IPC. 3. The first petitioner is the Chairman, the second petitioner is the Managing Director and the third petitioner is the Director of M/s.Samson and Sons Builders and Developers Pvt. Ltd. The prosecution case in brief is that the defacto complainant in this case paid a certain amount to the petitioners' Company for getting a flat. The allegation is that even though major portion of the amount is paid, construction of the flat is not completed and the same is not handed over to the defacto complainant. These B.A.Nos.4772/2019 & 4813/2019 5 Bail Applications were filed in June, 2019. The matter was referred for mediation on several occasions with an intention to settle the matter. The mediator also tried to settle the issue and filed interim reports on several occasions. Even now this matter is not finally settled. Hence these Bail Applications were heard on merit. 4. Heard the learned counsel for the petitioners, the learned counsel for the defacto complainant and the learned Public Prosecutor. 5. When these Bail Applications came up for consideration earlier, the learned Senior Counsel, who appears for the petitioners, submitted that there are some other projects to the petitioners' Company. The submission of the learned Senior Counsel is that, the construction of the flat in the present project will take some time and therefore, the petitioners will try to hand over a completed flat to the defacto complainant from some other projects of the petitioners' Company at the earliest. 6. The learned counsel for the defacto complainant submitted that a huge amount was paid to the petitioners and the B.A.Nos.4772/2019 & 4813/2019 6 petitioners cheated the defacto complainant. The counsel for the defacto complainant opposed the Bail Application. 7. The learned Public Prosecutor submitted that even though the Bail Applications were sent for mediation, the matter is not settled even now. But, the Public Prosecutor submitted that if the submission of the petitioners are genuine, this Court may record the same and dispose the Bail Applications. 8. After hearing both sides, these Bail Applications can be allowed on stringent conditions. The admitted prosecution case is that the defacto complainant paid a portion of the consideration to get a flat from the petitioners' Company. It is the admitted fact that the Company started the construction work of the flat. But, only the preliminary work of the construction was started and the Company was not able to complete the construction. The reason for not completing the construction work is financial difficulties. Whether an offence under Section 420 IPC is made out in such situation is to be investigated by the Investigating Officer. The learned Senior Counsel submitted that in some other cases, which are registered with the same B.A.Nos.4772/2019 & 4813/2019 7 allegations, the petitioners were arrested and police custody was also given. The statements of the petitioners were also recorded. The learned Senior Counsel submitted that again the custodial interrogation of the petitioners may not be necessary. Considering the entire facts and circumstances of this case, these Bail Applications can be allowed recording the statement of the Senior Counsel on behalf of the petitioners that in another project, which will be completed at the earliest, the petitioners will give a flat to the defacto complainant on payment of balance consideration, if any. The learned Senior Counsel also submitted that there is financial crisis in the petitioners' Company and they are taking every endeavour to settle this case. 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.Nos.4772/2019 & 4813/2019 8 10. 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, these Bail Applications are 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 Investigating Officer proposes to arrest the petitioners, they shall be released on bail on executing bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) each with B.A.Nos.4772/2019 & 4813/2019 9 two solvent sureties each for the like sum to the satisfaction of the officer concerned. - (iii) The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. - (iv) The petitioners shall not leave India without permission of the jurisdictional Court. - (v) The petitioners shall not commit any offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. - (vi) The petitioners in B.A.No.4772 of 2019 will hand over a completed flat to the defacto complainant on payment - of the balance consideration, if any, at the earliest. - (vii) If there is unnecessary delay in handing over the flat, B.A.Nos.4772/2019 & 4813/2019 10 the defacto complainant can approach the lower court with an application to cancel the bail. If such an application is filed, the lower court, after hearing both sides, will pass appropriate orders in accordance with law. - (viii) The petitioners 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. - (ix) 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** csl