P.V. Suraj v. State of Kerala and Addl. R2 Chief Executive Kannur District Police Co-operative Society

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 19TH DAY OF AUGUST 2020 / 28TH SRAVANA, 1942** ## **Bail Appl..No.8863 OF 2019** **CRIME NO.1214/2019 OF KANNUR TOWN POLICE STATION, KANNUR DISTRICT** ## **PETITIONER/ACCUSED:** **P.V.SURAJ AGED 44 YEARS S/O KRISHNAN NAIR,RESIDING AT SOORAJ NIVAS,DURGA ROAD,PALLIKKUNNU.P.O, KANNUR-670004.** **BY ADVS. SMT.K.A.SANJEETHA SRI.BALU TOM** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,KOCHI-682031. 2 ADDL.R2 CHIEF EXECUTIVE KANNUR DISTRICT POLICE CO-OPERATIVE SOCIETY, KANNUR TOWN, KANNUR-670004.** **IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 3/3/2020 IN CRL.MA 2/2020 IN BA-8863/2019. R1 BY SRI.SURESH C.K., SR. GP R2 BY ADV. SRI.M.SASINDRAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. NO.8863 OF 2019 2 ## **O R D E R** **Dated this the 19th day of August 2020** ... **This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.** **2. The petitioner is the sole accused in Crime No. 1214 of 2019 of Kannur Town Police Station, Kannur District. The above case is registered against the petitioner alleging offences punishable under Sections 406 and 420 of the Indian Penal Code (IPC).** **3. The prosecution case is that, during the period from 31.3.2019 to 31.10.2019, the petitioner, who is the salesman in Kannur District Police Cooperative Society, misappropriated Rs.12,15,413/which is the amount received by him by selling LPG cylinder. It is further alleged that, he has not kept proper account of the stock of the LPG cylinders. Hence, it is alleged that, the petitioner** B.A. NO.8863 OF 2019 3 ## **committed misappropriation and cheating.** **4. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned public prosecutor.** **5. This bail application came up for consideration before this Bench on 27.7.2020. The bail application was argued in detail by both sides. When this Court was inclined to allow this bail application, the learned public prosecutor submitted that, this bail application was heard in part by another learned Judge. Therefore, this Court adjourned the matter and the Registry was directed to obtain orders from the Hon'ble the Chief Justice to post before the appropriate Bench. Thereafter, the file was placed before the Hon'ble the Chief Justice. Then, it is informed from the Registry that, this was not heard in part by any other Judges and there is no such endorsement to that effect also. In such circumstances, the Hon'ble the Chief Justice directed to post this bail application according to the roster and accordingly this bail** B.A. NO.8863 OF 2019 4 ## **application was placed before me again today.** **6. The learned counsel for the petitioner submitted that, he is only a Peon of the said Society and he studied only upto 12[th] standard. The counsel submitted that, even if the entire allegations are accepted, nobody can imagine that, the petitioner can do the offence as alleged by the prosecution. The counsel submitted that, the petitioner is promoted as per Annexure-A1 with retrospective effect from 1.4.2019 and that itself shows that the office bearers of the Society want to see that, the petitioner is prosecuted in connection with this case for the misappropriation committed by other officers. The counsel submitted that, the petitioner is ready to abide any conditions, if this Court is granting bail to the petitioner.** **7. The learned public prosecutor opposed this bail application. The public prosecutor submitted that, this case is registered based on a complaint on 16.11.2019. The complaint is mainly based on an audit conducted in the Society. In the audit, it is** B.A. NO.8863 OF 2019 5 **revealed that, there was misappropriation of funds by the petitioner. It is also found that 653 cylinders were missing and the value of the cylinder was not deposited by the petitioner. In such circumstances, a special audit was conducted. In the special audit, it was found that 1186 cylinders were missing. In the special audit, it is found that, the petitioner misappropriated an amount of Rs.7,39,093/-. Thereafter, three parallel enquiries were conducted including a domestic enquiry. All the enquiries unanimously says that the petitioner is guilty of misappropriation and cheating. The public prosecutor submitted that, now the amount misappropriated by the petitioner for the period from 20.3.2018 to 31.10.2019 is Rs.13,57,896/-. The public prosecutor produced Annexure A2 chart issued by the Chief Executive/Senior Co-operative Inspector, Kannur District Police Co-operative Society, A.R.Camp, Kannur. The public prosecutor submitted that in Annexure A2 there is a shortage of 1181 ordinary cylinders and 5 commercial cylinders.** B.A. NO.8863 OF 2019 6 **Altogether, according to that report, there is a shortage of 1186 cylinders. The public prosecutor also taken me through Annexure A3, which is a work order issued by the Society by which, the petitioner is given duty in connection with the distribution of LPG cylinders. The public prosecutor submitted that this is a serious case in which the petitioner swindled Rs.13 lakhs from the co-operative society. The public prosecutor submitted that, a message should be given to these type of accused by denying orders under Section 438 Cr.P.C.** **8. The learned counsel for the defacto complainant argued based on Annexure R2(a) produced along with his objection. It is an audit certificate and audit memorandum. The counsel taken me through the averments in page 4 of the audit report to show that the petitioner was in charge of LPG cylinders. The counsel also taken me through the special audit report also. Exhibit R2(b) is that report. In that report, it is stated that, the petitioner was in charge of LPG cylinder. The counsel submitted that** B.A. NO.8863 OF 2019 7 **this Court may not release the petitioner under Section 438 Cr.P.C.