Muhammed Ashraf Thavakkal and Muhammed Sageer v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 2139 OF 2024` ``` CRIME NO.232/2024 OF HOSDURG POLICE STATION, KASARGOD ``` ## `PETITIONERS:` ``` 1MUHAMMED ASHRAF THAVAKKAL, AGED 64 YEARS SON OF HAJI K. ASSAINAR, MANAGING DIRECTOR, AUTOGRADE INDUSTRIES PVT. LTD., THRIKKAKKARA, KOCHI, PIN – 682021 2MUHAMMED SAGEER, AGED 63 YEARS SON OF M.S.BAVA (LATE), GENERAL MANAGER, AUTOGRADE INDUSTRIES PVT. LTD., INDO CARTONS BUILDINGS, ATHANI ROAD, THRIKKAKKARA, ERNAKULAM, PIN – 682021 ``` ``` BY ADVS.T.S.HARIKUMAR P.B.SAHASRANAMAN VISHAKHA J. ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2NIZAMUDEEN, AGED 30 YEARS S/O. MUHAMMED KUNHI, RAHMATH MANZIL, FALAH NAGAR, OZHINJAVALAPPU, KASARGODE. -671314 IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED 23/04/2024 IN CRL. MA. 1/2024. ``` ``` BY ADVS.AASHIQUE AKTHAR HAJJIGOTHI AMINA AKTHAR ``` ## `OTHER PRESENT:` ## `SR PP SRI C SHRITHWIK` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.2139/2024_ _-:2:-_ _Dated this the 23[rd] day of May,2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail. 2. The petitioners are the accused in Crime No.232/2024 of the Hosdurg Police Station, Kasaragod, registered against them for allegedly committing the offences punishable under Sections 420, 405 & 506(i) read with Section 34 of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: the accused Nos.1 & 2 – the Managing Director and General Manager of Autograde Industries Private Ltd.– had promised the de-facto complainant a franchisee for the retail sale of Adblue, a chemical used in diesel vehicles, at Angamaly, Ernakulam, and received an amount of Rs.7,50,000/- between the period from 20.07.2022 and 09.08.2022. However, the accused did _B.A.No.2139/2024_ _-:3:-_ not give the de-facto complainant the franchisee as assured or return the money. Thus, the accused have committed the above offences. 3. Heard; Sri. T.S. Harikumar, the learned counsel appearing for the petitioners; Sri. C. S. Hrithwik, the learned Senior Public Prosecutor and Sri. Aashique Akthar Hajjigothi, the learned counsel appearing for the additional second respondent/de-facto complainant 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. The petitioners have given the franchisee to the de-facto complainant, as assured by them. Moreover, the transaction took place as early as in the year 2022, and the present crime has only been registered in the year 2024. The transaction is purely civil in nature. The petitioners’ custodial _B.A.No.2139/2024_ ## _-:4:-_ interrogation is not necessary, and no recovery is to be effected. Hence, the petitioners are entitled to an order of pre-arrest bail. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation in the case is in progress. If the petitioners are granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 6. The learned counsel for the second respondent also submitted that the petitioners have cheated the de-facto complainant by not giving him the franchisee. If the petitioners are granted an order of pre-arrest bail, they would tamper with the evidence. Hence, the application may be dismissed. 7. On an evaluation of the materials on record, it can be gathered that the prosecution allegation against the petitioners is that even though they received an amount of Rs.7,50,000/- from the de-facto _B.A.No.2139/2024_ _-:5:-_ complainant, between the period from 20.07.2022 and 09.08.2022, they failed to give a franchisee to the de-facto complainant. 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 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 _B.A.No.2139/2024_ _-:6:-_ 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 reiterated that a mere breach of contract will not constitute the offence of cheating. 12. The parameters to grant an order of pre-arrest bail have been succinctly laid down by the Hon’ble Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(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_ _B.A.No.2139/2024_ _-:7:-_ _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;_ _(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly_ _B.A.No.2139/2024_ _-:8:-_ _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, the materials placed on record and the law referred to in the afore cited decisions, I am prima-facie satisfied that the offences alleged against the petitioners are more civil in nature. However, that is a matter to be investigated and decided at the time of trial. But, I _B.A.No.2139/2024_ ## _-:9:-_ hold that the petitioners’ custodial interrogation is not necessary. Hence, I am of the view that the petitioners have made out exceptional grounds to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. In the result, the application is allowed subject to the following conditions: - (i) The petitioners are directed to surrender before the Investigating Officer within ten days from today. - (ii) In the event of the petitioners’ arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. - (iii) On such production, the jurisdictional court shall release the petitioners on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties for the like amount each, to the satisfaction of the _B.A.No.2139/2024_ ## _-:10:-_ ## jurisdictional court; - (iv) The petitioners shall co-operate with the investigation and make themselves available for interrogation and for the purpose of investigation as and when directed by the Investigating Officer; - (v) The petitioners shall not intimidate the witnesses or interfere with the investigation in any manner; - (vi) The petitioners 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. - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. ## _B.A.No.2139/2024_ ## _-:11:-_ - (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]. - (ix) 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/23.05.24 //True copy// P.A. To Judge