Kerala High Court
Sarath.S vs State Of Kerala on 10 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
BAIL APPL. NO. 8464 OF 2022
AGAINST THE ORDER/JUDGMENTCRMC 1578/2022 OF ADDITIONAL
SESSIONS COURT (ADHOC)-II, KOLLAM
CRIME NO.471/2022 OF KOLLAM WEST POLICE STATION, KOLLAM
PETITIONER/ACCUSED NO.2:
SARATH.S, AGED 31 YEARS
S/O SAHADEVAN, VILAYIL, NEDUMONKAV P.O., KOODAL,
PATHANAMTHITTA, PIN - 689693.
BY ADV MANAS P HAMEED
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031.
2 ADDL R2 : G.VENUGOPALA PILLAI
S/O.GOPALA PILLAI, TRA 206, THEVALLY, KOLLAM WEST,
KOLLAM.
IMPLEADED AS ADDL R2 AS PER ORDER DATED 14.11.2022
IN CRL MA 3/2022)
BY ADVS.
PUBLIC PROSECUTOR SMT.SHEEBA THOMAS
S.ABHILASH
K.SIJU
ANJANA KANNATH
SRI P G MANU(SENIOR PUBLIC PROSECUTOR)
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
27.01.2023 ALONG WITH B.A.NO.8542/2022, THE COURT ON
10.02.2023 DELIVERED THE FOLLOWING:
B.A.No.8464/2022 &
B.A.No.8542/2022 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
BAIL APPL. NO. 8542 OF 2022
AGAINST THE ORDER/JUDGMENT CRMC 1393/2022 OF ADDITIONAL
SESSIONS COURT (ADHOC)-II, KOLLAM
CRIME NO.471/2022 OF KOLLAM WEST POLICE STATION, KOLLAM
PETITIONER/ACCUSED:
AKHIL.S, AGED 32 YEARS
S/O SAJEEV, VETTATHETHUVEEDU, VALLIKODE,
PATHANAMTHITTA, PIN - 689648
BY ADV MANAS P HAMEED
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031.
2 ADDL R2 G.VENUGOPALA PILLAI
S/O.GOPALA PILLAI, TRA 206, THEVALLY, KOLLAM WEST,
KOLLAM
(IMPLEADED AS ADDL R2 AS PER ORDER DATED 14/11/2022
IN CRL MA 2/2022)
BY ADVS.
PUBLIC PROSECUTOR
S.ABHILASH
K.SIJU
ANJANA KANNATH
SRI PG MANU(SR PUBLIC PROSECUTOR)
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
27.01.2023 ALONG WITH B.A.NO.8464/2022, THE COURT ON
10.02.2023 DELIVERED THE FOLLOWING:
B.A.No.8464/2022 &
B.A.No.8542/2022 3
A.BADHARUDEEN, J.
================================
B.A.No.8464 of 2022
and
B.A.No.8542 of 2022
================================
Dated this the 10th day of February, 2023
ORDER
The 2nd accused in Crime No.471/2022 of Kollam West Police
Station, is the petitioner in B.A.No.8464/202 and he seeks
anticipatory bail in the above crime. The 3 rd accused in the above
crime has also filed bail application - B.A.No.8542 of 2022, seeking
the same relief.
2. Heard the learned counsel for the petitioner as well as the
learned Public Prosecutor.
3. Short facts as alleged by the prosecution :
It is alleged by the prosecution that accused 1 to 3 after sharing
common intention cheated and defrauded the defacto complainant by
B.A.No.8464/2022 &
offering job of a Salesman to the son of the defacto complainant in
KELTRON. The specific case is that the 3 rd accused, who is the
Secretary of CITU [a trade union under the auspicious of CPI(M),
introduced the 2nd accused as a person employed in the H.R
Department of KELTRON and accordingly accused Nos.1 to 3
agreed to arrange an employment to the son of the defacto
complainant as Sales Manager in KELTRON in the quota provided
to CITU in KELTRON. Thereafter, the 2 nd accused received
Rs.32,92,000/- and the 3rd accused received Rs.15,80,000/- each
from the defacto complainant to satisfy the trade union leaders and
labourers. But the job offered was not provided and money also was
not given back. Thus the prosecution alleges commission of
offences punishable under Sections 406, 420 r/w 34 of IPC.
