B.A.No. 8497 of 2019

B.A.No. 8497 of 2019 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 03RD DAY OF AUGUST 2020 / 12TH SRAVANA, 1942** ## **Bail Appl..No.8497 OF 2019** **CRIME NO.1463/2019 OF Palarivattom Police Station , Ernakulam** ## **PETITIONER/ACCUSED NO.1:** **MOHAMMED SHOAIB AGED 34 YEARS S/O. T. MOHAMMED ASHRAF, 4B, LINK HEIGHTS PANAMPILLY NAGAR, COCHIN 36.** ## **BY ADV. SRI.PRADEESH CHACKO** ## **RESPONDENTS/COMPLAINANT:** **1 STATION HOUSE OFFICER PALARIVATTOM POLICE STATION, ERNAKULAM.** **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **BY ADV.** **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 8497 of 2019 2 ## **P.V.KUNHIKRISHNAN, J.** ## **=================== B.A.No. 8497 of 2019 =================== Dated this the 3[rd] day of August, 2020** ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioner is the 1[st] accused in Crime No. 1463 of 2019 of Palarivattom Police Station, Ernakulam District. The above case is registered against the petitioner and another alleging offences punishable under Sections 406 & 420 read with Section 34 of the Indian Penal Code (IPC). 3. The prosecution case is that the petitioner is one of the Director of Autograde International Pvt. Ltd. having its office at Mamangalam, Ernakulam. The petitioner who is one of the Director along with the 2[nd] accused, who is the B.A.No. 8497 of 2019 3 Managing Director, received an amount of Rs. 2,18,89,621/- from the defacto complainant from April 2016 to April 2018 for the supplying of speed governors from the company Autograde International Pvt. Ltd. and has supplied only speed governors worth Rs. 2,04,09,810/to the defacto complainant. It is further alleged that the defacto complainant was unable to sell the entire speed governors purchased by him and thereafter returned the speed governors worth Rs. 31,25,990/- back to the accused persons. Thus it is alleged that the defacto complainant was cheated by the accused persons for an amount of Rs. 46,46,601/- 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submits that, even if, the entire allegations are accepted the offences under Sections 406 & 420 of the IPC is not made out. The the learned counsel submitted that, this is only a B.A.No. 8497 of 2019 4 monetary dispute. The criminal offence is not made out. The learned counsel for the petitioner submitted that he is ready to abide any conditions if this Court grants him bail. 6. The learned Public Prosecutor opposed the bail application. The learned Public Prosecutor submitted that, huge amount is involved in this case. The learned Public Prosecutor also submitted that the custodial interrogation of the petitioner is necessary. 7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. After going through the FIR, it is clear that, there is a monetary dispute in existence between the petitioner and the defacto complainant. Whether a criminal offence is made out is a matter for investigation by the Investigating Officer. For that purpose, custodial interrogation of the petitioner may not be necessary. The petitioner can be directed to surrender before the Investigating Officer. More over, this bail application was filed on 18.11.2019. There is interim B.A.No. 8497 of 2019 5 order is passed restraining the arrest of the petitioner by the police on 19.11.2019 by this Court. Even now, the same is continuing. The investigation of the case itself is delayed because of the pendency of the bail petition. 8. 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. 9. 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 B.A.No. 8497 of 2019 6 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. 10. 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 ten days from today and shall undergo interrogation;_ _2. After interrogation, if the Investigating Officer proposes 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;_ _3. The petitioner shall appear before the_ _Investigating Officer for interrogation as and when_ B.A.No. 8497 of 2019 7 _required. The petitioner 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;_ _4. The petitioner shall not leave India without permission of the Court;_ _5. The petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected;_ _6. 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._ _7. The petitioner shall appear before the Investigation Officer on all Monday's and Friday's,_ B.A.No. 8497 of 2019 8 _till the final report is filed in crime No. 1463 of 2019 of the Palarivattom Police Station, Ernakulam._ 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** LU