Shanavas B., V.M. Basheer and K.M. Sheerijan v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2016-03-03
Court Decision / Holding: The application stands allowed and the petitioners are directed to be released on bail on furnishing bonds of Rs. 40,000 each with two solvent sureties for the same amount, to surrender within 10 days, and subject to conditions (i) report to the Investigating Officer on alternate Mondays, (ii) not intimidate or influence witnesses, (iii) not commit any offence while on bail, (iv) cooperate with the investigation.
Final Disposition: Bail granted

Parties to the Case

Appellants / Petitioners

Shanavas B.
V.M. Basheer
K.M. Sheerijan

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam
The Assistant Commissioner of Police, District Crime Branch, Thiruvananthapuram City
The Station House Officer, Vanchiyoor Police Station, Thiruvananthapuram District

Legal Representation & Advocates

Counsels for Petitioners

• K. Ramakumar (Sr.)
• S.M. Prasanth
• G. Renjith
• Asha Babu
• S. Parvathi
• Arun Baby Stephen
• Ashwin Shanker

Counsels for Respondents

• C. Rasheed (Sr. G.P.)

Case Synopsis & Summary

This is a Kerala High Court bail application under Section 438 CrPC concerning three accused in Crime No. 1224/2015 of Vanchiyoor Police Station for alleged offences under Section 420 read with Section 34 IPC. The petitioners—Shanavas B., V.M. Basheer and K.M. Sheerijan—are partners in a gold trading business. The de facto complainant placed an order for 25 kg of gold on 13-8-2015 for which he paid Rs. 6,30,50,000, and on 17-8-2015 a second order for 30 kg in the complainant’s favor was accompanied by Rs. 7,71,60,000. The second order was cancelled, and the complainant demanded the money back; part of the sum was refunded. The firm issued a receipt showing delivery of gold to the complainant to satisfy tax authorities, but the gold ordered under the first contract was not delivered and the money was not returned. The Public Prosecutor urged custodial interrogation to advance the investigation. The judge noted that the transaction appears civil in nature and that any element of cheating, if present, is a matter for investigation, and that custodial interrogation is not necessary. Accordingly, the court granted Sec. 438 relief, directing release on bonds of Rs. 40,000 with two solvent sureties, reporting to the IO on alternate Mondays, non-interference with witnesses, prohibition from further offences, and cooperation with the investigation. Additionally, the order records a clerical amendment about a fine deadline and notes a mediation reference.

Provisions of Law Cited

Section 420 IPCSection 34 IPCSection 438 CrPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The order notes the matter as primarily civil in nature and that the element of cheating, if any, is a matter for investigation; the bail under Sec 438 is sought and supported by the court's subsequent reasoning that custodial interrogation is not necessary.

