Rahul R.U. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 25[TH] DAY OF AUGUST 2021 / 3RD BHADRA, 1943** **BAIL APPL. NO. 6161 OF 2021** **CRIME NO.240/2021 OF Museum Police Station,** **Thiruvananthapuram** ## **PETITIONER/ACCUSED NO.1:** RAHUL R.U., AGED 29 YEARS S/O.G.RAJAN, ANIZHAM HOUSE, PATTAKKULAM, VEERANKAVU (PO), THIRUVANANTHAPURAM, PIN-695 572. BY ADV VIVEK VENUGOPAL ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.A.RAJESH, SPL.PP, VACB THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.08.2021, THE COURT ON 25.08.2021 DELIVERED THE FOLLOWING: B.A.No.6161/2021 2 ## **R.NARAYANA PISHARADI, J ************************ B.A.No.6161 of 2021 ------------------------------------Dated this the 25[th] day of August, 2021 ------------------------------------------- ## **O R D E R** This is an application for bail filed under Section 439 of the Code of Criminal Procedure, 1973 (for short ‘the Code’). 2. The petitioner is the first accused in the case registered as Crime No.240/2021 of the Museum Police Station. 3. The case was registered against the accused initially under Sections 408, 417 and 420 read with 34 of the Indian Penal Code, 1860. Subsequently, the investigating officer filed report in the court concerned for continuing the investigation into the offences punishable under Section 13(1)(a) of the Prevention of Corruption Act, 1988 (as amended by Act 16 of 2018) and also under Sections 465, 468, 471 and 120B of the IPC. B.A.No.6161/2021 3 4. The prosecution case is as follows : The petitioner, who is the first accused, was the Senior Clerk in the Office of the Scheduled Caste Development (SCD), Thiruvananthapuram Corporation. There are various schemes formulated by the Government for improving the social conditions of persons who belong to scheduled castes. The applications received for monetary relief from such persons would be processed in the SCD office and recommendation would be made to the Scheduled Caste Development Officer for sanctioning money in eligible cases. The money sanctioned would be passed for payment by the treasury and it would be transferred to the bank accounts of the beneficiaries through Bill Information Management System. The bank account numbers of the beneficiaries are being entered in the SCD office. The petitioner was the person in the SCD office who was in charge of receiving the applications and processing the same. Accused 2 to 11 are close relatives or friends of the petitioner. The fourth accused was a Clerk in the SCD office and the fifth and the eleventh accused were Scheduled Caste B.A.No.6161/2021 4 Promoters. Pursuant to a conspiracy hatched by the accused persons, the petitioner incorporated the bank account numbers of accused 2 to 11 in the applications and using such applications, he got transferred a total amount of Rs.79,52,693/- to their bank accounts. Thereafter, with the connivance of accused 2 to 11, the petitioner withdrew that amount and misappropriated it. Thus, the accused siphoned out money which was intended to be paid to the poor and needy persons and cheated those persons and also the Government. 5. Heard learned counsel for the petitioner and the learned Public Prosecutor. 6. The petitioner is in custody from 09.07.2021 onwards. This is the second application for regular bail filed by the petitioner. The first application for regular bail filed by him was dismissed by this Court on 02.08.2021. This second application for the same relief was filed by him on 06.08.2021. 7. The law relating to successive bail applications is well- settled. An accused has right to make successive applications for B.A.No.6161/2021 5 grant of bail. But, the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications (See **Kalyan Chandra Sarkar v. Rajesh Ranjan : AIR 2004 SC 1866** ). 8. A bail application in a case where earlier applications have been rejected is maintainable only when there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete (See **Kalyan Chandra Sarkar v. Pappu Yadav : AIR 2005 SC 921** ). 9. The earlier application for bail filed by the petitioner was dismissed, by stating as follows, but for other reasons also. _“The investigation of the case is at the nascent stage. A deeper probe is required with regard to the embezzlement of money by the petitioner. The evidence collected by obtaining custody of_ B.A.No.6161/2021 6 _the petitioner has to be evaluated by the investigating officer to ascertain the real ramifications of the various transactions conducted. ...... releasing the petitioner on bail at this stage would certainly hamper the investigation”._ 10. There could not have been any change in the above situation within four days since the dismissal of the first application for bail filed by the petitioner. However, when the present application came up for hearing two weeks ago, learned counsel for the petitioner requested to postpone the consideration of the application to another date. 11. By this time, material witnesses in the case should have been questioned by the investigating officer. There was sufficient time also for collecting crucial documents which are relevant to prove the offences. Apprehension of the prosecution that the petitioner may abscond on getting bail can be met with by imposing appropriate conditions. Deposit of cash or furnishing bank guarantee equal to a portion of the misappropriated amount can also be insisted. B.A.No.6161/2021 7 12. In the above circumstances, I am of the view that bail can be granted to the petitioner, if he is ready to deposit money or to furnish bank guarantee which is equal to half of the amount allegedly embezzled by him through the bank accounts of his wife and other close relatives. 