Allowed

Shihabudeen N v. Public Prosecutor

Kerala HC19 Nov 2020Bail Appl./4499/2020

Case brief

AI extract

What is this about?

The Kerala High Court allowed an application for anticipatory bail under Section 438 CrPC alleged charges of cheating and misappropriation. The judge held custodial interrogation unnecessary if the accused cooperates with the investigation and immediate surrender within two weeks.

What did the court decide?

Anticipatory bail allowed; directed to surrender within two weeks; bond for Rs.1 lakh with two sureties; appearance before investigating officer once a week.

Shihabudeen N Vs Public Prosecutor — 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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THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942

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Bail Appl..No.4498 OF 2020

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CRIME NO.890/2020 OF Nadakkavu Police Station , Kozhikode

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PETITIONER/S:

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SHIHABUDEEN N AGED 48 YEARS NALAKATH (H), KARAKKOD P.O., VAZHIKKADAVU, NILAMBUR, MALAPPURAM-679 333. 679333

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BY ADV. SRI.SUNNY MATHEW

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RESPONDENT/S:

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1 PUBLIC PROSECUTOR HIGH COURT OF KERALA 682031

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2 THE STATION HOUSE OFFICER AGED 53 YEARS NADAKKAVU POLICE STATION, KOZHIKODE DISTRICT-673001. 673001

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3 NARJAZ AGED 41 YEARS, S/O A.P. MOIDHU ISTANA, JUMA MASJID ROAD, PANTHALAYANY P.O., KOYILANDY, KOZHIKODE-673306.

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R1 BY PUBLIC PROSECUTOR R3 BY ADV. VEENA HARI

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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 19.11.2020, ALONG WITH Bail Appl..4499/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl..Nos.4498 & 4499 OF 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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THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942

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Bail Appl..No.4499 OF 2020

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CRIME NO.891/2020 OF Nadakkavu Police Station , Kozhikode

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PETITIONER/S:

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SHIHABUDEEN N AGED 48 YEARS NALAKATH (H), KARAKKOD P.O., VAZHIKKADAVU, NILAMBUR, MALAPPURAM 679333

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BY ADV. SRI.SUNNY MATHEW

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RESPONDENT/S:

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1 PUBLIC PROSECUTOR HIGH COURT OF KERALA 682031 2 THE STATION HOUSE OFFICER AGED 53 YEARS NADAKKAVU POLICE STATION, KOZHIKODE DISTRICT-673 001.

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3 SAYOOJ .T.K. AGED 38 YEARS, S/O SHANKARAN T.K. THACHOLI THAZHEKUNNIL (H), EDAKKULAM, KOYILANDY, CALICUT- 673 306.

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R1 BY PUBLIC PROSECUTOR SRI.SANTHOSH PETER SR PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.11.2020, ALONG WITH Bail Appl..4498/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl..Nos.4498 & 4499 OF 2020

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COMMON ORDER

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[ Bail Appl..4498/2020, Bail Appl..4499/2020 ] Dated this the 19th day of November 2020

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Applications for anticipatory bail under Section 438 of Cr.P.C.

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The applicant is the sole accused in Crime Nos.890 and 891 of 2020 of Nadakkavu Police Station, Kozhikode for having allegedly committed the offences punishable under Sections 406 and 420 of IPC.

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The prosecution case, in brief, is that the applicant had entered into an agreement with the de facto complainants in the aforesaid Crimes for construction of flats in the year 2012, and as per the payment schedule, amounts were dishonestly induced to be paid towards construction of flats, but the applicant neither completed the construction of the flat nor did he repay the amount. He allegedly sold the flats to someone else and registered a sale deed for that. Hence the applicant has misappropriated the amounts paid by the de facto complainants and committed the offence of cheating.

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Bail Appl..Nos.4498 & 4499 OF 2020

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The applicant states that he did not have the intention to cheat the complainants. It is stated that as per the schedule the de facto complainants were liable to pay the amounts in installments. It is stated that they failed to pay the entire amount as undertaken by in the agreement is produced by the applicant. Despite that, the applicant was forced to sell some units of the flat to others to make good the expenses for the purpose of construction. The applicant did not have any dishonest intention to cheat the complainants, hence it is prayed that he may be granted anticipatory bail.

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Heard the learned counsel for the applicant and the learned Public Prosecutor. The de facto complainants are represented by the counsel of their choice and their counsel also heard.

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The main contention raised by the learned counsel appearing for the de facto complainants is that, despite having received the major portion of the value which was fixed for the flats, the applicant did not take steps to complete construction and therefore the balance amount was stalled. Had the flat completed on time, they would have paid the remaining amount

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Bail Appl..Nos.4498 & 4499 OF 2020

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also. The intention of the applicant was to cheat which is explicit from his actions that he had already sold the flat which was booked by the de facto complainants and received part payment for that. In fact it is pointed out that the flats were sold for a lesser consideration than what was agreed between the de facto complainants and the applicant, which shows that his intention was to cheat the de facto complainants.

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The learned counsel appearing for the applicant and the de facto complainants state that there is a fair possibility of settling the matter, but the applicant is not willing to come closer to the demands put up by the de facto complainants and hence it could not be settled.

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I only wish that earnest endeavour be made by the parties come closer in their differences to arrive at a settlement after negotiations. The custodial interrogation of the applicant may not be necessary for the purpose of investigation in this case, as long as the applicant is willing to cooperate with the investigation and appear before the investigating officer. I don't see the possibility of the applicant absconding. Hence the application for anticipatory bail is allowed. The applicant is

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Bail Appl..Nos.4498 & 4499 OF 2020

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directed to surrender before the investigating officer within two weeks. In the event of his being arrested, he shall be released on bail on execution of bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like amount to the satisfaction of the investigating officer in each of the cases and on following further conditions:

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(i) He shall appear before the investigating officer on all Saturdays between 9 a.m. and 12 noon for a period of three months or till the filing of the final report, whichever is earlier.

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(ii) He shall not also attempt to influence the witnesses or tamper with evidence.

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(iii) He shall not get involved in any other similar crimes during the currency of the bail.

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In case of violation of any bail condition, the prosecution

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is at liberty to apply for cancellation of the bail before the jurisdictional court.

SD/-

ASHOK MENON

JUDGE

rmm

Shihabudeen N v. Public Prosecutor

Case brief

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Shihabudeen N v. Public Prosecutor

Case brief

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