NITISH AGARWAL v STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2024-04-19
Court Decision / Holding: The bail application is allowed. The petitioner is directed to be released on bail on a bond of Rs. 50,000 with two solvent sureties of like amount, subject to conditions (appear before IO on Mondays, Wednesdays and Fridays; stay within Thrissur District; not leave India without permission; avoid similar offences; furnish address and contact information; and comply with lawful orders). If any condition is breached, bail may be cancelled.
Final Disposition: Bail granted with conditions; investigation to proceed with monitoring and compliance requirements.

Parties to the Case

Appellants / Petitioners

Nitish Agarwal

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sarath Babu Kottakkal
• Archana Vijayan

Counsels for Respondents

• Smt. Seena C. PP

Case Synopsis & Summary

This High Court of Kerala bail application (B.A. No. 3173 of 2024) concerns Nitish Agarwal, the accused in Crime No. 15/2024 of the Cyber Crime Police Station, Thrissur. The allegations relate to offences punishable under Section 420 IPC and Section 66D of the Information Technology Act, arising from allegations that the petitioner, by posing as a sales executive of OM Enterprises and offering A4 papers for sale, cheated the informant and induced him to transfer Rs. 6,82,000 through two bank accounts between 17.01.2024 and 03.02.2024. The petitioner has been in custody since 01.04.2024. The learned counsel for the petitioner argued that there is no offence charged against the petitioner and that there is only civil liability, and the petitioner is willing to comply with conditions for bail. The Public Prosecutor opposed bail, citing concerns about flight risk since the petitioner is from Ghaziabad and may not appear for trial, and alleging lack of cooperation with the investigation. The court considered the balance of convenience and potential prejudice to the investigation and concluded that continued detention is unnecessary; it directed the petitioner to stay within Thrissur District, appear before the IO on Mondays, Wednesdays and Fridays, and comply with other conditions to ensure cooperation. The court also cited the principle that bail is the rule and jail is the exception, referencing Chidambaram P. v. Directorate of Enforcement to justify granting bail with conditions.

Provisions of Law Cited

Section 439 of CrPCSection 420 IPCSection 66D of Information Technology Act

Legal Doctrines & Maxims

Bail is the rule and jail is the exception
Grant of bail is the rule and refusal is the exception in order to secure a fair trial

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel submitted that the accused has been in custody since 01.04.2024 and that there is no substantive offense alleged; they asserted that there is only civil liability at issue and that the petitioner is ready to adhere to any conditions if bail is granted. The defense emphasized the presumption of innocence and stressed that continued detention is unnecessary while investigation proceeds, requesting release on bail subject to reasonable conditions.

