REJI KURIAKOSE v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946** **BAIL APPL. NO. 1749 OF 2024** **CRIME NO.1529/2023 OF ADIMALY POLICE STATION, IDUKKI** ## **PETITIONER/ACCUSED:** **REJI KURIAKOSE, AGED 52 YEARS S/O.UTHUPP, AMBATTUKUDIYIL HOUSE, MACHIPLAVU.P.O.,MANNAMKANDAM, IDUKKI, PIN - 685561** **BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA BREJITHA UNNIKRISHNAN SUDEESH K.E.** ## **RESPONDENTS/STATE:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** ***ADDL.R2 SIBI. M.E (IMPLEADED AS ADDL R2) MAPPANIYIL HOUSE, ADIMALY, MANNAMKANDAM, IDUKKI (IMPLEADED AS ADDL R2 AS PER ORDER DTD 3/4/2024 IN CRL MA 1/2024)** **BY ADVS. ANIL SIVARAMAN RAJI VINCENT JOTHISHA K.A. BEENA JOSEPH SREELEKHA. P SRI.C.S HRITHWIK,PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 1749 OF 2024 2** ## **O R D E R** Dated this the 05[th] day of April, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, (‘Code’ for short) for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No. 1529/2023 of Adimaly Police Station, Idukki, registered against him for allegedly committing the offences punishable under Sections 379, 420, 447, 451, 294(b) and 506 of the Indian Penal Code, 1860 (‘IPC’, for short). 3. The crux of the prosecution case is that: the accused in contravention of an understanding that was arrived at between the defacto complainant and the 2[nd] respondent, had transferred the property of the defacto complainant to a 3[rd] party and made profit out of it. He also cut and removed 50 trees which stood inside the property. Further, he broke open the main door of the house and took away the tools kept inside. It is also alleged that there was a ## **BAIL APPL. NO. 1749 OF 2024 3** mutual understanding between the parties that their properties would be exchanged on payment of a consideration of Rs. 6,44,000/-. However, the accused failed to honour his commitment and cheated the defacto complainant. Thus, the accused has committed the above offences. 4. Heard; Sri.Suman Chakravarthy, the learned counsel appearing for the petitioner, Sri.C.S Hrithwik, the learned Public Prosecutor and Sri.Anil Sivaraman, the learned counsel appearing for the additional 2[nd] respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against them. A reading of the allegations in Annexure-1 FIR would undoubtedly substantiate that the transaction between the parties is civil in nature. None of the offences alleged against the petitioner can be substantiated. In any way the petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner is entitled to an order of ## **BAIL APPL. NO. 1749 OF 2024 4** pre -arrest bail. 6. The learned Public Prosecutor opposed the application. Nevertheless he did not dispute the fact that the transaction between the parties was covered by Annexure-4 agreement. He submitted that, consequent to the complaint received by the Investigating Officer, Annexure-2 notice was issued to the defacto complainant and his interrogation was completed. Annexure-1 FIR was registered pursuant to the private complaint filed by the defacto complainant, and the investigation is in progress. 7. The learned counsel for the defacto complainant opposed the application. He submitted that the petitioner has thoroughly cheated the defacto complainant. The petitioner's custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted pre-arrest bail, certainly it would hamper the investigation. Hence, the application may be dismissed. 8. On a _prima facie_ evaluation of the materials on record, it can be seen that the petitioner and defacto ## **BAIL APPL. NO. 1749 OF 2024 5** complainant had entered into Annexure-4 agreement on 05.09.2022, wherein the defacto complainant had, _inter alia_ , agreed to transfer 1 acre of property to the petitioner on payment of an outstanding liability to the Kerala Bank. He also agreed that, if Rs.6,00,000/- is paid by the defacto complainant, then he would transfer 1 acre of property and his house, to the defacto complainant. Therefore, on an overall consideration of the facts, it can be gathered that the dispute between the parties is civil in nature. 9. In **Indian Oil Corporation v. NEPC India Ltd.** [(2006) 6 SCC 736], the Honourable Supreme Court observed in the following lines: “13. ……. Any effort to settle civil disputes and claims, which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged”. ## 10. Similarly in **Sarabjit Kaur v. State of Punjab and Another [2023 SCC Online 210]** the Honourable Supreme Court held that, a mere breach of contract does not give rise ## **BAIL APPL. NO. 1749 OF 2024 6** to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up a promise will not be enough to initiate criminal proceedings. 11. Again in **ARCI v. Nimra Cerglass Technics (P) Ltd.** [(2016) 1 SCC 348] the Honourable Supreme Court while considering the difference between breach of contract and the offence of cheating held that the distinction depends upon the intention of the accused at the time of the alleged incident. Only if the the dishonest intention of the accused can be established at the time of entering the transaction the criminal liability can be attracted. 12. Recently, in **Sachin Garg V. State of U.P** [(2024) KHC Online 6046], the Honourable Supreme Court has again reitrated that a mere breach of contract will not constitute the offence of cheating. 13. The parameters to grant an order of pre-arrest bail have been succinctly had down by the Hon'ble Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] in the following lines: ## **BAIL APPL. NO. 1749 OF 2024 7** 111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 ## **BAIL APPL. NO. 1749 OF 2024 8** and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 14. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record and the law referred to the above said decisions, I am _prima facie_ satisfied that the petitioner's custodial interrogation is not necessary. Hence, I am convinced the petitioner has made out exceptional grounds to invoke the extra jurisdiction power under Section 438 of this Court. In the result the application is allowed subject to the following conditions: ## **BAIL APPL. NO. 1749 OF 2024 9** - (i) The petitioners is directed to surrender before the Investigating Officer within ten days from today - (ii) In the event of the petitioner arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. - (iii) On such production, the jurisdictional court shall release the petitioner on bail on them executing a bond for Rs.1,00,000/(Rupees One Lakh only) each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; - (iv) The petitioner shall co-operate with the investigation and make himself available for interrogation and for the purpose of investigation as and when directed by the Investigating Officer; - (v) The petitioner shall not intimidate the witnesses or interfere with the investigation in any manner; - (vi) The petitioners shall not get involved in any other offence while on bail. - (vii) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; ## **BAIL APPL. NO. 1749 OF 2024 10** - (viii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (ix) Applications for deletion/modification of the bail conditions shall also be filed before the court below - (x) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. - (xi) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- **C.S.DIAS, JUDGE** LEK ## **BAIL APPL. NO. 1749 OF 2024 11** ## **APPENDIX OF BAIL APPL. 1749/2024** ## **PETITIONER ANNEXURES** |**Annexure-**|**1**|**A TRUE COPY OF FIR IN CRIME NO.1529/2023**| |---|---|---| |||**OF ADIMALY POLICE STATION, IDUKKI**| |**Annexure-**|**2**|**A TRUE COPY OF THE NOTICE U/S 41(A)(1)**| |||**DATED 25.01.2024**| |**Annexure-**|**3**|**A TRUE COPY OF THE LETTER DATED**| |||**23.02.2023 FROM THE DEPUTY GENERAL**| |||**MANAGER, KERALA BANK**| |**Annexure-**|**4**|**A TRUE COPY OF THE AGREEMENT DATED**| |||**05.09.2022 BETWEEN THE PETITIONER AND THE**| |||**DEFACTO COMPLAINANT**|