Allowed

Sri.Aatti Aalam Sha v. the State of Kerala

Kerala HC13 Aug 2020Bail Appl./174/2020

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the notice requirement for an absent complainant and allowed a maintenance-of-passport bail application under Section 438 CrPC for accused charged with cheating and forgery, imposing strict conditions of appearance, cooperation with investigation, and social distancing compliance.

What did the court decide?

Bail allowed on conditions to appear before the Investigating Officer within ten days for interrogation and cooperate with investigation.

Sri.Aatti Aalam Sha Vs the State of Kerala — Cheque Dishonour | Kerala HC (2020)

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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 P.V.KUNHIKRISHNAN

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THURSDAY, THE 13TH DAY OF AUGUST 2020 / 22ND SRAVANA, 1942

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Bail Appl..No.174 OF 2020

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CRIME NO.2023/2019 OF PANDALAM POLICE STATION, PATHANAMTHITTA

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PETITIONER/ACCUSED 1 & 4:

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1 SRI.AATTI AALAM SHA AGED 25 YEARS

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S/O.ALAVUDEEN, RESIDING AT PULIMOOTTIL HOUSE, OYOOR P.O., VELINELLOOR, KOTTARAKKARA TALUK, PIN- 691510.

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2 SMT.NISA BEEVI, AGED 51 YEARS

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W/O.ALAVUDEEN, RESIDING AT PULIMOOTTIL HOUSE, OYOOR P.O., VELINELLOOR, KOTTARAKKARA TALUK, PIN- 691510.

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BY ADVS.

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SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.K.SURESH BABU (PUNALUR)

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031.

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2 THE STATION HOUSE OFFICER, PANDALAM POLICE STATION, PATHANAMTHITTA DISTRICT689501.

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3 ADDL.R3 NAZEER, S/O SHAMSUDHEEN KUNJU, ASHARIYETHU FAISAL MANZIL, MANGARAM, PANDALAM, PATHANAMTHITTA, PIN-689501.

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IS IMPLEADED AS ADDITIONAL R3 AS PER THE ORDER DATED 13/2/2020 IN CRL.MA 1/2020.

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OTHER PRESENT:

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FOR R1 & R2 BY SRI.RENJITH.T.R., PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B.A. No.174 of 2020 2

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O R D E R

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Dated this the 13th day of August 2020

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This Bail Application filed under Section 438

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of Criminal Procedure Code was heard through Video Conference.

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2. The petitioners are accused Nos.1 and 4 in Crime No. 2023 of 2019 of Pandalam Police Station, Pathanamthitta District. The above case is registered against the petitioners alleging offences punishable under Sections 419 and 420 of the Indian Penal Code (IPC).

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3. The prosecution case is that, the defacto complainant is having an NRI account in the State Bank of India, Pathanamthitta branch. It is alleged that, a cheque book was obtained from the bank by forging his signature and an amount of Rs.3,01,727/- was withdrawn without his knowledge. It is also alleged that, a loan from the bank was taken in the name of the defacto complainant for purchasing a Jaguar Motor Car worth Rs.70,00,000/-.

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B.A. No.174 of 2020 3

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The further allegation is that, an amount of Rs.42,27,040/- was obtained by hypothecating the car from the H.D.F.C. bank.

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4. Heard the learned Senior Counsel for the petitioners and the learned public prosecutor.

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5. This Court issued notice to the defacto complainant. Notice issued to the defacto complainant is returned with an endorsement that 'left India'. There is no rule that while considering a bail application, the defacto complainant should be heard in all cases. Considering the facts and circumstances of this case, I think, a fresh notice to the defacto complainant is not necessary.

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6. The learned Senior Counsel submitted that, the offence alleged against the petitioners are not made out. The prosecution itself is highly improbable. The learned Senior Counsel submitted that, the defacto complainant was travelling in the Jaguar motor car which was purchased in his name. Moreover, according to the learned Senior Counsel,

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the vehicle was re-possessed by the H.D.F.C. bank.

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B.A. No.174 of 2020 4

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It is submitted that, the car is sold to a third person in connection with recovery proceedings. The learned Senior Counsel also submitted that, the petitioners are ready to co-operate with the investigation.

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7. The learned public prosecutor opposed the bail application. The public prosecutor submitted that the presence of the petitioners are necessary for the purpose of investigation. Several documents are to be seized. The public prosecutor submitted that the signature of the petitioners are to be

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verified. Therefore, the public prosecutor submitted that the custodial interrogation of the petitioners are necessary in this case.

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8. The learned Senior Counsel, who appeared for the petitioners submitted that, the petitioners are ready to co-operate with the investigation. This bail application was filed on 8.1.2020. There is an interim order in favour of the petitioners restraining the police in arresting them. Even now, the interim order is in force. At this distance of

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time, it is not proper to deny bail to the

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B.A. No.174 of 2020 5

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petitioners. A notice was issued to the defacto complainant. But is returned noting that the defacto complainant left India. A perusal of the complaint of the defacto complainant, it is clear that, the prosecution is mainly relying upon the documentary evidence to prove the case against the petitioners. In such circumstances, the custodial

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interrogation of the petitioners may not be necessary in this case. There can be a direction to the petitioners to surrender before the investigating officer and to co-operate with the investigation. Considering the entire facts and circumstances of this case, I think, this bail application can be allowed on stringent conditions.

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9. Moreover, considering the need to follow

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social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020) and a Full Bench of this Court in W.P(C)No.9400 of 2020 issued

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various salutary directions for minimizing the

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B.A. No.174 of 2020 6

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number of inmates inside prisons.

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10. Moreover, it is a well accepted principle that, the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram P. v. Directorate of Enforcement (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that, the accused has the opportunity of securing fair trial.

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11. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:

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1. The petitioners shall appear

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before the Investigating Officer within ten days from today and shall undergo interrogation;

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2. After interrogation, if the Investigating Officer proposes to arrest the petitioners, they shall

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B.A. No.174 of 2020 7

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be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like

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sum to the satisfaction of the officer concerned;

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3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of

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the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

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4. The petitioners shall not

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leave India without permission of the Court;

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5. The petitioners shall not

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commit an offence similar to the

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B.A. No.174 of 2020 8

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offence of which they are accused, or suspected, of the commission of which they are suspected;

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6. The petitioners shall strictly

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abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic;

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7. If any of the above conditions

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are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this

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Court.

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Sd/-

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P.V.KUNHIKRISHNAN

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JUDGE