Muhammed Shahir v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2023-05-31
Court Decision / Holding: The petition stands allowed. The petitioner is released on regular bail on the following conditions: (i) bond for Rs. 50,000 with two solvent sureties; (ii) not to intimidate witnesses or tamper with evidence; (iii) to cooperate with the investigation and be available for trial; (iv) to appear before the IO on all Mondays between 9 am and 10 am for two months; (v) not to induce any person connected with the case; (vi) to surrender the passport before the Jurisdictional Court on the date of execution of the bail bond or within seven days, with a further affidavit if no passport is available; (vii) not to leave India without court permission; (viii) not to involve in any other offence during the currency of bail. The defacto complainant is free to pursue legal remedies under law, including civil action, to recover the money or property."
Final Disposition: Bail Granted

Parties to the Case

Appellants / Petitioners

MUHAMMED SHAHIR

Respondents

STATE OF KERALA
SHAHUL HAMEED

Legal Representation & Advocates

Counsels for Petitioners

• Praveen K. Joy

Counsels for Respondents

• Public Prosecutor, High Court of Kerala
• M. Vivek
• P G Manu – Sr PP

Case Synopsis & Summary

This is a regular bail application (B.A. No. 4004 of 2023) by the sole accused in Crime No. 301 of 2023 of Ochira Police Station, Kollam, under Section 439 CrPC. The prosecution alleges that the accused obtained Rs. 20,50,000 from the defacto complainant based on an agreement to sell about 32.6 acres in Erattupetta, allegedly backed by a registered power of attorney executed by the son of the accused. The terms envisaged repayment and execution of the sale deed, but the sale deed could not be executed and the money remained unpaid. The offences alleged are 420 (cheating), 406 (breach of trust), and 471 read with 34 IPC. The defense contends that Annexure 2 governs repayment and enforcement, implying civil remedy rather than criminal liability, and asserts the power of attorney was genuine. The prosecution contends the power of attorney was forged and cites other connected crimes (Crimes 424/2022 and 666/2022) to indicate a pattern of serious offences and risk of flight, given the accused has multiple criminal cases. The court, after considering the case diary and progress of investigation, concludes that continued detention is unnecessary and grants regular bail on conditions, including bond, two sureties, passport surrender, non-interference with witnesses, cooperation with investigation and trial, appearance on specific Mondays, and prohibitions on leaving the country without court permission. The defacto complainant remains free to pursue remedies under law, including civil action, to recover the money or property."

Provisions of Law Cited

Section 439 of CrPCSections 420, 406 and 471 read with Section 34 IPC

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner submitted that Annexure 2 contains the stipulations for repayment and enforcement of the agreement, and that the defacto complainant should pursue civil remedies. The power of attorney in Annexure 2 is argued to be genuinely executed, and the petitioner has already faced custody only for a short period. Considering the investigation is in a preliminary stage and that the accused has other anticipatory-bail relief in related matters, continued detention is unnecessary; hence regular bail with appropriate conditions may be granted.