** **9. This bail application was filed on 2.12.2019. Originally, when this bail application came up on 11.12.2019, there was an order from this Court restraining the arrest of the petitioner till 17.12.2019. Thereafter, the interim order was extended for a period of 2 weeks from 19.12.2019. Subsequently, the interim order was not extended. There is no restriction to the Police in arresting the petitioner from January, 2020 onwards. The proviso to Section 438(1) Cr.P.C. says that, if there is no interim order restraining arrest of an accused, the Police can arrest the accused even though a bail application of that accused is pending before a court of law. It is stated that, this is a Society run by police officials. It is surprising to** **see that for the last 7 months, the police authorities were not able to arrest the petitioner herein. The allegation is that there is misappropriation of the fund of a Police Co-** B.A. NO.8863 OF 2019 8 ## **operative Society.** **10. Annexure A4 is the First Information Statement and the F.I.R. registered in this case. In the complaint based on which the F.I.R. is registered, it is stated that the petitioner committed misappropriation of the fund of the Society for the period from 31.3.2019 to 31.10.2019. The amount of misappropriation mentioned in the complaint which leads to the registration of the F.I.R is Rs.12,15,413/-. The petitioner produced Annexure-A1 which is alleged to be a promotion order of the petitioner. It was dated 9.9.2019. Even though, it is mentioned as promotion order, it is stated in it that, the petitioner is giving 'salesman liability' from 1.4.2019. I do not understand the meaning of that sentence stated in Annexure A1. Annexure A1 is dated 9.9.2019. On 9.9.2019, the Society is giving “salesman liability” to the petitioner with effect from 1.4.2019. Annexure A1 is not disputed by the counsel for the defacto complainant also. In Annexure A4 F.I.R, it** B.A. NO.8863 OF 2019 9 **is stated that, the petitioner as a Salesman of the LPG gas cylinder committed misappropriation. I do not want to make any further observation in it. Annexure III is a work order of the Society with effect from 20.3.2018. The duty of the Junior Clerk of the Society is mentioned in column No.3 of the work order. it is stated in it that, the above Junior Clerk has supervisory powers on all Sections of the Society. It is true that, the petitioner is given the duty of the LPG cylinder as per the first column in page 3 of Annexure III. There are persons who can supervise the activities of the petitioner on daily basis. I do not know why the petitioner alone was made accused in this case. Again Annexure IV is another work order produced by the petitioner. In Annexure A4 also there are several persons who can supervise the activities of the petitioner on a day today basis. None of them are accused in this case. Some work orders are produced by the prosecution also. A perusal of the work order produced by the petitioner and the prosecution, it** B.A. NO.8863 OF 2019 10 **can be seen that, there are several employees in the Society, who can supervise the day today activities of the petitioner. The allegation is that, the petitioner committed misappropriation of funds for the period from 20.3.2018 to 31.10.2019. I am surprised to see that, the investigating officer is finding fault only against the petitioner for the misappropriation during this period. I am not saying that, the petitioner is not involved in this case. There are circumstances against the petitioner. It is a matter to be investigated by the investigating officer. But from a reading of the work order, it is clear that there is either involvement or dereliction of duty from some other employees also. In such circumstances, the contention of the petitioner that, the petitioner is treated as scapegoat in this case, cannot be ruled out at this stage. I do not want to make any observations about the merit of this case. This is a matter to be investigated by the investigating officer in detail. I only want to remind that it is misappropriation of** B.A. NO.8863 OF 2019 11 **fund case happened under the nose of the Kannur District Police.** **11. This bail application is pending before this Court from 2.12.2019 onwards. The investigating officer was not able to arrest the petitioner even now, even though, there was no interim order restraining the arrest of the petitioner atleast from January,2020. In such circumstances, there can be a direction to the petitioner to surrender before the investigating officer and to co-operate with the investigation. The admitted case of the prosecution is that, the entire misappropriation and cheating can be proved through documentary evidence. In such a situation, the custodial interrogation of the petitioner may not be necessary. Considering the entire facts and circumstances of this case, this bail application is allowed, on stringent conditions. I once again make it clear that the observations made by me in this order is only for the purpose of considering this bail application. The investigating officer is free to investigate the** B.A. NO.8863 OF 2019 12 ## **matter in accordance to law.** **12. 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 COVID19 Virus In Prisons case (Suo 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.** **13. 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.** **14. Considering the dictum laid down in the** B.A. NO.8863 OF 2019 13 **above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:** ## **1. The petitioner shall appear** **before the Investigating Officer within ten days from today and shall undergo interrogation;** ## **2. After interrogation, if the** **Investigating Officer proposes to arrest the petitioner, he 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 petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not,** B.A. NO.8863 OF 2019 14 **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. The petitioner shall not leave India without permission of the Court;** **5. The petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected;** ## **6. The petitioner 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. If any of the above conditions** B.A. NO.8863 OF 2019 15 **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.** **Sd/-** **pkk** **P.V.KUNHIKRISHNAN JUDGE**