Irshad K.P. v. State of Kerala; Shinoy E.K. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 09TH DAY OF JULY 2020 / 18TH ASHADHA, 1942** ## **Bail Appl..No.611 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRMC 1389/2019 DATED 16-01-2020 OF DISTRICT COURT& SESSIONS COURT,MANJERI** **CRIME NO.564/2019 OF Kondotty Police Station , Malappuram** ## **PETITIONER/S:** **IRSHAD K.P. AGED 21 YEARS S/O.MOOSA, NADUTHODU HOUSE, KUZHIMANNA.P.O, KONDOTTY TALUK, MALAPPURAM DISTRICT** ## **BY ADV. SRI.K.MOHAMMED RAFEEQ** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY GOVERNMENT PLEADER, HONORABLE HIGH COURT OF KERALA AT ERNAKULAM-682031** - **2 SUB INSPECTOR OF POLICE KONDOTTY POLICE STATION, MALAPPURAM DISTRICT-673638** - **3 ADDL.R3 HARRIS AGED 40 YEARS S/O MOHAMMED, AGM-AM HONDA, ANGADIPURAM P.O, MALLAPURAM DISTRICT, PIN-679324.** **IS IMPLEADED AS ADDITIONAL R3 AS PER THE ORDER DATED 07/02/2020 IN CRL.MA NO.2/2020.** **R3 BY ADV. G.SREEKUMAR (CHELUR)** ## **OTHER PRESENT:** ## **SRI.C.N.PRABHAKRAN SR PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.07.2020, ALONG WITH Bail Appl..826/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. Nos.611 & 826 of 2020 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 09TH DAY OF JULY 2020 / 18TH ASHADHA, 1942** **Bail Appl..No.826 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRMC 1389/2019 OF DISTRICT COURT& SESSIONS COURT,MANJERI** **CRIME NO.564/2019 OF Kondotty Police Station , Malappuram** ## **PETITIONER/S:** **SHINOY E.K., AGED 29 YEARS S/O.SUNDARAN, MURUKA NIVAS, VALLIKKAPPATTA P.O., KOOTTILANGADI, ERNAD TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.P.VENUGOPAL (1086/92) SMT.T.J.MARIA GORETTI** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 2 STATION HOUSE OFFICER, KONDOTTY POLICE STATION, MALAPPURAM DISTRICT, PIN - 673 638. 3 ADDL.R3.HARRIS AGED 40 YEARS S/O MOHAMMED, AGM-AM HONDA, ANGADIPURAM PO, MALLAPURAM DISTRICT, PIN-679324. IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 27/2/2020 IN CRL.MA NO.1/2020 IN BA-826/2020.** **R3 BY ADV. G.SREEKUMAR (CHELUR)** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.07.2020, ALONG WITH Bail Appl..611/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. Nos.611 & 826 of 2020 3 ## **O R D E R** ## **Dated this the 9th day of July 2020** The petitioner in B.A. No.826/2020 is the 1[st] accused while the petitioner in B.A.No.611/2020 is the 3[rd] accused in Crime No.564/2020 of Kondotty Police station, Malappuram for having allegedly committed offences punishable under Sections 420, 465, 468 & 471 r/w Section 34 of IPC. There is one more accused, who is arrayed as the 2[nd] accused, who according to the petitioners was arrested and released on bail by the jurisdictional Magistrate. 2. The prosecution case in brief is thus:- During the period between August 2017 and June 2018, the petitioners along with the 2[nd] accused were working at AM Honda showroom at Kondotty as Branch Manager, Sales executive and delivery boy respectively. Several vehicles were sold to the customers from the showroom. The accused persons clandestinely managed to get low quality accessories from outside and sold the same as genuine Honda accessories to the customers for a period of almost one year and thereby B.A. Nos.611 & 826 of 2020 4 cheated the customers as also the firm. It is stated because of the sale of duplicate parts, the accused made huge profits which is approximated at around Rs.10,25,000/- and needs to be assessed finally during a detailed investigation which is on the way. 3. The de facto complainant, representing the partnership firm AM Honda got himself impleaded as additional 3[rd] respondent in both these petitions. 4. Heard the learned counsel Sri.Mohammed Rafeeq appearing for the 3[rd] accused, Sri.P.Venugopal appearing for the 1[st] accused, Sri.G.Sreekumar appearing for the de facto complainant as also the learned Public Prosecutor Sri.C.N.Prabhakaran. 5. The 1[st] accused would contend that he had been employed during the period August 2017 to June 2018, but soon thereafter, he got a better employment with Club Mahindra and was transferred to Bangalore and he has been employed there, even though the de facto complainant firm persuaded him to continue as the Branch Manager, he refused and that probably antagonized the de facto complainant. The 3[rd] accused also allegedly left the firm soon thereafter in 2018. B.A. Nos.611 & 826 of 2020 5 The complaint was lodged regarding the alleged sale of spurious accessories of Honda and the petitioners cheating the firm as well as the clients only in November, 2019. The petitioners would contend that the delay in filing the complaint itself has to be viewed suspiciously and the petitioners are not able to answer the accusation made against them after such a long time, because the documents may not be probably available to defend their case and therefore they seek prearrest bail in this matter. 