Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942 Bail Appl..No.5441 OF 2020 CRIME NO.1740 OF 2020 OF KONNI POLICE STATION, PATHANAMTHITTA PETITIONER/S:
1 THOMAS DANIEL, AGED 65 YEARS INDIKATTIL HOUSE, VAKAYAR P O, KONNI, PATHANAMTHITTA DISTRICT 686698 2 PRABHA THOMAS, AGED 60 YEARS INDIKATTIL HOUSE, VAKAYAR P O, KONNI, PATHANAMTHITTA DISTRICT 689698 3 RINU MARIUM THOMAS, AGED 35 YEARS INDIKATTIL HOUSE VAKAYAR P O, KONNI, PATHANAMTHITTA DISTRICT 686698 4 RIA ANN THOMAS AGED 32 YEARS INDIKATTIL HOUSE VAKAYAR P O KONNI PATHANAMTHITTA DISTRICT 689698 5 REBA MARY THOMAS AGED 26 YEARS INDIKATTIL HOUSE VAKAYAR P O KONNI PATHANAMTHITTA DISTRICT 689698 BY ADV. SRI.C.S.MANU
RESPONDENT/S: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA R1 BY PUBLIC PROSECUTOR OTHER PRESENT: SRI.C.N.PRABHAKARAN SR PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Bail Appl..No.5441 OF 2020 2
O R D E R
Dated this the 17th day of September 2020 Application for anticipatory bail under Section 438 of Cr.P.C. The applicants are accused in Crime No.1740 of 2020 of Konni Police Station for having allegedly committed offences punishable under Sections 420 and 406 of the IPC. They apprehend arrest and approached this Court for anticipatory bail. Applicants 1 and 2 are husband and wife while the applicants 3 to 5 are their daughters.
2. It is submitted by the learned counsel for the applicants that
all except the 4th applicant, Riya Ann Thomas, who is the 5th accused in the Crime have already been arrested and hence this application for anticipatory bail has become infructuous as regards all applicants except the 4th applicant. Hence, this application now concerns only the anticipatory bail of the 5th accused, who is the 4th applicant herein.
3. The learned Public Prosecutor has submitted that apart from
the offences mentioned in the FIR stated above, offences under Sections 5 of Kerala Protection of Interests of Depositors in Financial Establishments Act, 2013 and 7 of 2015 and Sections 3, 21 (ii) (iii), 5, 23, 25(i) of Banning of Unregulated Deposit Schemes Act, 2019 are Bail Appl..No.5441 OF 2020 3 also incorporated.
4. The prosecution case, in brief, is that a non- banking financial business under the name Popular Finance Ltd was conducted by the
applicants as Managing Director and Directors and they had dishonestly induced and received deposits to the tune of Rs.2000 crores from more than 30,000 persons and allegedly misappropriated the same and invested it in purchasing several properties and started several companies and partnership firms, all of which includes the applicants as either partners or directors, and thereby, they cheated the depositors, committing offences under the aforesaid provisions.
5. The learned counsel for the applicants and the learned Public Prosecutor were heard.
6. The learned counsel appearing for the applicants submits that 4th applicant/5th accused is a doctor and is employed as Assistant Surgeon in the Government Health Services and Annexure A1 is her
order of appointment. She is a postgraduate in Pulmonology and had
even worked as a lecturer in the Medical College, Calicut before she joined as an Assistant Surgeon. She has throughout the period been either studying in the Medical Colleges or was in the medical services, and she had no opportunity to get involved in the business of her father and the family, and therefore, had little time to be concerned about the alleged fundraising by the company or with its investment
Bail Appl..No.5441 OF 2020 4
elsewhere. It is submitted that because of the lockdown following the COVID-19 Pandemic, some of the concerns of the applicants ran into loss. Some of the employees created panic among depositors, and they started demanding back their money. The company could not afford to keep the money of the depositors idle, and had invested it profitably in different ways, which could not have affected the depositors in any manner. But the demand of all the depositors for return of money could not be met by the applicants, without first going for liquidation of their assets, which was not possible because of the pandemic restrictions. The applicants have no intention to cheat any of their customers. However, they require time to settle their claims, which could only be possible if they are set at liberty.
