Faleel V. v. SHO, Kannur Town Police Station

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2018-02-21
Court Decision / Holding: The application is allowed. The petitioner is to be released on bail on executing a bond for Rs.1,00,000 with two sureties for the same amount. He shall appear before the investigating officer on Saturdays for three months, shall not influence or tamper with witnesses, shall not leave Kerala without prior court permission, shall appear as directed, and shall surrender his passport within three days (with an affidavit if no passport). He shall deposit Rs.50,000 in the Magistrate’s Court within three days of release. If these conditions are not met, bail shall stand cancelled without further orders.
Final Disposition: Bail application allowed; petitioner released on bail subject to specified conditions.

Parties to the Case

Appellants / Petitioners

Faleel V., S/O Pathootty, 40 years, Vazhayil House, Mammakkunnu, Kadambur, Po Edakkad, Kannur

Respondents

SHO, Kannur Town Police Station, Rep by Public Prosecutor, High Court of Kerala-682031

Legal Representation & Advocates

Counsels for Petitioners

• Sri G. Sreekumar (Chelur)
• Sri K. Ashis

Counsels for Respondents

• Sri K.B. Udayakumar

Case Synopsis & Summary

This is a bail application under Section 438 CrPC fielded by Faleel V., the first accused in Crime No. 1067/2017 of Kannur Town Police Station for offences including Section 420 IPC. The de facto complainant alleged that the accused induced him to invest in a lodge business, promising partnership and monthly profits; the accused allegedly received Rs.30 lakhs in installments and issued a cheque for the same amount which bounced. The prosecution contends that the transaction amounts to cheating. The High Court examines whether custodial interrogation is necessary and whether pre-arrest bail should be granted. The court notes that even if the entire allegations are accepted, it is for trial to determine the accused’s dishonest intent at the time of receipt; there is no proven antecedent; no case under Section 138 NI Act was filed; there is doubt whether such a large sum could be parted with on a mere cheque. Normally, bail should not be conditioned with cash deposit, but exceptions exist. Citing Sumit Mehta v. State, the court recognises that deposits may be permissible as a bail condition in certain circumstances. Considering the accused’s admission of having received Rs.5 lakh as a loan, the court imposes a conditional bail: bond for Rs.1,00,000 with two sureties; appearance before the investigating officer on Saturdays for three months; directions against witness tampering; prohibition on leaving Kerala without court permission; and surrender of passport with a cash deposit of Rs.50,000, failure to comply cancelling bail.

Provisions of Law Cited

Section 420 IPCSection 438 CrPCSection 138 of the Negotiable Instruments Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel argued for pre-arrest bail, citing that custodial interrogation is unnecessary and there is no established antecedent; the alleged transaction involves a loan/offer rather than a proven deceit, and trial will determine the mens rea. The court noted that the accused admitted receiving Rs.5,00,000 as a loan, and discussed the use of conditional bail with a modest cash deposit in light of Sumit Mehta v. State.

