Mukesh P.M. v. State of Kerala and Addl. R3 (Manuraj)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 2419 OF 2024 ``` ``` CRIME NO.1447/2023 OF ALAPPUZHA SOUTH POLICE STATION, ALAPPUZHA AGAINST THE ORDER DATED IN CRMP NO.581 OF 2024 OF DISTRICT & SESSIONS COURT, ALAPPUZHA ``` ``` PETITIONER/ACCUSED: ``` ``` MUKESH P.M, AGED 36 YEARS S/O MURUKAN,PUTHUPARAMBIL HOUSE VAZHAPPALLI VILLAGE,CHANGANASSERY MUNICIPALITY, CHANGANASSERY, KOTTAYAM DISTRICT, PIN - 686101 ``` ``` BY ADVS. S.SHANAVAS KHAN S.INDU KALA G.NAMBIAR ``` ## **`RESPONDENTS / COMPLAINANT:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER, ALAPPUZHA SOUTH POLICE STATION, ALAPPUZHA, PIN - 688001`** ``` 3 MANURAJ , S/O SABURAJ,UMIKAPPAYIL , SANATHANAPURAM P.O. PAZHAVEEDU VILLAGE,AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT-688002, IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 27/05/2024 IN CRL.MA. 1/2024. ``` ## **`BY ADV R.KRISHNAKUMAR (CHERTHALA)`** ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.2419 of 2024 -:2:- Dated this the 4[th] day of June, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.1447/2023 of the Alappuzha South Police Station, Alappuzha, registered against him for allegedly committing the offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860. 3. The crux of the prosecution case is that: the third respondent/ defacto complainant and the accused were friends. During their period of friendship, they had purchased a JCB bearing registration No. KL 55 T 361 in the month of November 2016, in the name of the defacto complainant. After the purchase of the JCB, the defacto complainant secured an employment -:3:- ## B.A.No.2419 of 2024 abroad. Accordingly, he entrusted the JCB to the accused, who agreed to clear the loan amount with the hire-purchase company. Believing the assurance of the accused, the defato complainant entrusted the vehicle to the accused. However, the accused committed default in the payment of the equated monthly installments (EMIs) and misappropriated the JCB. Now, recovery proceedings have been initiated against the defacto complainant due to non payment of the loan amount. The accused has with an intention to cheat the defacto complainant and make unlawful gain and falsely agreed to pay the EMIs. Thus, the accused has committed the above offences. 4. Heard; Sri.S.Shanavas Khan, the learned counsel appearing for the petitioner, Sri. C.S. Hrithwik, the learned Public Prosecutor appearing for the respondent and Sri. R.Krishnakumar, the learned ## B.A.No.2419 of 2024 ## -:4:- counsel appearing for the third respondent/defacto complainant. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The third respondent gave the JCB to the petitioner based on Annexure C agreement. The petitioner had remitted the EMIs to the finance company, which can be evidenced from Annexure D. It is after the third respondent returned from abroad that he has filed the present complaint. In any given case, the petitioner's custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioner is entitled to an order of prearrest bail. 6. The learned Public Prosecutor opposed the application. He submitted that Annexure C agreement is forged by the petitioner. Moreover, despite this Court B.A.No.2419 of 2024 -:5:- directing the petitioner to produce the JCB and the Investigating Officer issuing a a notice under Section 41A Cr.PC directing the petitioner to produce the JCB, he has not complied with the directions. It is learnt that the petitioner has dismantled the JCB and sold it, and made unlawful gains. The petitioner's custodial interrogation is necessary, and recovery is to be effected. Hence, the application may be dismissed. 7. The learned counsel for the third respondent also opposed the application. He has filed a counter affidavit, inter alia, denying the assertions in the bail applications. The third respondent has stated that the petitioner has thoroughly cheated him by not paying the EMIs to the financial institution and has also dismantled and sold the JCB. Recovery proceedings have been initiated against the third respondent. If the petitioner is granted an order of pre- arrest bail, it B.A.No.2419 of 2024 -:6:- would hamper the investigation. Hence, the application may be dismissed. 