Allowed

Dilshad, v. State of Kerala

Kerala HC18 Nov 2020Bail Appl./2985/2020

Case brief

AI extract

What is this about?

The High Court of Kerala granted anticipatory bail to two accused in a robbery and hurt case. The court observed discrepancies between prosecution injuries and medical records, suspecting a collusion between the accused and the complainant regarding a disputed vehicle transaction.

What did the court decide?

Bail allowed in execution of bond for Rs. 1,00,000/- each with two sureties on conditions of cooperating with investigation and not tampering with evidence.

Dilshad, Vs State of Kerala — Cheating and Forgery | 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 ASHOK MENON

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WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942

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Bail Appl..No.2985 OF 2020

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CRIME NO.179/2020 OF Kalamassery Police Station , Ernakulam

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PETITIONERS/ACCUSED:

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1 DILSHAD,

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AGED 29 YEARS

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S/O.LIYAKATH ALI, TC 46/1467, AISHA BHAVAN, METRO GARDENS, MELARANNOOR, THYCAUD VILLAGE, THIRUVANANTHAPURAM-695012.

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2 LIYAKATH ALI,

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AGED 65 YEARS

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S/O.NOOH, TC 46/1467, AISHA BHAVAN, METRO GARDENS, MELARANNOOR, THYCAUD VILLAGE, THIRUVANANTHAPURAM695012.

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BY ADV. SRI.M.T.SURESHKUMAR

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RESPONDENTS/STATE:

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1 STATE OF KERALA,

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

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2 ADDL. R2.C.M. GIBIN,

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AGED 34, S/O. C.P. MUHAMMED, CHERUPURATH HOUSE, IRUMALAPADY BHAGAM, ERAMALLOOR VILLAGE, KOTHAMANGALAM-686691.

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(ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 28/05/2020 IN CRL.MA 1/2020)

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R2 BY ADV. DINESH MATHEW J.MURICKEN

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OTHER PRESENT:

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SRI.AMJAD ALI SR PP

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01.07.2020, THE COURT ON 18.11.2020 PASSED THE FOLLOWING:

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Bail Appl..No.2985 OF 2020

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O R D E R

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Dated this the 18th day of November 2020

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Application for anticipatory bail under Section 438 Cr.P.C.

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The 1^st applicant is the son of the 2^nd applicant. They are accused numbers 1 and 2 in Crime No. 179 of 2020 of Kalamassery Police station for having allegedly committed offences punishable under Sections 323 and 392 read with Section 34 of the Indian Penal Code. The prosecution case in brief is this:-

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On 29/02/2020 the applicants in furtherance of common intention with 3 other persons approached the de facto complainant/2^nd respondent expressing the intention to purchase his BMW car bearing registration No. KL 01 CF 9798. They wanted to test drive the vehicle. The de facto complainant agreed and the applicants sat on the front seats with the 1^st applicant behind the wheel and drove the vehicle. The de facto complainant and his brother sat on the back seat of the car. When the car reached the Palarivattom, three others got into the vehicle. Pointing a knife at the neck of the de facto complainant, they assaulted him and his brother, caused hurt to them, and drove the car towards Vytilla. On reaching there, they

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Bail Appl..No.2985 OF 2020

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pushed the de facto complainant and his brother out of the car by force, robbed the vehicle and sped away. The de facto complainant filed a complaint before the Kalamassery Police on 12/03/2020, on the basis of that, the aforesaid Crime was registered and the F.I.R is at Annexure A1.

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The applicants state that they are innocent and the allegations made against them in this Crime are not true. It is stated that the applicants belong to a decent family of businessmen. They are builders by profession and are also engaged in cashew export. The 2^nd applicant's wife Narghees is the registered owner of the aforesaid BMW car. Annexure A4 shows details of the vehicle registration in her name. It is stated that the vehicle was agreed to be sold to a person named Sanjay for a sale consideration of 50₹ lakhs. He paid 10 lakhs as advance, and agreed to pay the balance₹ amount in two installments, for which he issued two cheques. Narghees was made to believe that the ownership of the car need to be transferred only on receipt of the entire sale consideration. Though the possession of the vehicle was handed over to the aforesaid Sanjay, the cheques issued by him were dishonoured for want of sufficient funds in his account. On attempting to contact him, he was absconding. The applicants and Narghees realised that

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Bail Appl..No.2985 OF 2020

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they have been cheated by the aforesaid Sanjay. They made further inquiries regarding his antecedents and came to know that he has been cheating other persons also in a similar manner. Annexure A2 is the F.I.R in Crime No.1841/2019 registered against him at the Museum Police Station for having cheated a person named Sulaiman by taking possession of his Mercedes-Benz car bearing registration No. KL 01 BT 1111 on 18/05/2019 and issuing cheques which were dishonoured. The 2^nd applicant had filed a complaint before the City Police Commissioner, Thiruvananthapuram on 26/02/2020, and the copy of that complaint is at Annexure A3. The extract Annexure A4 also indicate that Narghees has raised an objection to the sale of the vehicle, and had blacklisted it on an objection filed before the RTO. Subsequent enquiry revealed that the vehicle was kept in the house of the de facto complainant. Though the applicants attempted to retrieve the vehicle with the help of the local Police, it proved futile. On coming to know about the information that the vehicle is intended to be transported to Tamil Nadu, the applicants approached the de facto complainant and informed about how Sanjay had duped them. The de facto complainant agreed to accompany the applicants to Karamana Police Station to settle the dispute. However when they reached

