Joshua Mathew v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945 BAIL APPL. NO. 9473 OF 2023** **CRIME NO.454/2022 OF PATHANAMTHITTA POLICE STATION,** ## **PATHANAMTHITTA** ## **PETITIONER/ACCUSED:** JOSHUA MATHEW, AGED 58 YEARS S/O MATHAI C T, CHOLLEMANKAL,MYLAPRA, PATHANAMTHITTA, PIN - 689678 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH SARATH K.P. K.S.KIRAN KRISHNAN ANILKUMAR C.R. ## **RESPONDENT/COMPLAINANT & STATE:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 SRI.M.C.ASHI, PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.11.2023, THE COURT ON 28.11.2023 DELIVERED THE FOLLOWING: -2- **BAIL APPL. NO.9473 of 2023** ## **MOHAMMED NIAS C.P.J** **..................................................** **BA No.9473 of 2023** **........................................... Dated this the 28[th] day of November, 2023** ## **ORDER** The first accused in Crime No. 454/2022 of Pathanamthitta police station, registered alleging offences punishable under Sections 409, 420 r/w 34 of the Indian Penal Code, has filed this application u/s 439 of the Code of Criminal Procedure seeking regular bail 2. The prosecution case is that the petitioner who was the Secretary of the Mylapra Service Co-operative Bank Limited No.639 who is also the Managing Director of the 'My Food Roller Factory Limited', Mekozhoor, Kannamkuzhy, a sister concern of the said co-operative bank, with the dishonest intention to misappropriate huge amount from the bank., on 31.01. 2022 made an entry in the stock register of the said flour factory that physical stock of wheat having a value of Rs.3, 94,57,566/- is there in the stock on that date, later the departmental inspection conducted by the informant at the said factory on 8.3.2022 would reveal that 31.01.2022 there was no such physical stock of the wheat was there in the flour factory -3- ## **BAIL APPL. NO.9473 of 2023** and Rs.3,94,566/- was embezzled by the petitioner falsely showing wheat stocks in the factory owned by the bank. Thus the accused has committed misappropriation to the tune of Rs.3,94,57/566/- from the Mylapra Cooperative Bank by falsification of amount and thus cheated the bank. 3. Learned counsel for the petitioner and the learned Public Prosecutor were heard. 4. The learned counsel for the petitioner argues that the liability in fact rests with the administrative committee of the bank, the accused was made a scapegoat to protect the local leaders of the ruling party that an offence of criminal breach of trust will no manner is attracted, the accused is ready to abide by any conditions imposed by the court etc. 5. The learned Public Prosecutor opposing the bail application filed a report that pointed out that the investigation is in the preliminary stage. He drew the attention of the court to the exceptional circumstances of the crime and the pathetic situation that resulted to the public by the breaking down of the Mylapra Service Co-operative Bank administered by the petitioner, which carried on business of canvassing deposits from the members of the public particularly, the farmers and the downtrodden. The petitioner who is the Secretary of the Mylapara Service Co-operative Bank with the dishonest intention to make an unlawful gain, by misappropriating huge amounts from the bank, tactically converted the sister concern of the -4- ## **BAIL APPL. NO.9473 of 2023** bank 'My Food Flour Factory' which was established in the year 2003, as a private limited company as per the Companies Act, thereby managed to evade the internal audit of the co-operative department. The petitioner at the same time played the part of secretary of the bank and Managing Director of the factory, thereafter advanced a huge amount for the purchase of wheat adopting dubious measures for the purchase of the same the petitioner, misappropriated an amount of Rs.39 crores from the bank by making false entries regarding the purchase of wheat. He further induced the cashier of the bank to deliver an amount of Rs.11,79,000/- to him on the pretext of making payment to the Dimple Commercial Corporation, a prime supplier of the wheat. The volume of misappropriation committed by the petitioner is alarming. The Department of Cooperation has unearthed massive discrepancies in the Mylapra Service Co-operative bank and the petitioner and near relatives were granted as many as 36 loans and crores are pending to be repaid towards that loans. The majority of the loans, 28 out of 36 loans were granted to the petitioner and his near relatives his father, wife, daughter, brother, sister-in-law and other close relatives and many of them are holders of more than one loan. The petitioner had taken a huge amount from the bank's counter under the guise of making payment to a grains supplier company and misappropriated the same. Discrepancies found in procuring wheat stocks for the sister concern functioning under the bank are only the tip of the iceberg. The involvement of more persons