Allowed

Sobha S.K v. State of Kerala

Kerala HC4 Jan 2021Bail Appl./6218/2020

Case brief

AI extract

What is this about?

The Court allowed four anticipatory bail applications filed by bank employees and officials accused of cheating and forgery regarding misappropriated gold loans. The Court emphasized the need to balance free fair investigation with preventing harassment of the accused.

What did the court decide?

Bail applications allowed; applicants directed to surrender within two weeks; bail bond of Rs. 50,000 each with two sureties on conditions to appear and not tamper with evidence.

Sobha S.K Vs State of Kerala — Cheating and Forgery | 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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MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

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Bail Appl..No.6076 OF 2020

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CRIME NO.2729/2020 OF Kollam East Police Station , Kollam

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PETITIONER/ACCUSED:

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R. GOPLAKRISHNA PILLAI @ PATTATHANAM GOPLALAKRISHNAN AGED 50 YEARS ARATHY, BHAVANA NAGAR 299, KADAPPAKKADA P.O. KOLLAM, PIN – 691008.

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BY ADV. SRI.ARUN CHANDRAN

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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 ADDL.R2 B.MOHANKUMAR NANDANAM, BHAVANA NAGAR- 180, KADAPPAKKADA POST, KOLLAM DISTRICT, PIN CODE. 691 008.

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IS IMPLEADED AS PER ORDER DATED 18/11/2020 IN CRL.M.A. NO.1/2020.

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R1 BY PUBLIC PROSECUTOR R2 BY ADV. B.MOHANLAL

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OTHER PRESENT:

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SRI.SANTHOSH PETER SR PP

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18.11.2020, ALONG WITH Bail Appl..6218/2020, Bail Appl..6492/2020 AND Bail Appl..7281/2020, THE COURT ON 04.01.2021 PASSED THE FOLLOWING:

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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 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

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Bail Appl..No.6218 OF 2020

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CRIME NO.2729/2020 OF Kollam East Police Station , Kollam

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PETITIONER/S:

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SOBHA S.K AGED 52 YEARS GEETHA PALACE, MUKHATHALA PO, KOLLAM 691577

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BY ADV. SMT.ANILA UMESH SRI.T.P.M.IBRAHIM KHAN (SR.)

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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 CIRCLE INSPECTOR OF POLICE KOLLAM EAST POLICE STATION, KARBALA 691001

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3 ADDL.R3 MOHAN KUMAR AGED 58 YEARS S/O BHASKARAN PILLAI, NANDANAM,BHAVANA NAGAR-180, KADAPPAKADA.P.O, PATTATHANAM VADAKKEVILA, KOLLAM CITY,KERALA-691008.

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IS IMPLEADED AS PER THE ORDER DATED 16.10.2020 IN CRL.M.A.NO.1/2020.

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R1 BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR R3 BY ADV. SRI.B.MOHANLAL

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18.11.2020, ALONG WITH Bail Appl..6076/2020, Bail Appl..6492/2020, Bail Appl..7281/2020, THE COURT ON 04.01.2021 PASSED THE FOLLOWING:

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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 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

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Bail Appl..No.6492 OF 2020

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CRIME NO.2729/2020 OF Kollam East Police Station , Kollam

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PETITIONER/S:

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AJITH B AGED 40 YEARS ACCOUNTANT, PATTATHANAM COOPERATIVE BANK LTD., KOLLAM RESIDING AT ANJANAM, KADAPPAKKADA P.O., KOLLAM 691008

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BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921)

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031 2 ADDL.R2 B.MOHAN KUMAR AGED 58 YEARS NANDANAM, BHAVANA NAGAR 180, KADAPPAKKADA P.O., PATTATHANAM CHERRY, VADAKKEVILA VILLAGE, KOLLAM PIN -691008.

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IS IMPLEADED AS PER THE ORDER DATED 18.11.2020 IN CRL.M.A.NO.2/2020.

