Partly allowed

Ganeshan v. State of Kerala

Kerala HC11 Oct 2022Bail Appl./5815/2022

Case brief

AI extract

What is this about?

High Court disposed of bail application under Section 438 CrPC in cheating case. Court denied bail to first accused but granted conditional anticipatory bail to second accused, directing surrender and ensuring cooperation with investigation.

What did the court decide?

Bail allowed to second petitioner on stringent conditions including surrender, bond execution, and cooperation with investigation. Bail denied to first petitioner.

Ganeshan Vs State of Kerala — Cheating and Forgery | Kerala HC (2022)

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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 VIJU ABRAHAM

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TUESDAY, THE 11^TH DAY OF OCTOBER 2022 / 19TH ASWINA, 1944

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BAIL APPL. NO. 5815 OF 2022

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CRIME NO.346/2022 OF Marayur Police Station, Idukki

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PETITIONERS/ACCUSED 1 & 2:

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1 GANESHAN AGED 50 YEARS S/O SANTHAPPAN, CHILLARAPARA, MARAYOOR VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685613 2 SELVI AGED 45 YEARS W/O. GANESHAN, CHILLARAPARA, MARAYOOR VILLAGE,DEVIKULAM TALUK, IDUKKI DISTRICT, PIN - 685613 BY ADVS. N.K.SHYJU GIREESH PANKAJAKSHAN

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RESPONDENT/STATE:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.

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PUBLIC PROSECUTOR SMT S.SEETHA

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.A. No. 5815 of 2022 2

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VIJU ABRAHAM, J.

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-------------------

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B.A. No. 5815 of 2022

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---------------------------------Dated this the 11^th day of October, 2022

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ORDER

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Application for anticipatory bail.

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Petitioners are accused 1 & 2 in Crime No.346 of 2022 of Marayoor Police Station, Idukki District

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registered alleging commission of offences punishable under Sections 415, 418, 420 r/w 34 of IPC.

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The prosecution case is that, on 02.03.2021, the petitioner and the defacto complainant entered into an agreement for the construction of a house, costing Rs.16,70,000/-(Sixteen lakh Seventy thousand only) and the petitioners had made some malpractices in the quantity and quality of the construction materials used for building the said house. The defacto complainant questioned the above

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malpractices and the petitioners guaranteed that

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they would correct the mistake without excess payment. Thereafter, again on 6.2.2022, the defacto

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B.A. No. 5815 of 2022 3

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complainant and petitioners entered into another agreement for the construction of the house within 90 days. The petitioners did not completed the construction of the house on time and the defacto complainant had sustained a loss of Rs.4,85,860/and thereby allegedly the petitioners have committed the offence of cheating.

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Though the petitioners moved an application for bail before the Sessions Court, the same was rejected as per Annexure-I. The specific case of the petitioners is that the 1^st petitioner entered into an agreement for construction of a house and further submitted that they have fully complied with the terms of the agreement. Petitioner would submit that there was some defects in the construction, which was later on rectified by the petitioners based on a further agreement executed between the 1^st petitioner and the defacto complainant and also submitted that the 2^nd petitioner has absolutely no role and she is not a party even though the agreement.

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B.A. No. 5815 of 2022 4

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Heard the learned counsel for the petitioners and the learned Public Prosecutor.

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The learned Public Prosecutor opposed the application for bail mainly contending that the petitioners failed to complete the construction as agreed and thereby caused a loss of Rs.4,84,860/-

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to the defacto complainant. The learned Public

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Prosecutor further submitted that the Assistant Engineer of the LSGD Section, Marayoor has certified that the building is not completely

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constructed and he found lot of defaults in the construction and many parts of the building are in such a dangerous condition that they are falling apart even in the early stage of the construction and that the construction is not yet completed. Learned Public Prosecutor further submitted that the 2^nd petitioner is the wife of the 1^st petitioner and they are jointly running the construction business and amounts were transferred to the

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account of the 2^nd petitioner also. The 1^st

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petitioner is an accused in Crime No.141/2021 under sections 451, 341, 354A(1)(i) of IPC and now the

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B.A. No. 5815 of 2022 5

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case is under trial before the JFCM Court as CC

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No.381/2021. Learned Public Prosecutor further submits that this is a house allotted to the defacto complainant under the 'Life Mission

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Project' of the Kerala Government and the accused received an amount of Rs.16,75,000/- from the defacto complainant as advance.

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Having regard to the facts and circumstances of the case, and nature of the allegations, I am not inclined to grant bail to the 1^st petitioner. As regards the 1^st petitioner, I am inclined to grant anticipatory bail to the 2^nd petitioner, but on stringent conditions. Above bail application is allowed in part with the following directions. The

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2^nd petitioner shall surrender before the investigating officer on 17.10.2022 and make herself available for interrogation. In the event

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of arrest of the petitioner in Crime No.346 of 2022

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of Marayoor Police Station, petitioner shall be produced before the jurisdictional Magistrate on the same day and be released on bail on the following conditions:

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B.A. No. 5815 of 2022 6

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(i) The 2^nd petitioner shall execute a bond for sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court;

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(ii) The 2^nd petitioner shall appear before the investigating officer in Crime No.346/2022 of Marayoor Police Station as and when summoned to do so;

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(iii) The 2^nd petitioner shall co-operate with the investigation and make himself available for interrogation whenever so required;

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(iv) The 2^nd petitioner shall not tamper with any evidence;

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(v) The 2^nd petitioner shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

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(vi) The 2^nd petitioner shall not involve in any other crime while on bail.

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If any of the aforesaid conditions are violated,

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the Investigating Officer in Crime No.346/2022 of

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Marayoor Police Station, may file an application before the jurisdictional court for cancellation of bail.

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B.A. No. 5815 of 2022 7

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It is made clear that it is within the power of

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the police to investigate the matter and if necessary to effect recoveries on the information if any given by the petitioner even when the petitioner is on bail as per the judgment of the Apex Court in Sushila Aggarwal and others v. State

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(NCT of Delhi) and another (2020 (1) KHC 663) .

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As regards the 1^st petitioner is concerned, he shall surrender before the investigating officer and shall co-operate with the investigation. In the

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event of arrest of the petitioner, after interrogation, he shall be produced before the Jurisdictional Magistrate on the very same day. If an application for bail is moved with prior notice to the Public Prosecutor, same shall be considered by the learned Magistrate preferably on the same day.

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sd/-

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VIJU ABRAHAM,JUDGE

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Ganeshan v. State of Kerala

Case brief

What is this about?

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Ganeshan v. State of Kerala

Case brief

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What did the court decide?

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