P.J. Antony and C.C. Joy v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** ## **Bail Appl..No.1055 OF 2020** **CRIME NO.108/2019 OF CHERUPUZHA POLICE STATION , Kannur** ## **PETITIONERS:** **1 P.J. ANTONY, AGED 57 YEARS S/O. JOHN, ADVOCATE, PUTHUPARAMBIL HOUSE, 47/193 C, HERMITAGE, KARSHAKA ROAD, VADUTHALA P.O., KOCHI - 682 023 2 C.C. JOY AGED 56 YEARS S/O. CHAKKUNNI, CHERADAI HOUSE, KOTTANALLOOR POST, ERINJALAKKUDA VIA THRISSUR DISTRICT BY ADVS. SRI.P.CHANDRASEKHAR SRI.K.K.MOHAMED RAVUF SRI.D.SREEKANTH SHRI. ANOOP KRISHNA** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 2 ADDL.R2 SHIJO ANTONY AGED 41 YEARS S/O PATHICAL ANTONY, RESIDING AT PATHICKAL HOUSE, ELIKKULAM PO, KANHIRAPPILLI, KOTTAYAM DISTRICT, PIN-686577.** **IS IMPLEADED AS ADDL.R2 AS PER THE ORDER DATED 9/3/2020 IN CRL.MA 1/2020.** **R2 BY ADV. SRI.GEORGE JACOB (JOSE) SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.1055 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.1055 of 2020 ------------------------------Dated this the 17[th] day of September, 2020 ## **O R D E R** This bail application is filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. This bail application was heard yesterday (16.9.2020) and I dictated an order. But the order was not signed. Yesterday itself, the counsel who filed vakalath for the de facto complainant informed me that even though he filed the vakalath, his name is not mentioned in the cause list. Therefore, he was not able to submit his case before this Court. Therefore, this case is posted as to be spoken today. 3. The petitioners are the accused in Crime No.108 of 2019 of Cherupuzha Police Station, Kannur District. The above case is registered against the petitioners alleging offences punishable under Sections 406, 409, 420, 465, 468, 120B of the Indian Penal Code(IPC). B.A.No.1055 of 2020 3 4. The prosecution case is that, the petitioners along with one Jose T.A retired Manager of the bank and one Tony Joseph, Advocate fabricated and created a sale agreement in the name of the de facto complainant and his parents. It is alleged that, the petitioners committed cheating and forgery. This Court issued notice to the de facto complainant. 5. Heard the counsel for the petitioners, counsel for the de facto complainant and the learned Public Prosecutor. 6. The learned counsel for the petitioners submitted that, even if the entire allegations are accepted, no criminal offence is made out. The learned counsel submitted that, the disputed sale agreement was executed in 2010. The petitioners filed a suit for specific performance of the above agreement before the competent Civil Court as O.S.No.126 of 2011 as evident by Ext P2. According to the counsel, an injunction order was also passed in favour of the petitioner by the trial court. Of course subsequently, that order was modified by this Court. The suit was posted for trial on 06.02.2014. On that day, the trial court passed an ex parte decree. That ex parte decree was set aside. Thereafter, again the suit was posted for trial. On that day also the defendant B.A.No.1055 of 2020 4 did not appear and the suit was decreed ex parte. The matter reached before this Court. This Court again remanded the matter to the lower court for fresh disposal. At that stage, the defendants filed an application to send the sale agreement for expert opinion. Subsequently, that application was allowed. Now the report of the expert is in favour to the petitioners. That report also challenged by the defendants. The Court dismissed that petition. That order is now challenged before this Court and O.P(C) No.2252 of 2018 is pending before this Court. Subsequently, in 2019 the present complaint is filed alleging that the sale agreement executed in 2010 is forged document. The learned counsel for the petitioners also submitted that, the petitioners are ready to abide any conditions, if this Court grant them bail. 7. The learned Public Prosecutor even though opposed the bail application, submitted that, if this Court is granting bail stringent conditions may be imposed. The Public Prosecutor also submitted that what remains now is only under Section 420 r/w.34 IPC. The offences under Sections 465, 468 and 120B IPC are already deleted. 8. The counsel for the de facto complainant seriously opposed the bail application. The counsel for the de facto complainant B.A.No.1055 of 2020 5 submitted that this is a clear case of cheating. The de facto complainant is suffering from different ailments. He pledged his original title deeds in a bank and availed a loan. Thereafter, he wants some more amount for which he approached private finances. The petitioners herein cheated and they committed forgery. The counsel submitted that this Court may not release the petitioner u/s.438 Cr.P.C. 9. After hearing both sides, I think this bail application can be allowed on stringent conditions. I do not want to make any observations about the merit of the case. Admittedly, a suit is pending before the Civil Court. The suit was filed for specific performance of the disputed sale agreement. That sale agreement is alleged to be forged. The sale agreement is alleged to be executed in 2010. The present complaint is filed in 2019. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. 10. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo** B.A.No.1055 of 2020 6 **Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 11. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The 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. 12. 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. The petitioners shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating B.A.No.1055 of 2020 7 Officer propose to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate 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. 4. Petitioners shall not leave India without permission of the jurisdictional Court. 5. Petitioners shall not commit an offence similar to the offence of which they are B.A.No.1055 of 2020 8 accused, or suspected, of the commission of which they are suspected. 6. The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. 7. The petitioners shall produce their passport before the Investigating Officer. If there is no passport, they will file an affidavit before the Investigating Officer. 8. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** cms