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R1 BY PUBLIC PROSECUTOR R2 BY ADV. B.MOHANLAL

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18.11.2020, ALONG WITH Bail Appl..6076/2020, Bail Appl..6218/2020, Bail Appl..7281/2020, THE COURT ON 04.01.2021 PASSED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶49

PRESENT

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

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Bail Appl..No.7281 OF 2020

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CRIME NO.2729/2020 OF Kollam East Police Station , Kollam

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PETITIONER/S:

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JAYASREE AGED 58 YEARS PANDALA HOUSE , BHAVANA NAGAR 298 A ,KADAPPAKADA P.O,KOLLAM 691008

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BY ADV. SRI.ARUN BABU

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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 MOHANKUMAR AGED 58 YEARS S/O.BHASKARA PILLAI,NANDANAM,BHAVANA NAGAR 180,KADAPPAKADA P.O,PATTATHANAM, KOLLAM 691021

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R1 BY PUBLIC PROSECUTOR R2 BY ADV. SRI.B.MOHANLAL

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18.11.2020, ALONG WITH Bail Appl..6076/2020, Bail Appl..6218/2020, Bail Appl..6492/2020, THE COURT ON 04.01.2021 PASSED THE FOLLOWING:

BA 6076/2020 & conn.

COMMON ORDER

[ Bail Appl..6076/2020, Bail Appl..6218/2020, Bail Appl..6492/2020, Bail Appl..7281/2020 ]

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Dated this the 4th day of January 2021

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Applications under Section 438 Cr.P.C for anticipatory

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bail.

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The applicants in BA Nos.6218/2020, 6492/2020,

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7281/2020 and 6076/2020 are accused numbers 1, 2, 3 and

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5, respectively, in Crime No. 2729/2020 of Kollam East Police

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Station for having allegedly committed offences punishable

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under Sections 420, 409, 468 and 469 read with Section 34 of

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the I.P.C.

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The prosecution case, in brief, is that the de facto

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complainant, who is impleaded as the 2nd respondent in the

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BA 6076/2020 & conn.

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above applications, and his wife were members of Kadappakkada Branch of Pattathanam Service Co-operative

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Bank. On 23.11.2012, they pledged 171.5 and 87.7 grams of

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gold ornaments respectively in the aforesaid bank and obtained gold loans of ₹4,00,000/- and ₹2,05,000/respectively. Thereafter, they remitted ₹1,70,534/-and ₹87,499/-, respectively, towards the aforesaid gold loan

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towards interest due on 31.08.2015. The loans were renewed and subsequently they wanted to redeem the said loan. A2 who was the accountant informed them that the gold loan was already closed and the ornaments returned to them on 07.02.2016. When the de facto complainant challenged this

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fact, it was stated that the ornaments were auctioned and sold

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BA 6076/2020 & conn.

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on the aforesaid day. In fact no auction was conducted at all. No notice regarding such auctioning was also received by the de facto complainant and his wife. It is alleged that the accused had in furtherance of common intention to cheat, created forged documents by putting the signatures of the de facto complainant and his wife and had misappropriated the ornaments pledged. The complainant and his wife thus sustained a loss of ₹18 lakhs. During the course of the investigation based on a complaint filed by the de facto complainant, the 4^th accused committed suicide. The investigation is proceeding against the applicants. They would contend that the allegations made against them are all untrue and therefore, they seek pre-arrest bail.

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BA 6076/2020 & conn.

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A1 has in her bail application contended that she

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was working as Secretary in the head office of the Bank.

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Enquiry was initiated on certain reports which were filed by the

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Joint Registrar of Cooperative Society regarding the irregularities in auctioning the gold ornaments pledged with

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the Kadappakkada branch of the society. This Court had vide

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Judgment at Annexure-3 observed that the suspension of A1

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was not proper and the direction was given to follow procedures in accordance with law. Accordingly the suspension

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was revoked by the Joint Registrar vide Annexure-5 Order dated 10.08.2018. It is only subsequent to the setting aside of

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the suspension and reinstatement of A1 that the aforesaid F.I.R

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at Annexure-1 was registered in this Crime on 16.08.2020.

