Mukesh Gopinath & Sheela S v. State of Kerala (Bail Applications under Section 438 Cr.P.C. in Crime No.2447/2020, Adoor Police Station, Pathanamthitta)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942 Bail Appl.No.6136 OF 2020** **CRIME NO.2447/2020 OF Adoor Police Station , Pathanamthitta** |**PETITIONER/S**<br>**:**|**PETITIONER/S**<br>**:**|**PETITIONER/S**<br>**:**| |---|---|---| |||**MUKESH GOPINATH**| |||**AGED 30 YEARS,**| |||**VIRANICKAL VEEDU, MALANKARA,**| |||**ADOOR P.O., PATHANAMTHITTA – 689502.**| |||**BY ADV. SRI.K.V.ANIL KUMAR**| |**RESPONDENT/S**<br>**:**||| |**1**||**STATE OF KERALA**| |||**REPRESENTED BY PUBLIC PROSECUTOR,**| |||**HIGH COURT OF KERALA, ERNAKULAM – 682031.**| |**2**||**RADHAKRISHNA KURUP**| |||**AGED 51 YEARS,**| |||**ADMINISTRATIVE CONVENER,**| |||**PAZHAKULAM SERVICE CO-OPERATIVE BANK LTD.,**| |||**ADOOR, PATHANAMTHITTA DISTRICT.**| |||**R1 BY SRI.SANTHOSH PETER SR PP**| |||**R2 BY ADV. SRI.K.SHAJ**| |**OTHER PRESENT**<br>**:**||| **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.11.2020, ALONG WITH Bail Appl.6662/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _Bail Appl.Nos.6136 & 6662 OF 2020_ 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942** **Bail Appl.No.6662 OF 2020** **CRIME NO.2447/2020 OF Adoor Police Station , Pathanamthitta** ## **PETITIONER/S:** **SHEELA.S AGED 48 YEARS, WIFE OF JAYAKUMAR, SOPANAM, MITHRAPURAM, PARANTHAL, PERINGANADU, ADOOR, PATHANAMTHITTA – 689501.** **BY ADVS. SRI.T.K.BIJU (MANJINIKARA) SMT.ANNIE M.ABRAHAM** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682031. 2* RADHAKRISHNA KURUP, AGED 51 YEARS, ADMINISTRATIVE CONVENER, PAZHAKULAM SERVICE COOPERATIVE BANK LTD., ADOOR, PATHANAMTHITTA DISTRICT - 689502.** ***IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 28.10.2020 IN CRL.MA 1/2020.** **R1 BY SRI.SANTHOSH PETER, SR PP R2 BY ADV. SRI.K.SHAJ** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.11.2020, ALONG WITH Bail Appl.6136/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _Bail Appl.Nos.6136 & 6662 OF 2020_ 3 ## **COMMON ORDER** **[ Bail Appl.6136/2020, Bail Appl.6662/2020 ] Dated this the 19th day of November 2020** Applications for anticipatory bail under Section 438 of the Cr.P.C. 2. The applicant in B.A.No.6662/2020 is the 1st accused; while the applicant in B.A.No.6136/2020 is the 2nd accused in Crime No.2447/2020 of Adoor Police Station for having allegedly committed the offences punishable under Sections 465, 471, 408, 417 and 420 read with Section 34 of the I.P.C. 3. The prosecution case, in brief, is this: Between the period from 2017 up to February 2020, the applicants have allegedly and in furtherance of common intention, as the Branch Manager and Cashier-cum-Clerk respectively of the Pazhakulam Service Co-operative Bank Ltd., High School Junction Branch, misappropriated a sum of Rs.44,47,994/- by forging false documents and thereby committed the aforesaid offence. _Bail Appl.Nos.6136 & 6662 OF 2020_ 4 4. The 1st accused puts the blame on the 2nd accused; while the 2nd accused would state that he is not involved in the alleged crime. Both the accused/ applicants seek anticipatory bail stating that they are innocent and the allegations are all untrue. 5. Heard the learned Counsel for the applicants, the learned Public Prosecutor and the learned Counsel for the de facto complainant. 6. The learned Public Prosecutor as also the learned Counsel for the de facto complainant has produced a number of documents to show the modus operandi adopted by the applicants to swindle money. They initially started by withdrawing small amounts up to Rs.50,000/- and just before the financial year ended they remitted that amount. Nothing was therefore disclosed during the audit that took place at the end of the year. Subsequently, they started venturing into committing graver offences and started withdrawing large amounts. Because of the COVID-19 pandemic they were not in a position to remit the amount and _Bail Appl.Nos.6136 & 6662 OF 2020_ 5 consequently their involvement in the crime was untrammelled. A complaint was filed and it is seen that they have concocted documents even like fixed deposit receipts to protect themselves and to conceal their acts of withdrawing money from the Bank. Offences committed by the employees