K.V.ANTONY, K.V.JOSE & K.V.THOMAS v STATE OF KERALA & OTHERS

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN
Judgment Date: 2023-02-20
Court Decision / Holding: Anticipatory bail is allowed to accused Nos.1 to 3. They shall surrender before the Investigating Officer within ten days from today and, on surrender, be produced before the jurisdictional court on arrest. They shall be released on bail on a bond of Rs.30,000 each, with two solvent sureties of like amount, to the satisfaction of the court. They shall cooperate with the investigation, be available for interrogation as directed, shall not intimidate witnesses or interfere with the investigation, and shall not commit any offence during the currency of this bail.
Final Disposition: Anticipatory bail granted to accused Nos.1 to 3

Parties to the Case

Appellants / Petitioners

K.V.ANTONY
K.V.JOSE
K.V.THOMAS

Respondents

STATE OF KERALA
STATION HOUSE OFFICER, CHENGAMANAD POLICE STATION
JOY

Legal Representation & Advocates

Counsels for Petitioners

• Adv. V. Rajendran (Perumbavoor)

Counsels for Respondents

• Adv. Sri P.G. Manu, Sr. Public Prosecutor

Case Synopsis & Summary

This is a petition under Section 438 CrPC for anticipatory bail by accused Nos.1 to 3 in Crime No.33/2023 of Chengamanad Police Station, Ernakulam district. The petitioners contend that the allegations arise from an arrangement in which a 25-cent land parcel was conveyed and presented as security rather than as an absolute sale in 2012. The defacto complainant alleges that the first accused executed a registered sale deed but that liabilities to Ayroor Co-operative Society would be discharged and the title transferred thereafter. The prosecution contends that, in connivance with Co-operative Bank officials, the petitioners forged documents and availed a loan by creating a mortgage over the same property, thereby cheating the defacto complainant. The defense argues that there was no absolute sale; the document produced was a security instrument, and possession remained with the petitioners; they continued to repay the loan, and receipts from 2012–2017 (including a reference to a “gold loan”) support this view. Annexures include pleadings in a civil suit (O.S.566/2018). The Public Prosecutor opposes bail, claiming that post-sale encumbrances and further loans were obtained, constituting breach of trust and cheating. The court notes custodial interrogation is unnecessary and directs investigation to proceed through surrender; ultimately, anticipatory bail is granted to accused Nos.1–3 with conditions ensuring cooperation and non-interference.

Provisions of Law Cited

Section 438 of the Code of Criminal ProcedureSections 406, 420 read with Section 34 of the Indian Penal Code

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that there was no absolute sale of the property by the 1st accused; the instrument executed at the time of financial arrangements functioned as a security document, and the petitioners retained possession and enjoyment of the property. They cite receipts from 2012–2017 showing loan repayments and contend that the loan liability was discharged by the 1st accused; Annexure-A1 and the plaint in O.S. No.566/2018 are relied upon to support these assertions and they offer full cooperation in the investigation as a prerequisite for pre-arrest bail.

