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. 9467 OF 2023 CRIME NO.809/2023 OF PATHANAMTHITTA POLICE STATION,** ## **PATHANAMTHITTA** ## **PETITIONER/ACCUSED NO.2:** JOSHUA MATHEW, AGED 59 YEARS S/O MATHAI C.T., CHOLLAMANIKAL, MYLAPRA VILLAGE, PATHANAMTHITTA, PIN - 689645 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER ANILKUMAR C.R. SARATH K.P. PRERITH PHILIP JOSEPH K.S.KIRAN KRISHNAN ## **RESPONDENT/COMPLAINANT & STATE:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA (CRIME NO 809/2023 OF PATHANAMTHITTA POLICE STATION, PATHANAMTHITTA), PIN – 682031 SMT.T.V.NEEMA, SR.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.9647 of 2023** ## **MOHAMMED NIAS C.P.J** **..................................................** **BA No.9467 of 2023** **........................................... Dated this the 28[th] day of November, 2023** ## **ORDER** The second accused in Crime No. 809/2023 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 crime was registered on the basis of the FIS of the informant Sri.Rajendraprasad. The prosecution case is that the first accused who was the president of the petitioner, the secretary of the Mylapra Service Co-operative bank with the dishonest intention to commit cheating on the informant, made hm believe that his deposit would be safe and secure with the bank and the amount will be returned to hims with interest on demand, caused the informant deposits Rs.10,00,000/- on 11.5.2015 with his account no.104/2015-2016 and Rs.10,00,000/- with the joint account No.105/2015-2016 of the informant and wife on 11.05.2015 again caused to deposit Rs.10,00,000/- with his -3- ## **BAIL APPL. NO.9647 of 2023** account No.124/2015-2016, further on 8.3.2016 an amount of Rs.10,00,000/- with the account No.58/2016-2017 of his wife for a term of one year and on 9.5.2019 Rs.7,00,000/- for a term of 23 months, but did not pay the amount and interest coming to the tune of Rs.92,18,178/- when the informant demanded to same after the maturity period., thus resulting in unlawful loss to the informant. The acts were done in furtherance of the common intention of both the accused and thereby committed the above offence. 3. Learned counsel for the petitioner and the learned Public Prosecutor were heard. 4. The learned counsel for the petitioner submits that the petitioner is made a scapegoat, that the liability in fact rests with the administrative committee, that there is no debtor-creditor relation between the parties, that no dishonest intention from the inception is made out, the accused is ready to abide by conditions imposed by the court etc. 5. The learned Public Prosecutor opposing the bail application pointed out that the investigation is in the preliminary stage. He further pointed out the situation of the informant created by the breakdown of the Mylapra Service Co-operative Bank administered by the petitioner, which carried on the business of canvassing deposits from the members of the public. On account of the inducement of the petitioner, the informant deposited a huge -4- ## **BAIL APPL. NO.9647 of 2023** amount, of his life-term savings, hoping for a better future. The accused siphoned the amount by adopting many dubious methods and it is to be investigated. The petitioner is a powerful politician having very high influence and if he is released on bail, there is every chance of his interfering with 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 is the submission. 6. Having considered the rival submissions and considering that the allegation in the instant case is that the defacto complainant was made to believe by the President and Secretary of the bank to transfer amounts which will be returned on maturity with interest and an amount of Rs.92,18,178/- is due to the defacto complainant. It has to be noted that the above deposit was made to the society and not individually to the President or Secretary. However, the investigation reveals a very strong prima facie case against the accused and where the money has gone or is parked has to be found out. 7. Considering the fact that the petitioner has been detained since 25/9/2023 when his arrest was recorded, as he was already arrested in connection with Crime No.454/2022 on 21.9.2023. It has to be seen that police custody was given, the petitioner is stated to be a cardiac patient, -5- ## **BAIL APPL. NO.9647 of 2023** the investigation has progressed, and he has retired from service, most of the evidence is in documentary form,the duration of the custody, I am inclined to grant bail though charges are very serious. 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 the Investigating Officer. (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; (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 -6- ## **BAIL APPL. NO.9647 of 2023** 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 -7- ## **BAIL APPL. NO.9647 of 2023** ## **APPENDIX OF BAIL APPL. 9467/2023** PETITIONER'S ANNEXURES Annexure-I A TRUE COPY OF THE FIR IN CRIME NO. 809/2023 OF PATHANAMTHITTA POLICE STATION Annexure-II A TRUE COPY OF THE ORDER IN WP(C) NO 28385 OF 2021 DATED 21.03.2022 Annexure-III AN ACCUSED COPY OF THE ORDER DATED 30.09.2023 IN CRL MP NO 3732/2023 IN CRIME NO 809/2023 OF PATHANAMTHITTA POLICE STATION Annexure-IV A COPY OF THE MEDICAL CERTIFICATE ISSUED IN FAVOR OF THE PETITIONER DATED 21.04.2022 -8- **BAIL APPL. NO.9647 of 2023**