4. Apprehending arrest at the hands of the Kollam West
Police, the petitioners had approached the Sessions Court, Kollam
and the Sessions Judge dismissed the bail application as per
Annexure-2 order. The learned counsel for the petitioners would
B.A.No.8464/2022 &
submit that the defacto complainant is a retired Assistant
Commissioner in Central Excise, Government of India and who is
well aware of the procedure for appointment in public institutions.
Therefore, it could not be held that he had transferred this huge sum
in the name of the 2nd and 3rd accused believing the promise that the
accused would give an employment to the son of the defacto
complainant as Sales Manager in KELTRON. Further, the money
was transferred in between 9 months period and therefore, it could
not be held that the accused cheated the defacto complainant. It is
pointed out that there is delay in lodging F.I.R and as per the F.I
statement there was mediation talk at the office of the Commissioner
of Police during 2022. Further, in view of the mediation talk, cheque
for an amount of Rs.8 lakh was issued and therefore, the defacto
complainant could initiate prosecution under Section 142 of the
Negotiable Instruments Act, in case of dishonour of the cheque.
According to the learned counsel for the petitioners, no offence of
cheating under Section 406 and 420 IPC would attract in the facts of
B.A.No.8464/2022 &
the given case and, therefore, the petitioners are liable to be released
on anticipatory bail. The learned counsel has placed certain decisions
along with argument note filed by him. The same as such is
extracted hereunder:
"i. Vijay Sharma & Ors. Vs State of Bihar,
MANU/BH/1310/2010 = 2011(1)PLJR 780
The facts were similar in this case. Money was obtained from
the defacto complainant offering recruitment in the Police Force by
influencing the appointing officer by payment of money.
Cognizance was taken by the jurisdictional Magistrate under S.406
of IPC which was later challenged before the High Court of Patna,
resulting in setting aside the charges. Paragraphs 10 and 11 of the
Judgment are extracted below.
"10. A bare perusal of the complaint reveals that even
if the allegations are (sic) the parties were in pari delicto
to commit an offence. Employment in the Government is
available on advertisement and selection and not
purchased by money. Such appointment is outright
illegal appointment. If two persons agreed to commit an
act, which is an offence under the Indian Penal Code
and the agreement fails because the crime could not be
committed can it be said that it constitutes an offence
under the Indian Penal Code when under the Penal
B.A.No.8464/2022 &
Code the agreement itself was an offence.
11. Section 23 of the Indian Contract Act declares
void a contract which is contrary to the law or opposed
to public policy. Therefore, even under the civil law the
agreement between the parties was unlawful in its very
inception. Both had agreed to do some which was
prohibited in law. The contract ex facie being unlawful,
both parties can be said have intended to exploit the law
for an illegal purpose. The reliance by the complaint on
Section 65 of the Indian Contract Act may create a civil
finding for the maintainability of any such claim under
an illegal contract which shall have to be decided on its
own merits in an appropriate civil proceeding. It can
however never constitute a criminal offence."
ii. Santosh Kumar Trivedi Vs. State of Bihar, 2019 KHC
The facts were that: the accused assured the complainant a job
in the Railways for which he had demanded Rs.2,50,000/- to be paid
to the authorities. But neither the appointment was made nor money
was returned. The High Court quashed the charge relying on Vijay
Sharma (supra).
iii. Bharat B. Kurbetti & Ors. Vs. State of Karnataka, 2000
KHC 2760
There was an agreement between the complainant and accused
in terms of which the complainant had to withdraw his candidature in
an election of Board of Directors of Bank, on deposit of some amount
B.A.No.8464/2022 &
by the accused persons. The complainant withdrew his candidature
but amount was not deposited by the accused hence complaint was
filed and the jurisdictional Magistrate took cognizance under Sections
417, 120B read with 34 of IPC. The said proceedings was considered
to be manifestly illegal and liable to be set aside. Relevant paragraph
from the judgment is shown below.
"8. As such, on the very allegation found in the complaint
and speaking to the same in the sworn statement and as the
complainant has admitted in clear terms that he withdrew his
candidature from contest only after he entered into an agreement
with the petitioners who had promised him to pay certain amount
for such withdrawal. The agreement in my view, is not only an
illegal agreement or contract, but also opposed to public policy.
