NAHAS K.A and SADATH P.T v STATE OF KERALA

1 BA No.2747 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2747 OF 2024 ``` ``` CRIME NO.131/2024 OF Erattupettah Police Station, Kottayam PETITIONER/S: ``` ``` 1NAHAS K.A AGED 36 YEARS S/O K.K. ASEES, KOYASINPARAMBIL HOUSE, H. NO.2/1168, THURUTHY, FORT KOCHI PO, ERNAKULAM, PIN - 682001 ``` ``` 2SADATH P.T AGED 34 YEARS S/O THALHATH MUHAMMED, 21/1880 L, PUTHENVEETTIL HOUSE, ELLATH NAGAR, PALLURUTHY PO, ERNAKULAM, PIN - 682006 ``` ``` BY ADV K.V.SABU ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.2747 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.2747 of 2024** ## **-----------------------------------** ## **Dated this the 5[th] day of April, 2024** ## **O R D E R** The application filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 2 and 4 in crime No.131/2024 of the Erattupetta Police Station, Kottayam, registered against the accused ( three in number), for allegedly committing the offences punishable under Sections 406 and 420 of the Indian Penal Code and Sec.66D of the Information Technology Act. The petitioners were arrested on 7.3.2024. 2. The essence of the prosecution case is that; the accused had published advertisement on the facebook, offering personal loans of Rs.5,00,000/- with an intention to cheat the de facto complainant and make wrongful gain. They made 3 BA No.2747 of 2024 the de facto complainant believe that they would give her an amount of Rs.5,00,000/- as loan. However, to disburse the loan, they demanded her to transfer Rs.50,000/- as security deposit. Subsequently, they also collected an amount of Rs.2,00,000/- from the de facto complainant on different occasions. However, they did not provide the loan or return the money. Thus, the accused have committed the above offences. 3. Heard; Sri.K.V Sabu, learned counsel appearing for the petitioners and Smt.Neema T.V, the learned Senior Public Prosecutor appearing for the respondent. 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 offences under Secs 406 and 420 of the IPC will not be attracted to the facts of the case. In any given case, the petitioners have been in judicial custody since 7.3.2024, the 4 BA No.2747 of 2024 investigation in the case is practically complete and recovery has been effected. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to show the petitioners’ involvement in the crime. The investigation has unveiled that the petitioners were conducting trade with binance application for the purpose of dealing with crypto currency trade. The said application and currency are banned in India. The investigation is only at its preliminary stage. If the petitioners are released on bail, it would hamper the investigation. Hence, the application may be dismissed. 6. The prosecution allegations against the accused are that, they received money from the de facto complainant on the assurance that they would provide a personal loan of 5 BA No.2747 of 2024 Rs.5,00,000/-. However, they failed to secure the loan or return the money. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence until a person is found guilty. Any imprisonment prior to conviction is considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 8. In **Dataram Singh v. State of U.P.** , [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is a rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 6 BA No.2747 of 2024 9. Subsequently, in **State of Kerala v. Raneef** , [(2011) 1 SCC 784], the Honourable Supreme Court has again held that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 10. On an anxious consideration of the facts, the materials placed on record and the rival submissions made across the Bar, especially taking into account the fact that the petitioners have been in judicial custody since 7.3.2024, that the investigation in the case is practically complete and that the recovery has been effected, I am of the definite view that the petitioners’ further detention is unnecessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties 7 BA No.2747 of 2024 each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required; (ii) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioners shall not commit any offence while they are on bail; (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If 8 BA No.2747 of 2024 they have no passports, they shall file affidavits to the effect before the court below on the date of execution of the bond; (v) 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. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (vii) 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]. sd/- sks/5.4.2024 **C.S.DIAS, JUDGE**