Contentions of Respondents

The State opposes bail, arguing that even after the sale deed, the petitioners, in connivance with Co-operative Bank officials, mortgaged the same property and availed loans, thereby increasing liability on the defacto complainant and amounting to breach of trust and cheating. The prosecution asserts custodial interrogation is necessary for a fair inquiry and that granting bail at this stage would hamper the investigation.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 20[TH] DAY OF FEBRUARY 2023/1ST PHALGUNA, 1944 BAIL APPL. NO.832 OF 2023** ## **CRIME NO.33/2023 OF CHENGAMANAD POLICE STATION** ## **PETITIONERS:** 1 K.V.ANTONY, AGED 53 YEARS, KAITHARATH HOUSE, KUTHIATHODU KARA, KUTHIATHODU.P.O., PUTHENVELIKKARA VILLAGE PARAVUR TALUK, ERNAKULAM DISTRICT, PIN – 683594. 2 K.V.JOSE, AGED 58 YEARS, S/O.K.O.VARKEY, KAITHARATH HOUSE, KUTHIATHODU KARA, KUTHIATHODU.P.O., PUTHENVELIKKARA VILLAGE, PARAVUR TALUK., PIN – 683594. 3 K.V.THOMAS, AGED 61 YEARS, S/O.K.O.VARKEY, KAITHARATH HOUSE, KUTHIATHODU KARA, KUTHIATHODU.P.O., PUTHENVELIKKARA VILLAGE, PARAVUR TALUK., PIN – 683594. BY ADV. V.RAJENDRAN (PERUMBAVOOR) ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 STATION HOUSE OFFICER, CHENGAMANAD POLICE STATION, CHENGAMANAD.P.O., ERNAKULAM DISTRICT, PIN – 683578. 3 JOY, AGED 58 YEARS, PARAKKUNNATHUKUDY HOUSE, KURICHILAKKODE KARA, KOOVAPPADY, KODANAD.P.O., ERNAKULAM DISTRICT., PIN – 683544. BY ADV. SRI.P.G.MANU, SR.PUBLIC PROSECUTOR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE 2 ## **B.A. No.832 of 2023** FOLLOWING: **B.A. No.832 of 2023** 3 ## **O R D E R** ## **Dated, this the 20[th] February, 2023** This is a petition filed under Section 438 of the Code of Criminal Procedure, by the petitioners, who are arrayed as accused Nos.1 to 3 in Crime No.33/2023 of Chengamanad Police Station, where they alleged to have committed offences punishable under Sections 406, 420, read with Section 34 of Indian Penal Code and the petitioners seek anticipatory bail. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. Perused the relevant documents placed by the learned Public Prosecutor form part of the Case Diary and the report of the Investigating Officer. 4. The prosecution allegation is that on 14.09.2012, the 1[st] accused sold 25 cents of land in the name of defacto complainant by 4 ## **B.A. No.832 of 2023** executing a registered sale deed. At the time of execution of sale deed, it was informed that there was liability to Ayroor Co-operative Society and the same would be discharged by the 1[st] accused and the title deed would be transferred thereafter. Now, the case of the defacto complainant is that again on closure of the loan availed during the year 2010, the petitioners herein with connivance of the officials of the Co-operative Bank, forged documents and availed loan by creating Gahan over the same property and, thereby, cheated the defacto complainant. This is the premise on which the prosecution alleges commission of the above offences. 5. While pressing anticipatory bail to accused Nos.1 to 3, it is submitted by the learned counsel for the petitioners that there was no absolute sale of the so called property by the 1[st] accused. It is submitted further ## **B.A. No.832 of 2023** 5 that, when the 1[st] accused and other accused availed financial assistance from the defacto complainant, a security document styling the same as 'sale deed', was executed. Even after, execution of the document, the petitioners retained the possession and enjoyment of the property. Further, he submitted that accordingly, ignoring the said document, the loan was renewed and the petitioners have been repaying the same. In order to buttress this contention, the learned counsel for the petitioners has placed original receipts from 2012 to 2017, showing period of repayment of the loan amount under the head 'Special Loan', though one among the receipt, so produced, refers 'gold loan'. According to the learned counsel, since the arrangement between the defacto complainant and the 1[st] accused in the matter of execution of the so called sale deed is with intention to treat the same as a 6 ## **B.A. No.832 of 2023** security document, the petitioners have been continuing payment of the loan liability and a substantial amount towards the loan already been paid. The learned counsel also submitted that if there was an absolute sale, the petitioners should not have repaid a substantial portion of the loan amount. 