K.B. Suresh v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946 ``` ## `BAIL APPL. NO. 3285 OF 2024` ``` CRIME NO.885/2023 OF PATTAMBI POLICE STATION, PALAKKAD ``` ## `PETITIONER:` ``` K.B.SURESH AGED 67 YEARS SON OF K.K.BHASKARAN, AMRUTHANANDAM, T.D.ROAD, ERNAKULAM DISTRICT, PIN – 682011 ``` ``` BY ADVS.T.MADHU C.R.SARADAMANI RENJISH S. MENON VRINDA T.S. AISWARYA JAYAPAL ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR ADV SRI VIJAYABHANU SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.3285/2024_ _-:2:-_ _Dated this the 23[rd] day of April, 2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the third accused in Crime No.885/2023 of the Pattambi Police Station, Palakkad, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 415, 416, 417, 419 & 420 read with Section 34 of the Indian Penal Code, 1860. 3. The crux of the prosecution allegation is that: the accused Nos.1 to 4 are the joint owners of Jeeja’s Products and Agencies. The accused Nos.1 to 4 had agreed to sell the scrap materials of M/s NSL Sugars Ltd., situated in the State of Karnataka to the de-facto complainant. Based on the agreement entered into between the de-facto complainant and the accused, the _B.A.No.3285/2024_ _-:3:-_ de-facto complainant paid an amount of Rs.3.51/- Crore to the accused during the period between 29.12.2022 and 25.01.2023 by way of cheques and bank transfers. However, the accused did not permit the de-facto complainant to remove the scrap and failed to repay the money. Thus, the accused have committed the above offences. 4. Heard; Sri. Vijayabhanu. P, the learned Senior Counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor. 5. The learned Senior Counsel argued that the petitioner is totally innocent of the accusations levelled against him. The petitioner was a practicing lawyer before this Court. He was also a judicial member of the Central Administrative Tribunal. A reading of Annexure-A2 complaint would establish that the petitioner was allegedly only a mediator. Actually, the petitioner had only suggested certain modifications to _B.A.No.3285/2024_ _-:4:-_ Annexure-A4 agreement that was entered between the de-facto complainant and M/s Jeeja Products and Agencies. Other than for giving advice to the above concern, the petitioner has no involvement in the crime. The Investigating Officer has deliberately arraigned the petitioner as an accused in the crime on the influence of the de-facto complainant. In any given case, the petitioner’s custodial interrogation is not and no is to be effected. necessary, recovery Therefore, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. He submitted that the investigation in the case is still in progress. He also stated that the petitioner's custodial interrogation is necessary for a proper and full investigation of the crime. Hence, the application may be dismissed. 7. On a perusal of the materials on record, it can _B.A.No.3285/2024_ _-:5:-_ be seen that the only overt act alleged against the petitioner is that he had as a Mediator for the transaction between the de-facto complainant and the accused Nos.1 & 2, the owners of the Jeeja Products and Agencies, to finalise Annexure-A4 agreement. The other allegations are omnibus allegations which do not show the involvement of the petitioner for having allegedly committing the offences. 8. In **Indian Oil Corporation v. NEPC India Ltd.** [(2006) 6 SCC 736], the Honourable Supreme Court observed in the following lines: _“13. ……. Any effort to settle civil disputes and claims, which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged”._ 9. Similarly in **Sarabjit Kaur v. State of Punjab and Another** [2023 SCC Online 210] the Honourable Supreme Court held that, a mere breach of contract does not give rise to criminal prosecution for _B.A.No.3285/2024_ _-:6:-_ cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up a promise will not be enough to initiate criminal proceedings. 10. Again in **ARCI v. Nimra Cerglass Technics (P) Ltd.** [(2016) 1 SCC 348] the Honourable Supreme Court while considering the difference between breach of contract and the offence of cheating held that the distinction depends upon the intention of the accused at the time of the alleged incident. Only if the the dishonest intention of the accused can be established at the time of entering the transaction the criminal liability can be attracted. 11. Recently, in **Sachin Garg V. State of U.P** [(2024) KHC Online 6046], the Honourable Supreme Court has again reitrated that a mere breach of contract will not constitute the offence of cheating. 12. The parameters to grant an order of _B.A.No.3285/2024_ _-:7:-_ pre-arrest bail have been succinctly laid down by the Hon’ble Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtr** a [(2011) 1 SCC 694] in the following lines: “111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in Satishchandra Ratanlal the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; _B.A.No.3285/2024_ _-:8:-_ (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail”. 13. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly taking note of the fact that there is no specific overt act alleged against the petitioner as regards the commission of the offences registered in the crime, I am of the view that the petitioners’ custodial interrogation is not necessary. Hence, I hold that the petitioner is entitled to an order of pre-arrest bail; _B.A.No.3285/2024_ _-:9:-_ subject to the condition that he co-operates with the Investigating Officer. I am convinced that the petitioner has made out any exceptional circumstances entitling him to invoke the extra-ordinary jurisdiction of this Court under Section 438 of the Code. In the result, the application is allowed subject to the following conditions: - (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. ## _B.A.No.3285/2024_ _-:10:-_ - (iv) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 or tamper with the evidence in any manner, whatsoever; - (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before said court within the said period; - (vi)The petitioner shall not get involved in any other offence while on bail; - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. _B.A.No.3285/2024_ _-:11:-_ - (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) And another** [2020 (1) KHC 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- ## **C.S.DIAS,JUDGE** DST/23.04.24 //True copy// P.A. To Judge