B.A.NOS.8270 & 9741 OF 2023

B.A.NOS.8270 & 9741 OF 2023 1 ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ``` ``` BAIL APPL. NO. 8270 OF 2023 ``` ``` CRIME NO.607/2023 OF VIDYA NAGAR POLICE STATION, Kasargod ``` ## `PETITIONER/SECOND ACCUSED:` ``` ISMAIL M.D, AGED 58 YEARS S/O.IBRAHIM, RESIDING AT MUNDANGALAM HOUSE, BEVINJE, THEKKIL FERRY POST, CHENGALA, KASARAGOD DISTRICT-671541 BY ADVS. T.MADHU C.R.SARADAMANI RENJISH S. MENON VRINDA T.S. AISWARYA JAYAPAL ``` ## `RESPONDENT/STATE:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA- 682031 2AHAMMED BASHEER S/O.AHAMMED, MIHWAN MAHAL, KOMPANPARA, KALANAD P.O., NOW RESIDING AT AYISHA QUARTERS, NEAR GOVERNMENT H.S.S., UDMA P.O, KASARAGOD DISTRICT IS IMPLEADED AS ADDL R2 AS PER ORDER DATED 27/10/23 IN CRL MA 2/23 ``` ``` BY ADVS. SRI.M.C.ASHI, PUBLIC PROSECUTOR FOR R1 SRI.Kodoth Sreedharan FOR R2 ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.12.2023, ALONG WITH Bail Appl..9741/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.NOS.8270 & 9741 OF 2023 2 ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. ``` ``` TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ``` ``` BAIL APPL. NO. 9741 OF 2023 ``` ``` CRIME NO.607/2023 OF VIDYA NAGAR POLICE STATION, Kasargod PETITIONER: ``` ``` MAHFOOSE M.D. AGED 31 YEARS S/O.ISMAIL M.D., RESIDING AT MUNDANGALAM HOUSE, BEVINJE, THEKKIL FERRY POST, CHENGALA, KASARAGOD DISTRICT, PIN - 671541 BY ADVS. T.MADHU RENJISH S. MENON C.R.SARADAMANI VRINDA T.S. AISWARYA JAYAPAL ``` ## `RESPONDENT/STATE:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV. SRI.M.C.ASHI, PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.12.2023, ALONG WITH Bail Appl..8270/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.NOS.8270 & 9741 OF 2023 3 ## MOHAMMED NIAS C.P, J. --------------------------------------------- ## B.A. Nos. 8270 and 9741 of 2023 -----------------------------------------------------Dated this the 12[th] day of December, 2023. ## O R D E R Apprehending arrest in Crime No.607/2023 of Vidyanagar Police Station, Kasargod District, registered for an offence punishable under Sections 406, 420, 465, 468 and 471 read with Section 34 of the Indian Penal Code, the petitioners/accused Nos.1 &2, have filed this application under Section 438 of the Code of Criminal Procedure seeking pre-arrest bail. 2. The prosecution case is that in 2017, accused Nos.1 and 2, with the aid of the 3rd accused, fabricated documents relating to the residential property of the defacto complainant and availed a loan of Rs.3,55,23,444/- from the South Indian Bank, Cherkala Branch, by mortgaging the property of the defacto complainant. Thereby, the accused have committed the above-said offences. 3. I have heard learned counsel for petitioners and the learned Public Prosecutor. 4. Accused No.1 in Crime No.607/2023 of Vidyanagar Police Station has filed B.A.No.9741 of 2023, and accused No.2 in the same crime has filed B.A.No.8270 of 2023. The 1st accused is the son of the 2nd accused, and the B.A.NOS.8270 & 9741 OF 2023 4 3rd accused is the Manager of the South Indian Bank Limited, Cherkala Branch. 5. Thirty cents of property situated in Re-Survey No.214/2 of Kalanad Village with a 4000 Sq.ft. building and other valuable properties, along with documents, were entrusted to accused No.2 by the defacto complainant. Later, when the defacto complainant demanded the movables and the documents, the documents were not returned. Accused No.1 has allegedly taken a loan by forging the defacto complainant's signature and mortgaging the abovementioned property. 6. Accused No.3 - the Bank Manager is alleged to have colluded with the petitioners. When notice was received by the sureties, including the defacto complainant on 27.7.2021 informing that steps would be taken for recovery, only then did the defacto complainant notice about the loan and all the subsequent steps. 7. It is also stated that there were three proceedings initiated before this Court challenging the recovery proceedings in which, the defacto complainant has joined as the petitioner. After the dismissal of all those cases, the above crime was registered on 13.9.2023, raising the aforesaid allegations. Learned counsel for petitioners submits that after almost three rounds of proceedings, the above crime is registered and sought for anticipatory bail. B.A.NOS.8270 & 9741 OF 2023 5 8. Learned counsel for the defacto complainant opposing the bail application submits that the defacto complainant was not aware of any proceedings starting from availing of the loan until the bank took the steps for recovery. He also submits the involvement of the petitioners and the bank officials will be relieved only on a proper investigation. 