Rajesh Chandrasekharan and others v. State of Kerala and Anr.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944** ## **BAIL APPL. NO. 2359 OF 2022** **CRIME NO.152/2022 OF ELAMAKKARA POLICE STATION, Ernakulam** ## **PETITIONERS/ACCUSED NOS.1 TO 4:** - **1 RAJESH CHANDRASEKHARAN, S/O.CHANDRASEKHARAN PILLAI AGED 44 YEARS,CHANDRAKANDAM HOUSE, KOCHAMBAM, MANNAM P.O, NORTH PARAVOOR, PIN - 683520** - **2 AKHIN FRANCIS,S/O. FRANCIS M.D, AGED 35 YEARS, MAROTTIKKAL HOUSE, P.O. THIYARAM, THRISSSUR, PIN - 680026** - **3 ANOOP THOMAS,S/O. M.P. THOMAS, AGED 34 YEARS NELLIKKUNNATHU HOUSE, PANDAMKARY P.O, EDATHUA, ALAPPUZHA 689 573, PIN - 689573** - **4 SHERIN BIBIN,D/O.GOPI, AGED 39 YEARS PUTHENVEEDU HOUSE, 2ND FLOOR, CARMEL, THATTAZHAM P.O, NEAR DONBOSCO JUNIOR L.P. SCHOOL, VADUTHALA, ERNAKULAM, PIN - 682023** **BY ADVS. THOMAS T.VARGHESE PHILIP T.VARGHESE ACHU SUBHA ABRAHAM V.T.LITHA B.RAMAN PILLAI (SR.)(R-260)** ## **RESPONDENT/STATE AND INVESTIGATING OFFICER:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 THE STATION HOUSE OFFICER, ELAMAKKARA POLICE STATION, ELAMAKKARA, PIN - 682036** - **ADDL.R3 JAFFER KHAN, AGED 56 YEARS, S/O.OUKKAR HAJI, KARUVALLY HOUSE, VENGOLA P.O., PERUMANI, PERUMBAVOOR, PIN 683 556 IS IMPLEADED AS PER ORDER DATED 29.11.2022 IN CRL.M.A.NO.1 OF 2022)** BA No.2359 of 2022 2 **R1 & R2 BY PUBLIC PROSECUTOR SMT.NIMA JACOB R3 BY ADVS.K.A.SIYAD M.REVIKRISHNAN(K/1268/2004)** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.2359 of 2022 3 ## **VIJU ABRAHAM, J.** **................................................................. B.A. No.2359 of 2022 .................................................................** Dated this the 29[th] day of November, 2022 ## **ORDER** This is an application for anticipatory bail. 2. Petitioners are arrayed as accused in Crime No.152 of 2022 of Elamakkara Police Station registered alleging commission of offences punishable under Sections 420 and 120B read with Section 34 of the Indian Penal Code. 3. The gist of allegation is that the accused persons committed criminal conspiracy and have accepted deposits in violation of Rules in the name of the concern “Mavensworth Credits and Financial Services” and that they have accepted fixed deposit of Rs.20,000/- from the complainant on 02.07.2021 intending to make unlawful gain and thereby cheated him. The complainant got the FIR registered by filing a private complaint before the Judicial First Class Magistrate Court-II, Aluva. 4. Petitioners submit that they have been falsely implicated in the above side crime. The defacto complainant made a deposit of Rs. 20,000/- on 02.07.2021 with “Mavensworth India Nidhi Ltd.” for a period of 12 months. Petitioners apprehend that the said deposit was made BA No.2359 of 2022 4 with an intention of raising a complaint as a depositor. Petitioners have produced Annexure 4 document, which is an information received by the defacto complainant from the Registrar of Companies under the Right to Information Act and a perusal of the same would reveal that the information was sought on 28.05.2021, i.e., before the deposit was made by him on 02.07.2021. The intention of the defacto complainant is only to harass and intimidate the petitioners and destroy the reputation and business of the concerns in which they are involved. Petitioners 1 to 3 were associated with one M/s.Vishwadeepti Multi-State Cooperative Society and the petitioners left the concern due to a difference of opinion with the management. Thereafter, they started the Nidhi Company by the name, “Mavensworth India Nidhi Ltd.” and the certificate of incorporation is produced as Annexure 5. Petitioners 1 to 3 are also partners in Mavensworth Credit and Financial Services, and they have obtained licence under the Kerala Money Lenders Act as is evident from Annexures A6, A7 and A8. Petitioners 1 to 3 are also associated with Southern Green Farming and Marketing Multi-State Cooperative Society Ltd. and Annexure 9 is the certificate of registration. The partnership firm, the company and the society in which the petitioners are involved have established a good reputation in the financial market and thereafter business rivals were attempting to destroy the reputation of the businesses in which they are involved and the complainant herein is only a name lender for the business rivals. BA No.2359 of 2022 5 One Hyder Babu filed a complaint before the police raising allegation against Mavensworth Credit and Financial Services, Edapally, and later on, the proceedings were dropped by the police. Petitioner also relies on Exhibit-R3(d) report filed by the investigating agency in W.P.(C) No. 20770 of 2021, a writ petition filed by the defacto complainant, which shows that the allegation against the petitioners are all false. The petitioner would further submit that the amount of Rs.20,000/- deposited by the defacto complainant got matured and Annexure 12 intimation was given to collect the maturity value. Even after receipt of Annexure A12, the defacto complainant never cared to collect the maturity amount till date. It is also submitted that none of the provisions of the Banning of Unregulated Deposit Schemes Act is violated in as much as petitioners were running the establishment only on the strength of valid licence/permission granted by the competent authorities. 