Prem Chander v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 ``` ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` (CRIME NO.208/2020 DATED 09.03.2020 OF PALAKKAD TOWN SOUTH POLICE ``` ## **`STATION, PALAKKAD DISTRICT)`** ## **`PETITIONER/ACCUSED NO.1:`** ``` PREM CHANDER AGED 44 YEARS S/O SUNDARAMOORTHY, SAKTHI VEEDU, KIZHAKETHARA, KUNISERRY POST, ERUMAYUR-II VILLAGE, PALAKKAD, DISTRICT, PIN - 678681. NOW RESIDING AT NO.2, WEST CHANTRY, HARROW, LONDON, H A 36 N X, UNITED KINGDOM ``` ``` BY ADVS. RAJESH SIVARAMANKUTTY VIJINA K. ARUL MURALIDHARAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` *ADDL.2AMMU AJIT, W/O SANTHOSH R.V. HAVING PERMANENT RESIDENCE AT VRINDAVAN, DIWANS ROAD, KOCHI-682016, AND PERMANENTLY RESIDING AT FLAT NO.5054, PRESTIGE NEPTUNE'S COURTYARD, MARINE DRIVE, KOCHI, PIN-682018 (*IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 12/01/2023 IN CRL.M.A.NO.1/2023.) ``` ``` BY ADVS. G.HARIKUMAR (GOPINATHAN NAIR) AKHIL SURESH(K/000576/2016) ANU BALAKRISHNAN NAMBIAR(K/936/2014) ATHUL M.V.(K/1539/2018) ADV M P PRSANTH -PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the 1[st] accused in Crime No.208/2020 of Palakkad Town South Police Station. The offences against the accused, total 3 in number, are under Sections 468, 465, 471 and 420 read with Section 34 of IPC. 2. The prosecution case is as follows: The petitioner is the former husband of the defacto complainant, who is the additional 2[nd] respondent in this bail application. Their marriage was solemnized on 22.08.2004 under the provisions of the Special Marriage Act. After the marriage, the petitioner as well as the defacto complainant were residing as husband and wife in London. A villa was also purchased in London in the joint name of the petitioner and the defacto complainant. A male child was also born to them on 13.03.2007. Later, there occurred some matrimonial discord between the parties and ultimately the defacto complainant came back to India. Subsequently, the matrimonial disputes between the parties were mutually settled and they decided to terminate their marriage by mutual consent. The terms and ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 3 ``` conditions of settlement arrived between the parties were incorporated as part of the judgment passed by this Court in O.P. (F.C). No.434/2014. As per the terms of the said agreement, the petitioner had agreed to pay the instalments payable in respect of the liability created upon the residential property in London, which stood in the joint name of the petitioner and the defacto complainant. It was also agreed by the defacto complainant that she shall refund 50% of the annual payment made by him towards the mortgage loan in U.K, on the production of the original receipts. 3. However, later the defacto complainant came to understand that, the petitioner had transferred the share of the defacto complainant in the property in U.K. In addition to that, the petitioner had also availed a further business loan of G.B.P. 1,00,000 from General Asset Management Ltd., U.K., showing the defacto complainant as the guarantor and by offering their joint property as security. As the defacto complainant had not executed any document either to transfer her share in the property in U.K. or to create any additional charge over the said property an enquiry ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 4 ``` was conducted with the appropriate authorities in U.K. Thereupon, it was revealed that, the petitioner, falsely created certain documents, which were purported to have been executed by the petitioner. The defacto complainant also could collect the copies of the said documents which indicated that the said documents were created at Palakkad by the petitioner, and the said documents were a letter of consent and a no objection for relinquishing her share in the joint property. Thereafter, by making use of the said documents, the transfer of share of the defacto complainant in their property in U.K was affected and an additional charge was also created upon the property, showing the defacto complainant as the guarantor. The complaint was submitted in such circumstances, before the Station House