Radhakrishnan Nair vs State Of Kerala
2021 Latest Caselaw 6227 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

            THE HONOURABLE MR. JUSTICE ASHOK MENON

  MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

                  Bail Appl..No.7891 OF 2020

 CRIME NO.1033/2020 OF Changanassery Police Station, Kottayam


PETITIONER/S:

            RADHAKRISHNAN NAIR
            AGED 64 YEARS
            POURNAMI HOUSE,
            KULANADA P.O., PANDHALAM
            PATHANAMTHITTA DISTRICT,
            PIN 689503

            BY ADV. SRI.C.S.MANU

RESPONDENT/S:

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

2 ADDL.R2 SEENA S AGED 40 YEARS W/O.BINU V.KURUP, THOTTAYIL POURNAMI HOUSE, THURUTHY P.O., VAZHAPPALLY EAST, CHANGANASSERRY, KOTTAYAM DISTRICT, PIN - 686535.

IS IMPLEADED AS PER THE ORDER DATED 9.12.2020 IN CRL.M.A.NO.1/2020.

R1 BY PUBLIC PROSECUTOR R2 BY ADV. SRI.T.P.PRADEEP SRI.SANTHOSH PETER SR PP

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.02.2021, ALONG WITH Bail Appl..8066/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Bail Appl..Nos.7891 OF 2020 & 8066 OF 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ASHOK MENON

MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942

Bail Appl..No.8066 OF 2020

CRIME NO.1033/2020 OF Changanassery Police Station, Kottayam

PETITIONER/S:

UNNIKRISHNAN NAIR AGED 60 YEARS LAVANYA, KAIPUZHA, KULANADA PATHANAMTHITTA 689503

BY ADVS.

SRI.P.J.JOE PAUL SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.RAJAN G. GEORGE SRI.P.J.JOE PAUL SRI.MANU SRINATH

RESPONDENT/S:

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

2 STATION HOUSE OFFICER AGED 50 YEARS CHANGANASSERRY POLICE STATION, KOTTAYAM DISTRICT 686101 Bail Appl..Nos.7891 OF 2020 & 8066 OF 2020

3 ADDL. R3 SEENA.S AGED 42 YEARS THOTTAYIL POURNAMY HOUSE, THURUTHY P. O., VAZHAPPALLY EAST, PIN - 696103 IS IMPLEADED AS ADDL R3 AS PER ORDER DATED 17/12/2020 IN CRL MA 1/2020 IN BA 8066/2020

R1 BY PUBLIC PROSECUTOR R3 BY ADV. SRI.T.P.PRADEEP

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.02.2021, ALONG WITH Bail Appl..7891/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Bail Appl..Nos.7891 OF 2020 & 8066 OF 2020

COMMON ORDER

[ Bail Appl..7891/2020, Bail Appl..8066/2020 ]

Dated this the 22nd day of February 2021

Applications filed under Section 438 of Cr.P.C

seeking anticipatory bail.

2. The applicant in BA No.8066/2020 is the

first accused, while the applicant in BA

No.7891/2020 is the second accused in Crime

No.1033/2020 of Changanassery Police Station, for

having allegedly committed offences punishable

under Sections 420, 468, and 406 r/w Section 34 of

the IPC.

3. The prosecution case, in brief, is that the

first accused allegedly borrowed a sum of Rs.25

lakhs from the de facto complainant on 27.08.2016

for his business purpose. He was not able to repay

the amount. On being demanded, he issued a cheque

for the said amount on 17.11.2018 and also

thereafter executed an agreement on a stamp paper Bail Appl..Nos.7891 OF 2020 & 8066 OF 2020

on 03.08.2018 undertaking that he will be repaying

the amount with interest and he also handed over

two cheques as security. He also stated that he

has got property and the title deed was entrusted

to the de facto complainant together with the PTR

receipt which he had allegedly paid on 27.07.2018.

