Saritha S. Nair v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 25TH DAY OF OCTOBER 2013/3RD KARTHIKA, 1935** **Bail Appl..No. 7108 of 2013 ()** **------------------------------CRIME NO. 788/2013 OF ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT.** **.......** **PETITIONER/ACCUSED NO.2:** **--------------------------------------------** **SARITHA S.NAIR, AGED 35 YEARS, D/O.SOMARAJAN NAIR, VATTAPPARA PADINJARETHIL HOUSE, CHENGANNUR, PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.S.RAJEEV, SRI.K.K.DHEERENDRAKRISHNAN.** **RESPONDENT/STATE:** **--------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031, (CRIME NO.788/2013 OF ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT).** **BY PUBLIC PROSECUTOR MR.C. RASHEED.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25-10-2013, ALONG WITH BA NO.7109 OF 2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** **THOMAS P. JOSEPH, J. -------------------------------Bail Appl. Nos.7108 & 7109 of 2013 -------------------------------------------Dated this the 25[th ] day of October 2013** ## **O R D E R** These applications are preferred by the 2[nd] accused, in Crime Nos.788 of 2013 and 769 of 2013, respectively of the Ernakulam Town North Police Station both for the offences punishable under Secs.120B, 406, 419, 420, 468 and 471 read with Sec.34 of the Indian Penal Code ( for short, “the IPC”). 2. The allegation against the petitioner and the 1[st] accused in both the cases are identical - they induced the respective defacto complainants to believe that they will be given dealership of the Team Solar Renewable Energy Solution, will provide Wind Mill machine and collected huge amounts from them, but cheated them. It is alleged that in Crime No.788 of 2013, a sum of Rs.17,50,000/- (Rupees seventeen lakhs and fifty thousand only) was collected from the defacto complainant while the amount involved in Crime No.769 of 2013 is Rs.23,50,000/- ( Rupees Twenty three lakhs fifty thousand only). The Police, after investigation Bail Appl. Nos.7108 & 7109 of 2013 2 submitted final report in both the cases before the learned Additional Chief Judicial Magistrate (Economic Offences) Ernakulam (for short, “the ACJM”). Learned ACJM has taken cognizance of the offences and filed the cases as C.C. Nos.1725 of 2013 and 1722 of 2013, respectively. Petitioner moved applications for bail before the learned ACJM but, the applications were rejected and hence these applications. 3. Learned counsel submits that though in connection with certain other cases the petitioner was taken to custody on 03.06.2013, her arrest was recorded in these crimes on 12.07.2013. She is in custody in these cases from that day onwards. It is submitted that in some of the cases registered against the petitioner, she has been granted bail while in some others, she continues to be in custody. It is submitted that the petitioner has to look after her child and aged mother. According to the learned counsel, the presumption that the accused is innocent until found guilty has to prevail for the time being and since the final reports are also already filed, Bail Appl. Nos.7108 & 7109 of 2013 3 there is no reason to detain the petitioner further for investigation purposes. According to the learned counsel, if apprehension of the prosecution is that the petitioner might not make herself available for trial, is open to this Court to impose stringent conditions. 4. Learned Public Prosecutor, while opposing the applications submitted that the petitioner is an influential lady involved in several cases of cheating involving crores of rupees and that if she is released on bail, she might make herself scarce for the trial. Possibility of the petitioner involving in similar offences in future cannot also be ruled out, it is argued. 5. No doubt, the offences attributed to the petitioner are serious in nature. It is for the appropriate Court to consider whether it is merely a case of cheating arising from the common intention of the petitioner and the 1[st] accused alone or, there is any larger conspiracy behind to defraud the people and raise money. As of now, final reports are filed against the petitioner and the 1[st] accused where the Police have concluded that the Bail Appl. Nos.7108 & 7109 of 2013 4 offences involved are as aforesaid and read with Sec.34 of the IPC. I must therefore consider as things stand now whether, request of the petitioner for bail could be allowed. 6. The arrest of the petitioner was recorded in these cases on 12.07.2013 and since final reports are filed, investigation purposes do not require, as things now stand, detention of the petitioner. In considering whether the petitioner could be released on bail, I take note of the decision in **Sanjay Chandra v. CBI [2012(1) SCC 40] ,** where, referring to the 2G Spectrum Scam case the Supreme Court pointed out that gravity of the (alleged) offence by itself is not a consideration to reject the bail and that the Court must strike a balance between protection of personal liberty and proper investigation of the case. The Court should also bear in mind that the accused is presumed to be innocent till found guilty. Having regard to all the relevant circumstances, I am inclined to grant bail to the petitioner. 7. So far as the apprehension that the petitioner Bail Appl. Nos.7108 & 7109 of 2013 5 might indulge in similar offences or, might make herself scarce for trial is concerned, I am inclined to think that appropriate stringent conditions could be imposed. 