6. The learned counsel also placed reliance on the averments in the plaint in O.S. No.566/2018 produced as Annexure-A1 in this case, pointing out the factual aspects as espoused and the learned counsel for the petitioners offered Co-operation in the matter of investigation as a prerequisite for granting pre-arrest bail. 7. The learned Public Prosecutor opposed the bail and submitted that after execution of the sale deed also, the petitioners herein at the connivance of the officials of the Cooperative Society, mortgaged the same property 7 ## **B.A. No.832 of 2023** and availed loan and, thereby the property given in favour of the defacto complainant was encumbered further fastening liability on the defacto complainant and the same is nothing but breach of trust as well as cheating. 8. Going by Annexure-A1, the copy of complaint in O.S.No.566/2018 filed by the defacto complainant as plaintiff, before the Munsiff Court, Paravur, seeking the relief of permanent injunction restraining the defendants from proceeding against the property to realise the loan, subsequently availed after execution of the sale deed in favour of the defacto complainant and also return of sale deed No.1622/2003 in favour of the plantiff. In paragraph No.4, it has been stated that at the time of execution of the sale deed itself, loan liability to the tune of Rs.10 lakh was disclosed with assurance to clear the same by the 1[st] accused himself. Thereafter, the 1[st] 8 ## **B.A. No.832 of 2023** accused cleared the liability, during the year 2012 itself, but when the defacto complainant demanded the original sale deed during 2012, it was noticed that the accused herein again availed loan by mortgaging the same property and on this premise that the above suit was filed during the year 2018. This crime was registered on 17.01.2023 at 18:40 hrs, after a gap of five years, after knowing the said facts, alleging commission of the above offences. 9. Though, there is no reason to doubt the genuineness of the sale deed in existence, _prima facie_ , payment of loan amount by the petitioners during the period in between 2012 to 2017 gives foundation to the contention raised by the petitioners, though the same is a matter of evidence to be decided in the suit by the civil court. **==> picture [393 x 13] intentionally omitted <==** ## **B.A. No.832 of 2023** 9 discussed, custodial interrogation of the petitioners is not necessary and effective investigation can be materialised by directing the petitioners to surrender before the Investigating Officer and to subject themselves for interrogation for the purpose of investigation. 11. In the result, the anticipatory bail plea at the instance of the petitioners 1 to 3/accused Nos.1 to 3, is allowed and they can be enlarged on bail on the following conditions: i. Accused Nos.1 to 3/petitioners 1 to 3 shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioners. In the event of their arrest, the Investigating Officer shall produce the petitioners 1 to 3 before the jurisdictional court on the date of arrest itself. ## **B.A. No.832 of 2023** ||10| |---|---| |ii.|On such production, the| ||jurisdictional court shall| ||release them on bail, on| ||executing bond for Rs.30,000/-| ||(Rupees thirty thousand only)| ||each, by themselves and by two| ||solvent sureties, each for the| ||like sum to the satisfaction of| ||the jurisdictional court.| |iii.|Petitioners 1 to 3 shall co-| ||operate with investigation and| ||shall be made available for| ||interrogation and for the purpose| ||of investigation, as and when the| ||Investigating Officer directs so.| |iv.|Petitioners 1 to 3 shall not,| ||intimidate the witnesses or| ||interfere with the investigation| ||in any manner.| |v.|Petitioners 1 to 3 shall not| ||commit any offence during| ||currency of this bail and any| ||such involvement is a reason to| ||cancel the bail hereby granted.| Sd/- ## **A.BADHARUDEEN, JUDGE.** ww 11 ## **B.A. No.832 of 2023** ## **APPENDIX OF BAIL APPL. 832/2023** PETITIONERS' ANNEXURES: |ANNEXURE A1|TRUE COPY OF PLAINT IN O.S.566/18 OF| |---|---| ||MUNSIFF'S COURT ,PARAVUR DATED 5.11.18.| |ANNEXURE A2|TRUE COPY OF WRITTEN STATEMENT FILED BY| ||THE DEFENDANT IN ANNEXURE A1 SUIT ON| ||9.12.19.| |ANNEXURE A3|TRUE COPY OF PLAINT IN O.S.114/19 OF| ||MUNSIFF'S COURT, PARAVUR DATED 23.2.19.| |ANNEXURE A4|TRUE COPY OF WRITTEN STATEMENT OF 1ST| ||DEFENDANT IN O.S.114/19 DATED 15.10.19.| |ANNEXURE A5|TRUE COPY OF WRITTEN STATEMENT OF 2ND| ||DEFENDANT IN O.S.114/19 DATED 9.3.20.| |ANNEXURE A6|TRUE COPY OF PLAINT IN O.S.185/19 OF| ||MUNSIFF'S COURT, PARAVUR DATED 30.3.19.| |ANNEXURE A7|TRUE COPY OF WRITTEN STATEMENT FILED BY| ||PETITIONERS 1 & 2 IN O.S.185/19 ON| ||1.10.19.| |ANNEXURE A8|TRUE COPY OF RECEIPT DATED 27.11.18| ||ISSUED FROM AIYROOR SERVICE CO-OPERATIVE| ||BANK LTD. TO K.V.JOSE (2ND PETITIONER)| ||(LOAN SUSPENSE).|