RAJINI K v. STATE OF KERALA

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 11TH DAY OF JANUARY 2024 / 21ST POUSHA, 1945 CRL.MC NO. 1421 OF 2022 CRIME NO.810/2021 OF HEMAMBIKA NAGAR POLICE STATION, PALAKKAD AGAINST THE ORDER/JUDGMENT IN CRMC 3850/2021 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD PETITIONER/ACCUSED: VIJAYAKUMAR AGED 61 YEARS S/O.APPU NAIR, ANUGRAHA HOUSE, PANAPATHAL, INDUSTRIAL ESTATE, PUTHUPARIYARAM P.O., PALAKKAD DISTRICT, PIN - 678731 BY ADV BABU S. NAIR RESPONDENT/S: 1 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 THE STATION HOUSE OFFICER HEMAMBIKA NAGAR POLICE STATION, PALAKKAD DISTRICT, PIN - 678009 SMT. SEENA C., PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON

04.01.2024 ALONG WITH Crl.MC.1534/2022, THE COURT ON 11.01.2024 PASSED THE FOLLOWING: CRL.MC Nos.1534 & 1421 OF 2022 3 O R D E R [Crl.MC Nos.1534/2022 & 1421/2022] … Both these Crl.MCs. are filed in connection with the proceedings in Crime No.810/2021 of Hemambika Nagar Police Station, Palakkad. The said Crime was registered based on a complaint submitted by the petitioner in Crl.M.C.No.1534/2022 against the petitioner in Crl.M.C.No.1421/2022. The said crime was registered, alleging an offence punishable under Section 420 of the Indian Penal Code (IPC). (The parties are hereinafter referred to as accused and defacto complainant).

2. Earlier, the accused filed Crl.M.C No.3850/2021 before the Sessions Court, Palakkad, seeking anticipatory bail in the aforesaid crime and the same was allowed as per Annexure-A order in Crl.M.C.No.1534/2022, subject to the condition that, the petitioner shall surrender before the Investigating Officer within a period of 15 days from the date of the order for making himself available for interrogation. It was also ordered that, after such interrogation, the Investigating Officer shall release the accused on bail upon executing a bond for Rs.1,00,000/- with two solvent sureties each for the like sum to the satisfaction of the Investigating Officer in the event of arrest. A further condition was imposed to the effect that the accused shall appear before the Investigating Officer every Saturday between CRL.MC Nos.1534 & 1421 OF 2022 4 10 a.m. and 11 a.m. for a period of three months. The defacto complainant filed Crl.M.C.No.1534/2022 challenging the order granting Anticipatory Bail to the accused, whereas Crl.MC No.1421/2022 was filed by the accused to delete conditions Nos.1 and 2 in the said order.

3. The said crime was registered on the following allegations: In the year 2017, the accused made the defacto complainant believe that he was implicated in a false case and his bank accounts have been frozen by the Income Tax Department. The defacto complainant was appraised that, to get the amounts in the bank account released, it is necessary to deposit some amount. Accordingly, the accused collected Rs.20 lakhs from the defacto complainant, as per various transactions that occurred on different occasions. Later, when the defacto complainant demanded the said amount back, the accused expressed his inability to pay the amount, citing financial difficulties, but instead, he offered to sell a house in the name of his wife, for a total sum of Rs.35 Lakhs. The defacto complainant was also permitted to reside in the said house with her family from 4.7.2021 onwards. Since the marriage of the daughter of the defacto complainant was to be conducted very soon, the accused offered to register the sale deed after the said marriage. Accordingly, a further amount of Rs.15 Lakhs was also collected towards the purchase value of the property after adjusting the amount the defacto CRL.MC Nos.1534 & 1421 OF 2022 5 complainant had already paid to the accused on earlier occasions. Thereafter, the marriage of the daughter of the defacto complainant was conducted while she was residing in the house of the accused. Later, when the defacto complainant was away from the place, the residence of the defacto complainant was broken into, which was noticed by her on her return during the month of October, 2021. However, as the jewellery and other valuables were found intact, no complaints were raised by her. Later, the defacto complainant came to know that, the accused attempted to withdraw an amount of Rs.12.5 Lakhs from her account in the South Indian Bank by submitting three cheques containing forged signatures of the defacto complainant. It was also alleged that a further sum of Rs.7.5 Lakhs was attempted to be withdrawn from her account from Catholic Syrian Bank by presenting a forged cheque. The complaint was submitted in such circumstances, and the crime was registered.

4. Thereafter, the accused filed an application for Anticipatory Bail, which was allowed by the learned Sessions Judge, Palakkad, subject to the above conditions. The Crl.M.Cs’, were submitted in such circumstances.

5. Heard Sri. Babu S. Nair, the learned counsel appearing for the accused, Sri. Arjun, the learned counsel appearing for the defacto complainant and Smt.Seena C. and Sri. Vipin Narayan, the learned Public Prosecutors appearing for the State in Crl.MCs. 1421/22 and 1534/22 respectively. CRL.MC Nos.1534 & 1421 OF 2022 6

6. The issue involved in Crl.M.C.No.1421/2022 is with regard to the condition Nos.1 and 2 imposed by the learned Sessions Judge whereas challenge in Crl.M.C.No.1542/2022 is against the order granting anticipatory bail as such.

7. When considering the challenge raised against the order of anticipatory bail, it is to be noted that, the learned Sessions Judge passed a very detailed order by specifically referring to the contentions raised by the accused as well as the defacto complainant who appeared before the Sessions Court and submitted her objections to the application for bail. One of the crucial objections raised by the defacto complainant was that the accused was involved in several other cases of similar nature, and he was a habitual offender. It was pointed by the learned counsel for the defacto complainant that the said aspect was not taken note of by the learned Sessions Judge while granting anticipatory bail. It is pointed out that, the accused is involved in ten other cases in Palakkad Town North Police Station, Mankara Police Station, Kozhinjampara Police Station, Ernakulam Central Police Station etc. for various kinds of offences.

8. On the other hand, the learned counsel for the accused opposes the prayer sought by the defacto complaint. He would submit that, most of the cases have been referred by the police as those were falsely registered against him on account of certain disputes which he had with one Muhammed Babu, who caused to register the CRL.MC Nos.1534 & 1421 OF 2022 7 various cases through various persons falsely. However, even if it is assumed that the accused was implicated in several other cases, that alone cannot be a reason to reject the application for anticipatory bail. According to him, the learned Sessions Judge, passed the order granting anticipatory bail to him, after detailed discussion of the materials and there is absolutely nothing to interfere with the said finding. Hence, he seeks dismissal of Crl.M.C No.1534 of 2022.

9. I have carefully gone through the records. The preliminary aspect to be considered in an application for anticipatory bail is whether the materials placed before the court and the nature of allegations revealed from such materials make out a prima facie case. The seriousness of the allegations is also a relevant factor to be taken into consideration while granting anticipatory bail. On perusal of the order impugned in this case, it can be seen that, the learned Sessions Judge meticulously considered the allegations raised against the accused and found that the contention of the accused that the disputes between the parties are civil in nature, cannot be ruled out. It is also evident that the accused and the defacto complainant have entered into an agreement for the sale of the said property as well. While granting anticipatory bail, the learned Sessions Judge took note of the fact that, among the transactions totalling Rs.40,27,000/, most of the transactions that took place were cash transactions for which there are no proper records. It is also found that the transactions CRL.MC Nos.1534 & 1421 OF 2022 8 between the parties commenced in the year 2014, and the total amount borrowed comes to Rs.20 Lakhs. Thereafter, they entered into an agreement to sell the house of the accused by adjusting the said loan of Rs.20 Lakhs. A sum of Rs.11 Lakhs was later transferred to the account of the accused, and a further sum of Rs.50,000/- was made through Google Pay, and Rs.3,50,000/- was again paid in cash. In addition to the above, a further sum of Rs.3 Lakhs was given to one Sunil to purchase stamp paper and documentation. Thus, it is evident that, there were several transactions between the parties, which commenced from 2014 onwards and continued until the relationship between the parties strained recently. An agreement for sale was also entered into between the parties in connection with the transactions, and there is also a civil dispute pending between them in relation to the said transactions. The documents evidencing all the transactions between the parties were also lacking. It was in those circumstances that the learned Sessions Judge observed that the possibility of transactions being civil in nature cannot be ruled out.

10. When going through the entire materials placed on record, the said finding cannot be interfered with at this stage, as the same is a probable view. Merely because anticipatory bail has been granted to the petitioner, it cannot be concluded that an effective investigation will not take place. Of course, it is true that the defacto complainant has a case that the accused attempted to withdraw certain amounts CRL.MC Nos.1534 & 1421 OF 2022 9 from her bank account by submitting cheques containing forged signatures of the defacto complainant. This is also a matter to be investigated. In such circumstances, I am of the view that, this is a case in which the cooperation of the accused with the investigation is to be ensured, and in the order impugned in this case, ample conditions were already imposed for the same. As I have already found that the view adopted by the learned Sessions Judge is probable, I do not find any justifiable ground to interfere with the order of the learned Sessions Judge in granting bail. Therefore, I do not find any merit in Crl.M.C No.1534/2022.