13. In **Sumit Mehta v. State : (2013) 15 SCC 570** , it has been held that it is not totally impermissible for the Court to insist on deposit of cash as a condition for granting bail in cases of cheating, electricity pilferage, white-collar crimes or chit fund scams etc. 14. In **Bharat Stars Services Pvt. Ltd. v. Harsh Dev Thakur : AIR 2019 SC 718** , having found that the financial fraud involved in the case was around Rs.2.75 crores, the Supreme Court enhanced the security to be furnished by the accused for releasing him on bail and ordered that the accused shall furnish security for a further amount of Rs.75 lakhs, in addition to Rs. 50 lakhs deposit, as directed by the High Court. B.A.No.6161/2021 8 ## 15. In **Tridhara Mohanty v. State of Odisha : AIR 2021** **SC 2712** , the Supreme Court did not find that the order passed by the High Court directing the accused to deposit cash/furnish bank guarantee as illegal but modified the condition regarding furnishing of cash security for about Rs.90 lakhs and directed the accused to offer properties valuing at least three crores by way of security to the satisfaction of the trial court as a condition for releasing the accused on bail and further directed that the properties so offered shall be available for such processes or orders as the Court may deem fit to pass at the conclusion of the proceedings. ## 16. In **State of Bihar v. Divesh Kumar Chaudhary :** **(2018) 16 SCC 817** , the High Court had passed an order for deposit of 10 to 20% of the amount, alleged to be involved in different cases for grant of bail/anticipatory bail but as the anticipatory bail/bail was granted more than one year back and the financial interest of the State was secured, the Supreme Court did not cancel the anticipatory bail/bail but modified the B.A.No.6161/2021 9 order of the High Court by imposing additional conditions. 17. The statement filed by the investigating officer shows that the amount misappropriated by the petitioner through the bank accounts of his wife and close relatives alone comes to more than Rs.42 lakhs. Considering this fact, I find that, as a condition for releasing the petitioner on bail, it is expedient to direct that he shall deposit an amount of Rs.20 lakhs or furnish bank guarantee for that amount. 18. Consequently, the application for bail is allowed and it is directed that the petitioner shall be released on bail on the following conditions. 1) The petitioner shall execute a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties each for the like amount to the satisfaction of the jurisdictional court concerned. 2) The petitioner shall not influence or intimidate the prosecution witnesses. He shall not make any attempt to tamper with the evidence in the case. B.A.No.6161/2021 10 3) The petitioner shall appear before the investigating officer as and when directed in writing to do so. 4) The petitioner shall surrender his passport in the Court concerned within three days of his release on bail. If he does not possess any passport or if he has deposited the passport in the court in connection with any other case, he shall file an affidavit to that effect in the Court concerned within that period. 5) The petitioner shall not leave the State of Kerala without the prior permission of the jurisdictional court concerned. 6) The petitioner shall deposit Rs.20 lakhs in the trial court or furnish bank guarantee from a nationalised bank for that amount to the satisfaction of the jurisdictional court. If cash deposit is made, the court shall deposit it in a nationalised bank for an appropriate term so as to avoid loss of interest on the amount. B.A.No.6161/2021 11 7) If the petitioner violates any of the conditions of bail, it is open to the jurisdictional court concerned to cancel the bail without any further orders from this Court but in accordance with law. 19. If for any reason, the petitioner does not avail the benefit of this order, he is at liberty to move the jurisdictional court for default bail as and when he is entitled to do so. In case the jurisdictional court then finds that he is entitled to get default/statutory bail, cash deposit shall not be insisted as a condition for releasing him on such bail. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr B.A.No.6161/2021 12 ## **APPENDIX IN B.A.NO.6161 OF 2021** ## PETITIONER'S ANNEXURES: ANNEXURE 1: PHOTOCOPY OF THE ORDER DATED 06.07.2021 IN B.A.NO.3864/2021 PASSED BY THE HON'BLE COURT. ANNEXURE 2: TRUE PHOTOCOPY OF THE CUSTODY APPLICATION DATED 09.07.2021. ANNEXURE 3: PHOTOCOPY OF THE ORDER DATED 09.07.2021 IN CRL.M.P.NO.590/2021 PASSED BY THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM. ANNEXURE 4: TRUE PHOTOCOPY OF THE CUSTODY APPLICATION DATED 12.07.2021. ANNEXURE 5 : TRUE PHOTOCOPY OF THE ORDER DATED 02.08.2021 IN B.A.NO.5527/2021 PASSED BY THIS HON'BLE COURT. ## RESPONDENT'S EXHIBITS : NIL TRUE COPY PS TO JUDGE