Allowed

Thrishna v. State of Kerala

Kerala HC9 Nov 2020Bail Appl./5458/2020

Case brief

AI extract

What is this about?

In this anticipatory bail application under Section 438 Cr.P.C., the Kerala High Court examined whether a refusal to repay an educational loan secured by mortgaging property via a surety amounted to cheating under Section 420 IPC. The court found the dispute was civil in nature.

What did the court decide?

Pre-arrest bail granted under Section 438 Cr.P.C. upon surrender within two weeks and execution of bond for Rs. 50,000/- each with two sureties for the like amount.

Thrishna 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 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942

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Bail Appl..No.5458 OF 2020

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CRIME NO.1890/2020 OF Anchal Police Station, Kollam

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PETITIONER/S:

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1 THRISHNA AGED 26 YEARS WIFE OF RAJKAMAL, RESIDING AT VAIGA, PANAYAMCHERRY, ANCHAL, KOLLAM 691306

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2 JAYASREE @ SUJA AGED 42 YEARS WIFE OF LATE SIVAPRAKASH, NOW RESIDING AT AADHIL MANZIL, KARUKONE P.O, ANCHAL FROM KOIKALARIKATHU VEEDU, AGASTHYAKODU, ANCHAL P.O, KOLLAM 691306

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BY ADVS. SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH SHRI.SAMEER M NAIR

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RESPONDENT/S:

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

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2 STATION HOUSE OFFICER OF ANCHAL POLICE STATION ANCHAL POLICE STATION, ANCHAL, KOLLAM DISTRICT 691306

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Bail Appl..No.5458 OF 2020

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3 ADDL.R3 THULASEEDHARAN AGED 49 YEARS S/O GANGADHARAN PILLAI, ANJALI BHAVAN, AGASTHYAKODU .P.O, ANCHAL VILLAGE, KOLLAM-691306 IS IMPLEADED AS PER THE ORDER DATED 30.9.2020 IN CRL.M.A.NO.1/2020.

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SRI.AJITH MURALI -PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl..No.5458 OF 2020

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ORDER

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Dated this the 9th day of November 2020

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This is an application filed under Section 438

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of Cr.P.C seeking anticipatory bail.

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The applicants are daughter and mother in

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Crime No.1890/2020 of Anchal Police Station,

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Kollam, for having allegedly committed offence punishable under Section 420 r/w Section 34 of the IPC, who had dishonestly induced the de facto complainant who is none other than the paternal uncle of the first accused and the brother-in-law of the 2nd accused, to pledge his property with the Federal Bank, Anchal branch for obtaining an educational loan worth Rs.9 lakhs for the purpose of education of the 1st accused. Thereafter they defaulted payment of the loan and the bank has proceeded against the property. Thus, the de facto complainant realized that he has been cheated.

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The applicants state that the allegations

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Bail Appl..No.5458 OF 2020

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are not true. Being a close relative of the

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applicants, he had volunteered to help them in getting a loan, securing a loan from the Federal Bank for the educational purpose of the 1st accused. Even if the applicants had defaulted repayment of the loan, it is only a civil liability and there is no element of cheating involved in it. Hence, an offence under Section 420 IPC is not attracted. The applicants, therefore, seek anticipatory bail.

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Heard the learned counsel for the

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applicants and the learned Public Prosecutor.

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The de facto complainant was served with

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notice but did not appear. Considering the facts and circumstances of this case and the arguments advanced by both sides, what is revealed is that the de facto complainant had helped his brother's daughter, the 1st accused in this case, to secure an educational loan for further studies. His

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Bail Appl..No.5458 OF 2020

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property was mortgaged with the Federal Bank, Anchal branch. The repayment was defaulted, in consequence of which, the action was taken by the

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bank for realizing the amount. Aggrieved by that the de facto complainant filed a complaint stating that he has been cheated. There is absolutely no documentary evidence produced to indicate that there was an element of cheating involved in this crime. Being the uncle of the 1st accused he had produced his document before the bank and had signed as a surety to secure the loan. In case of default, it is a civil liability which arises and the bank has proceeded against the property which was pledged. In case the bank realizes the amount after the sale of his property, the surety steps into the shoes of the creditor and he is at

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liberty to claim that amount from the debtor. prima facie , I don't find any reason to see that an offence under Section 420 IPC is attracted in

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Bail Appl..No.5458 OF 2020

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this case. The applicants are therefore entitled to pre-arrest.

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and the applicants are directed to surrender before the investigating officer within two weeks, and after interrogation in the event of their

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being arrested, they shall be released on bail on the execution of bonds for Rs.50,000/-(Rupees

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Fifty thousand only) each with two solvent

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sureties for the like amount each to the

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satisfaction of the investigating officer and on the following conditions;

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influence or intimidate witnesses.

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2.They shall appear before the investigating

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officer as and when called for.

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3.They shall not get involved in similar offences during the bail period.

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In the event of violating the bail conditions,

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Bail Appl..No.5458 OF 2020

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the prosecution shall be at liberty to apply for cancellation of bail before the jurisdictional court.

Sd/-

ASHOK MENON

JUDGE

SPK

Thrishna v. State of Kerala

Case brief

What is this about?

What did the court decide?

Thrishna v. State of Kerala

Case brief

What is this about?

What did the court decide?

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