Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 24TH DAY OF AUGUST 2023 / 2ND BHADRA, 1945 CRIME NO.1522 OF 2023 OF CHADAYAMANGALA POLICE STATION, KOLLAM PETITIONER/ACCUSED NO.2: SREEKUMAR.S AGED 56 YEARS S/O SREEDHARAN NAIR, AMBILI BHAVAN, KURIYODU, CHADAYAMANGALAM P.O, KOTTARAKARA, KOLLAM DISTRICT., PIN - 691534 BY ADV ALEXANDER GEORGE RESPONDENTS/COMPLAINANT/STATE: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER CHADAYAMANGALAM POLICE STATION, KOLLAM DISTRICT., PIN - 691534 SRI.P.G.MANU, SR.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
Dated this the 24th day of August, 2023 This is the second application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure by the second accused in crime No.1522/2022 of Chadayamangalam police station where the prosecution alleges commission of offence punishable under Sections 406, 420 and 34 of Indian Penal Code and sections 3,4,5,21(3),22,23 of Buds Act .
2. The petitioner had filed an earlier bail application vide B.A. No.1849/2023. This Court dismissed the same as per common order dated 16.03.2023 and the order is as under:
“In Crime No.1905/2022, the allegation is that accused Nos.1 and 2 collected Rs.21 lakhs from the defacto complainant with offer to provide more interest under the cover of ‘Kechery Chits Funds’. Thereafter, either the interest or the principal sum not returned and the accused misappropriated the entire amount. The accused herein committed breach of trust and cheating. On this premise, the prosecution alleges commission of offences punishable under Sections 406, 420 r/w 34 of IPC and Sections 3, 4, 5, 21(3), 22, 23 of Banning of Unregulated Deposit Schemes Act (BUDS Act) by the
accused.
2. In Crime No.1643/2022 registered at the instance of another depositor, the allegation is one and the same and the amount involved is Rs.4 lakhs.
3. In Crime No.1522/2022 also the allegation is one and the same and the amount involved is Rs.19 lakhs and Rs.14,60,000/-.
4. In Crime No.1531/2022, the allegation is one and the same and the amount involved is Rs.5 lakhs.
5. In Crime No.1658/2022, the allegation is one and the same and the amount involved is Rs.10 lakhs.
6. In Crime No.1870/2022, the allegation is one and the same and the amount involved is Rs.10,36,500/-.
7. The learned counsel for the petitioner would
submit that the petitioner was not the Manager of Kechery Chits Funds during the period covered by the transaction and he is absolutely innocent. It is also submitted that believing the business of the 1st accused, he also deposited amount. Photocopies of fixed deposit receipts are produced as Annexure A4, A5, A6 & A7. It is also submitted that the wife of the petitioner also complained against the Managing Director regarding misappropriation of amounts. He also produced Annexure A2 and A3 showing resignation of the petitioner from the chitty company as on 30.04.2022 and handing over of charge to one Vijayakumar on the same day. According to the learned counsel for the petitioner, the petitioner is only the
Manager, a paid employee, and the amount was collected by the 1st accused and therefore the petitioner’s complicity is much less and in such a case, he may be released on anticipatory bail and he is ready to co-operate with the investigation.
8. Whereas the learned Public Prosecutor
zealously opposed the bail and submitted that altogether 27 crimes registered so far as per the report given by the Investigating Officer and thereby misappropriation of crores of rupees involved in these crimes. There may be more cases also. In such a case, if the petitioner being the Manager would be released on bail, the same would be fatal to the prosecution. Thus, it is submitted that since the allegations are serious, the Police Chief ordered investigation led by the Deputy Superintendent of Police, CBCID, Economic Offence and hence entailed investigation will be carried out by the said officer. Therefore, grant of anticipatory bail to the petitioner would be fatal. Hence, all these petitions are liable to be dismissed.