Such agreement is illegal and unenforceable under the law. Even
if the art of the agreement is realized by the other side, the
complainant cannot allege the offence of cheating by the other
side. For example, can a person be permitted to come before the
Court or file complaint alleging that he had entered into an illegal
contract with another for killing somebody on payment of money
or for kidnapping certain person or for engaging a minor or a
woman for prostitution and come before the Court, file a criminal
complaint that the other party has not kept his promise by non-
payment and hence liable to be punished for cheating or breach of
trust? In my view, when a person enters into an illegal contract,
he cannot complain of cheating against the other party for not
fulfilling t = 1975 ILR (1) P&H 398he obligation. The penal
B.A.No.8464/2022 &
provision is not meant for such persons."
iv. Ramji Lal vs State of Haryana, MANU/PH/0291/1972
The accused agreed to give his younger daughter in
marriage in consideration of pecuniary gain but some other girl
was given. The question arisen was whether the accused was guilty
of offence under S.420 of IPC. The accused was acquitted on the
ground that the consideration for the agreement between the
accused and the complainant was opposed to public policy and
therefore, the agreement was void and the complainant was not
entitled to obtain any relief for breach of agreement from a civil
court, consequently no offence under S.420 of IPC was made out
against the accused.
v. Jadhunandan Rai & Anr Vs. State of Jharkhand, 2009 KHC
The accused obtained Rs.70,000/- from complainant's
relatives on assurance that the accused would get certain land
settled in their name, but failed to fulfill the promise. The accused
was convicted under S.420 of IPC by the Sessions Judge. The High
Court held that the accused were not authority under law to settle
land in favour of complainant's relatives and that they had entered
into an illegal contract and a party to an illegal contract should
not be allowed to prosecute a criminal charge when such
agreement cannot be performed under law by a civil jurisdiction.
vi. Emperor Vs. Jani Hira, MANU/MH/0045/1912
The facts were: the accused agreed to let her daughter on
hire to the complainant for concubinage and accepted some money
B.A.No.8464/2022 &
out of total consideration. But later the accused refused to carry
out the
contract or to return the advance. It was decided that "the accused
and the complainant had entered into a contract which was clearly
void for immorality. Therefore the complainant would not be
entitled to obtain any relief from a Civil Court for its breach. That
is no reason why he should be allowed to prosecute the accused on
a charge of cheating."
5. He also submitted that as per the interim order dated
11.01.2023 passed by this Court interim bail was granted to the
petitioners with the direction to appear before the Investigating
Officer, vide order dated 16.01.2023, in between 9 a.m and 6 p.m for
interrogation.
6. The learned Public Prosecutor would submit that as per
the prosecution case, the allegation is that the 3 rd accused
misrepresented the defacto complainant that the petitioner is
employed in the H.R Department of KELTRON and offered to
arrange the job of a Sales Manager in the KELTRON to the son of
the defacto complainant. Further, accused Nos.1 to 3 wrongfully
convinced and believed the defacto complainant that the job could
B.A.No.8464/2022 &
only be procured if the trade union leaders and the labourers of
CITU were to be satisfied, and one post of Sales Manager is the
quota available to CITU, as the appointment in KELTRON being
done by them. Accordingly, in order to satisfy the trade union and
labourers of CITU, the defacto complainant was asked to pay huge
amount to the accused. Accordingly, Rs.32,92,000/- was transferred
by the defacto complainant to the bank account of the 2 nd accused
and Rs.15,80,000/- was transferred to the bank account of the 3rd
accused. According to the learned Public Prosecutor, since the
materials available in this case would go to show that the amounts
were transferred to the bank accounts of accused 2 and 3 and the
bank statements justifying the said transfers were also collected
during investigation, the offence of criminal breach of trust
punishable under Section 406 as well as cheating punishable under
Section 420 r/w 34 of IPC is made out and, therefore, grant of
anticipatory bail to the petitioners would stall the investigation. He
also pointed out the necessity of arrest, custodial interrogation and
B.A.No.8464/2022 &
recovery of the huge amount obtained by accused Nos.2 and 3.
