Kerala High Court
Mahfoose M.D vs State Of Kerala on 12 December, 2023
B.A.NOS.8270 & 9741 OF 2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
TUESDAY, THE 12TH DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945
BAIL APPL. NO. 8270 OF 2023
CRIME NO.607/2023 OF VIDYA NAGAR POLICE STATION, Kasargod
PETITIONER/SECOND ACCUSED:
ISMAIL M.D,
AGED 58 YEARS
S/O.IBRAHIM, RESIDING AT MUNDANGALAM HOUSE, BEVINJE,
THEKKIL FERRY POST, CHENGALA, KASARAGOD DISTRICT-671541
BY ADVS.
T.MADHU
C.R.SARADAMANI
RENJISH S. MENON
VRINDA T.S.
AISWARYA JAYAPAL
RESPONDENT/STATE:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA-
682031
2 AHAMMED BASHEER
S/O.AHAMMED, MIHWAN MAHAL, KOMPANPARA, KALANAD P.O., NOW
RESIDING AT AYISHA QUARTERS, NEAR GOVERNMENT H.S.S., UDMA
P.O, KASARAGOD DISTRICT IS IMPLEADED AS ADDL R2 AS PER
ORDER DATED 27/10/23 IN CRL MA 2/23
BY ADVS. SRI.M.C.ASHI, PUBLIC PROSECUTOR FOR R1
SRI.Kodoth Sreedharan FOR R2
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
12.12.2023, ALONG WITH Bail Appl..9741/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
B.A.NOS.8270 & 9741 OF 2023 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
TUESDAY, THE 12TH DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945
BAIL APPL. NO. 9741 OF 2023
CRIME NO.607/2023 OF VIDYA NAGAR POLICE STATION, Kasargod
PETITIONER:
MAHFOOSE M.D.
AGED 31 YEARS
S/O.ISMAIL M.D., RESIDING AT MUNDANGALAM HOUSE, BEVINJE,
THEKKIL FERRY POST, CHENGALA, KASARAGOD DISTRICT, PIN -
671541
BY ADVS.
T.MADHU
RENJISH S. MENON
C.R.SARADAMANI
VRINDA T.S.
AISWARYA JAYAPAL
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
BY ADV. SRI.M.C.ASHI, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
12.12.2023, ALONG WITH Bail Appl..8270/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
B.A.NOS.8270 & 9741 OF 2023 3
MOHAMMED NIAS C.P, J.
---------------------------------------------
B.A. Nos. 8270 and 9741 of 2023
------------------------------------------------------
Dated this the 12th day of December, 2023.
ORDER
Apprehending arrest in Crime No.607/2023 of Vidyanagar Police Station,
Kasargod District, registered for an offence punishable under Sections 406, 420,
465, 468 and 471 read with Section 34 of the Indian Penal Code, the
petitioners/accused Nos.1 &2, have filed this application under Section 438 of
the Code of Criminal Procedure seeking pre-arrest bail.
2. The prosecution case is that in 2017, accused Nos.1 and 2, with the aid
of the 3rd accused, fabricated documents relating to the residential property of
the defacto complainant and availed a loan of Rs.3,55,23,444/- from the South
Indian Bank, Cherkala Branch, by mortgaging the property of the defacto
complainant. Thereby, the accused have committed the above-said offences.
3. I have heard learned counsel for petitioners and the learned Public
Prosecutor.
4. Accused No.1 in Crime No.607/2023 of Vidyanagar Police Station has
filed B.A.No.9741 of 2023, and accused No.2 in the same crime has filed
B.A.No.8270 of 2023. The 1st accused is the son of the 2nd accused, and the
3rd accused is the Manager of the South Indian Bank Limited, Cherkala
Branch.
5. Thirty cents of property situated in Re-Survey No.214/2 of Kalanad
Village with a 4000 Sq.ft. building and other valuable properties, along with
documents, were entrusted to accused No.2 by the defacto complainant. Later,
when the defacto complainant demanded the movables and the documents, the
documents were not returned. Accused No.1 has allegedly taken a loan by
forging the defacto complainant's signature and mortgaging the above-
mentioned property.
6. Accused No.3 - the Bank Manager is alleged to have colluded with the
petitioners. When notice was received by the sureties, including the defacto
complainant on 27.7.2021 informing that steps would be taken for recovery, only
then did the defacto complainant notice about the loan and all the subsequent
steps.
7. It is also stated that there were three proceedings initiated before this
Court challenging the recovery proceedings in which, the defacto complainant
has joined as the petitioner. After the dismissal of all those cases, the above
crime was registered on 13.9.2023, raising the aforesaid allegations. Learned
counsel for petitioners submits that after almost three rounds of proceedings,
the above crime is registered and sought for anticipatory bail.
