Allowed

Ismayil v. State of Kerala

Kerala HC12 Mar 2021Bail Appl./1040/2021

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an application for anticipatory bail filed by two accused facing charges of cheating under Section 420 IPC. The court held the dispute was essentially civil in nature regarding a breach of contract.

What did the court decide?

Application for anticipatory bail allowed; accused directed to surrender before investigating officer within two weeks and released on bail subject to conditions.

Ismayil Vs State of Kerala — Contract and Commercial Disputes | Kerala HC (2021)

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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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FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942

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Bail Appl..No.1040 OF 2021

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CRIME NO.1254/2020 OF Medical College Police Station , Kozhikode

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PETITIONER/S:

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1 ISMAYIL AGED 51 YEARS BISMI PALAKKATTIL, PANTHEERPADAM, KUNNAMANGALAM, KOZHIKODE, KERALA 673571 2 INSHAMUTHAQ AGED 26 YEARS BISMI PALAKKATTIL, PANTHEERPADAM, KUNNAMANGALAM, KOZHIKODE, KERALA 673571

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BY ADV. SHRI.GAJENDRA SINGH RAJPUROHIT

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682031 2 SUB INSPECTOR OF POLICE MEDICAL COLLEGE POLICE STATION REPRESENTED THROUGH PUBLIC PROSECUTOR MEDICAL COLLEGE ENTRANCE ROAD, VELLIPARAMBA, KOZHIKODE 673008 3 MADHU ARANGADATH AGED 53 YEARS A3, CRESCENET FLAT, KOMMERI P.O, MEDICAL COLLEGE, KOZHIKODE 673017 R1 BY PUBLIC PROSECUTOR R4 BY ADV. SMT.T.V.NEEMA

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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 12.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl..No.1040 OF 2021 2

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O R D E R

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Dated this the 12th day of March 2021

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Application for anticipatory bail under Section 438 of Cr.P.C. Applicants are accused Nos.1 and 2 in Crime No. 1254/2020 of Medical College Police Station, Kozhikode for having allegedly committed offence punishable under Section 420 r/w Section 34 of IPC.

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The prosecution case, in brief, is that the de facto complainant was dishonestly induced by the applicant to delivery a sum of Rs.6 lakhs in two installments, promising that electrical and plumping articles would be delivered at wholesale rate for the new house being constructed by the de facto complainant, in the year 2018, from the shop belonging to the 2nd applicant. However, the materials were never supplied and neither the amount returned and thus the applicants cheated the de facto complainant. He did not take any steps. He thereafter filed a complaint in consequence of which, the present crime was registered in the year 2020.

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The applicants state that they are father and son. The

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Bail Appl..No.1040 OF 2021 3

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2nd applicant is conducting an electrical shop. The allegation that the applicants had agreed to supply electrical and plumbing materials to the de facto complainant on payment of money towards that are not true and is denied by the applicants. It is stated that there were several transactions between the 1st applicant and the de facto complainant. The 1st applicant and the de facto complainant are land brokers who had a series of financial transactions extending till the year 2020, between them. It is pointed out that had the applicants owed money to the de facto complainant from 2018 as mentioned, he would never have continued to pay further amounts to the 1st applicant till the year 2020, and it is contended that in fact, he still owes more money to the first applicant on account of land deals. And if there was a dispute regarding non-delivery of goods consequent to payment of consideration, why was no action whatsoever taken by him till date regarding that, is the question posed by the applicants. The applicants do not have any criminal antecedents, and there is no possibility of their fleeing from justice. Hence they seek pre-arrest bail.

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Ex facie the dispute between the applicants and the de

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Bail Appl..No.1040 OF 2021 4

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facto complainant prima facie appears to be a breach of contract of non-delivery of goods despite payment of consideration, and civil in nature. In case of a breach of contract, the proper remedy ought to have been to file a civil suit for the return of money paid, or for delivery of goods agreed to be supplied. Without having resorted to the legal remedies available, the de facto complainant had kept on making payments to the 1st applicant with regard to the land deals. There is also a cheque issued by the de facto complainant to the 1st applicant for a sum of Rs.5 lakhs on 28.03.2020. This would indicate that the allegation made by the de facto complainant has to be taken with a pinch of salt. No reasonable man would have paid an amount to a person from whom money was due to him for two years.

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It is well settled in a plethora of decisions of the Apex Court that criminal proceedings are not for realization of disputed dues. The factors to be taken into consideration, while considering an application for bail are the nature of accusation and the severity of the punishment in the case of conviction and

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the nature of the materials relied upon by the prosecution;

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Bail Appl..No.1040 OF 2021 5

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reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial ( see Dilip Singh v.

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State of Madhya Pradesh 2021 SCC OnLine 40 ).

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The applicants are not likely to flee as they have an establishment and permanent residence. They are willing to cooperate with the investigation. Hence the application is allowed. The applicants are directed to surrender before the investigating officer within two weeks. In the event of their arrest, after interrogation and recovery if any, 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

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Bail Appl..No.1040 OF 2021 6

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on 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 also attempt to influence the witnesses or tamper with evidence.

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(iii) They 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

Ismayil v. State of Kerala

Case brief

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Ismayil v. State of Kerala

Case brief

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