Durga Prasad Shetty and Nivedita Shetty v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937** **Bail Appl..No. 2738 of 2015** **-----------------------------------------** ## *** CRIME NO. 557/2013 OF KAZHAKKOOTTOM POLICE STATION , THIRUVANANTHAPURAM DISTRICT** **CRIME NUMBER IS CORRECTED AS “577/2013” AS PER ORDER DATED 15.12.2015 IN CRL.M.A.NO.6754/2015.** **------------------** ## **PETITIONER(S)/ACCUSED NO.1 &2 :** **----------------------------------------------------------** **1. DURGA PRASAD SHETTY, AGED 40 YEARS,** - **S/O.LATE VENKATRAYA SHETTY, RESIDING AT NO.813, 3RD FLOOR, C.BLOCK, 2ND MAIN, AECS LAYOUT, KUNDANHALLI, BANGALORE 560 037.** **2. NIVEDITA SHETTY, AGED 31 YEARS, W/O.DURGA PRASAD SHEETY, RESIDING AT NO.813, 3RD FLOOR, C.BLOCK, 2ND MAIN, AECS LAYOUT, KUNDANHALLI, BANGALORE 560 037.** **BY SRI.TOMY SEBASTIAN (SENIOR ADVOCATE) ADVS.SRI.S.RAJEEV** **SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENT(S)/STATE :** **---------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 (CRIME NO.557/2013 OF KAZHAKKOOTTOM POLICE STATION, THIRUVANANTHAPURAM DISTRICT).** **2. STATION HOUSE OFFICER,** **KAZHAKKOOTTOM POLICE STATION, THIRUVANANTHAPURAM DISTRICT- 695 582, (CRIME NO.557/2013 OF KAZHAKKOOTTOM POLICE STATION, THIRUVANANTHAPURAM DISTRICT).** **..2/-** **..2..** **Bail Appl..No. 2738 of 2015** **-----------------------------------------** ## *** ADDITIONAL R3 IMPLEADED** **3. S.R.KRISHNAKUMAR, AGED 57 YEARS,** **S/O.SUKUMARAN NAIR, CHIEF EXECUTIVE OFFICER, M/S.ARIVA MED DATA INFOTECH PVT. LTD., R1 THEJASWANI, TECHNOPARK, TECHNOPARK CAMPUS, KAZHAKKOOTTAM, TRIVANDRUM, KERALA, RESIDING AT “CHETHANA”, PALKULANGARA, THIRUVANANTHAPURAM.** - **ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 15.12.2015** **IN CRL.M.A.NO.5275 OF 2015.** **R1 & R2 BY PUBLIC PROSECUTOR SMT.R.REMA ADDL.R3 BY ADV. SRI.K.K.VIJAYAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27-01-2016, THE COURT ON 17-02-2016 PASSED THE FOLLOWING:** Msd. ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **B.A. No.2738 of 2015** - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of February, 2016 ## **O R D E R** This bail application is preferred by accused 1 and 2 in Crime No.577/2013 of Kazhakoottam Police station for offences punishable under Sections 420,403,409,465,468,471 read with Sections 120B, 109,34 IPC and Section 66 of IT Act 21 of 2000. 2. The defacto complainant was the CEO of M/s. Ariva Data Infotech Pvt Ltd. He lodged a complaint dated 22/6/2013 alleging that the petitioners herein along with the third accused, a chartered accountant, had committed forgery for the purpose of taking over the management of the company, falsified the registers and the accounts of the company, and embezzled several crores of rupees, belonging to the company. According to the defacto complainant, the company was floated in 2008 as a Private Ltd.Company by One Dr.Thomas Joseph and his wife Tina, both settled in Bangalore. It commenced its work at Technopark, Thiruvananthapuram B.A.No.2738/2015 2 on 12/2/2008, for doing medical billing, medical transcription, development of software and other related jobs. The above couple, who were the promoters, held 50% each of the paid up capital. In 2011, the petitioners herein who are also husband and wife, settled in Bangalore, got associated with the running of the company, after gaining confidence of the promoters. Taking advantage of the absence of shareholders, the petitioners allegedly created documents appointing themselves as directors of the company. The first petitioner was appointed as Director on 3/12/2011 and the second petitioner on 10/5/2012, by filing forged documents with the Registrar of Companies. It was reported that both the promoters had resigned,. It was further informed that the paid up share capital of the company was Rs.51 Lakhs and 2,50,000/- shares of Rs.10 each were allotted to each accused. 3. The main allegation of the complainant is that Form 32 was e-filed by the petitioners with forged signature of both the promoters and uploaded using their digital signatures without authority. The above was done with the active connivance of the third accused, the Chartered accountant. There was no decision B.A.No.2738/2015 3 of the directors to resign or to transfer the shares to the petitioners. The value corresponding to the paid up capital of the company has not been credited in the account of the company. Company had not resolved to transfer any share to the petitioners. Funds of the company worth crores were diverted for illegal purchase of 10 acres of land in Saklishpur, 9 acres in Gokarna and 100 acres in Raichur in the name of the petitioners. They have also removed several movable items of the company, including two expensive cars to their possession. 4. Heard learned senior counsel for the petitioners, learned public prosecutor and the learned counsel for the defacto complainant. 5. The case diary indicates that the first petitioner was introduced to the promoters by the Chairman of the company as a person capable of assisting the company to tide over the financial difficulties, which it faced in 2010 - 2011. It appears that he was appointed as operation leader on a specified monthly salary. The specific allegation is that the original directors have not resigned, the documents brought into existence by the accused bear signatures, which are patently different from the B.A.No.2738/2015 4 admitted signatures of the promoters. In the course of investigation, the relevant documents with signatures of parties have been seized. The opinion of expert is awaited. The investigation indicates that the director board resolutions do not reflect the case of the petitioners that the original promoters resigned and the company resolved to induct petitioners as directors. The transfer of share value by the petitioners is also not reflected in the account. The materials indicates that for the purchase of costly properties at Gokarna, Sakelshpur, Raichur and White Field, several crores of Rupees have been transferred from the account of the company to the persons suggested by the first petitioner. His communications are also on record. The property at Gokarna is seen purchased in the personal name of the first petitioner. It is alleged by the investigating agency that Whitefield property was also purchased in the name of first petitioner. The details of the properties and identity of the properties at Raichur and Sakleshpur could not be located and the investigating agencies allege that there were false transfers. 6. The above materials give strong indication that huge monetary transactions have taken place in doubtful B.A.No.2738/2015 5 circumstances. Several facts relating to it are within the exclusive knowledge of the petitioners. The method of transactions, the persons involved, the source of the funds of the petitioners for alleged transfer of shares in their name, the details of execution and updating of Form 32, the role of other persons, the various property transaction and the identity of Raichur and Sakleshpur properties are some of the matters which petitioners alone can disclose, since they were directly involved in those transactions. Granting of anticipatory bail will hamper the progress of investigation. The counsel for the defacto complainant relied on the decision in **Maruti Nivrutti Navale v. State of Maharastra and another [(2012) 9 SCC 235],** wherein it was held that a case of forgery of a lease deed of property and false representation before public authorities, do not deserve anticipatory bail. Hence, I am not inclined to grant bail. Petition is accordingly dismissed. ## Sd/- ## **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. B.A.No.2738/2015 6