8. Learned counsel for the defacto complainant opposing the bail
application submits that the defacto complainant was not aware of any
proceedings starting from availing of the loan until the bank took the steps for
recovery. He also submits the involvement of the petitioners and the bank
officials will be relieved only on a proper investigation.
9. Having considered the rival submissions and the fact that there are no
express averments in the complaint that the proceedings before this Court,
wherein the defacto complainant is arrayed as the petitioner, was without his
knowledge prima facie, I am inclined to accept the contentions of the petitioners
that it was with the knowledge of the defacto complainant that the loan was
availed. Under such circumstances, I do not think that the custodial interrogation
of the petitioners is required. Accordingly, applications seeking anticipatory bail
are allowed and the following directions are issued:
1. The petitioners are directed to surrender before the Investigating Officer
within ten days from today, and on such surrender, the Investigating Officer
can interrogate the petitioners. In the event of their arrest, the Investigating
officer shall produce the petitioners before the jurisdictional court on the date
of surrender itself.
2. On such production, the jurisdictional court shall release the petitioners
on bail, on executing a bond for Rs.25,000/- (Rupees Twenty five thousand
only) each by the petitioners and by two solvent sureties each for the like
sum to the satisfaction of the jurisdictional court.
3. The petitioners shall cooperate with the investigation and make
himself available for interrogation and investigation as and when the
Investigating Officer directs him to do so.
4. The petitioners shall not intimidate the witnesses or interfere with the
Investigation in any manner.
5. The petitioners shall not be involved in any offence while on bail.
6. If any of the above conditions are violated, the court concerned will be
empowered to take steps for cancellation of bail as per law.
It is made clear that it is within the power of police to investigate the matter and, if
necessary, to effect recoveries on the information, if any, given by the petitioners, even
when the petitioners are on bail as per the judgment of the Apex Court in Sushila
Aggarwal and others v. State ( NCT of Delhi) and another [2021 (1) KHC 663].
Sd/-
MOHAMMED NIAS C.P
smv JUDGE
APPENDIX OF BAIL APPL. 8270/2023
PETITIONER ANNEXURES
Annexure -A1 THE TRUE COPY OF THE FIR DATED 15/9/2023 IN
CRIME NO.607/2023 OF VIDYANAGAR POLICE
STATION, KASARAGOD DISTRICT
Annexure A2 THE TRUE COPY OF THE JUDGMENT DATED 17/3/2022
IN O.P (DRT) NO.83/2022 ON THE FILES OF THIS
HONOURABLE COURT
Annexure A3 THE TRUE COPY OF THE JUDGMENT DATED 19/4/2022
IN O.P (DRT) NO.257/2022 ON THE FILES OF THIS
HONOURABLE COURT
Annexure A4 THE TRUE COPY OF THE JUDGMENT DATED 17/2/2023
IN W.P.(C) NO.5456/2023 ON THE FILES OF THIS
HONOURABLE COURT
RESPONDENT ANNEXURES
Annexure R2 e True copy of the Crl.MC No. 8362/2023 before
this Hon'ble Court without annexures
Annexure R2 a True copy of the alleged guarantee agreement
by 2nd respondent with the Bank
Annexure R2 b true copy of the alleged letter of guarantee
agreement by 2nd respondent with the Bank
Annexure R2 c True copy of the order of Chief Judicial
Magistrate, Kasaragod dated 26/7/2023
Annexure R2 d true copy of the mahazar prepared by the
Advocate commissioner dated 5/07/2023
APPENDIX OF BAIL APPL. 9741/2023
PETITIONER'S ANNEXURES
Annexure 1 THE TRUE COPY OF THE FIR DATED 15/9/2023 IN
CRIME NO.607/2023 OF VIDYANAGAR POLICE
STATION; KASARAGOD DISTRICT
Annexure 2 THE TRUE COPY OF THE PRIVATE CRIMINAL
COMPLAINT DATED 13/9/2023 IN CMP NO.3314/2023
ON THE FILES OF THE LEARNED CHIEF JUDICIAL
MAGISTRATE'S COURT; KASARAGOD
Annexure 3 THE TRUE COPY OF THE JUDGMENT DATED 17/3/2022
IN O.P (DRT) NO.83/2022 ON THE FILES OF THIS
HONOURABLE COURT
Annexure 4 THE TRUE COPY OF THE JUDGMENT DATED 19/4/2022
IN O.P (DRT) NO.257/2022 ON THE FILES OF THIS
HONOURABLE COURT
Annexure 5 THE TRUE COPY OF THE JUDGMENT DATED 17/2/2023
IN W.P.(C) NO.5456/2023 ON THE FILES OF THIS
HONOURABLE COURT
