Allowed

Augustine v.a., v. State of Kerala

Kerala HC14 Sept 2020Bail Appl./4122/2020

Case brief

AI extract

What is this about?

The Kerala High Court allowed a pre-arrest bail application filed by a husband and wife accused of cheating a cooperative bank. The court held that transactions reflected in Encumbrance Certificates cannot be obliterated to deceive the bank and granted bail pending investigation.

What did the court decide?

Bail application allowed. Applicants directed to surrender within two weeks. Release on bail of Rs.1,00,000 each upon arrest with conditions.

Augustine v.a., 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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MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942

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Bail Appl.No.4122 OF 2020

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CRIME NO.237/2020 OF Pala Police Station, Kottayam

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PETITIONER/S:

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1 AUGUSTINE V.A., AGED 57 YEARS, VAZHAKKAMALAYAIL, CHAKKAMPUZHA P.O., RAMAPURAM, KOTTAYAM DISTRICT, PIN - 686 574.

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2 SHINY AUGUSTINE, VAZHAKKAMALAYIL, CHAKKAMPUZHA P.O., RAMAPURAM, KOTTAYAM, PIN - 686 574.

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BY ADV. SRI.ANIL ABEY JOSE

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 682031

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2 SECRETARY, KIZHATHADIYOOR SERVICE COOPERATIVE BANK LTD.NO.1995 KIZHATHADIYOOR, MEENACHIL, PALA, KOTTAYAM, PIN - 686 574.

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OTHER PRESENT:

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SRI.SANTHOSH PETER, SR PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B.A.No.4122 of 2020

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O R D E R

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Dated this the 14th day of September 2020

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This is an application for anticipatory bail under Section 438 of Cr.P.C.

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The applicants are husband and wife, who are accused of having allegedly committed the offences punishable under Section 420 read with Section 34 of I.P.C. in Crime No.237/2020 of Pala Police Station. The prosecution case, in brief, is that the 1^st applicant had borrowed a sum of Rs.3.5 lakhs from one K.U.Francis, who is a private money lender, and as security for the said amount, he executed an agreement for sale of his property; while a part of the property was already mortgaged to Kizhathadiyoor Service Co-operative Bank for a loan of Rs.25 lakhs, which he had taken earlier and subsequently, the loan was also renewed without revealing the transaction with the aforesaid K.U.Francis, and thereby the applicants had allegedly cheated the Co-operative Bank.

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The applicants state that the transaction with K.U.Francis has already been settled consequent

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B.A.No.4122 of 2020

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to the filing of a civil suit and thereafter a decree was passed by the Adalath in which certain undertakings have been given by the parties regarding the repayment of the loan and it is also stated that K.U.Francis had gave up his claim for specific performance of the contract and was satisfied with return of the advance amount allegedly paid by him. It is also stated that the applicants had never cheated the Bank, because all the transactions with the Bank would be reflected in the Encumbrance Certificate, and therefore, the property could not be sold by not revealing the mortgage as alleged by the Bank. Hence, the charge of the Bank for the mortgaged money is on the property and can never be vacated by the volition of the applicants or by any other third party. The Bank is at liberty to proceed against the property. Therefore, the offence under Section 420 of I.P.C. is not attracted, states the applicants and they seek pre-arrest bail.

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Heard the learned Counsel for the applicants and the learned Public Prosecutor.

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As pointed out, the transactions with the Co-operative Bank is always reflected in the

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B.A.No.4122 of 2020

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Encumbrance Certificate and cannot be obliterated by the applicants by getting into another agreement for sale with any third party. The mortgage moves with the property, and therefore, the applicants cannot cheat the Bank by getting into another agreement. The encumbrance would always continue. The applicants are not likely to abscond and they are willing to co-operate with the investigation. Hence, I find that they are entitled to a pre-arrest bail. In the result, the bail application is allowed and the applicants are directed to surrender before the Investigating Officer within two weeks. After interrogation and in the event of their being arrested, they shall be released on bail on the execution of a bond for Rs.1,00,000/-(Rupees one lakh only) each, with two solvent sureties each, for the like amount to the satisfaction of the Investigating Officer, and on the following conditions:

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(i) They shall appear before the Investigating Officer as and when called for;

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(ii) They shall not influence or intimidate witnesses or tamper with evidence; and

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B.A.No.4122 of 2020

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(iii)During the bail period, they shall not get involved in any similar offences.

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In case of breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court.

Sd/-

ASHOK MENON

JUDGE

dkr

Augustine v.a., v. State of Kerala

Case brief

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Augustine v.a., v. State of Kerala

Case brief

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