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High Court of KeralaSingle JudgeBail Granted

Hanesh George v. State of Kerala

Case / Petition Number:B.A.No.5078 of 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Kunhikrishnan
Judgment Date
2020-08-24
Court Decision / Holding
The bail application under Section 438 CrPC is allowed with stringent conditions: (1) the petitioner shall appear before the Investigating Officer within ten days for interrogation; (2) after interrogation, if the IO proposes to arrest, the petitioner shall be released on bail on a bond of Rs 50,000 with two solvent sureties of like amount; (3) the petitioner shall appear as required and cooperate with the investigation and shall not induce or threaten any witness; (4) the petitioner shall not leave India without court permission; (5) the petitioner shall not commit a similar offence; (6) the petitioner shall comply with social distancing guidelines issued by State and Central governments in view of COVID-19. A breach may result in cancellation of bail by the jurisdictional court.
Final Disposition
Bail Granted

Parties to the Case

Appellants / Petitioners

  • Hanesh George

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

  • • Shabu Sreedharan

Counsels for Respondents

  • • Public Prosecutor

Case Synopsis & Summary

This bail application concerns Hanesh George, the accused in Crime No. 432/2019 of Ollur Police Station, Thrissur, charged with offences under Sections 406 and 420 IPC. The petitioner approached the High Court of Kerala for anticipatory bail under Section 438 CrPC. The prosecution case arises from a private complaint forwarded under Section 156(3) IPC, leading to investigation. The facts allege that the petitioner, in pursuit of a loan for a project with an Italian vehicle production company, obtained documents and received Rs. 10 lakhs from the 2nd respondent on 29.06.2017 as a processing fee for arranging a loan of Rs. 20 crores; however, the loan was not sanctioned and the amount was not returned. The defence contends the petitioner had no direct connection with the defacto complainant; the Rs. 10 lakhs was a processing fee under a loan agreement, not a misappropriated sum. The loan process was aborted due to insufficient collateral, and the agreement permits non-refund of the processing fee in certain circumstances. The petitioner expressed willingness to abide by stringent bail conditions. The Public Prosecutor argued that the petitioner’s presence was necessary for investigation. The Court ultimately allowed bail, noting that custodial interrogation was not necessary, and relied on established bail principles and COVID-19 related directions, while prescribing conditions to ensure cooperation and public safety.

Provisions of Law Cited

Section 438 of the CrPCSection 406 IPCSection 420 IPCSection 156(3) IPC

Legal Doctrines & Maxims

  • Bail is the rule and jail is the exception

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner argued that the accused has no connection with the defacto complainant. The Rs. 10 lakh paid to the 2nd respondent was a processing fee for a loan arrangement under a project with an Italian vehicle production company, not a bribe or misappropriated amount. The loan was not sanctioned because the collateral documents were deemed insufficient, and the agreement itself provides that the processing fee may be non-refundable if the loan process fails. The petitioner is willing to comply with all conditions of bail and to cooperate with the investigation; custodial interrogation is not demonstrated as necessary, especially in light of ongoing COVID-19 restrictions. The merits of the case should not be examined at this stage; bail with stringent conditions is appropriate to secure a fair trial.

Contentions of Respondents

The prosecution contends that the petitioner’s presence is necessary for completion of the investigation and that the transaction involved Rs. 10 lakhs as a processing fee, indicating involvement in the loan arrangement. Given the case is based on a private complaint and the investigation requires verification of documents and witnesses, bail should not be granted easily, and the possibility of tampering with evidence or witnesses warrants continued scrutiny.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Re: Contagion of COVID-19 Virus In Prisons caseSuo Motu Writ Petition(C) No.1 of 2020Mentioned OnlyCited to support COVID-19 related prison guidelines and social distancing measures; not a central doctrinal point for bail.
W.P(C) No.9400 of 2020W.P(C) No.9400 of 2020Mentioned OnlyReference to Full Bench directions on minimizing prison population during the pandemic; used as background to the COVID-19 context.
Chidambaram P. v. Directorate of Enforcement2019 (16) SCALE 870PositiveCited for the bail principle that bail is the rule and jail is the exception; used to justify granting bail in the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942** ## **Bail Appl..No.5078 OF 2020** **CRIME NO.432/2019 OF OLLUR POLICE STATION, THRISSUR** ## **PETITIONER/S:** **HANESH GEORGE AGED 39 YEARS KANNATH HOUSE, KACHERY, NADATHARA, THRISSUR-680751** ## **BY ADV. SRI.SHABU SREEDHARAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM - 682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 5078 of 2020 2 ## **P.V.KUNHIKRISHNAN, J. ================== B.A.No. 5078 of 2020 ================== Dated this the 24[th] 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 accused in crime No. 432 of 2019 of Ollur Police Station, Thrissur District. The above case is registered against the petitioner alleging offences punishable under Sections 406 & 420 of the Indian Penal Code (IPC). The above case is registered based on a private complaint filed before the jurisdictional Court which is forwarded under Section 156(3) IPC. 3. The prosecution case is that, the defacto complainant entered into a project agreement with an B.A.No. 5078 of 2020 3 Italian Vehicle production company and in order to execute the said project he approached the petitioner for getting arranged a loan to the tune of Rs. 20 crores. The petitioner obtained documents for the same and also obtained Rs. 10 lakhs from the 2[nd] respondent on 29.06.2017 towards processing fee for arranging the said loan. But the loan was not arranged and the amount paid is not returned. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that, the petitioner has no connection to the defacto complainant. One Mr. Sucharitha Shetty and her daughter approached the petitioner for getting a loan. The petitioner admit the receipt of Rs. 10 lakhs, which is the processing fee. Annexure-A3 is the agreement, which will show that the petitioner received Rs. 10 lakhs. The learned counsel submitted that, subsequently, the loan application was rejected because the above mentioned Mr. Sucharitha B.A.No. 5078 of 2020 4 Shetty is not eligible to get the loan because the documents submitted as collateral security is insufficient. The learned counsel for the petitioner also 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, the presence of the petitioner is necessary for completing the investigation. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. The petitioner admit the receipt of Rs. 10 lakhs. According to the petitioner, it is a processing fee for the loan. The petitioner says that, as per one of clause in the agreement, if in any case the party not able to produce all the documents, the authority can terminate the loan filed. In such situation, the processing fee will not be returned. The learned counsel submitted that, the party was not eligible to get the loan. I do not want to make any B.A.No. 5078 of 2020 5 observations about the merits of the case. Admittedly, the case is registered based on a private complaint. The presence of the petitioner may be necessary for completing the investigation. This is a matter to be investigated by the Investigating Officer. Considering the entire facts and circumstances of this case, I think, the custodial interrogation of the petitioner may not be necessary. Considering the entire facts and circumstances of this case, I think this bail application can be allowed on stringent conditions. 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 B.A.No. 5078 of 2020 6 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. 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, they shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two_ B.A.No. 5078 of 2020 7 _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 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_ B.A.No. 5078 of 2020 8 _social distancing in the wake of Covid 19 pandemic._ 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