Jessudoss.R. v. State of Kerala; Vincent.F v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** **Bail Appl..No.8915 OF 2019** **AGAINST THE ORDER IN CRMC 1871/2019 DATED 30-11-2019 OF DISTRICT COURT & SESSIONS COURT,THALASSERY** **CRIME NO.918/2018 OF Thalassery Police Station , Kannur** ## **PETITIONER:** **JESSUDOSS.R., AGED 58 YEARS S/O.B.RATHINA SWAMY, PROPRIETOR TECHPRINTZ SOLUTION, RESIDING AT A 205 SUNSHINE APARTMENTS, MAGADI ROAD, BANGALORE- 560076.** **BY ADVS. SRI.SHERRY J. THOMAS SRI.E.K.AVINASH** ## **RESPONDENT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 ADDL.R2 ANEESH CHANDRIYAN, S/O RAVEENDRAN, AGED 37, PRASANTHY HOUSE, ERUVATTY POST, MANAGING PARTNER ELITE PHOTO M, GRAND MALL, NEAR FLY OVER, THALASSERY, KANNUR DISTRICT-670581.** **IS IMPLEADED AS PER ORDER DATED 22.10.2020 IN CRL.MA NO.1/2O20 IN BA-8915/2019.** **SR.PP. D. CHANDRASENAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.07.2020, ALONG WITH Bail Appl..9098/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.Nos.8915 & 9098 of 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** **Bail Appl..No.9098 OF 2019** **AGAINST THE ORDER IN CRMC 1884/2019 DATED 06-12-2019 OF DISTRICT COURT & SESSIONS COURT,THALASSERY** **CRIME NO.918/2018 OF Thalassery Police Station , Kannur** ## **PETITIONER:** **VINCENT.F, AGED 63 YEARS S/O. FRANCIS, PROPRIETOR, FLORA COLOUR PRESS, 15 GANAPATHI NAGAR, PERIA SEMUR, ERODE, TAMILNADU DISTRICT.** **BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH) SRI.PRAJIT RATNAKARAN SHRI. RAJ CAROLIN V.** ## **RESPONDENTS:** **1 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 THE STATION HOUSE OFFICER THALASSERY POLICE STATION, KANNUR DISTRICT-670 101. 3 ADDL.R3 ANEESH CHANDRIYAN, AGED 35 YEARS S/O RAVEENDRAN, PRASANTHY HOUSE, ERUVATTY PO, (MANAGING PARTNER, ELINE PHOTO MAGAZINE) DOOR NO.46/1603 B, GRANDMALL, NEAR FLYOVER, THALASSERY, KANNUR-670101.** **IS IMPLEADED AS ADDL.R3 AS PER THE ORDER DATED 5.3.2020 IN CRL.MA 1/2020.** ## **SR.PP. D. CHANDRASENAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.07.2020, ALONG WITH Bail Appl..8915/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.Nos.8915 & 9098 of 2019 3 ## **P.V.KUNHIKRISHNAN, J** ------------------------------------ B.A.Nos.8915 & 9098 of 2019 -----------------------------------Dated this the 13[th ] day of July, 2020 ## **O R D E R** These Bail Applications are filed under Section 438 of Criminal Procedure Code. 2. Petitioner in B.A.No.8915 of 2019 is the 1[st] accused and the petitioner in B.A.No.9098 of 2019 is the 2[nd] accused. Since these two bail applications are filed by the accused in the same crime (Crime No.918 of 2018 of Thalassery Police Station) I am disposing these bail applications by this common order. 3. The above case is registered against the accused alleging offence punishable under Sections 406 & 420 IPC read with 34 IPC. 4. The prosecution case is that the de facto complainant is the Managing Partner of a business firm 'Eline Photo B.A.Nos.8915 & 9098 of 2019 4 Magazine' situated at Thalassery and the 2[nd] accused used to visit the office of the de facto complainant and made him to believe that he is having a secondhand HP INDIGO 5500 DIGITAL PRESS printing machine with his business partner and friend, who is the 1[st] accused in this case. Believing the words of the 2[nd] accused the de facto complainant met with the 1[st] accused at Bangalore and decided to purchase the machine. The admitted prosecution case is that Rs.37,00,000/-(Rupees Thirty seven lakhs only) was paid, but the de facto complainant was not able to repay the balance amount within the stipulated time. Therefore, the machine was not supplied. Hence the complaint is filed. 5. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 6. This Court ordered notice to the de facto complainant in this case. The notice issued to the de facto complainant in B.A.No.8915 of 2019 was returned with an endorsement 'signed by one A.V.Raveendran'. There is no appearance for the de facto complainant. B.A.Nos.8915 & 9098 of 2019 5 7. The counsel for the petitioners submitted that no offence u/s.406 & 420 IPC is made out. According to the counsel, there was an agreement to purchase a machine and part payment was made by the de facto complainant. The de facto complainant was not able to pay the full amount and hence the machine was not supplied. But the complaint is filed. According to the counsel, no offence u/s. 406 & 420 IPC is made out in such a situation. The petitioners submitted that they are ready to co-operate with the investigation. 8. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the value of the machine is One Crore and only a part payment is made by the de facto complainant. 9. Considering the facts and circumstances of the cases, I think this bail application can be allowed. It is an admitted case that there is a sale and part payment and further there is balance amount to be paid by the de facto complainant. 10. From the facts and circumstances of the case, it is clear that it is a monetary claim. Whether an offence B.A.Nos.8915 & 9098 of 2019 6 u/s.420 is made out is a matter to be investigated. I make this observation only for the purpose of considering these bail applications. The Investigating Officer is free to investigate the matter in detail and if any offence is made out, the Investigating Officer is free to proceed in accordance with law. 11. Considering the facts and circumstances of these cases, I think, the petitioners are entitled the benefit u/s.438 Cr.P.C. 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 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 B.A.Nos.8915 & 9098 of 2019 7 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 these cases, these Bail Applications are allowed with the following directions: 1. The petitioners shall appear before the Investigating Officer within ten days from today. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they 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 petitioners shall co-operate with B.A.Nos.8915 & 9098 of 2019 8 the investigation and shall not threaten or attempt to influence the witnesses or tamper with the evidence. 4. The petitioners 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. 5. If any of the above conditions are violated by the petitioners, 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** cms