Harish S. Thampi v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 09TH DAY OF SEPTEMBER 2020 / 18TH BHADRA, 1942** ## **Bail Appl..No.378 OF 2020** ## **CRIME NO.1656/2019 OF MANNANTHALA POLICE STATION , Thiruvananthapuram** ## **PETITIONER:** **HARISH S. THAMPI, AGED 38 YEARS S/O. SATHEESAN THAMPI, RESIDING AT FLAT NO.C1, DAFFODILS, MANNATHALA, MUKKOLA P.O., THIRUVANANTHAPURAM-695043.** **BY ADV. SRI.B.S.SIVAJI** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| |**2**|**THE STATION HOUSE OFFICER,**| ||**MANNANTHALA POLICE STATION,**| ||**THIRUVANANTHAPURAM-695043.**| |**3**|**ADDL.R3: GOPAKUMAR**| ||**AGED 61 YEARS**| ||**S/O SIVAN NAIR, RESIDING AT SRUTHY,**| ||**VERVALLY BHAGAM, KAYAMKULAM PO,**| ||**ALAPPUZHA DISTRICT-690502.**| ||**IS IMPLEADED AS ADDL.R3 AS PER THE ORDER DATED**| |---|---| ||**12/2/2020 IN CRL.MA NO.1/2020.**| |**4**|**ADDL.R4: GANESH SANKARANAYANAN**| ||**AGED 37 YEARS**| ||**S/O SANKARANARAYANAN RESIDING AT NO.8, SARASWATHI**| ||**NIVAS, VINAYAKA NAGAR, PAPPANAMCODE P.O,**| ||**THIRUVANANTHAPURAM**| **B A.No.378/2020** **2** - **5 ADDLR5: GEETHAMBIKA AGED 53 YEARS W/O BABURAJ, SAPHALYAM PLOT NO.125,A.K.G NAGAR, PERRORKADA, THIRUVANANTHAPURAM** - **6 ADDL.R6: JEEVA AGED 47 YEARS D/O THANKAPPAN, THUNDATHIL VEEDU, KULATHUR P.O, THIRUVANANTHAPURAM** - **7 ADDL R7: PRAVEEN P.S AGED 46 YEARS** - **RAMACHANDRAN NAIR, T/C 4/164 (5), SIVAM, KALPAKA NAGAR, MARAPPALAM, THIRUVANANTHAPURAM.** - **8 ADDL R8: SUMESH AGED 27 YEARS** - **S/O SURESH KUMAR, THUNDATHIL VEEDU, KULATHUR P.O, THIRUVANANTHAPURAM** - **9 ADDL R9: UNNI AGED 56 YEARS** - **S/O PADMANABHAN, TC 13/1127, KANNAMMOOLA, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM** - **10 ADDL.R10: SHOBHA NAIR W/O RAHAKRISHNAN NAIR, JANAKI SARAS T/C 25/Q 1041, EASR THAMPANOOR, THYCAD P.O, THIRUVANANTHAPURAM** - **11 ADDL R11: RAJESH AGED 34 YEARS** - **S/O RAJAN, SIVAPAADAM, VATTAVILA, POWDIKONAM, THIRUVANANTHAPURAM.** - **12 ADDL.R12: ADVAITH SANKAR S/O MOHAN, TC 3/689, DEEPTHI NAGAR, MUTTADA P.O, THIRUVANANTHAPURAM.** - **13 ADDL.R13: ADITHYAKRIYAN S/O MOHAN, TC 3/689, DEEPTHI NAGAR, MUTTADA P.O, THIRUVANANTHAPURAM.** - **14 ADDL.R14: MARIYAMMA VARGHESE AGED 52 YEARS** - **D/O THOMAS VARGHESE, T/C 10/214(4), DURGA NAGAR, VAYAMBAKONAM, MANANTHALA, NALANCHIRA, THIRUVANANTHAPURAM.** - **ARE IMPLEADED AS PER ORDER DATED 09/09/2020 IN** **B A.No.378/2020** **3** **CRL.M.A. NO.3/2020** **R4 BY ADV. R.SUNIL KUMAR R4 BY ADV. SMT.A.SALINI LAL SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B A.No.378/2020** **4** ## **O R D E R** **Dated this the 9th day of September 2020** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioner is the 5[th] accused in Crime No.1656 of 2019 of Mannanthala, Police Station, Thiruvananthapuram District. The above case is registered against the petitioner alleging offences punishable under Sections 418, 420, 465, 468, 471 read with Section 34 of the Indian Penal Code (IPC). 3. The prosecution case is that, the defacto complainant and 11 others moved a complaint against accused Nos.1 to 6. According to the prosecution, the accused Nos.1 to 6 entered into an agreement with the defacto complainant on 05.09.2013 and received Rs.28,20,000/-(Rupees Twenty Eight Lakhs Twenty Thousand only) from him. It is further alleged in the complaint that, they received Rs.30,02,500/- from Ganeshan Nair, as per agreement dated 07.09.2013, received Rs.10,91,000/- from Geethambika, received Rs.30,00,000/- from Geeva, received Rs.12,60,000/- from Praveen etc. It is also alleged that, they **B A.No.378/2020** **5** received money from other persons also. The amount received by the accused on the promise that they would complete the construction of flat and would handover the same as agreed. 4. Heard the learned counsel for the petitioner, the Public Prosecutor and Advocate R.Sunil Kumar for the additional respondent No.4 onwards. 