R. Goplakrishna Pillai @ ... vs State Of Kerala
2021 Latest Caselaw 24 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE ASHOK MENON

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

                      Bail Appl..No.6076 OF 2020

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


PETITIONER/ACCUSED:

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

                BY ADV. SRI.ARUN CHANDRAN

RESPONDENT/S:

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

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

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

R1 BY PUBLIC PROSECUTOR R2 BY ADV. B.MOHANLAL

OTHER PRESENT:

SRI.SANTHOSH PETER SR PP

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:

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ASHOK MENON

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

Bail Appl..No.6218 OF 2020

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

PETITIONER/S:

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

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

RESPONDENT/S:

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

2 CIRCLE INSPECTOR OF POLICE KOLLAM EAST POLICE STATION, KARBALA 691001

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.

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

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

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:

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ASHOK MENON

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

Bail Appl..No.6492 OF 2020

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

PETITIONER/S:

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

BY ADVS.

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

RESPONDENT/S:

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.

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

R1 BY PUBLIC PROSECUTOR R2 BY ADV. B.MOHANLAL

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:

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ASHOK MENON

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

Bail Appl..No.7281 OF 2020

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

PETITIONER/S:

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

BY ADV. SRI.ARUN BABU

RESPONDENT/S:

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

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

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

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 ]

Dated this the 4th day of January 2021

Applications under Section 438 Cr.P.C for anticipatory

bail.

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

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

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

Station for having allegedly committed offences punishable

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

the I.P.C.

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

complainant, who is impleaded as the 2nd respondent in the BA 6076/2020 & conn.

above applications, and his wife were members of

Kadappakkada Branch of Pattathanam Service Co-operative

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

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

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

fact, it was stated that the ornaments were auctioned and sold BA 6076/2020 & conn.

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 4th 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. BA 6076/2020 & conn.

4. A1 has in her bail application contended that she

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

Enquiry was initiated on certain reports which were filed by the

Joint Registrar of Cooperative Society regarding the

irregularities in auctioning the gold ornaments pledged with

the Kadappakkada branch of the society. This Court had vide

Judgment at Annexure-3 observed that the suspension of A1

was not proper and the direction was given to follow

procedures in accordance with law. Accordingly the suspension

was revoked by the Joint Registrar vide Annexure-5 Order

dated 10.08.2018. It is only subsequent to the setting aside of

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

at Annexure-1 was registered in this Crime on 16.08.2020. BA 6076/2020 & conn.

5. A2 has in his application contended that a customer

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

was issued thereafter to redeem the ornaments. The customer

can renew the pledge or redeem the ornaments. The other

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

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

case, notice was issued to the de facto complainant by

registered post after the expiry of the loan period. There was

no response and consequently, the pledged ornaments were

auctioned and the amounts adjusted towards closing of the

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

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

report of the Secretary (A1) dated 07.09.2017, produced by A2 BA 6076/2020 & conn.

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

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

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

Normally, at the time of granting loan on pledging of gold

ornaments the customer has to subscribe signatures at 5

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

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.

6. A3 has in her application contended that she was

employed in the bank as a Section clerk. During February 2016 BA 6076/2020 & conn.

when the alleged misappropriation of gold ornaments pledged

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

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

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

President of the bank on 09.04.2012 indicating that she has

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

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

Kadappakkada branch of the bank vide Annexure-3 circular

dated 19.07.2016. The allegations against the 3rd accused, is

therefore, not sustainable.

7. A5 has in its application contended that he was the

former President of the Cooperative Bank and has nothing to

do with the alleged forgery or cheating. The managing BA 6076/2020 & conn.

committee of the bank found certain illegalities in connection

with gold loans granted by the Kadappakkada branch of the

bank. A2, who was the accountant of the branch was placed

under suspension. A5 states that he was not in charge of the

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

renewal by remitting amount towards interest due. The

accounts were closed on 07.02.2016. The complaint was filed

only on 16.08.2020.

8. All the applicants, except A3, had filed applications

for anticipatory bail before the Sessions Court, Kollam and the BA 6076/2020 & conn.

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.

9. The de facto complainant has appeared and has

opposed the application for bail by stating that the applicants

had in furtherance of common intention to deceive him and his

wife misappropriated the gold ornaments pledged with the

Society. It is admitted that due to financial difficulties they

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 BA 6076/2020 & conn.

receipts are also produced. It is alleged that the accused

holding different positions in the bank conspired to cheat the

2nd respondent and his wife, committed criminal breach of

trust and forged documents and used those documents as

genuine. The gold ornaments were auctioned without

complying with the procedures and the amounts

misappropriated. Complaint was filed before the Joint Registrar

of Cooperative Societies in consequence of which an enquiry

was conducted. The reports which are produced as Annexures-

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

of the bank misappropriated the amount without complying

with the procedure in the auction of the ornaments pledged by

the 2nd respondent and his wife as also of other customers by BA 6076/2020 & conn.

creating forged documents. The accused are therefore liable to

be prosecuted for the offences alleged against them. A

complaint was filed before the City Police Commissioner on

28.07.2020. It is alleged that the 2nd accused had specific role

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

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

accused who are actually responsible for misappropriation of

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 BA 6076/2020 & conn.

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

Police. Because of the influence, the applicants have been

evading arrest. Custody of the applicants is essential for the

purpose of investigation and therefore it is prayed that the

applications may be dismissed.

10. Heard the learned counsel appearing for the

applicants and the learned Prosecutor. The learned counsel

appearing for the de facto complainant was also heard.

Records perused.

11. The Hon'ble Supreme Court in Gurbaksh Singh

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

(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.

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

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.

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.

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.

12. The Hon'ble Supreme Court has laid down

parameters while considering applications for anticipatory bail BA 6076/2020 & conn.

in Siddharam Satlingappa Mhetre v. State of Maharashtra and

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

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

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; 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; iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

BA 6076/2020 & conn.

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; 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;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 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, BA 6076/2020 & conn.

the accused is entitled to an order of bail.

123. 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."

13. Applying the parameters laid down by the Hon'ble

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

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

and A5 the President. A1 was reinstated after being

suspended. A3 was not posted in the concerned branch when

the alleged auction took place. Admittedly, the de facto BA 6076/2020 & conn.

complainant and his wife did not enquire about the gold loan

consequent to getting an extension on 31.08.2015. It was only

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

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 BA 6076/2020 & conn.

remained complaisant for four years without complaining is a

query which needs to be answered by the prosecution.

14. In the result, the bail applications are allowed. The

applicants are directed to surrender before the investigating

officer within two weeks. In the event of their arrest, they shall

be released on bail on execution of a bond for Rs.50,000/-

(Rupees fifty thousand only) each with two solvent sureties

each for the like amount to the satisfaction of the investigating

officer and on the following conditions:

(i) They shall appear before the investigating officer as

and when called for and co-operate with the investigation.

(ii) They shall not tamper with evidence or intimidate or

influence the witnesses.

BA 6076/2020 & conn.

(iii) They shall not get involved in any similar offence

during the currency of the bail.

In case of breach of any of the above bail conditions, the

prosecution is at liberty to approach the jurisdictional court for

cancellation of the bail.

Sd/-

ASHOK MENON

JUDGE

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