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Bail Appl..No.2985 OF 2020

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Aroor, the applicants were informed that the person who had sold the vehicle to him had agreed to settle his payment within a week. Thus, as requested by him, he dropped from the car. He was not pushed out of the car by force or assaulted as alleged. The version of the de facto complainant about the applicants and three others getting into the car while the de facto complainant and his brother were inside the car is hard to believe as there is only seating capacity for three persons on the back seat of the car. Moreover, there is an unexplained delay 12 days in lodging the complaint before the Kalamassery Police Station by the de facto complainant. The applicants were threatened by goons on intervention by a political leader from Kalamassery. They had even broke open the gate of the applicants' house and took away the vehicle by force. Annexure A5 complaint was filed before the City Police Commissioner and DGP on 20/03/2020. Annexure A6 complaint was also filed before the Deputy Commissioner of Police, Kochi on 27/04/2020. The vehicle still stands in the name of the 2nd applicant's wife as evident from Annexure A7. The loan outstanding with the ICICI bank with regard to the vehicle was closed by the applicants as evidenced by Annexure A8. The above-mentioned Sanjay had obtained anticipatory bail in the crime registered against

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Bail Appl..No.2985 OF 2020

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him as Annexure A2. The copy of the bail order is produced as Annexure A9. This indicates that Sanjay is a fraudulent person. The applicants have produced Annexure A10 a complaint against Sanjay pending before the Judicial First Class Magistrate Court, Malapuram as C.C. No. 61 of 2020 filed on 31/01/2020. Annexure A11 shows that a warrant of arrest was issued against Sanjay and his wife in the aforesaid case. On the basis of the complaint filed by the applicants against Sanjay, Annexure A12 Crime No. 653 of 2020 was registered at Karamana Police Station against him. The applicants contend that the de facto complainant and the aforesaid Sanjay are glove in hand to cheat the applicants. This allegation is fortified by the fact that the de facto complainant has not proceeded against Sanjay in respect of the transaction despite being informed about it by the applicants.

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The de facto complainant appeared through counsel and filed objections. Annexures R2 (a) to R2 (d) were produced by the de facto complainant to prove that he is a bona fide purchaser of the disputed vehicle on full payment being made by him to Sanjay. Annexure R2 (c) is a copy of the agreement executed between Sanjay and the de facto complainant regarding the sale of the car on 04/07/2018. Annexure R 2 (d) is a true copy of the authorisation

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Bail Appl..No.2985 OF 2020

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letter issued by the registered owner of the vehicle Narghees in favour of Sanjay. The de facto complainant sticks on to the prosecution case and states that he was admitted to the Taluk Headquarters Hospital at the Kothamangalam for treatment for injuries he had sustained in the assaulted by the applicants and the other accused. Annexure R2 (a) is the discharge summary issued from the hospital. He was admitted to the hospital on 29/02/2020 to treat the injuries he had sustained.

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Heard the learned counsel for the applicants, the counsel appearing for the de facto complainant and the learned Public Prosecutor.

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There is no dispute that the allegedly stolen vehicle belonged to the wife of the 2nd applicant and the registration continues to be in her name. Sanjay had taken possession of the vehicle by paying an advance amount of 10 lakhs and had issued₹ cheques towards payment of the balance. The cheques were dishonoured and it is contended that Sanjay had cheated the wife of the 2^nd applicant. He did not return the car and attempted to sell the same to the de facto complainant. Though there is an agreement produced by the de facto complainant purportedly executed in his favour by Sanjay, the de facto complainant was aware that the car

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Bail Appl..No.2985 OF 2020

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belonged to the wife of the 2^nd applicant, admittedly he did not contact her with regard to the sale. There is no documentary evidence produced by the de facto complainant to prove that he had paid ₹ 50 lakhs as consideration to Sanjay. He did not get any acknowledgement from the registered owner Narghees regarding the receipt of consideration for the vehicle. Hence there is a serious cloud of doubt arising from the transaction between Sanjay and the de facto complainant. Annexure R2 (a) discharge summary indicates that he had sustained a laceration measuring 2 x 1 cms with tenderness on his left elbow. No other injuries were noticed. In case the prosecution version that the de facto complainant and his brother were assaulted with hands and kicked at knife point by the accused before he was thrown out of the car is to be believed, he would definitely have sustained some more injuries. There is no injury caused by a knife noted in the discharge summary. Under the circumstances it is hard to believe the reasons stated by the de facto complainant regarding the delay in lodging the complaint. The de facto complainant was discharged from the hospital on 02/03/2020. The complaint was filed only on 12/03/2020. Hence, the delay is not properly explained. The applicants do not have any criminal antecedents and there is no reason to believe that they may

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Bail Appl..No.2985 OF 2020

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flee from justice. Under the circumstances, the applicants are entitled to an anticipatory bail.

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In the result, the bail application is allowed. In the event of their being arrested in the aforesaid Crime, the applicants shall be released on bail on execution of bond for 1,00,000/- (Rupees₹ one lakh only) each with two solvent sureties for like amount each

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to the satisfaction of the arresting officer and on the following further conditions:

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(1)They shall cooperate with the investigation and appear before the investigating officer as and when called for.

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(2)They shall not tamper with evidence, intimidate or influence witnesses.

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In case of breach of any of the above bail conditions, the prosecution is at liberty to approach the jurisdictional court for cancellation of the bail.

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The application for anticipatory bail is allowed.

Sd/-

ASHOK MENON

JUDGE

Dilshad, v. State of Kerala

Case brief

What is this about?

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Dilshad, v. State of Kerala

Case brief

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