Contentions of Respondents

Not explicitly stated in the document.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sumit Mehta v. State	(2013) 15 SCC 570	Positive	Cited to illustrate that although cash deposits as a bail condition are subject to limits, there are permissible exceptions; the decision uses this principle to justify a smaller deposit in the present case.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939 Bail Appl..No. 305 of 2018 CRIME NO. 1067/2017 OF KANNUR TOWN POLICE STATION PETITIONER/ACCUSED -------------------------------- FALEEL V., S/O.PATHOOTTY,40 YEARS,VAZHAYIL HOUSE,MAMMAKKUNNU, KADAMBUR,PO EDAKKAD,KANNUR. BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.K.ASHIS RESPONDENT/RESPONDENT/COMPLAINANT: --------------------------------------------------------------- SHO, KANNUR TOWN POLICE STATION, REP BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA-682031. BY SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15-02-2018, THE COURT ON 21-02-2018 PASSED THE FOLLOWING: ## **R.NARAYANA PISHARADI, J** ************************* B.A.No.305 of 2018 ---------------------------------------Dated this the 21[st] day of February, 2018 ## **O R D E R** The petitioner is the first accused in the case registered as Crime No.1067/2017 of the Kannur Town police station under Section 420 IPC. He seeks the protection envisaged under Section 438 of the Code of Criminal Procedure, 1973 in the event of arrest by the police in the case. 2. The prosecution case can be briefly stated as follows: On 30.01.2016, the petitioner made representation to the de facto complainant and his wife that he was intending to purchase a lodge at Vadakara along with two other persons as partners. He told the de facto complainant that if he was willing to pay Rs.50 lakhs on or before 31.12.2016, he would also be made a partner along with him and that the de facto complainant would get a minimum of one lakh rupees per month as profit from the investment. B.A.No.305/2018 2 The offer appeared to be lucarative to the de facto complainant. He agreed to be a partner along with the petitioner. He paid Rs.10,00,000/- to the petitioner on 07.02.2016, another Rs.10,00,000/- on 03.07.2016 and another Rs.10,00,000/- on 04.12.2016 and agreed to pay the balance amount on or before 15.12.2016. The petitioner issued a cheque drawn on his account for thirty lakhs rupess to the de facto complainant on 04.12.2016. One week after the last payment, the petitioner vacated the rented house occupied by him without informing the de facto complainant and the de facto complainant could not contact the petitioner thereafter. Then, the de facto complainant presented the cheque in the bank and it was returned unpaid for want of sufficient funds in the account maintained by the petitioner. It is alleged that the petitioner has cheated the de facto complainant and committed an offence punishable under Section 420 IPC. B.A.No.305/2018 3 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary. 4. The sum and substance of the allegation against the petitioner is that he received an amount of thirty lakhs rupees from the de facto complainant on the inducement that the de facto complainant would be made a partner of the business proposed to be conducted by him but he failed to keep his promise and he did not return the money to the de facto complainant and that the cheque given by him to the de facto complainant was dishonoured. It is highly doubtful whether a person would have parted with thirty lakhs rupees merely on the security of a cheque given to him for that amount. There is also no explanation why the de facto complainant did not institute any case against the petitioner under section 138 of the Negotiable Instruments Act on dishonour of the cheque given to him by the petitioner. Even if the entire allegations against the B.A.No.305/2018 4 petitioner are accepted, it is still a matter to be proved at the time of trial that the petitioner had dishonest intention even at the time of receiving the amount from the de facto complainant. At any rate, custodial interrogation of the petitioner appears to be not necessary to have an effective investigation in the case. The prosecution has no case that the petitioner has got criminal antecedents. In these circumstances, I am of the view that the discretion of the Court can be exercised in favour of the petitioner to grant him pre-arrest bail on imposing sufficient conditions to ensure that he would not abscond and flee from justice. 5. While granting anticipatory bail, normally, the Court shall not impose a condition as to deposit of cash. But, there are exceptions. In **Sumit Mehta v. State (2013) 15 SCC 570)** , the Apex Court set aside the condition imposed regarding fixed deposit of Rs.1,00,00,000/- for a period of six months in the name of the complainant stating that such B.A.No.305/2018 5 a condition is onerous and unreasonable. At the same time, the Apex Court observed as follows: _“Certainly, in no words are we suggesting that the power to impose a condition of this nature is totally excluded,_ _**even in cases of cheating** , electricity pilferage, white-collar crimes or chit fund scams etc”._ In the instant case, the petitioner has admitted in the bail application that he had received an amount of Rs.5,00,000/(Rupees five lakhs only) from the de facto complainant, though as a loan. Considering the facts and circumstances of the case, I find that it is proper to impose a condition that the petitioner shall deposit an amount of Rs.50,000/- in the Magistrate's Court concerned, as a condition of granting bail. In the result, the application is allowed and it is ordered as follows: 1) The petitioner shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees one lakh only) B.A.No.305/2018 6 with two sureties each for the like amount in the event of his arrest by the police in Crime No.1067/2017 of Kannur Town Police Station. 2) The petitioner shall appear before the investigating officer between 9 a.m and 11 a.m on all Saturdays for a period of three months from the date of his release on bail. - 3) The petitioner shall not influence or intimidate - the prosecution witnesses. He shall not make any attempt to tamper with the evidence in the case. 4) The petitioner shall not leave the State of Kerala without the prior permission of the jurisdictional Court concerned. 5) The petitioner shall appear before the investigating officer as and when directed in writing to do so. (6) The petitioner shall surrender his passport in B.A.No.305/2018 7 the Magistrate's Court concerned within three days from the date of his release on bail. If he has no passport, he shall file an affidavit to that effect in the Magistrate's Court concerned within that period. (7) The petitioner shall deposit an amount of Rs.50,000/- (Rupees fifty thousand only) in the Magistrate's Court concerned within three days of his release on bail. (8) If the petitioner fails to comply with the conditions as to surrender of passport/filing affidavit and deposit of cash within the stipulated time, bail granted to him pursuant to this order shall stand cancelled without any further orders. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr