Dismissed

Aneesh A.J. v. State of Kerala

Kerala HC24 Feb 2023Bail Appl./398/2023

Case brief

AI extract

What is this about?

Common order dismissing five bail applications filed by Civil Excise Officers and a co-respondent accused of cheating and defrauding 17 victims. The court held that arrest and recovery of money are essential for investigation, rendering anticipatory bail unsustainable.

What did the court decide?

All bail applications dismissed with directions to Investigating Officer to arrest, question accused, and continue investigation.

Aneesh A.J. Vs State of Kerala — Cheating and Forgery | Kerala HC (2023)

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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 A. BADHARUDEEN FRIDAY, THE 24^TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA,

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1944

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BAIL APPL. NO. 10179 OF 2022

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FIR NO.1272/2022 OF NORTH PARAVUR POLICE STATION,

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ERNAKULAM

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PETITIONER/ACCUSED:

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ANEESH.A.J. AGED 37 YEARS, S/O.JAMES, CIVIL EXCISE OFFICER, RESIDING AT ARAKKAPARAMBIL HOUSE, POST THATHAPPALLY-683520, NORTH PARUR, ERNAKULAM DIST., KERALA.

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BY ADVS. T.ASAFALI LALIZA.T.Y.

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RESPONDENT/STATE & COMPLAINANT :

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

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2 THE STATION HOUSE OFFICER, NORTH PARUR POLICE STATION, POST NORTH PARUR-683513, ERNAKULAM DIST., KERALA.

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BY SMT.T V NEEMA, SR.PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON

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20.02.2023, ALONG WITH B.A.NOS.10458/2022, 387/2023, 398/2023 AND 624/2023, THE COURT ON 24.2.2023 DELIVERED THE FOLLOWING:

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B.A.Nos.10179 and 10458 of 2022 &

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387, 398 and 624 of 2023

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..2..

¶20

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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FRIDAY, THE 24^TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944

¶24

BAIL APPL. NO. 10458 OF 2022

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CRIME NO.1272/2022 OF NORTH PARAVUR POLICE STATION,

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ERNAKULAM

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PETITIONER/S:

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VISHNU M.R, AGED 28 YEARS S/O RAVI, MANAMMEL PARAMBIL, KAITHARAM P.O., N.PARAVUR, ERNAKULAM, PIN - 683519

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BY ADVS. K.I.ABDUL RASHEED BHAMA G. NAIR DEEPA SASIDHARAN

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RESPONDENT/STATE & COMPLAINANT :

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

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BY SRI.P G MANU, SR.PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON

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20.02.2023, ALONG WITH B.A.NOS.10179/2022, 387/2023, 398/2023 AND 624/2023, THE COURT ON 24.2.2023 DELIVERED THE FOLLOWING:

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B.A.Nos.10179 and 10458 of 2022 &

¶36

..3..

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387, 398 and 624 of 2023

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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 A. BADHARUDEEN

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FRIDAY, THE 24^TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944

¶42

BAIL APPL. NO. 387 OF 2023

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FIR NO.1277/2022 OF NORTH PARAVUR POLICE STATION,

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ERNAKULAM

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PETITIONER/ACCUSED :

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ANEESH.A.J. AGED 37 YEARS, S/O.JAMES, CIVIL EXCISE OFFICER, ARAKKAPARAMBIL HOUSE, POST THATHAPPALLY-683520, NORTH PARUR, ERNAKULAM DIST.KEKRALA.

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BY ADVS. T.ASAFALI LALIZA.T.Y.

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RESPONDENT/STATE & COMPLAINANT :

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULA, PIN - 682031

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2 THE STATION HOUSE OFFICER, NORTH PARUR POLICE STATION, POST NORTH PARUR-683513, ERNAKULAM, KERALA

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BY SMT.T V NEEMA, SR.PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON

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20.02.2023, ALONG WITH B.A.NOS.10179/2022, 10458/2022, 398/2023 AND 624/2023, THE COURT ON 24.2.2023 DELIVERED THE FOLLOWING:

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..4..

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B.A.Nos.10179 and 10458 of 2022 &

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387, 398 and 624 of 2023

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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 A. BADHARUDEEN

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FRIDAY, THE 24^TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944

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BAIL APPL. NO. 398 OF 2023

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CRIME NO.1284/2022 OF NORTH PARAVUR POLICE STATION,

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ERNAKULAM

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PETITIONER/ACCUSED :

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ANEESH A.J. AGED 37 YEARS, S/O.JAMES, CIVIL EXCISE OFFICER, RESIDING AT ARAKKAPARAMBIL HOUSE, POST THATHAPPALLY-683520, NORTH PARUR, ERNAKULAM DISIT.KERALA.

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BY ADVS. T.ASAFALI LALIZA.T.Y.

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RESPONDENT/STATE & COMPLAINANT :

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

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2 THE STATION HOUSE OFFICER, NORTH PARUR POLICE STATION, POST NORTH PARUR-683513, ERNAKULAM DIST.KERALA.

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BY SRI.P.G.MANU, SR.PUBLIC PROSECUTOR

¶71

THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20.02.2023, ALONG WITH B.A.NOS.10179/2022, 10458/2022, 387/2023 AND 624/2023, THE COURT ON 24.2.2023 DELIVERED

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THE FOLLOWING:

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B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

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..5..

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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 A. BADHARUDEEN

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FRIDAY, THE 24^TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944

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BAIL APPL. NO. 624 OF 2023

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FIR NO.0900/2022 OF VARAPUZHA POLICE STATION, ERNAKULAM

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PETITIONER/ACCUSED :

¶82

ANEESH A.J. AGED 37 YEARS, S/O.JAMES, CIVIL EXCISE OFFICER, RESIDING AT ARAKKAPARAMBIL HOUSE, POST THATHAPPALLY-683520, NORTH PARUR, ERNAKULAM DIST.KERALA.

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BY ADVS. T.ASAFALI LALIZA.T.Y.

¶84

RESPONDENT/STATE & COMPLAINANT :

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1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

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2 THE STATION HOUSE OFFICER VARAPUZHA POLICE STATION, POST NORTH PARUR-683513, ERANAKULAM DISTRICT , KERALA.

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BY SMT. V NEEMA, SR.PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON

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20.02.2023, ALONG WITH B.A.NOS.10179/2022, 10458/2022,

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387/2023 AND 398/2023, THE COURT ON 24.2.2023 DELIVERED THE FOLLOWING:

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..6..

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B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

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A.BADHARUDEEN, J.

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B.A.Nos.10179 and 10458 of 2022 &

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387, 398 and 624 of 2023

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

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Dated this the 24^th day of February, 2023

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COMMON ORDER

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B.A.Nos.10179 of 2022, 387 of 2023 and 398 of

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2023 are at the instance of the first accused in Crime Nos.1272 of 2022, 1277 of 2022 and 1284 of 2022 of North Paravur Police Station, Ernakulam. B.A.No.624 of 2023 is also one filed by the first accused in relation to the Crime No.900 of 2022 of Varappuzha Police Station, Ernakulam. The petitioner

¶101

in all these petitions are one and the same person. B.A.No.10458 of 2022 is an application for anticipatory bail filed by the second accused in Crime No.1272 of 2022 of North

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Paravur Police Station, Ernakulam.

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Heard the learned counsel for the petitioners

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..7..

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B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

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and the learned Public Prosecutor in detail.

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I have perused the relevant materials forming part of the case diary produced by the learned Public Prosecutor to decide these bail applications on merits.

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The prosecution allegation in Crime No.1272 of 2022 of North Paravur Police Station, Ernakulam is that, the first accused, who has been working as Civil Excise Officer in Ernakulam Excise Range Office, offered the job of an Electrician to the defacto complainant in 'Creative Wine Company', Russia and obtained a total sum of Rs.2,50,000/on the said offer through the account of the second accused Sri.Vishnu maintained at SBI, Cheriyappilly Branch on 23.03.2022 from the account of the defacto complainant. Thereafter, job was not provided and also money was not returned. On this premise, the prosecution alleges commission of offences punishable under Sections 406 and 420 r/w 34 of the Indian Penal Code, on the allegation that the accused herein committed breach of trust and collected money from the defacto complainant with deceitful intention to make

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..8..

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B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

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unlawful enrichment and thereby, to cause corresponding loss to the defacto complainant and thus the defacto complainant was cheated.

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In Crime No.1284 of 2022, the prosecution allegation is somewhat similar where, the first accused borrowed Rs.2,35,000/- on the offer of providing the job of a salesman to the defacto complainant and obtained Rs.2,35,000/- through the account of the second accused. On this premise, the prosecution alleges commission of offences punishable under Sections 406 and 420 r/w 34 of the Indian Penal Code, on the allegation that the accused herein committed breach of trust and collected money from the defacto complainant with deceitful intention to make unlawful non-payment and thereby, loss to the defacto complainant and thus the defacto complainant was cheated.

¶113

In Crime No.1277 of 2022, the allegation is that the first accused offered a job of a farm worker in Creative Wine Company in Russia and thereby, collected Rs.2,59,000/- from the defacto complainant directly from his

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B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023 ..9..

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residential address. Thereafter, job was not provided and the money also was not returned. On this premise, the prosecution alleges commission of offences punishable under Sections 406 and 420 of the Indian Penal Code, on the allegation that the accused herein committed breach of trust and collected money from the defacto complainant with deceitful intention to make unlawful non-payment and thereby, loss to the defacto complainant and thus the defacto complainant was cheated.

¶116

In Crime No.900 of 2022 of of Varappuzha

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Police Station, Ernakulam, the allegation is that, on 05.01.2022, the first accused obtained Rs.1,75,000/- in his account maintained with SBI, Cheriyappilly Branch through the account of the defacto complainant at SBI, Varapuzha Branch with offer to provide employment in Russia. The further allegation is that, he also obtained Rs.9,000/- through the second accused with the same offer. Thus, the prosecution alleges commission of offences punishable under Sections 406 and 420 r/w 34 of the Indian Penal Code, on the allegation

¶118

B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023 ..10..

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that the accused herein committed breach of trust and collected money from the defacto complainant with deceitful intention to make unlawful non-payment and thereby, loss to the defacto complainant and thus the defacto complainant was cheated.

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8. While pressing for anticipatory bail to the first

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accused in the above four crimes, it is pointed out by the learned counsel for the petitioner that the petitioner is innocent and the petitioner being a responsible Officer working in the Excise department never intended either to cheat or defraud the defacto complainants. According to him, one Immanuel Xaviour and Manoj Lawerence, who are members of a racket of job scam, collected the money and misappropriated and the petitioner happened to be a middle man in the transaction and the money was misappropriated by the above said Immanuel Xaviour and Manoj Lawerence. The learned counsel for the petitioner also submitted that the petitioner is ready to be abide by any conditions as a pre-requisite for grant of anticipatory bail. He also submitted that, if he would not be

¶122

B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023 ..11..

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granted anticipatory bail and the same would adversely affect his carrier.

¶124

The learned counsel for the petitioner in B.A.No.10458 of 2022, who pursued relief of anticipatory bail to the second accused in this crime, would submit that the second accused has no role in Crime No.1272 of 2022 and he had received an amount of Rs.2,50,000/- in this account and he had then transferred the same to the account of one Immanuel Xaviour as on 25.03.2022. Therefore, the second accused is innocent in this matter and therefore, he is liable to be released on bail and he shall be ready to be abide by any conditions as a pre-requisite for grant of pre-arrest bail.

¶125

Whereas the learned Public Prosecutor produced the case diary and the reports in all these cases and vehemently opposed grant of bail to the petitioners. According to the learned Public Prosecutor, Immanuel Xaviour and Manoj Lawerence are never in the picture, as per the prosecution records and the money was obtained by the first accused directly in Crime No.900 of 2022 and other money transaction

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B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023 ..12..

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was through the account of Vishnu who is arrayed as the second accused. According to the learned Public Prosecutor, after collecting the amount, the defacto complainants were taken 17 persons to Bombay on the premise of clearing the papers in Russian Embassy and thereafter, it was informed that the job could not be secured. Accordingly, they were sent back with offer to provide job in another country but the said job, as offered, was not provided or the money also was not returned in all these cases and altogether 17 persons were cheated by the first accused. The learned Public Prosecutor also argued that the first accused, who has been working in the Excise Department as a public servant, with the aid of the second accused Vishnu, one of his relatives, looted the money.

¶128

According to the learned Public Prosecutor, in this case, arrest, custodial interrogation and recovery of the money alleged to be misappropriated are essential part of investigation and in such cases, grant of anticipatory bail would not only defeat the very purpose of investigation but would hamper even effective prosecution also. Therefore, the

¶129

..13..

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B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

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learned Public Prosecutor submitted that the petitioners cannot

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be released on bail for any reasons.

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On perusal of the records placed by the

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learned Public Prosecutor, it is crystal clear that Crime No.1272 of 2022 of North Paravur Police Station, Ernakulam is that, the first accused, who has been working as Civil Excise Officer in Ernakulam Excise Range Office, offered the job of an Electrician to the defacto complainant in 'Creative Wine Company', Russia and obtained a total sum of Rs.2,50,000/on the said offer through the account of the second accused Sri.Vishnu maintained at SBI, Cheriyappilly Branch on 23.03.2022 and from the account of the defacto complainant. Thereafter, job was not provided and also money was not returned. This is the base on which the prosecution alleges commission of offences punishable under Sections 406 and 420 r/w 34 of the Indian Penal Code in all cases except in Crime No.1277 of 2022 of North Paravur Police Station, Ernakulam.

