Sunil Jose v. State of Kerala and State Bank of India (Addl.R2 impleaded)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943** **BAIL APPL. NO. 2171 OF 2021** **CRIME NO.1142/2020 OF Kattoor Police Station, Thrissur** ## **PETITIONER/ACCUSED:** SUNIL JOSE AGED 51 YEARS AVARAN HOUSE, KARUKULANGARA DESOM, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR THRISSUR, PIN - 680121 BY ADV RAJESH CHAKYAT ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 ADDL.R2 STATE BANK OF INDIA REPRESENTED BY THE REGIONAL MANAGER, REGIONAL BUSINESS OFFICE, RBO 2, PARAMEKKAVU BUILDING, THRISSUR PIN- 680001. ADDL.R2 IS IMPLEADED AS PER THE ORDER DATED 19.3.2021 IN CRL.M.A.NO.1/2021. BY ADVS. PUBLIC PROSECUTOR SRI. NOUSHAD.K.A GILBERT GEORGE CORREYA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 2171 OF 2021** 2 ## **ORDER** Apprehending arrest in connection with Crime No. 1142/2021 registered before Kattoor Police Station, Thirssur, this application for pre-arrest bail has been filed by the petitioner under Section 438 of the Cr.P.C. 2. The brief facts of the case is as follows:- This petitioner was working as Chief Associate in State Bank of Karalam Branch during the period from 3.10.2018 to 16.11.2020. During his tenure as the Chief Associate of the Bank, he has misappropriated money by creating fake gold loan applications in the name of certain customers and after affixing their signatures in that documents misappropriated Rs.1, 27,59,000/from the bank. Apart from that, he has also sold certain gold ornaments pledged by the customers in the bank and misappropriated the money. Apart from that he misappropriated a sum of Rs.9 lakhs entrusted by the customers to close their loans and the petitioner has returned the gold ornaments by manipulating the documents and misappropriating the money **BAIL APPL. NO. 2171 OF 2021** 3 and thereby he committed the aforesaid offences causing a loss of more than 2.76 crores in total to the bank where he was an employee and thus he committed the aforesaid offences. 3. The submission of the learned counsel for the petitioner is that he was not the custodian of the gold ornaments during the period from 3.10.2019 to 16.11.2020. Moreover, gold loans are being sanctioned by the Manager,on the basis of the report submitted by the gold appraiser. The Chief Associate of the Bank was not the custodian and he alone cannot operate the locker where the gold ornaments were kept as alleged by the prosecution. Moreover, periodical audit as well as surprise audit were conducted in the Bank. But during his tenure, no defect was noted in the routine audit conducted by the superior officials. In fact, he is totally innocent of the allegations leveled against him. Therefore, he has filed this application to avoid unnecessary arrest and detention. 4. On the other hand, the learned Public Prosecutor submitted a report of the investigating officer, who initiated the investigation on the basis of the complaint lodged by the defacto **BAIL APPL. NO. 2171 OF 2021** 4 complainant, the Regional Manager of State Bank of India. In the report, it has been specifically stated by the investigating agency that the petitioner in order to misappropriate the funds of the Bank for his unlawful gain has committed fraudulent activities. In fact, he has taken the gold pledged by 37 customers by forging false gold applications and the very same gold were used again as pledged by customers, and he availed money by affixing fake signatures in the documents maintained in the bank. So also without the knowledge of the customers, he had sold 2191 gms of gold ornaments pledged by16 customers for availing gold loans and misappropriated the amount received by him. Apart from that, he has misappropriated a sum of Rs.9 lakh which has been entrusted with him by certain customers of the Bank so as to close their loan and to take back the gold ornaments pledged by them. He created false documents and by committing criminal breach of trust, and cheating the bank, he misappropriated the sum entrusted by the customers to close their loan accounts. He has taken the gold from the locker and returned to the customers **BAIL APPL. NO. 2171 OF 2021** 5 after misappropriating the amount of Rs.9 lakhs and by making false entries in the register and other documents kept in the bank and thus, he has cheated the bank as well as the customers. Now the investigation of the case is only in progress and only on custodial interrogation, the investigating agency could ascertain whether any other official of the Bank is also involved in this case, is the submission made by the learned Public Prosecutor. 5. The defacto complainant has got impleaded in the case suo motu as the second respondent and objection has been filed opposing the bail application. A detailed objection has been filed by the defacto complainant stating that the petitioner has committed breach of trust by removing the pledged ornaments in the existing loan account which was entrusted to him in his official capacity and re-pledged the same as security and availed fresh loan with the fraudulent documents created by him. He has misappropriated huge amount and thus cheated the Bank and exploited his official capacity. It is further argued by the learned counsel for the **BAIL APPL. NO. 2171 OF 2021** 6 defacto complainant that since the petitioner is an official of the bank, the defects were not detected at the time when the audit was conducted under his guidance. Normally, audit will be proceeded only with the support of the officials and as he was in charge of the Branch, the misappropriation and forgery committed by him were not detected then and there. 6. The Supreme Court has laid down the principles governing grant of bail in **Prasanta Kumar Sarkar** v. **Ashis Chatterjee and Another** [(2010) 14 SCC 496]. In paragraph 9, it is stated as follows: “9. …...... 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 **BAIL APPL. NO. 2171 OF 2021** 7 and standing of the accused; _(vi)_ likeliood of the offence being repeated; _(vii)_ reasonable apprehension of the witnesses being influenced; and (vii) danger, of course, of justice being thwarted by grant of bail.” 7. Having regard to the nature of accusation levelled against the petitioner, no doubt, the offences alleged against him are very grave and serious in nature. Huge amount is involved in this case. As the prosecution has a case that he has misappropriated more than 2.76 crores during his tenure, for a limited period of two years in the branch, a detailed probe is required. It is also prima facie revealed from the records that he was the 'all in all' of the branch and so he was the custodian of the gold ornaments pledged by the customers. By committing the fraud, he has not only cheated the Bank where he was employed but also the customers. So definitely the investigating agency has to delve deep into the allegations to unearth the facts to prosecute this petitioner. Whether he has obtained any assistance or aid from any other agency or from **BAIL APPL. NO. 2171 OF 2021** 8 any official, from the bank, could be revealed only on interrogation. So custodial interrogation of the petitioner appears to be quite necessary in this case to unearth the entire facts involved. That be so, though the petitioner was serving the bank for several years, and is aged 51 years, I find it difficult to accept the argument made by the learned counsel for the petitioner and grant pre-arrest bail as requested. The petitioner has to surrender before the investigating officer at the earliest and co-operate with the investigation of the case. With this observation, this application is dismissed. ## **SHIRCY V.** **JUDGE** Al/-