9. Having considered the rival submissions and the fact that there are no express averments in the complaint that the proceedings before this Court, wherein the defacto complainant is arrayed as the petitioner, was without his knowledge prima facie, I am inclined to accept the contentions of the petitioners that it was with the knowledge of the defacto complainant that the loan was availed. Under such circumstances, I do not think that the custodial interrogation of the petitioners is required. Accordingly, applications seeking anticipatory bail are allowed and the following directions are issued: 1. The petitioners are directed to surrender before the Investigating Officer within ten days from today, and on such surrender, the Investigating Officer can interrogate the petitioners. In the event of their arrest, the Investigating officer shall produce the petitioners before the jurisdictional court on the date of surrender itself. 2. On such production, the jurisdictional court shall release the petitioners on bail, on executing a bond for Rs.25,000/- (Rupees Twenty five thousand B.A.NOS.8270 & 9741 OF 2023 6 only) each by the petitioners and by two solvent sureties each for the like sum to the satisfaction of the jurisdictional court. 3. The petitioners shall cooperate with the investigation and make himself available for interrogation and investigation as and when the Investigating Officer directs him to do so. 4. The petitioners shall not intimidate the witnesses or interfere with the Investigation in any manner. 5. The petitioners shall not be involved in any offence while on bail. 6. If any of the above conditions are violated, the court concerned will be empowered to take steps for cancellation of bail as per law. It is made clear that it is within the power of police to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners, even when the petitioners are on bail as per the judgment of the Apex Court in Sushila Aggarwal and others v. State ( NCT of Delhi) and another [2021 (1) KHC 663] . _Sd/-_ MOHAMMED NIAS C.P smv JUDGE B.A.NOS.8270 & 9741 OF 2023 7 ## `APPENDIX OF BAIL APPL. 8270/2023` |`PETITIONER ANNEXURES`|| |---|---| |`Annexure -A1`|`THE TRUE COPY OF THE FIR DATED 15/9/2023 IN`| ||`CRIME NO.607/2023 OF VIDYANAGAR POLICE`| ||`STATION, KASARAGOD DISTRICT`| |`Annexure A2`|`THE TRUE COPY OF THE JUDGMENT DATED 17/3/2022`| ||`IN O.P (DRT) NO.83/2022 ON THE FILES OF THIS`| ||`HONOURABLE COURT`| |`Annexure A3`|`THE TRUE COPY OF THE JUDGMENT DATED 19/4/2022`| ||`IN O.P (DRT) NO.257/2022 ON THE FILES OF THIS`| ||`HONOURABLE COURT`| |`Annexure A4`|`THE TRUE COPY OF THE JUDGMENT DATED 17/2/2023`| ||`IN W.P.(C) NO.5456/2023 ON THE FILES OF THIS`| ||`HONOURABLE COURT`| |`RESPONDENT ANNEXURES`|| |`Annexure R2 e`|`True copy of the Crl.MC No. 8362/2023 before`| ||`this Hon'ble Court without annexures`| |`Annexure R2 a`|`True copy of the alleged guarantee agreement`| ||`by 2nd respondent with the Bank`| |`Annexure R2 b`|`true copy of the alleged letter of guarantee`| ||`agreement by 2nd respondent with the Bank`| |`Annexure R2 c`|`True copy of the order of Chief Judicial`| ||`Magistrate, Kasaragod dated 26/7/2023`| |`Annexure R2 d`|`true copy of the mahazar prepared by the`| ||`Advocate commissioner dated 5/07/2023`| B.A.NOS.8270 & 9741 OF 2023 8 ## `APPENDIX OF BAIL APPL. 9741/2023` ## `PETITIONER'S ANNEXURES` |`Annexure`|`1`|`THE TRUE COPY OF THE FIR DATED 15/9/2023 IN`| |---|---|---| |||`CRIME NO.607/2023 OF VIDYANAGAR POLICE`| |||`STATION; KASARAGOD DISTRICT`| |`Annexure`|`2`|`THE TRUE COPY OF THE PRIVATE CRIMINAL`| |||`COMPLAINT DATED 13/9/2023 IN CMP NO.3314/2023`| |||`ON THE FILES OF THE LEARNED CHIEF JUDICIAL`| |||`MAGISTRATE'S COURT; KASARAGOD`| |`Annexure`|`3`|`THE TRUE COPY OF THE JUDGMENT DATED 17/3/2022`| |||`IN O.P (DRT) NO.83/2022 ON THE FILES OF THIS`| |||`HONOURABLE COURT`| |`Annexure`|`4`|`THE TRUE COPY OF THE JUDGMENT DATED 19/4/2022`| |||`IN O.P (DRT) NO.257/2022 ON THE FILES OF THIS`| |||`HONOURABLE COURT`| |`Annexure`|`5`|`THE TRUE COPY OF THE JUDGMENT DATED 17/2/2023`| |||`IN W.P.(C) NO.5456/2023 ON THE FILES OF THIS`| |||`HONOURABLE COURT`|