Saneesh; S. Njanasundaram; P.K. Sadasivan v. State of Kerala and The Station House Officer, Thodupuzha Police Station and Seejo Joseph

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 ``` ## `BAIL APPL. NO. 4710 OF 2024` ``` CRIME NO.1446/2023 OF THODUPUZHA POLICE STATION, IDUKKI ``` ## `PETITIONERS:` ``` 1SANEESH, AGED 39 YEARS S/O. P.K. SADASIVAN, PINACKAL HOUSE, PINACKAL HOUSE, NEDUMKANDAM P.O., UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN – 685553 ``` ``` 2S. NJANASUNDARAM, AGED 62 YEARS S/O. SOMAN, KUZHIKALAYIL HOUSE, NEDUMKANDAM P.O., UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN – 685553 3P.K. SADASIVAN, AGED 63 YEARS S/O. KUMARAN, PINACKAL HOUSE, NEDUNKANDOM DESOM, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN – 685553 ``` ``` BY ADVS.GEORGE MATHEW SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S. ``` ## `RESPONDENTS:` - `1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031` ``` 2THE STATION HOUSE OFFICER, THODUPUZHA POLICE STATION, THODUPUZHA, IDUKKI, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` _B.A.No.4710/2024_ _-:2:-_ ``` 3SEEJO JOSEPH, S/O. M.M. JOSEPH, MAMPLAL HOUSE, KOTHAIKUNNU, THODUPUZHA P.O, IDUKKI DISTRICT IS IMPLEADED AS ADDITIONAL THIRD RESPONDENT AS PER ORDER DATED 24.07.2024 IN CRL.M.A.NO.2/2024. ``` ``` BY ADVS.N. RETHEESH SUMA RATHEESH(S-878) SHANKAR RETHEESH(K/001493/2019) ``` ## `OTHER PRESENT:` ## `SR PP SRI C S HRITHWIK` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.4710/2024_ _-:3:-_ _Dated this the 24[th] day of July, 2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused Nos. 1 to 3 in Crime No.1446/2023 of the Thodupuzha Police Station, Idukki, which is registered against them for allegedly committing the offences punishable under Sections 406, 418, 420, 465 & 506 read with Section 34 of the Indian Penal Code,1860. 3. The gist of the prosecution case is that: the accused, in furtherance of their common intention, to cause unlawful loss to the de-facto complainant, had received money from him from 2013, on different occasions, and they had entered into an agreement with him to carry on a bag manufacturing unit by _B.A.No.4710/2024_ _-:4:-_ offering Rs.30,000/- as profit. Subsequently, in the year 2015, the first petitioner, the de-facto complainant and others entered into a deed of partnership, and the accused made the de-facto complainant secure a loan for Rs.21,00,000/- and subsequently received Rs.1,50,000/- from him. In the year 2016 again, the accused made the de-facto complainant avail loans by mortgaging his property, and they started a petroleum retail outlet, which was taken on lease for 10 years. Even though the accused received money from the de-facto complainant, they did not pay him the profit as assured. Thus, the accused have committed the above offences. 4. Heard; Sri.George Mathew, the learned counsel appearing for the petitioners, Sri. C. S. Hrithwik, the learned Senior Public Prosecutor and Sri. N.Ratheesh, the learned counsel appearing for the third respondent. _B.A.No.4710/2024_ _-:5:-_ 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure-A1 complaint and Annexure-A2 FIR would clearly reveal that the dispute between the parties is civil in nature. The third respondent has already instituted Annexures-3 & 4 plaints before the Commercial Courts, seeking recovery of money and other consequential reliefs, which by itself proves that none of the offences alleged against the petitioner would be attracted. The first petitioner and the third respondent are partners of the firm. The entire transactions are borne by records. The third respondent has been paid profits as assured in the partnership deed. In any given case, the petitioners’ custodial is not and no interrogation necessary, recovery is to be effected. Hence, the application may be allowed. _B.A.No.4710/2024_ _-:6:-_ 6. The learned Public Prosecutor opposed the application. He submitted that the investigation in the case is in progress and if the petitioners are granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. Nonetheless, he did not dispute the fact that there are suits pending between the parties before the Commercial Courts. 7. The learned counsel for the third respondent also opposed the application. The third respondent has filed a counter affidavit, inter-alia, contending that there are incriminating materials to substantiate the petitioner's involvement in the crime. The petitioners have cheated the de-facto complainant and have forged documents for the purpose of making unlawful gain. He submitted that if the petitioners are granted an order of pre-arrest bail, it would sabotage the entire investigation. Hence, the application may be _B.A.No.4710/2024_ _-:7:-_ dismissed. 