Contentions of Respondents

The Public Prosecutor opposed bail, highlighting the accused’s origin from Ghaziabad and alleging potential non-cooperation and risk of evading trial. The prosecution argued that the investigation requires continued custody to safeguard evidence and ensure cooperation, asserting that the accused has not demonstrated willingness to cooperate fully and may pose a flight risk until the investigation concludes.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Chidambaram P. v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	The court relied on the principle that bail is the rule and jail is the exception to justify granting bail, aligning with established jurisprudence on the presumption of bail to secure fair trial.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 19[TH] DAY OF APRIL 2024 / 30TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 3173 OF 2024 ``` ``` CRIME NO.15/2024 OF CYBER CRIME POLICE STATION, THRISSUR, Thrissur PETITIONER(S)/ACCUSED: ``` ``` NITISH AGARWAL AGED 35 YEARS ``` ``` B1, 22F3, LIG BACK LEFT, DLF, GAZIABAD, NOW RESIDING AT C 506, OXY HOMES, TEELA MODE, GAZIABAD, UTTAR PRADESH, PIN - 201001 ``` ``` BY ADVS. SARATH BABU KOTTAKKAL ARCHANA VIJAYAN ``` ## **`RESPONDENT(S)/COMPLAINANT:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV. ``` ``` SMT.SEENA C. PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A. NO. 3173 OF 2024 2 ## P.V.KUNHIKRISHNAN, J. -------------------------------------------- ## B.A. No.3173 of 2024 ---------------------------------------------Dated this the 19[th ] day of April, 2024 ## O R D E R This Bail application is filed under Section 439 of Criminal Procedure Code. 2. The petitioner is the accused in Crime No.15/2024 of Cyber Crime Police Station, Thrissur. The above case is registered against the petitioner alleging offences punishable under Section 420 IPC and under Section 66D of the Information Technology Act. 3. The prosecution case is that, the accused B.A. NO. 3173 OF 2024 3 person, in furtherance of their common intention, pretending as sales executive of OM Enterprises and under the guise of selling A4 size papers cheated the 1[st] informant and thereby dishonestly induce him to transfer Rs.6,82,000/- by way of installment in between 17.01.2024 and 03.02.2024 from his two bank accounts to two bank accounts provided by them. Hence, it is alleged that the accused committed 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is in custody from 01.04.2024 onwards. It is submitted that, the petitioner had not committed any offence as alleged B.A. NO. 3173 OF 2024 4 and there is only civil liability between the petitioner and the de-facto complainant. The counsel for the petitioner also submitted that, the petitioner is ready to obey any conditions, if this Court grant him bail. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioner is from Gaziabad and if, he is released on bail, he will not be available for trial. It is also submitted that the petitioner is not cooperating with the investigation. 6. This Court considered the contention of the petitioner and the Public Prosecutor. The allegation against the petitioner is that the petitioner has not supplied A4 size papers after collecting huge amount from the de-facto complainant. Whether the offences B.A. NO. 3173 OF 2024 5 under Section 420 IPC is made out in such cases, is to be investigated by the investigating officer. The petitioner is in custody from 01.04.2024 onwards. Continued detention of the petitioner is not necessary, but, till the investigation is over, there can be a direction to the petitioner to stay within the jurisdiction of Thrissur District after his release. He shall not go outside the jurisdiction of Thrissur District, without getting permission from the jurisdictional court. With the above condition and also directing the petitioner to appear before the investigating officer on all Mondays, Wednesdays and Fridays, this bail application can be allowed. 7. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The B.A. NO. 3173 OF 2024 6 Hon'ble Supreme Court in _Chidambaram. P v Directorate of Enforcement_ (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 8. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: _1. 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 sum to the_ B.A. NO. 3173 OF 2024 7 _satisfaction of the jurisdictional Court._ _2. The petitioner shall appear before the_ _Investigating Officer for interrogation as_ _and when required. The petitioner shall cooperate with the investigation and shall_ _not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing_ _such facts to the Court or to any police_ _officer._ _3. Petitioner shall not leave India without_ _permission of the jurisdictional Court._ _4. Petitioner shall not commit an offence_ _similar to the offence of which they are_ B.A. NO. 3173 OF 2024 8 _accused, or suspected, of the commission_ _of which he is suspected._ _5. The petitioner shall appear before the_ _investigating officer on all Mondays, Wednesdays and Fridays at 10.00 A.M.,_ _till final report is filed._ _6. The petitioner shall reside within the_ _jurisdiction of Thrissur District, till_ _investigation in Crime No.15/2024 is_ _completed. The petitioner shall give the address where he is going to reside in Thrissur and also his phone number. If he want to go outside the jurisdiction of Thrissur District for any specific purpose, the petitioner is free to approach the_ B.A. NO. 3173 OF 2024 9 _jurisdictional court and the jurisdictional court can pass appropriate orders, after_ _hearing the investigating officer._ _7. If any of the above conditions are violated_ _by the petitioner, the jurisdictional Court_ _can cancel the bail in accordance to law, even though the bail is granted by this_ _Court._ nvj Sd/P.V.KUNHIKRISHNAN JUDGE B.A. NO. 3173 OF 2024 10 ## APPENDIX OF BAIL APPL. 1336/2024 PETITIONER ANNEXURES ANNEXURE 1 CERTIFIED COPY OF THE ORDER IN CRL. M.C. 85/2024 DATED 12.02.2024 PASSED BY THE HON'BLE SESSIONS COURT, THODUPUZHA RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE