Suneesh v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 ``` ## `BAIL APPL. NO. 1000 OF 2024` ``` CRIME NO.58/2024 OF PAZHAYANNUR POLICE STATION, THRISSUR ``` ## `PETITIONER:` ``` SUNEESH AGED 38 YEARS S/O KRISHNADAS, KOTTATIL HOUSE, MALESAMANGALAM DESOM, THIRUVILLAMALA, THRISSUR, PIN – 680588 ``` ``` BY ADVS.V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN RALPH RETI JOHN APPU BABU GIRIDHAR KRISHNA KUMAR VISHNUMAYA M.B. GEETHU T.A. APOORVA RAMKUMAR ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2THIRUVILWAMALA SERVICE CO-OPERATIVE BANK LTD., ( SOUGHT TO BE IMPLEADED ) THIRUVILWAMALA, THRISSUR REPRESENTED BY ITS SECRETARY, VINOD KUMAR.S ( SOUGHT TO BE IMPLEADED ) ``` ``` BY ADVS.SRUTHY N BHAT NIKITA J. MENDEZ SOHAIL AHAMMED HARRIS P.P. ``` ## `OTHER PRESENT:` ``` SR ADV SRI VIJAYABHANU ``` ``` PP SMT NIMA JACOB ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1000/2024 -:2:- Dated this the 23[rd] day of February,2024 ## **O R D E R** 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.58/2024 of Pazhayannur Police Station, Thrissur, registered against him, for allegedly committing the offences under Sections 406, 409, 420, 465 & 471 of the Indian Penal Code, 1860(‘IPC’, for short). 3. The gravamen of the prosecution case is that: the accused while he was working as the head clerk in Thiruvillamala Co-operative Bank(‘Bank’, in short) during the period from 28.07.2017 to 06.12.2023, had manipulated the Fixed Deposit receipts of the customers by forging their signatures and availed loans B.A.No.1000/2024 -:3:- in his favour. The accused deliberately deleted the receipts of the names of the new customers and misappropriated an amount of Rs.2,43,04,837/-. Thus, the accused has committed the above offences. 4. Heard; Sri. V. John Sebastian Ralph, the learned Counsel appearing for the petitioner; Smt. Nima Jacob, the learned Public Prosecutor and Sri. Vijayabhanu. P, the learned Senior Counsel appearing for the de-facto complainant/intervenor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner was only a subordinate staff in the Bank. The petitioner only adhered to the instructions that were given by his superiors. The very fact that Annexure-1 First Information Report was lodged only on 03.02.2024 in respect of a manipulation that allegedly started from 28.07.2017 to 06.12.2023 proves the falsity in the B.A.No.1000/2024 -:4:- crime. At any rate, the offences under Sections 420 & 465 of the IPC will not be attracted. The petitioner has been made a scape-goat in the entire episode due to the animosity of the President and Secretary towards him because he had lodged a complaint against them. The custodial interrogation of the petitioner is not necessary and no recovery is to be effected. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner has committed a grave economic offence by siphoning off Rs.2,43,04,837/- of the Bank. The petitioner’s custodial interrogation is necessary and recovery is to be effected. If the petitioner is granted an order of pre-arrest bail, he will interfere with the investigation and tamper with the evidence. Hence, the application may be dismissed. 7. The learned Senior Counsel also vehemently B.A.No.1000/2024 -:5:- opposed the application. He drew the attention of this Court to Annexure-2 memo issued by the Bank to the petitioner which shows the magnitude of the economic offence committed by the petitioner. He contended that the petitioner has clandestinely manipulated the accounts and swindled the money of the customers of the Bank. The forensic audit is still in progress. The Bank is yet to quantify the loss and the magnitude of the crime committed by the petitioner. If the petitioner is granted an order of pre-arrest bail, it would certainly affect the investigation. Hence, the application may be dismissed. 8. The cux of the prosecution case is that, while the petitioner was working as a head clerk in the Bank, during the period from 28.07.2017 to 06.12.2023, he manipulated the fixed deposit receipts of the customers and started running a mini Bank, by giving interest to the customers and making use of the capital B.A.No.1000/2024 -:6:- by giving loans to the persons of his choice. The prosecution allegation is serious and grave in nature. 9. In **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows: **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; B.A.No.1000/2024 -:7:- (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. **126** . We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion B.A.No.1000/2024 -:8:- vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. 10. 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. 11. In **P. Chidambaram v. Directorate of Enforcement** [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed thus: B.A.No.1000/2024 -:9:- “69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 12. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the proclamation of the law in the afore-cited precedents and the materials placed on record and on prima-facie being satisfied of the nature, gravity, and seriousness of the economic offence alleged against the petitioner, that the investigation in the case is only at its nascent stage, that the custodial interrogation of B.A.No.1000/2024 -:10:- the petitioner is necessary and that recovery is to be effected, I am convinced that the petitioner has not made out any exceptional circumstances to invoke the extra-ordinary discretionary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, untrammelled by any observations in this order, consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has B.A.No.1000/2024 -:11:- been passed in this case. Sd/- ## **C.S.DIAS,JUDGE** DST/23.02.24 //True copy// P.A. To Judge B.A.No.1000/2024 -:12:- ## `APPENDIX` |`PETITIONER ANNEXURES`|| |---|---| |`ANNEXURE 1`|`TRUE COPY OF THE FIR IN CRIME NO. 58/2024`| ||`OF PAZHAYANNUR POLICE STATION`| |`ANNEXURE 2`|`TRUE COPY OF THE MEMO DATED 20.01.2024 FROM`| ||`THIRUVILLAMALA SERVICE COOPERATIVE BANK`| |`ANNEXURE 3`|`TRUE COPY OF THE REPLY OF THE PETITIONER`| ||`THROUGH HIS LAWYER DATED 29.01.2024`|