5. Defacto complainant got impleaded and filed detailed objections mainly contending that they were doing business in violation of the provisions of the Nidhi Rules, 2014 and also the Banning of Unregulated Deposit Schemes Act, 2019 (BUDS Act). One of the contentions raised is that Nidhi Company can open a branch only after completing a period of three years from its incorporation, but the petitioners have opened a branch in total violation of the said provision. The defacto complainant is a public interest litigant who has approached this Court several times in matters of public interest. The BA No.2359 of 2022 6 defacto complainant relying on Sections 8, 19 and 34 of the BUDS Act would contend that this Court cannot entertain an anticipatory bail petition in as much as a designated court has been conferred with the power to deal with issues relating to the provisions of the Act and the said Act has an overriding effect on any law made by any State or Union Territory. Learned counsel also relied on the judgment in B.A. No.6597 of 2021 and connected cases and contended that this Court has held that the High Court cannot entertain an application for anticipatory bail and the same can only be filed before the Special Court. The provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and that of the BUDS Act, are similar including the establishment of designated courts as per Section 8 of the Act. 6. Learned Public Prosecutor upon instructions submitted that the investigation so far revealed that the establishments are functioning with necessary licence/permissions issued by the competent authorities and further that the investigation is going on. 7. A perusal of Annexures A5 to A9 documents prima facie reveals that the establishments are having valid licences/permission to function. Exhibit R2(d) report filed along with the objection filed by the defacto complainant as well as the submissions made by the learned Public Prosecutor further reveal that the establishments are having valid licences. The specific contention of the petitioners is that even BA No.2359 of 2022 7 though Annexure A12 communication was sent to the defacto complainant to collect the maturity value of his deposit, he has not turned up to collect the same. Therefore, the ingredients of Section 420 IPC will not lie, and since they are running the establishment after obtaining the necessary licences/permissions, there is no violation of the provisions of the BUDS Act. The reliance placed by the learned counsel for the defacto complainant in the order in B.A. No.6597 of 2021 and connected cases, to contend for the position that an anticipatory bail application will not lie before this Court appears to be without much merit. In that case, the court was considering the provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 which specifically provides for an appeal (Section 14A) against any order passed by the designated court to the High Court and Section 18 specifically bar the applicability of Section 438 Cr.P.C. in respect of the offences committed under the said Act and it is in the said circumstance that this Court held that an application for anticipatory bail can be filed only before the Special Court and that an appeal will lie to the High Court against the order passed by the Special Court as provided in Section 14A of the Act. In the BUDS Act, there is no provision barring the invocation of Section 438 Cr.P.C. in respect of offences committed under this Act. Further, the appeal provided under Section 19 against the final order of the designated court constituted as per Section 8 of the Act is only in respect of an order passed by the BA No.2359 of 2022 8 designated court under Chapter V of the BUDS Act. In view of the same, I find no merit in the contention of the defacto complainant that this Court has no jurisdiction to entertain a petition under Section 438 Cr.P.C. 9. In the facts and circumstances of the case and the nature of the allegations, I am of the opinion that custodial interrogation is not required for the purpose of the investigation, and only a limited custody be granted for the same. In the result, this application is allowed. Petitioners shall surrender before the investigating officer in Crime No.152 of 2022 of Elamakkara Police Station, Ernakulam District on 08.12.2022 at 11.00 a.m. and make themselves available for interrogation on that day or any other day/s as directed by the investigating officer. It is directed that in the event of arrest of the petitioners in Crime No.152 of 2022 of Elamakkara Police Station, Ernakulam District, they shall be produced before the jurisdictional court on the same day and shall be released on bail subject to the following conditions:- (i) The petitioners shall execute a bond for a sum of Rs.50,000/(Rupees fifty thousand only) each with two solvent sureties each for the likesum to the satisfaction of the jurisdictional court. (ii) They shall appear before the investigating officer in Crime No.152 of 2022 of Elamakkara Police Station, Ernakulam District, as and when called for. BA No.2359 of 2022 9 (iii) They shall not attempt to influence the defacto complainant or interfere with the investigation or to influence or intimidate any witness in Crime No.152 of 2022 of Elamakkara Police Station, Ernakulam District. (iv) They shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the investigating officer in Crime No.152 of 2022 of Elamakkara Police Station, Ernakulam District, may file an application before the jurisdictional court, for cancellation of bail. It is made clear that it is within the power of the police to investigate the matter and if necessary to effect recoveries on the information if any given by the petitioners even when any of the petitioners are on bail as per the judgment of the Apex Court in _**Sushila Aggarwal and others v. State (NCT of Delhi) and another (2020 (1) KHC 663).**_ Sd/- ## **VIJU ABRAHAM** **JUDGE** cks