8. The prosecution case against the petitioner is that he, with an intention to make unlawful gain and also make unlawful loss to the defacto complainant had assured the third respondent that he would pay the EMIs to the financial institution and use the JCB. However, the petitioner failed to remit the EMIs and has allegedly dismantled and sold the JCB. 9. When the application came up for consideration on 19.04.2024, this Court directed the Investigating Officer to issue a notice under Section 41A of the Cr.PC, to the petitioner, if he is to be interrogated. 10. The learned Public Prosecutor submitted that, pursuant to the said order, the Investigating Officer had issued Section 41A notice directing the petitioner -:7:- ## B.A.No.2419 of 2024 to appear before the Investigating Officer and produce the JCB. However, the petitioner has failed to produce the JCB. 11. Subsequently, when the application came up for hearing on 28.05.2024, this Court directed the petitioner to produce the JCB before the Investigating Officer for investigation of the crime. It is brought to the notice of this Court that the petitioner has failed to produce the JCB as directed by this Court. 12. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Hon'ble Supreme Court, after referring to a plethora of judgments on the powers under Section 438 of the Code has observed as follows: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In -:8:- ## B.A.No.2419 of 2024 other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxxx xxx 10. xxx xxx xxx xxx xxx xxx xxx xxx xxx 24.We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an B.A.No.2419 of 2024 -:9:- individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. ….. …...” 13. In **Jai Prakash Singh v. State of Bihar and Anr.** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that an order of a pre-arrest bail is an extraordinary privilege, which should be granted only in exceptional cases. The judicial discretion conferred upon the court must be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. The Court has to be prima facie satisfied that the accusation levelled against the applicant is only to enrope him in the crime and to misuse his liberty. 14. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the allegations made by the third respondent that the Annexure C agreement is forged B.A.No.2419 of 2024 -:10:- by the petitioner and the petitioner has dismantled and sold the JCB, and despite directions passed by this Court, the petitioner has not surrendered the JCB before the Investigating Officer, and further, on comprehending the nature, seriousness, and gravity of the accusations levelled against the petitioner, I am convinced that the petitioner has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** mtk/04.06.24 ## B.A.No.2419 of 2024 ## -:11:- ## **`APPENDIX OF BAIL APPL. 2419/2024`** ``` PETITIONER ANNEXURES ANNEXURE -ATRUE COPY OF THE COMPLAINT DATED NIL PREFERRED BY THE DEFACTO COMPLAINANT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALAPPUZHA ``` ``` ANNEXURE -BTRUE COPY OF THE AGREEMENT DATED 10/10/2019 ENTERED INTO BETWEEN THE PETITIONER AND THE DEFACTO COMPLAINANT ANNEXURE -CTRUE COPY OF THE AGREEMENT DATED 09/10/2020 ENTERED INTO BETWEEN THE PETITIONER AND THE DEFACTO COMPLAINANT ANNEXURE -DTRUE COPY OF THE RELEVANT PAGE OF THE ACCOUNT STATEMENT OF THE PETITIONER ISSUED BY STATE BANK OF INDIA, CHANGANASSERY BRANCH EVIDENCING THE REMITTANCE OF LOAN AMOUNT FROM HIS ACCOUNT ANNEXURE -E. TRUE COPY OF THE BILL DATED 06/12/2021 ISSUED IN THE NAME OF PETITIONERBYPOPULARMOTOR CORPORATION, THIRUVALLA ANNEXURE -FTRUE COPY OF THE RECEIPT DATED 26/09/2023 ISSUED BY CHANGANASSERY POLICE IN THE NAME OF PETITIONER ANNEXURE -GTRUE COPY OF THE COMPLAINT DATED 21/10/2023 PREFERRED BY PETITIONER BEFORE THE STATION HOUSE OFFICER, KOTTAYAM POLICE STATION ``` ``` ANNEXURE -HTRUE COPY OF THE RECEIPT DATED 21/10/2023 ISSUED BY KOTTAYAM POLICE IN THE NAME OF PETITIONER ``` ``` ANNEXURE -ICERTIFIED COPY OF THE ORDER DATED 24/02/2024 IN CRL. M.P NO. 581/2024 OF THE HON'BLE COURT OF SESSIONS JUDGE, ALAPPUZHA RESPONDENT ANNEXURES ANNEXURE R3[A]A TRUE COPY OF THE OVERDUE INTIMATION LETTER ISSUED BY THE INDUSIND BANK LTD TO THE PETITIONER DATED 19-02-2024 ``` B.A.No.2419 of 2024 -:12:- ``` ANNEXURE R3[B]A TRUE COPY OF THE FIRST PAGE OF THE SEC.13[2] NOTICE UNDER SARFAESI ACT ISSUED BY THE INDUSIND BANK TO THE 3RD RESPONDENT DATED 25-09-2023 ANNEXURE R3[C]A TRUE COPY OF THE VEHICLE HISTORY REPORT OF THE JCB BEARING NO. KL55 T 361 DOWNLOADED FROM THE WEBSITE OF MOTOR VEHICLES DEPARTMENT ```