Xavier Ulahannan and Soji Mon Xavier v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` FRIDAY, THE 11[TH] DAY OF AUGUST 2023 / 20TH SRAVANA, 1945 ``` ``` BAIL APPL. NO. 5884 OF 2023 ``` ## **`PETITIONER/S:`** ``` 1XAVIER ULAHANNAN, AGED 75 YEARS S/O ULAHANNAN, CHARTHANKALAYIL, CHAKKUPALLAM, CHELLARCOVIL, CHAKKUPALLAM, ANAKKARA, IDUKKI, KERALA-, PIN - 685509 2SOJI MON XAVIER, AGED 50 YEARS S/O XAVIER ULAHANNAN, CHARTHANKALAYIL, CHAKKUPALLAM, CHELLARCOVIL, ANAKKARA, IDUKKKI, KERALA, PIN - 685509 BY ADVS. P.M.ZIRAJ IRFAN ZIRAJ ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2INSPECTOR OF POLICE, PUTHOOR POLICE STATION, KOLLAM DISTRICT, PIN - 691507 ``` ## **`OTHER PRESENT:`** ``` ADV. SREEJA V - SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A.No.5884 of 2023 ``` ``` 2 ``` ## **`O R D E R`** ``` Dated this the 11[th] day of August, 2023 ``` ``` The petitioners are the accused no. 1 and 2 in Crime No. 1148/2023 of Puthoor Police Station, Kollam Rural which was registered for the offence punishable under Sec.392 r/w 149 of Indian Penal Code. ``` ``` 2. The prosecution case is as follows:- The defacto complainant entered into an agreement with the petitioners for the purchase of a tipper lorry bearing registration No.KL-69-C 6122 for a total consideration of Rs.22.50,000/-. Towards the said amount, initial payment of Rs.1,50,000/- was made. Therafter, a further amount of Rs.1,03,820/- was also paid towards the dues towards the financiers of the vehicle. The understanding between the parties was to the effect that, the installments payable in respect of the said vehicle to the financiers have to be paid by the defact complainant, as and when it becomes due. It was also agreed that, in case of ``` ``` B.A.No.5884 of 2023 ``` ``` 3 ``` ``` default on the part of the defacto complainant in making the aforesaid payments, the vehicle shall be returned to the petitioner. The allegation against the petitioner is that, on 14.05.2023 at 9.00 am the petitioners along with other accused persons came in a car assaulted the driver and took away the tipper lorry forcefully. The crime was registered in such circumstances. As the petitioners apprehend arrest in connection with theinvestigation,thisapplicationfor anticipatory bail is submitted. ``` ``` 3.Heard Smt. P.M.Ziraj ,the learned counsel appearing for the petitioner and Smt.Sreeja V., the learned Senior Public Prosecutor for the State. ``` ``` 4. The specific contention put forward by the learned counsel for the petitioners is that the petitioners are innocent of all the allegations. According to them, as the defacto complainant could not make the payments as per the agreement, the vehicle was returned to the petitioners and thereafter, he insisted for the payment which he ``` ``` B.A.No.5884 of 2023 ``` ``` 4 ``` ``` already made at the time of purchase of the said vehicle. Since this was refused by the petitioner, a false complaint was submitted. The counsel also pointed out that, even though the vehicle was allegedly taken possession on 14.05.2023, the complaint was during the month of July 2023 by way of private complaint before the Learned Magistrate. ``` ``` 5.On the other hand, the learned Public Prosecutor opposes the application by submitting that there are specific allegations against the petitioner and the matter is being investigated. ``` ``` 6.I have carefully gone through the records. It is evident that there were some transactions between the parties in connection with the sale of the said vehicle. Certain amounts were already paid by the defacto complainant to the petitioners as advance payment. The aforesaid transactions are evident from the contents of the private complaint of the defacto complainant as well. As rightly pointed out by the counsel for the petitioner, even ``` ``` B.A.No.5884 of 2023 ``` ``` 5 ``` ``` though the vehicle was taken away on 14.05.2023, the private complaint is seen given only on 22.07.2023, which is after more than 2 months. The crime was registered on the basis of a private complaint. ``` ``` When all the said aspects are taken into consideration, particularly in the light of the agreement executed between the parties with respect to the sale of the vehicle, I am of the view that, contentions raised by the petitioner cannot be simply brushed aside. ``` ``` In such circumstances, this application is disposed of with the following directions:- ``` i `The petitioner shall surrender before the Investigating Officer within a period of three weeks from today, for subjecting himself to interrogation.` ``` iiAfter interrogation, the petitioner shall be released on bail on the very same day of surrender upon the petitioner executing a bond for Rs 1,00,000/- (Rupees One Lakh only) with two ``` ``` B.A.No.5884 of 2023 ``` ``` 6 ``` ``` sureties each for the like sum, to the satisfaction of the Investigating Officer ``` iii `The petitioner shall fully cooperate with the investigation, including subjecting himself to the deemed police custody for the purpose of recovery, if any, as and when demanded.` ``` ivThe petitioner shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m on all alternate Saturdays until the filing of the final report. ``` ``` vThe petitioner shall also appear before the Investigating Officer as and when required. viThe petitioner shall not commit any offence of similar nature while on bail. ``` ``` viiThe petitionershall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. ``` ``` viiiThe petitioner shall not leave India without the permission of the Jurisdictional Court. ``` ``` B.A.No.5884 of 2023 ``` ``` 7 ``` ``` In case of violation of any of the above conditions, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` SM ``` ``` B.A.No.5884 of 2023 ``` ``` 8 ``` ## **`APPENDIX OF BAIL APPL. 5884/2023`** ``` PETITIONER ANNEXURES Annexure -1TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE OF PETITIONER Annexure 2TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE 1ST PETITIONER AND MR. ASHKAR B DATED 23.11.2022 ```