Contentions of Respondents

The Public Prosecutor urged that custodial interrogation ought to be possible to progress the investigation and that the petitioners’ availability for interrogation should be ensured even if bail is granted.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Subhash Sait v. Sree Gokulam Chits and Finance, Palakkad and Others	2015 (4) KHC 74	Positive	Court cites this decision to justify that no separate order is required for accepting money by the court below in the given context.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 3RD DAY OF MARCH 2016/13TH PHALGUNA, 1937 Bail Appl..No. 7592 of 2015 () ------------------------------- CRIME NO. 1224/2015 OF VANCHIYOOR POLICE STATION , THIRUVANANDAPURAM PETITIONER(S)/ACCUSED: --------------------- 1. SHANAVAS B. AGED 33 YEARS S/O.V.M.BASHEER, BEE & BEE INVESTMENTS, DOOR NO.XL/251 KALATHIL BUILDINGS, HOSPITAL ROAD, ERNAKULAM KOCHI-11, RESIDING AT AYYAPPANKAVU, ERNAKULAM. 2. V.M.BASHEER S/O.MOHAMMED YOUSEF, BEE & BEE INVESTMENTS DOOR NO.XL/251, KALATHIL BUILDINGS, HOSPITAL ROAD ERNAKULAM, KOCHI-11, RESIDING AT AYYAPPANKAVU ERNAKULAM. 3. K.M.SHEERIJAN, AGED 58 YEARS W/O.V.M.BASHEER, RESIDING AT SHANAVAS MANZIL AYYAPPANKAVU, ERNAKULAM. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.G.RENJITH SMT.ASHA BABU SMT.S.PARVATHI SRI.ARUNBABY STEPHEN SRI.ASHWIN SHANKER Bail Appl..No. 7592 of 2015 () ------------------------------- -2- RESPONDENT(S)/STATE AND COMPLAINANT: ----------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031. 2. THE ASSISTANT COMMISSIONER OF POLICE DISTRICT CRIME BRANCH, THIRUVANANTHAPURAM CITY THIRUVANANTHAPURAM-695001. 3. THE STATION HOUSE OFFICER VANCHIYOOR POLICE STATION THIRUVANANTHAPURAM DISTRICT, PIN-695005. BY PUBLIC PROSECUTOR SRI. C. RASHEED (SR. G.P.) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## B. SUDHEENDRA KUMAR, J. ..................................................... ..................................................... ## Dated this the ## ORDER The petitioners are accused in Crime No. 1224 of 2015 of Vanchiyoor Police Station for the offence under Section 420 read with Section 34 IPC. This application has been fled under Section 438 of the Code. ## 2. The prosecution allegation can be briefly stated thus:- The first petitioner is the son and the 3rd petitioner is the wife of the 2nd petitioner. They are having a partnership firm having gold business. The de facto complainant placed an order for 25 kgms of gold on 13-8-2015. An amount of Rs. 6,30,50,000/-was also paid by the de facto complainant at the time of placing the above order. Thereafter, on 17-8-2015, the de facto complainant placed another order in favour of the petitioner for supplying 30 kgms of gold. For that order, an amount of Rs. 7,71,60,000/- was paid by the de facto complainant. Thereafter, the second order was cancelled by the de facto complainant. Thereafter, the de facto complainant ## -: 2 :- Crl.R.P. No. demanded the money paid in connection with the second order. An amount of Rs. 6,67,60,000/- was re-paid by the firm of the petitioners. While so, the de facto complainant approached the firm of the petitioners for issuing receipt showing that the gold as per the first order had been delivered to the de facto complainant, for the purpose of producing the same before the Income Tax and Sales Tax authorities. Accordingly, the firm of the petitioners issued the receipt. Thereafter, the firm of the petitioners did not give the 25 Kgm of gold ordered by the de facto complainant on 13-8-2015. They also did not return the money paid by the de facto complainant. ## 3. Heard. 4. The learned Public Prosecutor has submitted that this Court has to ensure that the petitioners will be available or interrogation even if this Court grants relief under Sec. 438 of the Code. 5. Having gone through the relevant inputs, it appears that the transaction involved in this case is mainly civil in nature. It further appears that the parties have transaction for so many years even in the past. Therefore, whether there is any element of cheating involved in this case is a matter for investigation. -: 3 :- Crl.R.P. No. 6. However, considering the facts of the case, I am of the view that custodial interrogation is not necessary for the progress of this case. In such circumstances, the order under Sec. 438 is justified in this case. 7. In the result, this application stands allowed and the respondents are directed to release the petitioners on bail, in the event of their arrest in Crime No.1224 of 2015 of Vanchiyoor Police Station on each of the petitioners executing a bond for Rs. 40,000/- (Rupees forty thousand only) each, with two solvent sureties each, for the like sum to the satisfaction of the 2nd respondent before whom the petitioners shall surrender within 10 days from today, if not arrested in the meantime and subject to the following further conditions:- i) The first and second petitioners shall report before the Investigating Officer on alternate Mondays between 9 a.m. and 11a.m. and thereafter, as and when required by the Investigating Officer, in writing. ii) The petitioners shall not intimidate or influence the witnesses in any way or tamper with the investigation. Iii) The petitioners shall not involve in any offence while on bail. -: 4 :- Crl.R.P. No. iv) The petitioners shall co-operate with the investigation. B.SUDHEENDRAKUMAR, JUDGE. ## CRL.R.P. NO. 1635 When the order dated 9-12-2015 was pronounced, this Court granted six months' time to pay he fine. However, due to an inadvertant omission, the said aspect was not incorporated in the above said order. It is only a clerical error. Therefore, the following sentence will be added to the order dated 9-12-2015: “The petitioner is granted six months from 10-12-2015 to pay the fine”. The application stands disposed of as above. ## B.SUDHEENDRAKUMAR, JUDGE. Crl.R.P. No. 1215 -: 5 :- In view of the decision of this Court in Subhash Sait v. Sree Gokulam Chits and Finance, Palakkad and Others [2015 (4) KHC 74], no order is required for accepting the money by the court below. Therefore, this Application stands closed. ## B.SUDHEENDRAKUMAR, JUDGE. On the request of both sides, the matter is again referred to mediation. The parties shall appear before the Nodal Officer, High Court Mediation Centre, at 11 a.m. on 7-4-2016. Inform the Nodal Officer. ## B.SUDHEENDRAKUMAR, JUDGE. -: 6 :- Crl.R.P. No.