Officer, Palakkad and accordingly the crime was registered. This application is submitted by the petitioner, seeking anticipatory bail, as he apprehends arrest in connection with the same. 4. The additional 2[nd] respondent/the defacto complainant appeared and filed a detailed objection, opposing the prayer sought by the petitioner. In the aforesaid objection, the sequence of events ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 5 ``` which led to the submission of the complaint, with the support of the documents, were explained. It was further averred in the aforesaid objection that, besides the consent letter and relinquishment letter, the petitioner had also produced a forged copy of the passport of the defacto complainant before the 3[rd] accused, a Notary Public practising in Palakkad, to persuade him to attest the documents, which contain the false signature of the defacto complainant. It is also alleged that the falsely created copy of the passport was produced before the said lawyer, through another woman, by introducing her as the defacto complainant, and thereby the petitioner had committed the act of impersonation for the purpose of creating the said documents. It is also stated in the objection that, earlier the petitioner approached this Court for quashing the proceedings against him, by filing Crl.M.C. No.4484/2021 and as per order 12.12.2022, the same was dismissed. The learned counsel for the defacto complainant also places reliance upon the decision rendered by the Hon’ble Supreme Court in **Mohammed Kunju v. State of Karnataka** [1999 (8) SCC ``` BAIL APPL. NO. 10259 OF 2022 ``` ## **`6`** 660], wherein certain observations were made with regard to the necessity of imposing the condition of passport in respect of a foreign citizen while granting bail. In such circumstances, the dismissal of the bail application was sought. 4. Heard Sri.Rajesh Sivaramankutty, the learned counsel appearing for the petitioner, Sri. M.P. Prasanth, the learned Public Prosecutor for the State and Sri.G.Harikumar (Gopinathan Nair), the learned counsel appearing for the 2[nd] respondent. 5. The specific contentions put forward by the learned counsel for the petitioner is that the petitioner is falsely implicated in the said case. According to him, the entire allegations are raised, based on certain matrimonial disputes between the parties and also on account of certain differences of opinion between them in disposing of their jointly owned properties in U.K. It is further pointed out that, the contentions of forgery were already raised by the defacto complainant before the courts in U.K, where the recovery proceedings are being pursued by their creditors. However, the said contentions stand rejected by the said courts. The learned ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 7 ``` counsel for the petitioner further points out that the petitioner is a holder of a British passport, and also a holder of OCI status which entitles him for multiple entry and exit to and from India to U.K. The learned counsel further submits that, he is willing to cooperate with the investigation and shall abide by any conditions imposed by this Court. 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. It is pointed out that there are adequate materials available on record, which would indicate the offences committed by the petitioner. The matter is under investigation and the documents alleged to have been forged are already sent for forensic examination and the report is awaiting. 7. The learned counsel for the 2[nd] respondent/defacto complainant also opposes the prayer sought by the petitioner. It is pointed out that, as the petitioner is a foreign citizen, he is likely to abscond, if he is granted anticipatory bail. It is further pointed out that, after obtaining an interim order in this bail application, he was not at all willing to cooperate with the investigation and only later ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 8 ``` when this Court as per the order dated 02.02.2023 modified the interim order, by imposing a condition that, the petitioner shall appear before the investigation officer, the petitioner actually appeared before him. Therefore, the apprehension voiced by the learned counsel for the defacto complainant is that the petitioner is likely to abscond if released on bail, and since he is a foreign citizen, if he absconds, it would be difficult to secure his presence for the purpose of investigation and also for the trial. He therefore, seeks an order dismissing the bail application. 