7. The 4th applicant further states that her son is suffering from
brachial plexus palsy as evidenced by Annexures A3 and A4, certificate and records from the Pushpagiri Institute of Medical Sciences and Research Centre, Thiruvalla and the Elite Mission Hospital, Thrissur,
and requires her constant attention. It is also submitted by the learned counsel appearing of the applicant that she is attending to Covid-19 patients in the hospital and that her presence at the hospital is indispensable to the State. The 4th applicant states that she is willing to co-operate with the investigation. Her arrest would result in her losing her job causing much inconvenience to her, and her son,
Bail Appl..No.5441 OF 2020 5 and may not serve any purpose of the investigation. Therefore, she prays that she may be released on anticipatory bail.
8. The learned Public Prosecutor very vehemently opposes the
application for bail stating that huge amounts of money have been looted by the finance company of which the 4th applicant is an integral part and that the applicants have very profitably invested their ill gotten wealth in various companies and also purchased properties in States like Tamil Nadu, Karnataka and Andra Pradesh. After profiting with the money of the guileless common public, the company has now refused to return the hard earned money deposited by them. It is also pointed out by the learned Public Prosecutor that accused 1 and 2 were arrested and accused 3 and 4 attempted to flee from the country and were arrested in that process. It is further submitted by the learned Public Prosecutor that the applicants have their funds parked in various foreign banks, and have already transferred huge sums of money to those banks. There is every possibility that they may flee from the country and may not be available for interrogation by the investigating agency. It is further submitted by the learned Public Prosecutor that it is intended to be handed over to the CBI considering the gravity of the offence.
9. The offence allegedly committed by the applicants in this application is undoubtedly very grave and has very serious Bail Appl..No.5441 OF 2020 6
implications on several thousand depositors. The Hon’ble Supreme Court has in Chidambaram P. V. Directorate of Enforcement [(2019) KHC 6886] held that the power under Section 438 of Cr.P.C being an extraordinary remedy, has to be exercised sparingly; more so, in economic offences. It is also observed that anticipatory bail is not to be granted as a matter of rule and that it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. The investigation of cognizable offences and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency, whose powers are unfettered so long as the investigating officer exercises his investigating powers well within the provisions of law and legal bounds.
10. The learned counsel for the applicants would submit that
there is no custodial interrogation required in this case and that the provisions of the offence under the Kerala Protection of Interests of Depositors in Financial Establishments Act, 2013 has to be by a special court which is yet to be constituted. Therefore, the denial of bail for the alleged violation of the provisions of the Act cannot be considered at this stage.
11. There is no doubt that huge sums of amounts are involved in this alleged cheating. There is also no doubt that the 4th applicant Bail Appl..No.5441 OF 2020 7
despite being a Civil Surgeon in the Government Health Service was involved as a Director of a number of companies and firms owned by her parents and sisters. Her parents and both sisters have already been apprehended and they are in judicial custody. The argument of the learned counsel for the applicants that in case the applicant is remanded to judicial custody, she may lose her job and the treatment of her son would suffer, is not a reason to grant her bail as the investigation is still at a very nascent stage. The applicant definitely would have to co-operate with the investigation, which may include
custodial interrogation because of the volume of the alleged
misappropriation and cheating. It is not an isolated case of cheating under Section 420 IPC but involves crores of rupees and thousands of people, who had invested their hard earned money with the financial institutions run by the applicants. In comparison to that, the inconvenience that may be caused by the 4th applicant’s arrest is nothing. The learned counsel for the applicants also submits that the mitigating circumstances under Section 437 of Cr.P.C. for granting bail to women, children old and feeble persons can be imported to an application under Section 438 of Cr.P.C. also. But I find that this is not a fit case where those provisions can come to the rescue of the
applicant. The application for anticipatory bail is, therefore, to be dismissed and the applicant is directed to surrender before the Bail Appl..No.5441 OF 2020 8 investigating officer within a period of three weeks, and co-operate with the investigation. The bail application is dismissed. Sd/- ASHOK MENON rmm JUDGE