6. The learned counsel appearing for the de facto complainant firm as well as the learned Public Prosecutor vehemently opposes the granting of bail for the reason that the firm which has a very good reputation and has branches all over north Kerala, has been maligned because of the act of the petitioners. Complaints regarding the inferior quality of accessories provided by the firm started pouring in only after the sales took place. It is only thereafter that the attention of the de facto complainant was drawn as it became a regular feature of the customers who had purchased vehicles from the Kondotty branch. It is submitted by the learned counsel appearing for the firm that even the Honda company was B.A. Nos.611 & 826 of 2020 6 aggrieved by the alleged selling of fake parts by the firm and they even threatened to withdraw the agency licence granted to the firm. Hence it was after closely observing the sale pattern that took place only in Kondotty Branch that a complaint was ultimately lodged against the accused persons and it is submitted that without the knowledge of the branch manager the sales executive as also the delivery boy, such pushing of fake parts with the sale of a new vehicle could not have been possible. Hence the accused are solely responsible for that. It is also submitted that the forged bills and vouchers were given to the customers as if the parts were all original and the difference that was earned by the accused went directly to their pockets. Considering the gravity of offence committed by the petitioners, the anticipatory bail applications filed them before the Sessions Court, Manjeri was dismissed vide common order dated 16.01.2020. The learned Sessions Judge relied on the decisions of **Chithambaram P.V. Directorate of Enforcement** [2019 KHC 6886] as also the decision of this Court in **State of Kerala v. Aboobacker P.** [ 2019 (2) KLJ 68] in dismissing the application for anticipatory bail. B.A. Nos.611 & 826 of 2020 7 7. Anticipatory bail is a extra ordinary remedy provided to the Sessions Court as well as the High court to be excised sparingly in exceptional cases, where the arrest and the custodial interrogation of the accused persons would end up in humiliation to them. In the instant case, there is prima facie indication that the alleged act of pushing duplicate accessories with the sale of Honda scooters was happening only in the branch where the accused were employed and it did not appear in any other branches of the firm. There is no indication that similar complaints have been lodged pertaining to other branches as well. 8. The learned counsel appearing for the accused submits that considering the pandemic situation in the State, the benefit of Full Bench decision of W.P.(C) No.9400/2020 (Suo Motu) may also be extended to the petitioners in this case and also the fact that the 2[nd] accused was already released on regular bail by the jurisdictional Magistrate. 9. Under the circumstances, I find that the petitioners need to be subjected to custodial interrogation for the reason that the details regarding how they acquired the duplicate accessories and how it was delivered to the customers in the B.A. Nos.611 & 826 of 2020 8 place of original accessories of the Honda company. Hence they are not entitled to the extra ordinary remedy of pre arrest bail in this case. The petitioners are therefore directed to surrender before the investigating officer within a period of two weeks and after interrogation, in the event of they being arrested, they shall be produced before jurisdictional court where they shall be at liberty to apply for regular bail, which shall be considered by the jurisdictional court on merits and disposed of preferably on the very same date. The trial court shall consider the repercussions of the Full Bench decision of this Court in W.P.(C) No.9400/2020 also while considering the regular bail applications filed by the petitioners. With these observations, the petitions are dismissed. **Sd/-** ## **ASHOK MENON** ## **JUDGE** **rmm**