5. The learned counsel for the petitioner submitted that, even if, the entire allegations are accepted, no offences under Section 420 of IPC is made out. 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 petitioner and others cheated several persons. The learned Public Prosecutor also submitted that, if this Court is granting bail stringent conditions may be imposed. 7. The learned counsel for additional respondents submitted that Annexure R4(B) is the agreement given to them by the petitioner, who is the developer. In that agreement three persons signed as sellers. The counsel also take me through Annexure R4(F). Annexure R4(F) is an objection filed by the decree holder 1 to 3, who are the sellers mentioned in the earlier **B A.No.378/2020** **6** agreement. In that objection, the decree holders 1 to 3 stated like this: 3. The averment in para 4 of the petition that the second petitioner had entered into an agreement with these decree holders 1 to 3 on 07.09.2013 for the purchase of Flat No.S3 2 BHK with car parking and undivided interest on the property for a consideration of Rs.31,00,000/- is absolutely false and hence denied. The decree holders have not entered into any sale agreement with him nor received any amount from him. Decree holders 1 to 3 are not signatories in the alleged agreement. During the alleged day of execution of the agreement, even the decree holders 1 and 2 were not in India. Decree holders have not assured him that the apartment will be completed before 2016.” 8. The counsel submitted that the sellers are denying even the agreement itself. That shows that there is a forgery also. The counsel seriously opposed the bail application. 9. This bail application was originally allowed on 14.8.2020. Then the additional respondents 4 onwards filed a petition to recall the order and for the reasons stated in Crl.M.A. No.4/2020, the order was recalled and the counsel who appeared for additional respondents Nos.4 to 14 was also heard. 10. After hearing both sides, I think this bail application can be allowed on stringent conditions. Admitted prosecution case is that, there was an agreement between the petitioner and the victims in this case, in connection with the construction of a flat. There is no dispute that the victim paid part of the amount to the company of the petitioner. The case is that, the construction of **B A.No.378/2020** **7** the flat is not completed and not handed over to the petitioner. Whether an offence under Section 420 of IPC is made out in such situations, is a matter to be investigated by the Investigating Officer in accordance with law. I do not want make any observations about the merits of the case. I perused the FI statement in this case. Considering the entire facts and circumstance of this case, I think this bail application can be allowed on stringent conditions. This bail application is pending in this Court from 15.01.2020 onwards. 11. The contention raised by the additional respondents cannot be decided while considering the bail application. It is a matter to be investigated by the investigating officer. I don't want to make any observation about the merit of the case. The investigating officer is free to investigate the matter. 12. 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. 13. Moreover, it is a well accepted principle that, the bail is **B A.No.378/2020** **8** 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. 14. 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, he 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 required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any **B A.No.378/2020** **9** 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. 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** **ab**