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BA 6076/2020 & conn.

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A2 has in his application contended that a customer

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can pledge gold ornaments for a period of 6 months. Notice

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was issued thereafter to redeem the ornaments. The customer

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can renew the pledge or redeem the ornaments. The other

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option left to the customer is to intimate the Bank to auction

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the gold ornaments and proceed to close a loan. In the instant

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case, notice was issued to the de facto complainant by registered post after the expiry of the loan period. There was

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no response and consequently, the pledged ornaments were

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auctioned and the amounts adjusted towards closing of the

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loan. Complaint filed by the de facto complainant and his wife

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was investigated upon by the unit inspector on the basis of a

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report of the Secretary (A1) dated 07.09.2017, produced by A2

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BA 6076/2020 & conn.

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at Annexure-II to the effect that all procedures pertaining to

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auction were complied. Two receipts issued by the bank to the

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de facto complainant and his wife are at Annexures-III and IV.

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Normally, at the time of granting loan on pledging of gold ornaments the customer has to subscribe signatures at 5

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places in the application. A mistake has occurred in the instant

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case as one of the signature wasn't put in the column pertaining to her return of gold ornaments. It is not a forgery as alleged by the de facto complainant. It is after a long lapse of time that this complaint was filed before the Police and the F.I.R was registered.

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A3 has in her application contended that she was

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employed in the bank as a Section clerk. During February 2016

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BA 6076/2020 & conn.

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when the alleged misappropriation of gold ornaments pledged

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by the de facto complainant had taken place, she was working

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as a cashier at the head office and not in the Kadappakkada

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branch of the bank. Annexure-2 is a circular issued by the

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President of the bank on 09.04.2012 indicating that she has

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been posted as the internal auditor at the head office of the

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bank. It was only on 20.07.2016 that A3 was transferred to the

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Kadappakkada branch of the bank vide Annexure-3 circular dated 19.07.2016. The allegations against the 3^rd accused, is

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therefore, not sustainable.

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A5 has in its application contended that he was the

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former President of the Cooperative Bank and has nothing to

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do with the alleged forgery or cheating. The managing

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BA 6076/2020 & conn.

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committee of the bank found certain illegalities in connection

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with gold loans granted by the Kadappakkada branch of the

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bank. A2, who was the accountant of the branch was placed under suspension. A5 states that he was not in charge of the

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affairs of the bank and that at the most, he could be held liable only for supervisory lapse. Gold loan is granted for a period of 6 months. In the instant case the gold was pledged by the de facto complainant on 23.11.2012. On 30.08.2015 there was a

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renewal by remitting amount towards interest due. The

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accounts were closed on 07.02.2016. The complaint was filed only on 16.08.2020.

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All the applicants, except A3, had filed applications

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for anticipatory bail before the Sessions Court, Kollam and the

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BA 6076/2020 & conn.

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learned Judge was pleased to dismiss all the applications on the ground that the allegations were serious and that the irregularities in auctioning of gold pledged to by the customers were noticed by the Cooperative Department. The applicants have approached this Court for indulgence.

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The de facto complainant has appeared and has

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opposed the application for bail by stating that the applicants

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had in furtherance of common intention to deceive him and his

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wife misappropriated the gold ornaments pledged with the Society. It is admitted that due to financial difficulties they

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were not able to redeem the ornaments on time. On receipt of notice they were remitted ₹170,534/- and ₹87,499/- on 31.08.2015 and the pledge was renewed. The copy of the

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BA 6076/2020 & conn.