8. The prosecution allegation is that the petitioners have cheated the de-facto complainant by receiving money from him on the assurance of paying him profit. However, the petitioners failed to pay any profit as assured by them. They have also fabricated documents and caused unlawful loss to the third respondent. 9. On a scrutiny of Annexure-A1 complaint and Annexure-A2 FIR, it can be seen that the transactions between the parties commenced as early as on 01.01.2013. However, Annexure-A2 FIR was registered only on 16.11.2023. Indisputably, the third respondent has filed Annexures-A3 & A4 plaints before the Commercial Courts seeking recovery of money and for other ancillary reliefs. Therefore, prima facie, it is seen that the disputes between the parties are civil in nature. _B.A.No.4710/2024_ _-:8:-_ 10. In **Indian Oil Corporation v. NEPC India Ltd.** [(2006) 6 SCC 736], the Honourable Supreme Court has 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”. ## 11. 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 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. 12. Again in **ARCI v. Nimra Cerglass Technics** **(P) Ltd.** [(2016) 1 SCC 348] the Honourable Supreme Court while considering the difference between breach _B.A.No.4710/2024_ _-:9:-_ 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. 13. 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. 14. The parameters to grant an order of pre-arrest bail have been succinctly laid down by the Hon’ble Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] in the following lines: “ **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; _B.A.No.4710/2024_ _-:10:-_ (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 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.” ## 15. While dealing with a similar matter, the _B.A.No.4710/2024_ _-:11:-_ Honourable Supreme Court in **Ashok Kumar v. State of Union Territory, Chandigarh** [SLP (Crl.) No.9949/2023], after taking note of the fact that the crime was registered after six years from the alleged date of incident and the accused had joined the investigation, went on to observe that, even though custodial interrogation is one of the effective modes of investigation, it is equally true that just because custodial interrogation is not required that by itself may not be a ground to release an accused on anticipatory bail, if the offences are serious in nature. However, a mere assertion on the part of the State while opposing a plea for anticipatory bail stating that custodial interrogation is necessary would not be sufficient. The State has to show or indicate more than prima facie, why custodial interrogation of the accused is required for the purpose of investigation. 16. On an overall consideration of the facts, the _B.A.No.4710/2024_ _-:12:-_ rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the transactions between the parties commenced in the year 2013 and the first petitioner and the third respondent entered into a deed of partnership in the year 2015 and the monetary transactions have taken place for the last nearly 10 years, that the third respondent has already instituted Annexures-A3 & A4 suits before the Commercial Courts and the same is pending consideration and on prima facie finding that the disputes between the parties are civil in nature, I am of the firm view that the petitioners’ custodial interrogation is not necessary. Therefore, I am satisfied and convinced that the petitioners have made out valid grounds to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code, particularly because the petitioners have no criminal antecedents, they are _B.A.No.4710/2024_ _-:13:-_ willing to cooperate with the investigation, and their custodial interrogation is not necessary. Hence, I am inclined to allow the application. In the result, the application is allowed subject to the following conditions: - (i)The petitioners are directed to surrender before the Investigating Officer within two weeks from today. - (ii) In the event of the arrest of the petitioners, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.2,00,000/- (Rupees Two Lakh only) each with two solvent sureties for the like amount each; - (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so _B.A.No.4710/2024_ _-:14:-_ as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passport, they shall file affidavits to the effect before said court within the said period; - (vi)The petitioners shall not get involved in any other offence while on bail; - (vii) 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. - (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. ## _B.A.No.4710/2024_ _-:15:-_ - (ix) 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 petitioners even while the petitioners are 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]. - (x) 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** DST/24.07.24 //True copy// P.A. To Judge