9. The following are the crimes reported by the
Investigating Officer. Sl.No CB Crime Police Station Crime No. Section of Law . No. 1 234/2022 Chadayamangalam 1190/2022 U/S-406,420,34 IPC & Police Station Sec-3,4,5,21(3),22,23, 25(1) of BUDS Act 2 146/2023 Chadayamangalam 1522/2022 U/S 406,420,34 IPC &
Sl.No CB Crime Police Station Crime No. Section of Law . No. 3 147/2023 Chadayamangalam 1530/2022 U/S-406,420,34 IPC & Police Station Sec- 3,4,5, 21(3), 22, 23 of BUDS Act 4 148/2023 Chadayamangalam 1531/2021 U/S 406,420,34 IPC & 5 149/2023 Chadayamangalam 1626/2022 U/S 406,420,34 IPC & 6 153/2023 Chadayamangalam 1632/2022 U/S 406,420,34 IPC & 7 155/2023 Chadayamangalam 1642/2022 U/S 406,420,34 IPC & Police Station Sec- 3,4,5,21(3),22,23 of BUDS Act 8 156/2023 Chadayamangalam 1643/2022 U/S 406,420,34 IPC & 9 157/2023 Chadayamangalam 1644/2022 U/S 406,420,34 IPC & 10 158/2023 Chadayamangalam 1651/2022 U/S 406,420,34 IPC & 11 159/2023 Chadayamangalam 1653/2022 U/S 406,420,34 IPC & 12 160/2023 Chadayamangalam 1657/2022 U/S 406,420,34 IPC & 13 161/2023 Chadayamangalam 1658/2022 U/S 406,420,34 IPC & Police Station Sec- 3,4,5,21(3),22 of 14 162/2023 Chadayamangalam 1660/2022 U/S 406,420,34 IPC & 15 164/2023 Chadayamangalam 1712/2022 U/S 406,420,34 IPC & 16 Chadayamangalam 1804/2022 U/S 406,420,34 IPC &
Sl.No CB Crime Police Station Crime No. Section of Law . No. 17 Chadayamangalam 1807/2022 U/S 406,420,34 IPC & 18 Chadayamangalam 1808/2022 U/S 406,420,34 IPC & 19 Chadayamangalam 20 Chadayamangalam 21 Chadayamangalam 22 Chadayamangalam 23 Chadayamangalam 24 Chadayamangalam 25 Chadayamangalam 26 Chadayamangalam
On perusal of the complaint lodged by the respective defacto complainants in these crimes along with the report of the Investigating Officer, deposit of huge amount herein above mentioned could be gathered. The learned counsel for the petitioner heavily relied on the resignation letter of the petitioner to prove his innocence. But as per his submission, the resignation letter, a copy which is produced as Annexure A2 is dated 30.04.2022. Its authenticity is a matter of investigation. If the same is accepted as genuine, then also the period of deposit covered in this case are during 2019, 2020, 2021. Therefore, the allegations raised
in the present crimes are prima facie during the period when the petitioner held the post of Manager and therefore his resignation with effect from 30.04.2022, if at all found to be genuine, then also the same will not save the petitioner from criminal culpability. Another pertinent aspect is the genuineness of the copies of fixed deposit receipts produced by the petitioner. Regarding its genuineness also, detailed investigation is necessary. In this context, it is relevant to note that the petitioner who was the Manager can create the said deposits to get out of the criminal prosecution. Therefore, I am not inclined to act on the same.
10. Since the allegations are serious and
misappropriation of money would come to crores of rupees in all the 27 cases so far registered, grant of anticipatory bail to the petitioner where economic offence involved would be fatal to the prosecution. Therefore, arrest and custodial interrogation and the details of misappropriation are to be extracted for proper investigation of this case, as submitted by the learned Public Prosecutor. Therefore, the petitioner does not deserve bail and hence all applications are dismissed.
3. The learned Public Prosecutor zealously opposed the bail highlighting the seriousness of the offence.
4. Although it is submitted by the learned counsel for the
petitioner that there is change in circumstances, the change in circumstance pointed out is grant of bail to the petitioner another crime, vide crime No.1190/2022 of Chadayamangalam police station, by another Bench of this court, after addressing the merit of the said case. In this matter, the earlier anticipatory bail application was dismissed by detailed order and grant of anticipatory bail in another crime is not a change in circumstance to grant anticipatory bail in this crime also where the scam involves Rs.33,60,000/- (19,00,000 + 14,60,000). Thus, in this second bail application also, the learned counsel for the petitioner not succeeded in establishing any change in circumstances to grant anticipatory bail to the petitioner. Hence, this bail application also stands dismissed.
5. It is anxious to note that even after dismissal of the
earlier application on 16.03.2023, the Investigating Officer not made any attempt to arrest the accused to effectuate the investigation involving scam of Rs.33,60,000/-. Therefore, the impartiality and integrity of the Investigating Officer in this regard is doubtful. Therefore, the petitioner is directed to surrender before the Investigating Officer within three days from today, failing which the Investigating Officer is directed to arrest the petitioner for the purpose of investigation, if any, in accordance with law. Sd/- A. BADHARUDEEN JUDGE nkr