Moosa Kunikotta Moideen v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023/20TH MAGHA, 1944 BAIL APPL. NO.1064 OF 2023** **CRIME NO.37/2023 OF KEEZHVAIPUR POLICE STATION,** ## **PATHANAMTHITTA DISTRICT** ## **PETITIONER/3rd ACCUSED:** MOOSA KUNIKOTTA MOIDEEN, AGED 59 YEARS, S/O.MOIDEENKUNJU, SHEREEF MANZIL ADKA VEEDU, ADKA, BANDIYODU P.O, MANGALPADI VILLAGE, UPPALA TALUK, KASARAGOD DISTRICT., PIN – 671322. BY ADVS. V.MAHENDRANATH P.T.SHEEJISH ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN – 682031. BY ADV. SRI. P.G.MANU, SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A. No.1064 of 2023** 2 ## **O R D E R** ## **Dated, this the 09[th] February, 2023** This is a petition filed under Section 439 of the Code of Criminal Procedure, 1973 and the petitioner is the 3[rd] accused in crime No.37/2022 of Keezhvaipur Police Station, Pathanamthitta, where he alleged to have committed offences punishable under Sections 420 read with 34 of Indian Penal Code, and the petitioner seeks regular 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 forming part of the Case Diary. 4. The prosecution allegation is that accused Nos.1 to 3 dishonestly induced the defacto complainant to deliver Rs.5 lakh on the assurance that they would arrange a job of 3 ## **B.A. No.1064 of 2023** store keeper to the defacto complainant in Hong Kong. Accordingly, the 2[nd] accused, Moosa received Rs.1,50,000/- in his bank account, which was transferred by the defacto complainant from his bank account. The further case is that thereafter, the defacto complainant was taken to Hong Kong and the 1[st] accused received Rs.3,50,000/- more by way of US Dollar. This is the premise on which the prosecution alleges commission of the above offences. 5. While pressing for regular bail to the petitioner, who has been in custody from 13.01.2023, it is pointed out by the learned counsel for the petitioner that the petitioner is innocent and he _bonafidely_ introduced the 1[st] and 2[nd] accused on the belief that they could arrange the job. At the same time, the learned counsel for the petitioner would submit that no amount received by the 3[rd] accused and Rs.1,50,000/- was received by the 2[nd] accused and remaining amount was received by the 1[st] accused. ## **B.A. No.1064 of 2023** 4 Highlighting his custody and his status as that of a first time offence, the learned counsel sought reliefs for the petitioner. 6. Whereas, the learned Public Prosecutor strongly opposed the bail on the submission that Rs.1,50,000/- was received by the petitioner herein and on investigation, the said aspect was revealed. According to the learned Public Prosecutor, as the allegations are serious, bail cannot be granted at the initial stage of investigation. 7. On perusal of the FIS and relevant records forming part of Case Diary, entrustment of Rs.1,50,000/- to the 2[nd] accused through bank transaction and subsequent entrustment of Rs.3,50,000/- by way of US Dollars to the 1[st] accused believing the promise made by the accused to the effect that they would secure the job of store keeper to the defacto complainant in Hong Kong could be gathered. Even going by the submission made by the learned Public 5 ## **B.A. No.1064 of 2023** Prosecutor, it could be gathered that either the petitioner or the 2[nd] accused borrowed Rs.1,50,000/- by bank transaction. Further that the petitioner was brought to Hong Kong and, thereafter, Rs.3,50,000/- also was obtained by the 1[st] accused, but job was denied. Thus the complicity of the petitioner is not on par with the other accused. 8. Taking note of the fact that the petitioner has been in custody for the last 29 days, where investigation substantially improved, I am inclined to grant regular bail to the petitioner. 9. Accordingly, this petition stands allowed and the petitioner is enlarged on bail on the following conditions: _i. The accused/petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Jurisdictional court, concerned._ ## **B.A. No.1064 of 2023** 6 _ii. The accused/petitioner shall not intimidate the witnesses or tamper with evidence. iii. The accused/petitioner shall cooperate with the investigation and shall be available for trial. He shall appear before the Investigating Officer on every Tuesday in between 9 a.m and 12 noon, from the date of release on bail, for a period of two months or till the final report will be filed, whichever occur first._ _iv. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police officer._ _v. The petitioner shall surrender his passport, if any, within 7 days from the date of his release, before the trial court. If he has no passport, he shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter. vi.The petitioner shall not involve in any other offence during the_ ## **B.A. No.1064 of 2023** 7 _currency of bail and any such event, if reported to came to the notice of this court, the same shall be a reason to cancel the bail hereby granted._ Sd/- ## **A.BADHARUDEEN, JUDGE.** ww 8 ## **B.A. No.1064 of 2023** ## **APPENDIX OF BAIL APPL. 1064/2023** PETITIONER'S ANNEXURES: ANNEXURE A1 THE CITIZEN COPY OF THE FIR IN CRIME NO. 37/2023 OF KEEZHVAIPUR POLICE STATION. ANNEXURE2 FREECOPY OF THE ORDER IN CRL.MP. NO. 471/2023 DATED 30.01.2023 PASSED BY THE COURT OF JUDICIAL MAGISTRATE OF THE FIRST CLASS, THIRUVALLA.