of the Bank, which affects the ultimate credibility of the institution, is a very grave one and cannot be ignored. When the criminal breach of trust is committed by a Clerk or a servant, the gravity is enhanced. Because their acts would ultimately affect the credibility of the Bank and the customers would lose faith in the institution. Under the circumstances, any sort of misappropriation by Clerks or employees of the Banks cannot be seen lightly. The applicants have allegedly misappropriated amounts from the Bank being in charge of the Branch as the Manager and as Clerk-cum-Cashier. The 1st accused would put the entire blame on the 2nd accused for the reason that all the concoctions are made in his handwriting. He was the Clerk-cum-Cashier who made the _Bail Appl.Nos.6136 & 6662 OF 2020_ 6 entries in the books of accounts. She has therefore distanced herself from the alleged offence committed by the 2nd accused. The learned Public Prosecutor and the learned Counsel for the defacto complainant would point out that it would not have been possible for the 2nd accused alone to have swindled this sort of money without the tacit or express consent of the Manager, 1st accused. The learned Counsel appearing for the 1st accused would submits that the internal enquiry which was conducted as also found fault with the Secretary for not having been vigilant with the affairs and it is stated that surprisingly he has not been made an accused. According to the learned Counsel he has been exonerated for political reasons. The learned Public Prosecutor as also the learned Counsel for the defacto complainant point out that subsequent investigation has revealed that the offence committed by the applicants is of larger proportion and more amounts are involved than what is mentioned in the F.I.R. It is only by subjecting the applications to custodial interrogation _Bail Appl.Nos.6136 & 6662 OF 2020_ 7 that the intricacies of the manner in which they have swindled money would be unravelled. It is stated that the applicants have utilised the ill-gotten wealth by purchasing vehicles properties elsewhere and there is every possibility that they are striving to transfer the ill-gotten assets to Tamil Nadu so that they become out of reach to the arms of law. 7. Considering the entire facts and circumstances of this case, I find that the Manager of the Bank as also the Clerk-cum-Cashier, who was maintaining the accounts of the Bank cannot distance themselves from what was happening to the accounts of the Bank. Large amounts were withdrawn, a portion of that was remitted but most of it was misappropriated. To find out the exact proportion of the swindling by the applicants custodial interrogation is indispensable. Under the circumstances, I find that neither of the accused can claim to be disculpated. The de facto complainant and the Public Prosecutor rely on the admissions made by the 2nd accused regarding the misappropriation of the _Bail Appl.Nos.6136 & 6662 OF 2020_ 8 amount. He has undertaken to repay the amount which was allegedly misappropriated by him. The learned Counsel for the 2nd accused has submitted that those admissions were obtained by the defacto complainant and the prosecution under coercion and duress, and hence it is not admissible. However, the veracity of those documents can be examined during the investigation. The fact remains that the applicants have in furtherance of common intention, swindled a large sum of amount belonging to the clients, who have deposited their hardened money in the Bank. They are definitely not entitled to the extraordinary relief of anticipatory bail after having committed an economic offence of grave nature. I would rely on the decision of the Hon’ble Supreme Court in _**Chidambaram P. v. CBI, AIR 2019 SC 5272**_ and hold that the applicants are not entitled to anticipatory bail. They are therefore directed to surrender before the investigating officer within two weeks. In the event of their being arrested, after interrogation and recovery if any, they _Bail Appl.Nos.6136 & 6662 OF 2020_ 9 shall be produced before the jurisdictional court, where they are liberty to apply for regular bail, which shall be considered and disposed of preferably on the very same day. **Sd/-** **ASHOK MENON** _dkr_ **JUDGE**