Allowed

Muhammed Hussain v. State of Kerala

Kerala HC7 Nov 2017Bail Appl./6129/2017

Case brief

AI extract

What is this about?

The court granted pre-arrest bail to two accused in a charge-sheeted case involving alleged cheating and theft. The court observed that registered sale deeds existed and a civil suit for reconveyance was pending, noting that an oral agreement contrary to a registered document makes the prosecution case vulnerable.

What did the court decide?

Pre-arrest bail granted to petitioners subject to conditions of interrogation attendance and furnishing documents.

Muhammed Hussain Vs State of Kerala — Cheating and Forgery | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939

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Bail Appl..No. 6129 of 2017 ()

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CRIME NO. 1812/2017 OF PARIPALLI POLICE STATION,KOLLAM DISTRICT

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PETITIONER(S)/ACCUSED 2 AND 3 :

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1. MUHAMMED HUSSAIN, S/O. SAIFUDEEN, AGED 21 YEARS, ANZAR MANZIL, MANIKKAN MURI, PALLAMPARA VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM DISTRICT.

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2. BUSHRA,

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W/O SAIFUDEEN, AGED 42 YEARS, NOUSHAD MANZIL, KODUVAZHUNOOR DESOM, KODUVAZHUNOOR VILLAGE, CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.

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BY ADVS.SRI.JACOB SEBASTIAN

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SRI.K.V.WINSTON SRI.K.A.SIYAD SMT.ANU JACOB

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RESPONDENT(S)/COMPLAINANT:

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1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF POLICE, PARIPALLI POLICE STATION, KOLLAM DISTRICT.

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*ADDL.R2 IMPLEADED

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*ADDL.R2: RAHSA SHEREEF, AGED 57 YEARS,

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WIFE OF LATE MOHAMMED SHEREEF, LEENA BUNGLOW, SIVAGIRI JUNCTION, CHERUKUNNAM, VARKARA-695 141, THIRUVANANTHAPURAM.

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*ADDL.R2 IS IMPLEADED AS PER ORDER DATED 3/10/2017 IN CRL.MA.NO.9995/2017.

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R1 BY PUBLIC PROSECUTOR SRI.AJITH MURALI ADDL.R2 BY ADV. SRI.ALAN PAPALI

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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RAJA VIJAYARAGHAVAN V, J

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B.A No.6129 of 2017

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Dated this the 7^th day of November, 2017

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ORDER

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1.The petitioners herein, who are son and mother respectively, are the accused Nos.2 and 3 in Crime No.1812 of 2017 of Paripalli Police Station. They seek pre-arrest bail in the aforesaid Crime which has been registered alleging offence punishable under Sections 420, 451, 379, 506(i), 294(b) read with 34 IPC.

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2.According to the prosecution, the de facto complainant was in need of money and she borrowed a sum of Rs.25 lakhs from the father of the 1^st petitioner. She had agreed to repay the same with interest. However, Saifudeen, the father of the 1^st petitioner, insisted that a sale deed be executed in respect of 5.08 Acres owned by the daughter of the de facto complainant in favour of the petitioners. As the daughter of the de facto complainant was abroad, a Power of Attorney was executed to deal with the property. According to the de facto complainant, nominal sale deeds were executed in favour of the petitioners on a specific understanding that re-conveyance deeds would be executed

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B.A No.6129 of 2017 2

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on repayment of loan. Later, the de facto complainant on becoming aware that the petitioners were trying to establish title over the property, approached them and sought for reconveyance. In the meanwhile, the accused Nos. 4 and 5 trespassed into the property, after conspiring with the petitioners, and committed theft of valuable trees. They also stole certain furniture kept in the building inside the property. Stating these allegations, a complaint was lodged based on which the Crime was registered under Section 420, 452, 379, 506(ii), 294(b), 120B of the IPC and Section 13 and 17 of the Kerala Money Lenders Act.

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3.The learned counsel appearing for the petitioner would submit that the sale deeds were executed as early as on 21.03.2016 and 06.05.2016 respectively and the sale consideration of about Rs.48 lakhs was paid in respect of the first sale deed and about Rs.29 lakhs in respect of the second sale deed. The property was mutated and the petitioners are in lawful possession of the same. He refers

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to Annexures-A3 and A4 Tax Receipts to buttress his contention. According to the learned Counsel, it was when

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B.A No.6129 of 2017 3

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the de facto complainant came to know that the petitioners are attempting to sell off the property at a higher price that the de facto complainant had approached the petitioners claiming her share. It is further submitted that an out and out sale deed was executed and the same having been registered, the petitioners cannot turn around and contend that there is a parol agreement for re-conveyance. According to the learned counsel, all the transactions are supported by documentary evidence and detention in custody of the petitioners are not required in the facts and circumstances. Finally, it is submitted that this Court by order dated 11.8.2017, in B.A.No. 5195 of 2017, had granted pre-arrest bail to accused Nos.1, 4 and 5 and the 1^st accused is none other than the father of the 1^st petitioner.

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4.The de facto complainant has entered appearance through

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Sri. Alan Papali, who vehemently opposed the prayer of the petitioners. According to the learned counsel, the property was valued much more and the so called sale deeds are

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sham documents. The petitioners herein with the active assistance of the accused Nos. 4 and 5 have trespassed into

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B.A No.6129 of 2017 4

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the property and have committed mischief and theft.

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Learned counsel would further submit that the de facto complainant along with her daughter has approached the Subordinate Judge's Court, Kollam and have filed O.S.No.69 of 2017 on 26.9.2017 for getting the agreement for reconveyance specifically enforced and for other reliefs.

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5.I have heard the learned Public Prosecutor as well, who supported the submissions of the learned counsel for the de facto complainant.

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6.I have considered the submission in advance on both sides and I have gone through the materials and records as well. Annexures-1 and 2 sale deeds have been executed and registered in accordance with law in favour of the petitioners herein. Further more, O.S.No.69 of 2017 has also been instituted with a prayer to execute a proper re-conveyance deed. The suit has been instituted more than an year after the execution of the sale deeds as above. This Court has already granted pre-arrest bail to accused Nos. 1, 4 and 5,

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after holding that the setting up of an oral agreement contrary to the terms of the registered document would

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B.A No.6129 of 2017 5

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make the case of the de facto complainant vulnerable.

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7.Having regard to the nature and seriousness of the allegations, the materials in support thereof, the circumstances which are peculiar to the petitioners, their antecedents and other facts and circumstances, I am of the view that the relief of pre-arrest bail can be granted to the petitioners. Necessary conditions can be imposed to safeguard the interest of the prosecution.

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8.In the result, the application is allowed, but subject to the following conditions:

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i). Each of the petitioners shall appear before the investigating officer within ten days from today and shall undergo interrogation. If they are proposed to be arrested, they shall be released on bail on each of them executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum to the satisfaction of the officer effecting the arrest.

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ii). They shall appear before the Investigating Officer on all Tuesdays and Fridays for a period of two months or until final report is filed, whichever is earlier.

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iii). They shall make available all documents in their possession, which may include their bank passbooks, title deeds etc., so as to enable the investigating officer to conduct investigation smoothly.

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B.A No.6129 of 2017

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iv).They shall surrender their passport, if any, before the officer concerned and if they are not in possession of a passport, an affidavit to that effect shall be filed.

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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

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orders in accordance with the law.

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This application is allowed as above.

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Sd/-

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RAJA VIJAYARAGHAVAN V, JUDGE

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//TRUE COPY//

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P.A. TO JUDGE

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Muhammed Hussain v. State of Kerala

Case brief

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Muhammed Hussain v. State of Kerala

Case brief

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