11. The next aspect relates to the contentions raised in Crl.MC No.1421/22. The challenge raised in the same is against the condition Nos.1 and 2 imposed while granting Anticipatory bail to the accused by the Sessions Court in Crl.M.C.No.3850/2022. The condition No 1 is that the petitioner shall surrender before the investigation officer within fifteen days. Condition No. 2 is to the effect that he has to appear before the investigation officer every Saturday between 10 a.m. and 11 a.m. for a period of three months. The reason for seeking lifting of condition Nos.1 and 2, is that at present he is residing at Chennai and he is suffering from various diseases. He also relies on Annexures- F and G medical certificates to substantiate the same which are produced along with Crl.M.C No.1421/2022. However, the crucial aspect to be noticed is that, as far as the first and second CRL.MC Nos.1534 & 1421 OF 2022 10 conditions imposed by the learned Sessions Judge are concerned, the same were imposed only to ensure the cooperation of the accused with the investigation. If the said conditions are deleted or lifted, the purpose of the investigation itself would be defeated, and hence, there is no legal justification for allowing the prayer of such nature. The accused has no vested right to seek an order of anticipatory bail unconditionally. Condition Nos. 1 and 2 in the said bail order are the basic and reasonable conditions which cannot be dispensed with. As per subsection (2) of section 438 of the Cr. P.C, the Sessions Judge is empowered to and under an obligation to impose the condition directing the accused to make himself available for interrogation by a police officer. Moreover, the accused is involved in several other cases in Kerala and he is conducting a civil litigation against the defacto complainant in Palakkad as well. Therefore, I am of the view that, the challenge raised by the accused against such conditions, is without any merits and hence, I do not find any scope for allowing the prayers sought for in Crl.M.C. No.1421/2022. In the result, both these Crl.M.Cs. are dismissed. However, it is ordered that, since the time stipulated by the learned Sessions Judge for the accused to surrender before the Investigating Officer is already over and the said conditions were stayed by this Court during the pendency of the Crl.MC, the said period shall stand enlarged for a period of three weeks from today. Upon such surrender, the conditions CRL.MC Nos.1534 & 1421 OF 2022 11 imposed by the learned Sessions Judge in the order of granting anticipatory bail in Crl.M.C.No.3850/2021 shall be complied with by the accused. In case the accused fails to surrender before the court as above, it shall be open for the Investigating Officer to arrest the accused as if no bail was granted to him. Sd/- ZIYAD RAHMAN A.A.,JUDGE CRL.MC Nos.1534 & 1421 OF 2022 12 APPENDIX OF CRL.MC 1421/2022 PETITIONER ANNEXURES Annexure A Annexure B Annexure C Annexure D Annexure E Annexure F Annexure G TRUE COPY OF THE ORDER PASSED BY THE PRINCIPAL SUB COURT, PALAKKAD DATED, 22-11- 2021 IN I.A.NO.1505/2021 IN O.S.NO.161/2021 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED, 13-7-2021 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE DEFACTO COMPLAINANT BEFORE THE 2ND RESPONDENT DATED, 23-12-2021 FREE COPY OF THE ORDER IN CRL.M.C.NO.3850/2021 DATED, 15-2-2022 OF THE COURT OF SESSION, PALAKKAD A TRUE COPY OF THE POST OFFICE IDENTITY CARD OF THE PETITIONER TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE ASWINI HOSPITAL, THRISSUR DATED, 5-3-2021 TRUE COPY OF THE CERTIFICATE ISSUED BY DR.E. GANESAN DATED, 9-12-2021 CRL.MC Nos.1534 & 1421 OF 2022 13 APPENDIX OF CRL.MC 1534/2022 PETITIONER ANNEXURES ANNEXURE A ANNEXURE B ANNEXURE C ANNEXURE D ANNEXURE E ANNEXURE F ANNEXURE G ANNEXURE H CERTIFIED COPY OF THE ORDER OF THE HON'BLE III ADDITIONAL SESSIONS COURT- PALAKKAD DTD 15.02.2022 IN CRL.MC 3850/2021 A TRUE COPY OF THE FIR IN CR.NO.810/2021 OF HEMAMBIKA NAGAR POLICE STATION, PALAKKAD DTD 23.12.2021 A TRUE COPY OF THE COMPLAINT OF THE PETITIONER BEFORE THE SP OF POLICE- PALAKKAD DTD 18.12.2021 A TRUE COPY OF THE FIS OF THE PETITIONER DTD 23.12.2021 A TRUE COPY OF THE PETITION FOR PROPER INVESTIGATION FILED BEFORE THE SP OF POLICE- PALAKKAD DTD 29.12.2021 A TRUE COPY OF CRL.MC NO.3850/2021 BEFORE THE HON'BLE III ADDITIONAL SESSIONS COURT, PALAKKAD A TRUE COPY OF THE IMPLEADING APPLICATION AND OBJECTIONS FILED BY THE PETITIONER/ DE FACTO COMPLAINANT AS CRL.MP NO.100/2022 IN CRL.MC NO.3850/2021 BEFORE THE HON'BLE III ADDITIONAL SESSIONS COURT, PALAKKAD A TRUE COPY OF THE FIR IN CR.NO.162/2022 OF VAIKOM POLICE STATION DTD 10.02.2022