8. I have gone through the records and heard the contentions of both parties. Even though the crime has been registered in the year 2020, the investigation is even now ongoing. The delay was presumably because the Crl.M.C. No.4484/2021, filed by the petitioner for quashing the proceedings, was pending before this Court which was disposed of only on 12.12.2022. The learned Public Prosecutor submitted that the matter is even now under investigation and the documents which are allegedly forged, were sent for forensic examinations and the reports in this regard ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 9 ``` are awaited. 9. On perusal of the records, it is seen that basically the allegations are based on documentary evidence. Since the petitioner had already appeared before the investigation officer, while the bail application is pending, I do not find any necessity for his custodial interrogation. It appears that there is some progress in the investigation as well. Therefore, I do not find any legal impediment in granting anticipatory bail to the petitioner, but at the same time, the apprehension voiced by the learned Public Prosecutor as well as the learned counsel appearing for the 2[nd] respondent/defacto complainant as to the chances of the petitioner absconding or going out of the country is to be considered. In my view, the said apprehension can be addressed by incorporating appropriate conditions, to the effect that the petitioner shall surrender his passport. When this was suggested during the course of the hearing, the learned counsel for the petitioner opposed the same by highlighting that, he is a person having business in U.K. and India, which necessitates frequent travel abroad. In case the passport of ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 10 ``` the petitioner is directed to be surrendered before the jurisdictional court, it would cause serious prejudice to him, as it will affect his business and thereby his income. The learned counsel further submits that, the petitioner has properties, his parents, his present wife and a child in Kerala. Therefore, he cannot escape from the clutches of law by simply getting out of the country as apprehended by the learned Public Prosecutor as well as the defacto complainant, it was contended 10. On the other hand, the learned counsel for the 2[nd] respondent would oppose the contentions put forward by the learned counsel for the petitioner in this regard. The 2[nd] respondent reiterates her contention that, in all probabilities, he is likely to escape from the clutches of law, if appropriate conditions are not imposed. 11. After considering all the relevant aspects, I am of the view that, as the presence of the petitioner in the country is to be ensured for completing a proper investigation and a fair trial, appropriate conditions are to be imposed. In the facts and ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 11 ``` circumstances of the case the proper condition to ensure his presence appears to be a condition to surrender his passport. Even though, the learned counsel for the petitioner submits that, he has compelling reasons not to leave the country, on account of his parents, present wife, child and the properties in India, I am of the view that, that by itself is not sufficient to ensure his presence for investigation and trial. Another objection of the learned counsel for the petitioner is that, since he has various businesses to manage in India and U.K, frequent travels abroad are necessitated. However, even that will not preclude this Court from imposing a condition for surrendering his passport. However, in case the petitioner requires to go abroad for any business purposes it shall be open for him to move the jurisdictional court, at the relevant time and seek appropriate reliefs with the support