SUNEESH NAMBIAR v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946 BAIL APPL. NO. 4303 OF 2024 ``` ``` CRIME NO.418/2022 OF Ernakulam Central Police Station, ``` ``` Ernakulam ``` ## **`PETITIONER/S:`** ``` SUNEESH NAMBIAR, AGED 45 YEARS S/O KUNJIRAMAN NAMBIAR,KALLOOR HOUSE, NEAR KOOVERI L.P. SCHOOL,KANNUR, NOW RESIDING AT 9E GRAND STAND ASSET APARTMENT,PUTHIYATHERUVU, CHIRCKAL, KANNUR, PIN - 670011 ``` ``` BY ADVS. RAJESH SIVARAMANKUTTY VIJINA K. ARUL MURALIDHARAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Seetha S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.4303 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.4303 of 2024** ## **-----------------------------------** ## **Dated this the 6[th] day of June, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in CR.122/CB/EOW/EKM/R/22 of the Detective Inspector, Crime Branch, EOW, Ernakulam (earlier registered as Crime No.418/2022 of the Central Police Station, Ernakulam) against the accused, for allegedly committing the offences punishable under Sections 120B, 406, 409, 418, 420 and 465 read with Sec.34 of the Indian Penal Code. The petitioner was arrested on 15.5.2024. 2. The gist of the prosecution case is that; the accused, in furtherance of their common intention, hatched a conspiracy to cheat the de facto complainant and his friends and make 3 BA No.4303 of 2024 unlawful gain, induced them to invest money in Acumen Capital Market India Ltd through their concern named Nam Index Derivatives LLP, Kannur, they would provide 24% profit per annum on the investment. Accordingly, the accused collected Rs.24/- Crores from the de facto complainant and his friends. But, the accused misappropriated the amounts and failed to pay any profit or refund the capital. Thus, the accused have committed the above offences. 3. Heard; Sri.Rajesh Sivaramankutty, the learned counsel appearing for the petitioner and Smt.Seetha.S, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The very fact that the transactions took place in the year 2014 and the crime has been registered only in the year 2022 shows the falsity in the crime. A reading of Annexure-A complaint would show that the 4 BA No.4303 of 2024 dispute is purely civil in nature. The offences under Secs, 418, 420 and 465 of the IPC will not be attracted. The transactions are covered by documentary evidence and, therefore, the petitioner’s further detention is not necessary. The petitioner has been in judicial custody since 15.5.2024, the investigation in the case is practically complete and recovery has been effected. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. The Detective Inspector has filed a bail objection report, inter alia, contending that the accused 1 and 2, who are husband and wife, had registered a company named Nam Index Derivatives LLP, Kannur and got registration from the Bombay stock exchange as authorized persons. Thereafter, they convinced the de facto complainant and his friends that they would give them 24% profit on their investments. However, the registration was cancelled due to unauthorised trading and misappropriation of funds of investors. Then, the first accused 5 BA No.4303 of 2024 had a fresh registration as authorised person for trading in capital market in his own name and induced the victims to make further investments through his licence in the name of Acumen Capital Market India Ltd. The modus operandi of the accused is that, after opening a demat account in the name of victims through the authorized person, they induce the victims to invest in capital market by offering 24% profit. Thereafter, they would trade in high volume demat accounts by deceitful means without proper authorization stipulated by SEBI and other statutory authorities. After securing a high commission through high volume trading, they would cause a loss to the investors. The accused have cheated more than 100 people by indulging in such activities. It is revealed that Acumen Capital Market India Ltd has received Rs.2.3/- crore as commission after causing loss to the investors. The accused have committed serious economic offences, including the offence under Sec.409 of the IPC. The accused have criminal antecedents which is under the 6 BA No.4303 of 2024 investigation. There is also a likelihood of them fleeing from the country and tampering with the evidence. Hence, the application may be dismissed. 6. The prosecution allegation is that the accused had induced the de facto complainant and his friends to make investments through them on the assurance that they would give them 24% profit per annum on the investments. Accordingly, the accused received Rs.24,60,39,234/- from the de facto complainant and his friends. However, the accused failed to pay any profit or return the capital. The petitioner was arrested only on 15.5.2024 and the investigation is only at its nascent stage. Since the economic offence is above Rs.1/- crore, the investigation has been transferred to the Crime Branch. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: 7 BA No.4303 of 2024 “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; ( _ii_ ) nature and gravity of the accusation; ( _iii_ ) severity of the punishment in the event of conviction; ( _iv_ ) danger of the accused absconding or fleeing, if released on bail; ( _v_ ) character, behaviour, means, position and standing of the accused; ( _vi_ ) likelihood of the offence being repeated; ( _vii_ ) reasonable apprehension of the witnesses being influenced; and ( _viii_ ) danger, of course, of justice being thwarted by grant of bail”. 8. In **Jai Prakash Singh v. State of Bihar and another,** [(2012) 4 SCC 379] the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 8 BA No.4303 of 2024 9. On an overall appreciation of the facts, the materials placed on record, the rival submissions made across the Bar, especially on comprehending the nature, gravity, and seriousness of the economic offences alleged against the petitioner, that more than 100 people have been cheated through the modus operandi of the accused, that the investigation is only at its nascent stage and that the apprehension projected by the prosecution that the petitioners may flee from justice, and interfere with the investigation and intimidate the witnesses, I am of the definite view that the petitioner is not entitled to be released on bail at this stage. Hence, I hold that the application is only to be dismissed. ## Resultantly, the application is dismissed. **sd/-** **C.S.DIAS, JUDGE** sks/6.6.2024