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It is shocking to note that, a Civil Police

¶136

..14..

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B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

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Officer, who is duty bound to observe and implement law as part of his public duty, in deviation from the said responsibility, collected amounts from the respective defacto complainants with offer to provide employment in Creative Wine Company, Russia. In one case, he directly received the money and in other cases, he had received the money through the account of the second accused. So, prima facie, the transfer of money through bank account is well established and this aspect would show the bonafides of the defacto complainants and breach of trust as well as and cheating committed by the accused herein. A Government servant is having more responsibility than an ordinary man and he also is further governed by the Government Servants' Conduct Rules and the Excise Manual. So, involvement of the first accused in private affairs in derogation of his duties by itself is a misconduct warranting strict disciplinary action. That apart, in this case, prima facie, it could be discernible from the records that he had obtained huge amount of money from 17 persons and four crimes before this Court are part of the 17 instances involved. As far

¶139

..15..

¶140

B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

¶141

as the contentions raised by the second accused in Crime No.1272 of 2022 is concerned, as per the bank account produced as that of the second accused he had evidently received Rs.2,50,000/- from the defacto complainant in this crime. According to the learned counsel for the second accused, the said money was transferred to Immanuel Xaviour. But the said aspect alone cannot absolve the second accused from criminal culpability. The rationale is the transfer of money by the second accused to Immanuel Xaviour may be the money due from the second accused or for some other purpose. Otherwise also the transfer of money from the account of one among the defacto complainants to the account of the second accused as could be seen from the statement of accounts produced by the second accused, supports the case of the prosecution as to his involvement in this crime. As such, receipt of money by the second accused would go to show that the second accused has active role in this deal in connivance with the first accused, prima facie. Therefore, both accused could not wriggle out from the penal

¶142

B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

¶143

..16..

¶144

consequences, prima facie.

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Thus, it appears that arrest, custodial interrogation, recovery of the money are essential part of investigation and in such a case, grant of anticipatory bail will destroy the investigation at the primitive stage of investigation itself. Therefore, anticipatory bail cannot be considered at all.

¶146

In view of the above, plea of anticipatory bail at the instance of the petitioners found to be not sustainable and therefore, all petitions must fail.

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In the result, all these petitions stand dismissed, with direction to the Investigating Officer to go with investigation, after arresting and questioning the accused, in accordance with law, without fail, at the earliest.

¶148

Sd/- A.BADHARUDEEN, JUDGE

¶149

rkj

¶150

B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

¶151

..17..

¶152

APPENDIX OF BAIL APPL. 10179/2022

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PETITIONER ANNEXURES

¶154

ANNEXURE A-1 TRUE COPY OF FIR NO.1272/2022 DT.7-12-2022 OF NORTH PARUR POLICE STATION

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B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

¶156

..18..

¶157

APPENDIX OF BAIL APPL. 10458/2022

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PETITIONER ANNEXURES

¶159

ANNEXURE A1 TRUE COPY OF F.I.R WITH F.I STATEMENT IN CRIME NO. 1272/2022 OF NORTH PARUR POLICE STATION DATED 07-12-2022

¶160

ANNEXURE A2 THE RELEVANT PAGES OF BANK ACCOUNT OF THE PETITIONER MAINTAINED IN STATE BANK OF INDIA, CHERIAPPILLY BRANCH

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B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

¶162

..19..

¶163

APPENDIX OF BAIL APPL. 387/2023

¶164

PETITIONER ANNEXURES

¶165

ANNEXURE1 COPY OF FIR NO. 1277 OF 2022 DT.8-12-2022 OF NORTH PARUR, ERNAKULAM DIST. KERALA

¶166

B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

¶167

..20..

¶168

APPENDIX OF BAIL APPL. 398/2023

¶169

PETITIONER ANNEXURES

¶170

ANNEXURE A-1 TRUE COPY OF THE FIR NO.1284 OF 2022 DT.10-12-2022 OF NORTH PARUR POLICE STATION,ERNAKULAM DIST.KERALA.

¶171

B.A.Nos.10179 and 10458 of 2022 & 387, 398 and 624 of 2023

¶172

..21..

¶173

APPENDIX OF BAIL APPL. 624/2023

¶174

PETITIONER ANNEXURES

¶175

ANNEXURE A1 TRUE COPY OF THE FIR NO.900 OF 2022 DT. 12-12-2022 OF VARAPUZHA POLICE STATION.

Aneesh A.J. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Aneesh A.J. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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