Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 31ST DAY OF MAY 2023 / 10TH JYAISHTA, 1945 CRIME NO.214/2022 OF PADINJARETHARA POLICE STATION, WAYANAD AGAINST THE ORDER/JUDGMENTBAIL APPL. 5736/2022 OF HIGH COURT OF KERALA PETITIONER/ACCUSED NO.2: NIDHEESH KUMAR AGED 30 YEARS S/O.(LATE) SOMASEKHARAN NAIR, RESIDING AT CHITHIRA HOUSE, THOPPUMPADI P.O, ERNAKULAM DISTRICT, PIN - 682005 BY ADVS. ANOOP.V.NAIR E.ADITHYAN M.SRUTHI DAS AVANTHIKA R. RESPONDENTS/STATE/COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER PADINJARAETHARA POLICE STATION PADINJARAETHARA, WAYANAD DISTRICT, PIN - 673575 BY SRI.P.G.MANU, SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
Dated this the 31st day of May, 2023 This is the second anticipatory bail application filed by the second accused in crime No.214/2022 of Padinjarethara police station, Wayanad.
2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.
3. I have perused the relevant documents form part of the case diary placed by the learned Public Prosecutor along with the documents placed by the counsel for the petitioner.
4. The prosecution case is that accused Nos.1 to 4
herein obtained Rs.13,20,000/- from the defacto complainant and his father, offering job to the defacto complainant in Germany. Accused Nos.1 and 2 in this crime are father and son. The specific allegation is that the second accused assured employment to the defacto complainant in Germany. The further allegation is that accused Nos.1 to 5 jointly received the amount and thereafter, the defacto complainant was taken to Russia. When the defacto complainant was asked to go to Russia, he insisted the presence of the second accused also along with him. Accordingly, the second accused also travelled along with the defacto complainant to Russia and thereafter, the second accused threatened the defacto complainant that the defacto complainant would be put to jail in Russia without doing anything to provide job in Germany as
offered. At this juncture, the defacto complainant returned back from Russia since the accused herein failed to provide the job as offered. It is alleged further that the accused herein failed to repay the money or even part thereof. On this premise, the prosecution alleges commission of offences punishable under Section 420 read with 34 of IPC.
5. While pressing for anticipatory bail to the second
accused, the learned counsel for the second accused would submit that the second accused has no role in this occurrence and the entire money was received by the other accused. He also submitted that the defacto complainant and two other persons had given huge amounts to ‘S & S Recruiting Agency’, which had office at Edappally. The said office was run by Sukumaran, Alex and Ullas. Sukumaran is the third
accused and Ullas is the 5th accused in this crime. It is submitted by the learned counsel for the second accused that the second accused also given Rs.13 lakh to Sukumaran through his bank account and since Sukumaran agreed to provide employment to the second accused also in Germany. It is pointed out that there is change in circumstances to canvass anticipatory bail in this matter. In this connection, the learned counsel would submit that the oral dialogues between the defacto complainant and the petitioner contained in the CD produced is relevant and this Court has to hear the same. Highlighting absolute innocence in the above line, the learned counsel for the second accused pressed for grant of anticipatory bail to the petitioner, again.
6. The learned Public Prosecutor strongly opposed
bail on the submission that the allegations as against all the accused are well made out, prima facie. It is also submitted that money was transferred to the account of the first accused and all other accused benefited out of the same. It is submitted further that the second accused is the person, who assured employment to the defacto complainant in Germany, and introduced him to the other accused. Therefore, arrest and custodial interrogation of the petitioners are absolutely necessary to effectuate meaningful investigation involving Rs.13,20,000/-. It is specifically pointed out by the learned Public Prosecutor, while emphasizing the necessity for custodial interrogation, CD produced by the petitioner cannot be considered by this Court during crime stage, since manipulation in the CD is a strong possibility. The CD conversation cannot either be heard by this Court or to be considered.
7. On perusal of the prosecution records, the
allegation of the prosecution to the effect that the accused herein jointly collected Rs.13,20,000/- from the defacto complainant and his father with offer to provide employment in Germany to the defacto complainant is foreseeable, prima facie. It is relevant to note that Annexure II produced along with B.A.No.5736/2022 is an agreement alleged to be
executed in between Somasekharan Nair (A4) and Sukumaran (A3). Somasekharan Nair is the first accused and the father of the second accused. Sukumaran is the third accused. On perusing the agreement, it has been stated that Rs.12,70,000/- was deposited in the account of the first accused at Union Bank, Thoppumpady Branch by Akhil Jose (the defacto complainant herein). Further, one Sabitha Soman deposited Rs.14,50,000/-. The agreement recites that the entire amount of Rs.12,70,000/- deposited by the defacto complainant herein was transferred to the account of the third accused.
8. The genuineness of the agreement is a matter of proof. However, the agreement would go to show that the first accused acknowledged the receipt of Rs.12,70,000/- from the
defacto complainant and Rs.14,50,000/- from one Sabitha Soman with undertaking to provide employment to them in Germany. It is discernible from the records that the second accused also accompanied the defacto complainant to Russia with undertaking to take the defacto complainant to Germany and provide employment therein. But the specific allegation is that the second accused instead of providing the job, threatened the defacto complainant and send him back without providing the job. The prosecution allegation is that neither the job provided, as offered nor the money also was returned.
9. In fact, conversation in between the petitioner and
the defacto complainant is the drum card on which the learned counsel for the petitioner has given heavy reliance to the CD to disbelieve the prosecution case and the case discernible from the records placed by the learned Public Prosecutor before this Court. In this connection, it has to be observed that conversation in a CD produced by the petitioner without assuring its genuineness and authenticity cannot be acted upon, unless the necessary foundation to consider the same at the investigation stage is not available, since the possibility of manipulation in the conversation is very much there. Therefore, the unauthorised CD cannot be relied on to
disbelieve the prosecution records collected by the Investigating Officer in accordance with the procedure of law. In the above circumstances, I am not inclined to consider the CD for any purpose to appraise the contention of the petitioner in the CD to consider his repeated plea for anticipatory bail. The available materials would show that the prosecution allegation as to commission of offences punishable under Sections 420 read with 34 of IPC is well made out. No doubt, the prosecution records would justify involvement of accused Nos.2 and 3 in this crime, involving Rs.13,20,000/- deposited by the defacto complainant for the purpose of getting employment in Germany. In such a case, arrest and custodial
interrogation are absolutely necessary. Therefore, grant of anticipatory bail to the petitioner would spoil and hamper the investigation. In fact, considering all these aspects in detail, the earlier bail application (BA.No.5736/2022) was dismissed on 30.03.2023. No change in circumstances available to have a different view. Therefore, for the same reasons, this bail application is also dismissed. Sd/- A. BADHARUDEEN JUDGE nkr