The first accused however did not repay the amount

and he stealthily settled his property of which

the title deed was handed over to the de facto

complainant in favour of his brother who is the

second accused and the applicant in BA

No.7891/2020, and transferred the possession of

the property. The PTR receipt was obtained by

forgery and concoction because after having

settled the property in favour of his brother, he

could not continue to pay the tax for the

property. Hence the de facto complainant felt that

he has been cheated and he filed a criminal

complaint and in consequence of which the crime Bail Appl..Nos.7891 OF 2020 & 8066 OF 2020

was registered. It is also pointed out that the de

facto complainant had approached the Sub Court,

Kottayam by filing OS No.138/2018 before the

Additional Sub Court, Kottayam and the first

accused remained ex parte and the suit was decreed

on 11.04.2019 directing the first accused to pay a

sum of Rs.30,06,352/- together with interest at

the rate of 6% per annum and the said is still

outstanding to be paid. The first accused has no

properties, so that the amount could be realized

and in furtherance of common intention with his

brother, who is the second accused, who has

cheated the de facto complainant.

4. Heard the learned counsel for the

applicants and the learned Public Prosecutor as

also the learned counsel appearing for the de

facto complainant.

5. Apparently this is a case of borrowing of

money. The first accused had borrowed a sum of Bail Appl..Nos.7891 OF 2020 & 8066 OF 2020

Rs.25 lakhs in the year 2016 and the de facto

complainant has also filed a suit for realization

of the amount, which the first accused did not

content and it has been decreed ex parte for the

said amount together with interest. It is stated

that the first accused is the brother-in-law of

the de facto complainant's uncle and considering

their relationship that the amount was handed over

to the first accused, despite that she was

cheated. It is stated that the settlement deed was

executed without the knowledge of the de facto

complainant in collusion with the brother of the

first accused and therefore the tax receipts also

are concocted. Considering the entire facts and

circumstances of this case, I find that there is

no intention in the mind of the first accused to

cheat the de facto complainant at the very

inception of the debt which was incurred in the

year 2016. In the agreement which he had executed Bail Appl..Nos.7891 OF 2020 & 8066 OF 2020

in the year 2018, he has admitted the existence of

the debt. The civil suit was also contested by him

and he remains ex parte and it was decreed. The

amount is still realizable. The allegation is that

the first accused had settled the property and

transferred it in favour of his brother so as to

escape from his liability. But there is no

attachment before the judgment in the suit because

there was no property available at that point in

time and the settlement was made even prior to the

filing of the civil suit and therefore it cannot

be said that the applicant had prima facie cheated

or had intention to cheat the de facto

complainant. The fact whether the settlement deed

was accepted and thereafter the applicant

continues to pay the tax receipt is an anomaly

which only the second accused need to be worried

about. There was no mortgage created even though

the title deed was allegedly handed over to the de Bail Appl..Nos.7891 OF 2020 & 8066 OF 2020

facto complainant, there was no mortgage created

by deposit of title deed and there is no

memorandum obtained from the first accused

regarding the deposit of the title deed.

6. Under the circumstances, no obligation is

created on the property by the first accused by

executing the agreement on 03.08.2018. Under the

circumstances, the dispute between the applicants

and the de facto complainant are purely in nature

and prima facie there is no offence of cheating or

misappropriation as alleged by the de facto

complainant.

7. The applicants are therefore directed to

surrender before the investigating within two

weeks. In the event of their arrest, after

interrogation, they shall be released on bail on

execution of bond for Rs.1,00,000/- (Rupees One

lakh only) each with two solvent sureties for the

like amount each to the satisfaction of the Bail Appl..Nos.7891 OF 2020 & 8066 OF 2020

investigating officer and on the following

conditions;

1. They shall not tamper with evidence,

influence or intimidate witnesses.

2.They shall appear before the investigating

officer as and when called for.

3.They shall not get involved in similar

offences during the bail period.

In the event of violating the bail conditions,

the prosecution shall be at liberty to apply for

cancellation of bail before the jurisdictional

court.

Sd/-

ASHOK MENON JUDGE SPK