Vishnu Prasadh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942** ## **Bail Appl..No.4319 OF 2020** **AGAINST THE ORDER IN CMP 315/2020 OF COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, EKM AT MUVATTUPUZHA** **CRIME NO.382/2020 OF Thrikkakara Police Station , Ernakulam** ## **PETITIONER:** **VISHNU PRASADH, AGED 30 YEARS S/O. INDUCHOODAN, VAISHNAVAM HOUSE, MAVELIPURAM P.O. KAKKANAD VILLAGE, ERNAKULAM 682 030. 682030** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682 031.** ## **R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 4319 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** ------------------------------------ B.A.No. 4319 of 2020 ----------------------------------Dated this the 22[nd] day of July, 2020 ## **O R D E R** This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference. 2. The petitioner is one of the accused in Crime No.382 of 2020 of Thrikkakara Police Station. The above case is registered against the petitioner alleging offence punishable under Sections 403, 406, 409 and 420 IPC and Sec.13(1)(a) of the Prevention of Corruption Act. 3. The petitioner is a Lower Division Clerk, working at the Collectorate, Ernakulam. According to the prosecution, the Government disbursed certain amount to certain beneficiaries for constructing residential houses from the Chief Ministers Distress Relief Fund (for short CMDRF). The beneficiaries submitted a complaint before the Government saying that the B.A.No. 4319 of 2020 3 amount disbursed to them is insufficient. The Government through its officers conducted an enquiry and found that the beneficiaries are entitled some more amount. In such circumstances, the Government directed the beneficiaries to return the amount already disbursed to them. Accordingly, about 303 beneficiaries returned the amount already paid to them. According to the prosecution, the petitioner and others collected the amount and issued receipts. The amount collected will be around Rs.1,21,43,100/-. Thereafter, according to the prosecution, only an amount of Rs.48,30,000/- is credited to the CMDRF account. The further case of the prosecution is that petitioner and other accused misappropriated an amount of Rs.73,13,000/- which is the amount to be credited to the CMDRF account. Hence, the petitioner committed the offence. 4.Heard the counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that another crime as Crime No. 83 of 2020 was registered against the petitioner with similar allegations. The petitioner was in B.A.No. 4319 of 2020 4 custody for about 90 days. He was released on bail on 12.6.2020. The present crime was registered on 23.5.2020. According to the counsel, the present case is registered only for the purpose of getting custody of the petitioner again. The counsel also submitted that the petitioner is ready to cooperate with the investigation. The counsel also submitted that pre-trial detention is not necessary in this case. The submission of the counsel is that in this case everything is on record. Now the petitioner is in custody for the last 45 days in this case. According to the counsel, the custodial interrogation is not possible in this case because he is in custody for the last 45 days. The investigation is in progress and the further custody of the petitioner is not necessary. He is ready to abide any condition if this Court grant bail to him. 6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner misappropriated huge amount of CMDRF. The Public Prosecutor submitted that the petitioner and other staff of the Collectorate, Ernakulam collected huge amount from about 303 beneficiaries. According to the B.A.No. 4319 of 2020 5 prosecution, there are about 266 receipts showing that the amount is received by the petitioner. The Public Prosecutor submitted that the signature of the petitioner is there in the receipts. But the amount is not credited in the CMDRF account. Therefore, the Public Prosecutor submitted that this is a clear case in which misappropriation is prima facie proved. Moreover, the Public Prosecutor also submitted that this is an economic offence case which is a grievous offence and the petitioner may not be released on bail. 7. I have carefully perused the bail application and the documents submitted by the Public Prosecutor. I also considered the contentions of both sides. The allegation against the petitioner is that he misappropriated about Rs.73 lakhs from the CMDRF. The allegation is that when the beneficiaries returned the amount received by them to the Government for getting more amount, the petitioner after collecting the amount deposited only about Rs.48,30,000/- and misappropriated Rs.73,30,000/-. The petitioner is in custody for about 45 days in this case. The question is whether he should be released on bail at this stage. I do not think that the petitioner is entitled bail at this stage. CMDRF is a fund raised by B.A.No. 4319 of 2020 6 the Government by collecting amount from the public. Government with its limited financial resources doing their level best to tackle the situations faced by the State due to the flood, Covid 19 pandemic etc. Hence people from all walks of life contributing money to CMDRF. Even school children are donating their pocket money to the CMDRF. In such situation the public servants like the petitioners are doing these type of mischief. Unless these persons are dealt with iron hand of the law the general public will lose their confidence in the system. If bail is granted in these type of cases, it will give wrong signal to the society. In such situation, I think the petitioner is not entitled bail at this stage. 8. Moreover, the jurisdiction to grant bail has to be exercised on the well settled principles laid down by the Hon'ble Supreme Court in **Chidambaram P v Central Bureau of Investigation (AIR 2019 SC 5272)** . The apex court held that, the following factors are to the taken into consideration while considering the application for bail. - (i) the nature of accusation and the - severity of the punishment in the case of B.A.No. 4319 of 2020 7 conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations. It is true that there is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be decided on the basis of the facts and circumstances of that case. In the light of the general principles laid down in the above judgment and considering the facts and circumstances of this case, I am of the opinion that this is not a fit case in which the petitioner B.A.No. 4319 of 2020 8 can be released on bail. Hence this Bail Application is dismissed. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** cms