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Philomina vs State of Kerala

Philomina vs State of Kerala

Type Court Judgment Court Kerala Decided Jun 30, 2023
~4 min read
https://sooperkanoon.com/case/1356147

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Citation
Court
Kerala High Court
Judge
Decided On
Case Number
Bail Appl./3105/2023

Parties & Advocates

Appellant / Petitioner

Philomina

Respondent

State of Kerala

Excerpt

.....is completely unaware of any of the allegations. it was also pointed out that petitioner had not taken any loan and that she is willing to abide by any conditions.5. sri.leo george, the learned counsel appearing on behalf ofthe 2nd respondent defacto complainant submitted that the petitioner, her husband, and other accused had committed fraud on the bank by mortgaging a property which was subjected to a sale prior to the mortgage. it was also pointed out that the bank had suffered irreparable loss due to the fraud and cheating committed by thepetitioner and the other accused and therefore custodial interrogation is essential.6. smt.neema t.v., the learned public prosecutor opposed the application and submitted that custodial interrogation is essential considering the nature of the allegations.7. i have considered the rival contentions.8. petitioner’s husband is alleged to have availed a loan in theyear 2009 based on the mortgage of a property. it was later realised that the property was subjected to a sale even prior to the creation of the mortgage. though the allegations against the petitioner are serious, considering the long lapse of time and also the death of the petitioner’s husband who is alleged to have been the principal borrower, i am of the view that limited custody of the petitionerwould suffice the investigation. the age of the petitioner is also taken into reckoning in granting only a limited custody. accordingly, this application is allowed on the following conditions:(a) petitioner shall appear before the investigating officer on 06-07-2023 and shall subject herself to interrogation.b) if after interrogation, the investigating officer proceeds to arrest the petitioner, then, she shall be released on bail on her executing a bond for rs.50,000/- (rupees fifty thousand only) with two solvent sureties each for the like sum before the investigating officer.(c) petitioner shall appear before the investigating officer as and when required and shall.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 30TH DAY OF JUNE 2023 / 9TH ASHADHA, 1945 CRIME NO.400/2022 OF Kalady Police Station, Ernakulam PETITIONER/1st ACCUSED: PHILOMINA AGED 65 YEARS W/O. ANTONY, VELLATTUKUDI HOUSE, KUZHAKUMPURAM, CHENDAMAMGALAM P.O., ERNAKULAM DISTRICT, KERALA., PIN - BY ADVS. M.R.DHANIL SENITTA P. JOJO JISHY P.S.(K/844/2008) RESPONDENTS/STATE AND COMPLAINANT:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KERALA., PIN - 682031 2 RENJINI V.R. D/O. RAJAPPAN NAIR, NAIR AMBALAM, ERNAKULAM RURAL, KERALA. PRESENTLY WORKING AS THE ASSISTANT VICE PRESIDENT FEDERAL BANK, ALUVA, ERANKULAM DISTRICT, KERALA-683101., PIN - 683101 PP- SMT. NEEMA T.V., THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

BECHU KURIAN THOMAS, J.

----------------------------------------- B.A.No. 3105 of 2023 ---------------------------------------- Dated this the 30th day of June, 2023

ORDER

This is an application for pre-arrest bail filed under Section 438 of the Code of Criminal Procedure, 1973.

2. Petitioner is the accused in Crime No.400 of 2022 of Kalady Police Station, Ernakulam District, alleging offences punishable under Section 420 r/w Section 34 of the Indian Penal Code, 1860.

3. According to the prosecution, the accused had with an

intention to cheat the Federal Bank, availed a loan after mortgaging the title deeds of a property that was already sold to the 2 nd accused and obtained a loan for Rs.3,00,000/- and thereafter failed to repay the loan, resulting in SARFAESI proceedings and cheated the bank of huge amounts and the accused committed the offences alleged.

4. Sri.M.R.Dhanil, the learned counsel for the petitioners

contended that the prosecution allegations are false and that the incident as alleged had not occurred. It was further submitted that petitioner is a lady, who had remarried one Mr.Antony in the year 2006 and that there were disputes between the petitioner and the said Antony as a result of which they were living separately from the year 2010. It was further submitted that the said Antony died in the year 2017 and that petitioner is completely unaware of any of the allegations. It was also pointed out that petitioner had not taken any loan and that she is willing to abide by any conditions.

5. Sri.Leo George, the learned counsel appearing on behalf of

the 2nd respondent defacto complainant submitted that the petitioner, her husband, and other accused had committed fraud on the bank by mortgaging a property which was subjected to a sale prior to the mortgage. It was also pointed out that the Bank had suffered irreparable loss due to the fraud and cheating committed by the

petitioner and the other accused and therefore custodial interrogation is essential.

6. Smt.Neema T.V., the learned Public Prosecutor opposed the application and submitted that custodial interrogation is essential considering the nature of the allegations.

7. I have considered the rival contentions.

8. Petitioner’s husband is alleged to have availed a loan in the

year 2009 based on the mortgage of a property. It was later realised that the property was subjected to a sale even prior to the creation of the mortgage. Though the allegations against the petitioner are serious, considering the long lapse of time and also the death of the petitioner’s husband who is alleged to have been the principal borrower, I am of the view that limited custody of the petitioner

would suffice the investigation. The age of the petitioner is also taken into reckoning in granting only a limited custody. Accordingly, this application is allowed on the following conditions:

(a) Petitioner shall appear before the Investigating Officer on 06-07-2023 and shall subject herself to interrogation.

b) If after interrogation, the Investigating Officer proceeds to arrest the petitioner, then, she shall be released on bail on her executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum before the Investigating Officer.

(c) Petitioner shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation.

(d) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall she tamper with the evidence.

(e) Petitioner shall not commit any similar offences while she is on bail.

(f) Petitioner shall not leave India without the permission of the Court having jurisdiction. In case of violation of any of the above conditions, the

jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court. BECHU KURIAN THOMAS JUDGE AJM/30/6/23

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