Contentions of Respondents

The Public Prosecutor contended that the power of attorney relied upon by the accused is forged, with proceedings in related crimes and earlier bail orders in other cases. There is a risk of flight given the gravity of allegations and the ongoing investigation. The court should balance the need to protect the investigation against the accused’s liberty, especially since three crimes are involved and the matter is at a primitive stage of 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** **WEDNESDAY, THE 31[ST] DAY OF MAY 2023 / 10TH JYAISHTA, 1945 BAIL APPL. NO. 4004 OF 2023** **CRIME NO.301 OF 2023 OF OCHIRA POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED NO.1:** **MUHAMMED SHAHIR AGED 63 YEARS, S/O ABDUL HAMEED, THEKKEKARAYIL PUTHIPARAMBIL VEETIL, ERATTUPETTA VILLAGE, MEENACHAL TALUK KOTTAYAM-686121, PIN - 686121 BY ADV PRAVEEN K. JOY** ## **RESPONDENTS/STATE:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA,REP. BY S.I OF POLICE,**| ||**OCHIRA POLICE STATION, PIN - 682031**| |**2**|**SHAHUL HAMEED**| ||**PUTHENPURAYIL (H), CHANGANKULANGARA, OCHIRA,**| ||**KOLLAM, PIN – 690526**| ||**BY ADVS.**| ||**PUBLIC PROSECUTOR**| ||**M.VIVEK**| ||**P G MANU – SR PP**| **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **31.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No. 4004 of 2023 2 ## **ORDER** ## **Dated this the 31[st] day of May, 2023** This is an application for regular bail filed by the sole accused in Crime No.301/2023 of Ochira Police Station, Kollam under Section 439 of the Code of Criminal Procedure. 2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the defacto complainant and the learned Public Prosecutor. Perused the relevant materials form part of the case diary, placed by the learned Public Prosecutor. 3. The prosecution case is that, based on an agreement entered into between the defacto complainant and the accused, the accused obtained Rs.20,50,000/- from the defacto complainant with undertaking to repay the same by offering property having an extend of 32.6 acres in resurvey No.130/7 in Block No. 47 of Erattupetta Village, belonged to the son of the accused, on the promise that, the son of the accused authorized the accused to do so on the basis of a registered power of attorney. Now the case is that, the amount was not repaid nor B.A.No. 4004 of 2023 3 the agreement to execute sale deed in favour of the defacto complainant as agreed could not be performed by the accused. This is the base on which the prosecution alleges commission of offences punishable under Sections 420, 406 and 471 r/w 34 of IPC. 4. The learned counsel for the petitioner would submit that, as per Annexure.2 agreement there are stipulations to deal with the matter in respect of repayment of the amount or execution of the sale deed as agreed. Therefore, the defacto complainant should have opted the remedy by filing a civil suit to address his grievance. It is submitted that, since the petitioner has been in custody from 12.05.2023, he may be released on regular bail, taking note of the progress of the investigation. 5. Whereas it is submitted by the learned Public Prosecutor that, the power of attorney which was executed by the son of the accused in favour of the accused is alleged to be a forged one and for which another crime was registered at the instance of the son of the accused vide Crime No. 424 of 2022. It is also submitted that, apart from these two crimes, Crime B.A.No. 4004 of 2023 4 No. 666 of 2022 also was registered wherein the allegations of the prosecution is that, offering 12 acre 44 cents of property in another survey number, the same petitioner borrowed huge amount from the defacto complainant in the said crime and misappropriated the money. The learned Public Prosecutor highlighted the primitive stage of investigation, while opposing grant of bail to the accused apart from the fact that, this is the 3[rd] crime registered against the accused/petitioner. 6. The learned counsel for the defacto complainant submitted that, in view of the contention raised by the son of the accused in Crime No. 424 of 2022, the enforcement of the agreement in between the defacto complainant and the accused herein is subject to the genuineness of the power of attorney and now the defacto complainant is in trouble in the matter of getting back the money or to execute the sale deed. Therefore, he insisted for some measures to get back the money along with interest, while opposing grant of regular bail to the accused. It is submitted further that, if the accused would be released on bail, the defacto complainant would be in trouble. 7. On perusal of the case diary, money was transferred B.A.No. 4004 of 2023 5 as alleged by the prosecution in the name of the accused based on Annexure.2 agreement which stipulates measures to get back the money or the property. At the same time, now the son of the accused, who had executed the power of attorney which was relied on by the accused in Annexure.2, is alleged to be a forged one, for which a seperate crime also was registered. Similarly, another crime of this nature registered against the petitioner where another property was offered as security in similar way. 8. It is pointed out by the learned counsel for the petitioner that, the petitioner was granted anticipatory bail in other two crimes by the Sessions Court, Kottayam, taking note of the fact that, power of attorney which was disputed by the son of the accused was one registered and executed as early, i.e. before 16 years. Therefore, the challenge at the instance of the son is without any sufficient materials. Therefore, the petitioner executed Annexure.2 agreement acting on a genuinely executed power of attorney. Accordingly, the property and the covenants in Annexure.2 agreement shall be enforced in accordance with law. B.A.No. 4004 of 2023 6 9. At present, three crimes were registered against the petitioner and in two crimes he was granted anticipatory bail. In the present crime, he has been in custody from 12.05.2023 and the allegations emerges from Annexure.2 agreement. No doubt, the defacto complainant is at liberty to take legal remedy based on Annexure.2 agreement to get back the money in accordance with law. Since the investigation has achieved much progress, further detention of the petitioner for the purpose of investigation is not necessary. Therefore, I am inclined to enlarge the petitioner on bail on conditions and one among the conditions is that, the petitioner shall surrender his passport before the Jurisdictional Court on the date of execution of the bail bond or within seven days therefrom, with special permission of the Jurisdictional Court. If the petitioner has no passport, he shall file an affidavit to that effect, instead of surrendering passport, within the stipulated time. It is specifically ordered that, the petitioner shall not leave India without permission of the Jurisdictional Court, since it is submitted by the learned counsel for the defacto complainant that, there is likelihood of flee if the petitioner would be released on bail. B.A.No. 4004 of 2023 7 Therefore, this petition stands allowed. The petitioner is released on regular bail on conditions: i. The petitioner shall be released on bail on executing a 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. ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial. iii. The petitioner shall appear before the Investigating Officer as and when directed, apart from appearing before the Investigating Officer on all Mondays between 9 am and 10 am, for a period of two months. 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 before the Jurisdictional Court on the date of execution of the bail B.A.No. 4004 of 2023 8 bond or within seven days therefrom, with special permission of the Jurisdictional Court. If the petitioner has no passport, he shall file an affidavit to that effect, instead of surrendering passport, within the stipulated time. vi. The petitioner shall not involve in any other offence during the currency of bail and any such event, if reported, or came to the notice of this court, the same alone shall be a reason to cancel the bail hereby granted. **Sd/-** **A. BADHARUDEEN JUDGE** SK