in the scam is to be investigated. The investigation conducted and undoubtedly proved the attempt of the petitioner to influence the prime -5- ## **BAIL APPL. NO.9473 of 2023** witnesses including the authorities concerned of the Dimple Commercial Corporation. The petitioner is likely to abscond if released on bail and being a powerful politician having very high influence, there is every chance of him interfering with the smooth progress of the investigation, tampering with the documentary evidence and will surely intimidate the witnesses. The petitioner was cold during the interrogation and he was not prepared to divulge the details of the proceeds of crime. The petitioner cannot be enlarged on bail at this stage, it is submitted. 6. Considering the rival contentions and in particular the report submitted under Section 65 of the Kerala Co-operative Societies Act after an enquiry by the Joint Registrar, the report categorically speaks about the role of the petitioner who was not only the Secretary of the Society but also Managing Director of the factory, where stock worth Rs.3,94,57,566/- was found to be short. However, the learned counsel for the petitioner argues that the said figure is arrived without actually considering the amounts due to the society by sale and not properly considering the stock available. The said contentions cannot be _prima facie_ accepted more so after the enquiry report that clearly narrates the acts and commissions of the petitioner and the loss caused to society. The offences alleged against the petitioner are indeed serious calling for an effective investigation. Even under the statute governing the society of which the petitioner was the secretary there was a duty cast on the Secretary and his acts and commissions led to alleged loss. -6- ## **BAIL APPL. NO.9473 of 2023** 7. After considering the fact that the petitioner is retired, the entire documents have been seized, police custody of the petitioner was given, the illness of the petitioner and the period of detention, I am inclined to grant bail in strict conditions given the gravity of the offence alleged against the petitioner. Accordingly, the bail application is allowed subject to the strict conditions: (i) The petitioner shall be released on bail on executing a separate bond for Rs.2,00,000/- (Rupees Two lakh only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction; one of the sureties shall be a parent or close relative of the petitioner. (ii)The petitioner shall report before the Investigating Officer on every alternate Monday between 9 a.m. and 10 a.m. for three months and thereafter as directed by him.. (iii) The petitioner shall not intimidate or attempt to influence the witnesses, nor shall he tamper with the evidence or do anything that might adversely affect the trial; (iv)The petitioner shall also cooperate 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 to dissuade them from disclosing such facts to the court or the police officer. (v)The petitioner shall not commit any offence while on bail; (vi)The petitioner shall not leave the State of Kerala or the Country without the prior permission of the Court concerned; -7- ## **BAIL APPL. NO.9473 of 2023** - (vii) The petitioner shall surrender his passport, if any, within seven days from the date of his release before the Court concerned and if the release of the passport is required at a later period, the petitioner shall be at liberty to move an appropriate application for the same before the court having jurisdiction. If he has no passport, he shall file an affidavit to that effect before the court concerned, on the date of execution of the bond or within three days thereafter. - (viii)In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail and pass appropriate orders in accordance with law. It is made clear that it is within the power of police to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners, even when the petitioners are on bail as per the judgment of the Apex Court in **Sushila Aggarwal and others v. State ( NCT of Delhi) and another [2021 (1) KHC 663]** . Sd/- ## **MOHAMMED NIAS C.P.** ## **JUDGE** dlk 22 .11.2023 -8- ## **BAIL APPL. NO.9473 of 2023** ## **APPENDIX OF BAIL APPL. 9473/2023** PETITIONER'S ANNEXURES Annexure-I A COPY OF THE REPORT OF THE STOCK VERIFICATION OFFICER DATED 13.04.2022. Annexure II A COPY OF THE ORDER PASSED UNDER SECTION 66 OF THE CO-OPERATIVE SOCIETIES ACT DATED 16.04.2022 . Annexure III A COPY OF THE ORDER APPOINTING AN OFFICER TO CONDUCT THE INSPECTION DATED 04.04.2022. Annexure IV A COPY OF THE MEDICAL CERTIFICATE ISSUED IN FAVOR OF THE PETITIONER DATED 21.04.2022 Annexure V A COPY OF THE FIR IN CRIME NO. 454/2022 OF PATHANAMTHITTA POLICE STATION DATED 20.04.2022 Annexure VI AN ACCUSED COPY OF THE ORDER CRL MP NO 3846/2023 DATED 16.10.2023 IN CRIME NO 454/2022 OF PATHANAMTHITTA POLICE STATION PATHANAMTHITTA DISTRICT WHICH IS NOW PENDING AS CRIME NO 77/CB/KLM & PTA/R/2022