of necessary documents to satisfy the court regarding the requirement of such travel. In the result, the application is allowed on the following conditions:- i) The petitioner shall surrender before the investigation ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 12 ``` officer, within a period of two weeks from today, and thereupon, he shall be released on bail, upon executing a bond for Rs 1,00,000/(Rupees one lakh only) with two solvent sureties each to the satisfaction of the investigation officer. He shall also surrender his passport before the investigation officer, who in turn, shall submit the same before the jurisdictional court for safe custody. ii) The petitioner shall appear before the Investigating Officer as and when required. iii) In case the petitioner requires to go abroad, it shall be open for him to move the jurisdictional court for the said relief with supporting documents and thereupon it shall be open for the jurisdictional court to pass appropriate orders, considering the necessity highlighted by the petitioner, with such conditions, as the jurisdictional court may deem fit. iv) The petitioner shall fully cooperate with the investigation, including subjecting himself to the deemed police custody for the purpose of recovery, if any, as and when demanded. vii) The petitioner shall not commit any offence of similar ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 13 ``` nature while on bail. viii) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. ix) The petitioner shall not leave India without the permission of the Jurisdictional Court. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 14 ``` ## **`APPENDIX OF BAIL APPL. 10259/2022`** ``` PETITIONER ANNEXURES Annexure ATRUE COPY OF THE COMPLAINT DATED 1-3- 2020 SUBMITTED BEFORE THE STATION HOUSE OFFICER, PALAKKAD TOWN SOUTH POLICE STATION, PALAKKAD Annexure BTRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 208/2020 OF PALAKKAD TOWN SOUTH POLICE STATION, PALAKKAD DISTRICT Annexure CTRUE COPY OF THE TERMS OF JOINT PETITION IN IA NO. 12682/2014 IN O.P(FC) NO. 434/2014 Annexure DTRUE COPY OF THE PASSPORT OF THE PETITIONER REVEALING BRITISH CITIZENSHIP ISSUED BY THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND Annexure ETRUE COPY OF THE INTERIM ORDER DATED 29-9-2021 PASSED BY THIS HON'BLE COURT Annexure FTRUE COPY OF THE NOTICE UNDER SECTION 41A(1) R/W 41(1)CB) CR.P.C. ISSUED BY THE INSPECTOR OF POLICE, TOWN SOUTH POLICE STATION, PALAKKAD DATED 6-2- 2023 TO THE PETITIONER Annexure GTRUE COPY OF THE ACKNOWLEDGMENT DATED 15-2-2023 ISSUED BY INSPECTOR OF POLICE, TOWN SOUTH POLICE STATION, PALAKKAD TO PETITIONER. Annexure HTRUE COPY OF THE EMAIL DATED 11-7- 2022 SENT BY DEFACTO COMPLAINANT TO EDWARD FOSTER REPRESENTING GENERAL ASSET MANAGEMENT LTD Annexure ITRUE COPY OF THE EMAIL DATED 10-8- 2022 ISSUED TO LESTER ALDRIDGE LLP, UK FROM OPERATIONS DELIVERY MANAGER, COURT FUNDS OFFICE, UK ``` ``` BAIL APPL. NO. 10259 OF 2022 ``` ``` 15 ``` ## `RESPONDENT ANNEXURES` |`Annexure - R2(a)`|`A TRUE COPY OF THE NOTICE OF`| |---|---| ||`APPLICATION FOR REGISTRATION, ISSUED`| ||`BY HM LAND REGISTRY DATED 16.10.2019,`| ||`SENT TO ADDRESS IN KOCHI (MENTIONED`| ||`IN THE FOOTNOTE) IS ANNEXED`| |`Annexure - R2(b)`|`A TRUE COPY OF TRI FORM CONTAINING`| ||`FORGED SIGNATURES OF 2ND RESPONDENT`| ||`DATED 03.08.2019 IS ANNEXED`| |`Annexure - R2(c)`|`A TRUE COPY OF IDI FORM CONTAINING`| ||`FORGED SIGNATURES OF THE 2ND`| ||`RESPONDENT IS ANNEXED`| |`Annexure - R2(d)`|`A TRUE COPY OF THE ORIGINAL PASSPORT`| ||`ALONG WITH THE FORGED PASSPORT IS`| ||`ANNEXED`| |`Annexure - R2(e)`|`A TRUE COPY OF THE SIGNED B2-1`| ||`CONSENT FORM IS ANNEXED`| |`ANNEXURE - R2(F)`|`A TRUE COPY OF THE RELINQUISHMENT`| ||`DEED, ALLEGED TO HAVE BEEN SIGNED BY`| ||`THE 2ND RESPONDENT AND NOTARIZED BY`| ||`ADV BABU SIVADAS, DATED 27.06.2019`| |`Annexure - R2(g)`|`A TRUE COPY OF THE JUDGEMENT IN`| ||`CRL.M.C NO. 4484 OF 2021 DATED`| ||`12.12.2022 OF THIS HON’BLE COURT`| |`Annexure - R2(h)`|`A TRUE COPY OF THE WITNESS STATEMENT`| ||`OF THE 3RD ACCUSED IS ANNEXED`| |`Annexure - R2(i)`|`THE 2ND RESPONDENT HAS SECURED A COPY`| ||`OF THE SAME FROM THE 1ST TIER LAND`| ||`TRIBUNAL AND THE SAME IS ANNEXED`|