T.S. Asok v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 11[TH] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2325 OF 2024 ``` ``` CRIME NO.2827/2023 OF ERNAKULAM SOUTH POLICE STATION, ``` ## **`ERNAKULAM`** ## **`PETITIONER/ACCUSED:`** ``` T.S. ASOK, AGED 57 YEARS ``` ``` S/O THANKAPPAN NAIR, MANAGING DIRECTOR, M/S ARTECH REALTORS PVT. LTD., RESIDING AT TC 23/2876(1), 'GOVINDAM', VELLAYAMBALAM, KOWDIAR P.O, THIRUVANANTHAPURAM, PIN - 695003 BY ADV K.M.SATHYANATHA MENON ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 STATION HOUSE OFFICER, ERNAKULAM TOWN SOUTH POLICE STATION, ERNAKULAM, PIN - 683031`** - **`3 BINOJ. A.B, S/O. ABDUL BASHEER, TC NO.15/215, UDARASIROMANI ROAD, SASTHAMANAGALAM VILLAGE, THIRUVANANTHAPURAM ( SOUGHT TO BE IMPLEADED ) BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA`** ## **`OTHER PRESENT:`** ## **`SR PUBLIC PROSECUTOR SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.2325/2024 _-:2:-_ Dated this the 11[th] day of April, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the 7[th] accused in Crime No.2827/2023 of Ernakulam Town South Police Station, Ernakulam, registered against the accused (7 in number) for allegedly committing the offences punishable under Sections 120-B, 409, 420, 465, 468 & 471 read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The gravamen of the prosecution case is that: the first accused and the de-facto complainant had, in the year 2007, incorporated a company named ‘White B.A.No.2325/2024 _-:3:-_ Castle Realtors and Resorts India Private Limited’ with the first accused being the Managing Director with 5% shares and the de-facto complainant with the remaining shareholding. The company had purchased a property in Pettah Village, Thiruvananthapuram. The first accused, in connivance with the other accused, had fraudulently removed the de-facto complainant from the position of the Director and transferred his shares to the other accused and, thereafter, the accused, in furtherance of their common intention, sold the property of the company, without the knowledge and consent of the de-facto complainant to the 7[th] accused. Thus, the accused have committed the above offences. 4. Heard; Sri. K.M.Sathyanatha Menon, the learned Counsel appearing for the petitioner; Smt.Neema T.V., the learned Senior Public Prosecutor B.A.No.2325/2024 _-:4:-_ and Sri. K.K. Dheerendrakrishnan, the learned 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. A reading of First Information Report [FIR] would substantiate that none of the offences alleged against the petitioner is sustainable in law. The very fact that the alleged incident occurred as early as on 01.01.2008 and the crime was registered only on 05.12.2023 i.e., after an inordinate delay of 15 years, proves the frivolity and the falsity in the crime. The Investigating Officer is dancing to the tunes of the intervenor and pressuring the accused to yield to the intervenor’s demands. The petitioner is only a bonafide purchaser for value. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. If the petitioner is B.A.No.2325/2024 _-:5:-_ arrested, he would be subjected to custodial torture. By order in B.A. No.1092/2024, the accused 1 to 6 have been granted an order of pre-arrest bail. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the petitioner’s custodial interrogation is necessary. Hence, the application may be dismissed. 7. The learned counsel for the intervenor also opposed the application. He submitted that the intervenor has invested substantial amounts in the company, and he has been thoroughly cheated by the accused. The petitioner’s custodial interrogation is necessary, and the original documents are to be recovered. 8. On an analysis of the prosecution allegation, it can be seen that the first accused and the de-facto B.A.No.2325/2024 _-:6:-_ complainant had incorporated the company in the year 2007. The intervenor alleges that accused in prosecution of their common intention had forged his signature and fabricated a resignation letter in the year 2008. It is on the basis of the resignation letter that the accused had alienated the properties of the company in favour of the petitioner. Indisputably, all these transactions occurred between the period from 01.01.2008 to 30.12.2011. Admittedly, the FIR was registered on 05.12.2023, at 18.01 hours. 9. In the case at hand, the offences alleged against the accused are under Sections 409, 420, 465, 468 & 471 of the IPC. On a consideration of the allegations, prima-facie, the dispute seems to be civil in nature. 10. In **Indian Oil Corporation v. NEPC India Ltd.** [(2006) 6 SCC 736], the Honourable Supreme Court observed in the following lines: B.A.No.2325/2024 _-:7:-_ “13. ……. Any effort to settle civil disputes and claims, which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and discouraged”. 11. Similarly in **Sarabjit Kaur v. State of Punjab** and Another [2023 SCC Online 210] the Honourable Supreme Court held that, a mere breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up a promise will not be enough to initiate criminal proceedings. 12. Again in **ARCI v. Nimra Cerglass Technics** **(P) Ltd.** [(2016) 1 SCC 348] the Honourable Supreme Court while considering the difference between breach of contract and the offence of cheating held that the distinction depends upon the intention of the accused at the time of the alleged incident. Only if the the B.A.No.2325/2024 _-:8:-_ dishonest intention of the accused can be established at the time of entering the transaction the criminal liability can be attracted. 13. Recently, in **Sachin Garg V. State of U.P.** [(2024) KHC Online 6046], the Honourable Supreme Court has again reiterated that a mere breach of contract will not constitute the offence of cheating. 14. The parameters to grant an order of pre-arrest bail have been succinctly laid down by the Hon’ble Supreme Court in **Siddharam Satlingappa Mhetre v. State of Maharashtra** [(2011) 1 SCC 694] in the following lines: “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 B.A.No.2325/2024 _-:9:-_ the facts and circumstances of each case. As aptly observed in Satishchandra Ratanlal 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; (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 B.A.No.2325/2024 _-:10:-_ 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”. 15. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record and the law referred to in the afore-cited decisions, and on prima facie being satisfied that the dispute between the parties is prima-facie civil in nature, that the accused 1 to 6 have B.A.No.2325/2024 ## _-:11:-_ been granted an order of pre-arrest bail, I am of the view that the petitioner’s custodial interrogation is not necessary. Consequently, I hold that the petitioner has made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. In the result, the application is allowed subject to the following conditions: - (i) The petitioner is directed to surrender before the Investigating Officer within ten days from today. - (ii) In the event of the petitioner’s arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself. - (iii) On such production, the jurisdictional court shall release the petitioner on bail on him executing a bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like amount each, to the satisfaction of the B.A.No.2325/2024 _-:12:-_ jurisdictional court; - (iv) The petitioner shall co-operate with the investigation and make himself available for interrogation and for the purpose of investigation as and when directed by the Investigating Officer; - (v) The petitioner shall not intimidate the witnesses or interfere with the investigation in any manner; - (vi) The petitioner shall not get involved in any other offence while on bail. - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, B.A.No.2325/2024 ## _-:13:-_ given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. SD/- ## **C.S.DIAS,JUDGE** rmm/11.4.2024