8. That leads me to the question whether there should be a direction to the petitioner to deposit a portion of the amount allegedly cheated? In this connection, I must bear in mind the submission made by the learned Public Prosecutor that the petitioner is an influential lady. I must also bear in mind the interest of the victims while granting bail to the petitioner. The loss (allegedly) caused to the victim in Crime No.769 of 2013 is Rs.23,50,000/(Rupees twenty three lakhs fifty thousand only) while in Crime No.788 of 2013, it is RS.17,50,000/- (Rupees seventeen lakhs fifty thousand only) ( at this stage, learned counsel for the petitioner submitted that the company has returned Rs.6,50,000/- (Rupees six lakhs and fifty thousand only) to the victim in Crime No.788 of 2013). 9. The offence under Sec.420 of the Indian Penal Code which is common in both the cases is Bail Appl. Nos.7108 & 7109 of 2013 6 punishable with imprisonment up to 7 years and comes in Chapter XVII of the IPC and hence in view of Sec.439(1) (a), read with Sec.437(3) of the Code of Criminal Procedure (for short, “the Code”), the Court while granting bail can impose any condition which it considers is necessary in the interest of justice. Section 357(3) of the Code enables the Court to award compensation to the person who has suffered injury or loss by reason of the act for which the accused is sentenced (in case, the cases ends in conviction and sentence). 10. In view of the aforesaid provisions, it is within the power of this Court to impose a condition while granting bail that the petitioner has to deposit a certain amount so that in case the petitioner is ultimately found guilty and compensation is awarded to the victims, compensation can be released from the amount in deposit. In this connection, I also take note of the decision rendered by the Supreme Court in **Sumit Mehta v. State of NCT of Delhi [2013 (4) KHC SN13 (SC)].** There, while holding that the direction to deposit Bail Appl. Nos.7108 & 7109 of 2013 7 Rs.1,00,00,000/- (Rupees One Crore) is unreasonable, the Supreme Court observed, _“ certainly, in no words are we suggesting that the power to impose a condition of this nature is totally excluded, even in cases of cheating, electricity pilferage, white-collar crimes or chit fund scams etc.”_ The Supreme Court hastened to alert the Court, while imposing such conditions that it must be reasonable so that the order granting bail would go to the benefit of the accused . 11. Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am inclined to think that the petitioner could be directed to deposit a sum of Rs.5,00,000/- (Rupees five lakhs only) each in these cases for the reasons and purpose aforesaid. Resultantly, these applications are allowed as under: Petitioner is granted bail in Crime Nos.769 of 2013 and 788 of 2013 of the Ernakulam Town North Police station and will be released, if not required to be detained Bail Appl. Nos.7108 & 7109 of 2013 8 otherwise on her executing bonds for Rs.50,000/- (Rupees fifty thousand only ) each with two sureties each for the like sum each to the satisfaction of the learned Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and subject to the following conditions. 1. One of the sureties shall be a close relative of the petitioner. 2. Petitioner shall, (in case she is released on bail in all the cases, if it is so ) report to the officer investigating Crime Nos.769 and 788 of 2013 of the Ernakulam Town North Police station at all reasonable time and places and as and when required in connection with the said cases. 3. Petitioner shall, deposit a sum of Rs.5,00,000/- (Rupees five lakhs only) each in her name in a nationlised bank (initially for a period of two years and renewable as per order ## Bail Appl. Nos.7108 & 7109 of 2013 9 of the learned ACJM) and produce the Fixed Deposit receipts in the cases concerned before the learned ACJM while executing the bail bonds. (Petitioner shall not be admitted to the bail without complying with the said condition). 4. It is directed that in case, the cases are decided against the petitioner and the victims are awarded compensation, such compensation can be realised from the amount in deposit as well. 5. Petitioner shall surrender her passport before the learned Additional Chief Judicial Magistrate while executing the bail bond and in case she has none, file affidavit to that effect. 6. Petitioner shall not (in case she is released on bail in all the cases) leave the State of Kerala until otherwise directed and except with the permission of the learned Bail Appl. Nos.7108 & 7109 of 2013 10 Additional Chief Judicial Magistrate. 7. On the petitioner surrendering her passport as aforesaid, learned ACJM shall inform the passport authority at Ernakulam concerning the fact of deposit of that passport. 8. It is open to the investigating officer to inform other passport authorities as well concerning deposit of the passport as aforesaid. 9. Petitioner shall not get involved in any offence during the period of this bail. 10. In case any of condition nos.2, 6 and 9 is violated, it is open to the investigating officer to file application before the learned ACJM for cancellation of the bail granted hereby, as held in **P.K. Shaji V. State of Kerala (AIR 2006 SC 100)** . Sd/- THOMAS P. JOSEPH JUDGE NS