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receipts are also produced. It is alleged that the accused

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holding different positions in the bank conspired to cheat the

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2nd respondent and his wife, committed criminal breach of

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trust and forged documents and used those documents as

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genuine. The gold ornaments were auctioned without

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complying with the procedures and the amounts misappropriated. Complaint was filed before the Joint Registrar of Cooperative Societies in consequence of which an enquiry

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was conducted. The reports which are produced as Annexures-

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R2(d) and (e) would indicate that the accused as office bearers

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of the bank misappropriated the amount without complying

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with the procedure in the auction of the ornaments pledged by

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the 2nd respondent and his wife as also of other customers by

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BA 6076/2020 & conn.

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creating forged documents. The accused are therefore liable to

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be prosecuted for the offences alleged against them. A

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complaint was filed before the City Police Commissioner on 28.07.2020. It is alleged that the 2nd accused had specific role

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as he was a branch in charge during the relevant period. The department enquiry points out to his complicity. A4 had committed suicide leaving behind a suicide note in which he

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has stated that he has been made a scapegoat by the other

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accused who are actually responsible for misappropriation of

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the gold ornaments. All the accused except A3 had filed applications for anticipatory bail before the Sessions Court, Kollam and all those applications were dismissed directing them to surrender before the investigating officer. A3 has

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BA 6076/2020 & conn.

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retired from service. Her husband is a retired Sub Inspector of

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Police. Because of the influence, the applicants have been

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evading arrest. Custody of the applicants is essential for the

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purpose of investigation and therefore it is prayed that the applications may be dismissed.

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Heard the learned counsel appearing for the

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applicants and the learned Prosecutor. The learned counsel appearing for the de facto complainant was also heard.

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Records perused.

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The Hon'ble Supreme Court in Gurbaksh Singh

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Sibbia and another v. State of Punjab [1980 KHC 665 : 1980

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(2) SCC 565] laid down the following principles regard to

anticipatory bail:

BA 6076/2020 & conn.

a) S.438(1) is to be interpreted in light of Art.21 of the Constitution of India.

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b) Filing of FIR is not a condition precedent to exercise of power under S.438.

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c) Order under S.438 would not affect the right of police to conduct investigation. d) Conditions mentioned in S.437 cannot be read into S.438.

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e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in the light of the circumstances of each case.

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f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re-examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

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The Hon'ble Supreme Court has laid down

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parameters while considering applications for anticipatory bail

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BA 6076/2020 & conn.

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in Siddharam Satlingappa Mhetre v. State of Maharashtra and

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Others [2010 KHC 4952 : AIR 2011 SC 312] and held thus:

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“122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

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i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

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ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

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iii. The possibility of the applicant to flee from justice;

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iv. The possibility of the accused's likelihood to repeat similar or the other offences.

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v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

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vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

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BA 6076/2020 & conn.

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vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of S.34 and S.149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

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viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

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ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

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x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events,

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BA 6076/2020 & conn.

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the accused is entitled to an order of bail.

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The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.”

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Applying the parameters laid down by the Hon'ble

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Apex Court to the case in hand, it has to be noted that the applicants are called upon to answer the allegations of missappropriation and forgery allegedly committed on 07.02.2016 with respect to a gold loan availed in 2012. Two of

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the accused are women. A1 was the Secretary of the Society

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and A5 the President. A1 was reinstated after being suspended. A3 was not posted in the concerned branch when

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the alleged auction took place. Admittedly, the de facto

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BA 6076/2020 & conn.

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complainant and his wife did not enquire about the gold loan consequent to getting an extension on 31.08.2015. It was only

¶228

when the department initiated an enquiry into the alleged irregularities in the auction of pledged gold that the de facto complainant filed a complaint, on the basis of which, the F.I.R was registered on 16.08.2020. The investigating officer has already seized documents which were allegedly forged. The records pertaining to the pledge maintained in the branch were

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also taken into custody. The applicants have been available for interrogation, and there is no allegation that they may abscond, influence witnesses or tamper with evidence. Arrest of accused does not seem to be imperative going by the facts of the case. The fact that the de facto compalinant and his wife

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BA 6076/2020 & conn.

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remained complaisant for four years without complaining is a

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query which needs to be answered by the prosecution.

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