7. Per contra, the sum and substance of the argument at the
instance of the petitioners is that, since the money was given by the
defacto complainant for illegal purpose, ie. to get an employment
without opting the procedure for selection, the entire contractual
terms are illegal and unenforceable. Therefore, no offences would
attract in this matter.
8. While appreciating this argument, the prosecution
allegation is that accused No.3, who is the office Secretary of CITU,
a trade union under the ruling party CPI(M), introduced accused
No.2 as a person employed in KELTRON and offered job of Sales
Manager to the son of the defacto complainant under the quota
available to CITU. Thereafter accused No.2 received Rs.32,92,000/-
(Rupees Thirty two lakh and ninety two thousand only) and accused
No.3 received Rs.15,80,000/- (Rupees Fifteen lakh and eighty
thousand only) and the said money transfer is evident by the bank
account details of accused Nos.2 and 3. Thus huge amount was
B.A.No.8464/2022 &
collected from the defacto complainant offering to arrange the job of
the Sales Manager in KELTRON on the premise that the job could
be arranged on satisfying the trade union leaders and trade union
labourers and the said post is the quota entitled by CITU. What is
the mode of selection in KELTRON is not disclosed, either by the
petitioners or by the Public Prosecutor. It is true that all public
appointments shall be made by following the recruitment procedure
established by law applicable to a particular institution. But in
Public Sector Undertaking managed by political leaders and trade
union sponsored by the ruling party, appointment on receipt of
ransom is not uncommon, after conducting moke selection process,
to justify the same legally. Therefore, it could not be held that
backdoor appointments after receiving money is not known to the
citizens of India. Many complaints as regards to backdoor
appointments and appointments in violation of the rules and
procedures in such institutions are the subject matter of discussion in
the public domain as well as before various courts of law. In Kerala,
B.A.No.8464/2022 &
appointment of Vice Chancellors of Universities against the norms,
by giving appointments to certain persons against the UGC norms so
as to provide employment to the supporters of the ruling party
leaders, and interference of this Court in those appointments are
matters known to legal fraternity.
9. In this case at hand, accused No.3, the responsible office
Secretary of CITU Union made the offer to the defacto complainant
that one post of Sales Manager in the quota of CITU, the trade union
under the leading ruling party, CPI(M). If a responsible person of
the ruling party, offers an employment in a trade union dominated
undertaking, that too, under the quota of CITU, if the defacto
complainant believed the said offer from a responsible office
Secretary, it cannot be said that the defacto complainant, a person
retired from Central Excise, should not have believed the same.
Thus in the case at hand, the appointment offer cannot be treated as
an offer from an ordinary man, but the same is at the instance of a
responsible leader of the ruling party. Further, the job was offered
B.A.No.8464/2022 &
under the quota of CITU. It is pertinent to note that while practically
admitting receipt of money as alleged by the prosecution, the
petitioners have no explanation, for what purpose they had received
this huge sum from the defacto complainant.
10. If a consistent view is taken during the primitive stage of
investigation of a crime alleging commission of offence under
Sections 406 and 420 of IPC to hold that giving money on the belief
of getting some appointments in a public sector undertaking, the
persons who received money, on such offer, would go out with clean
hands without being subjected to the procedure of law, the same
would be fatal. No doubt, such contention can be considered during
trial, based on the evidence to be adduced. Here practically the
petitioners do not dispute receipt of money, as I have already pointed
out. In the argument note, item No.II is to the following effect:
"II. The total amount was given by the defacto
complainant on 70 different occasions, over a period of 9
months.
It is unbelievable that the defacto complainant, a senior
B.A.No.8464/2022 &
retired officer was cheated by the accused over a long period
of 9 months which made him pay money to the accused on 70
different occasions. The relevant portion of the First
Information Statement (FIS) stating the same is extracted
below:
"**** ശരത ആവശ പ ടതന സര ച27.08.2021
വപര 34 തവണകള ല യ32,92,000/- ര പ അയച
പക ട ത. അത ൽ 10,000/- ര പ 16.04.2021
ത യത ത ര പക തന ര ന. ***** 14.08.2021
തവണകള ല യ15,80,500/- രപ അയച
പക ട ത."
The above statement shows that the defacto complainant
continued to pay money to the accused till 03.11.2021 even
after the accused repaid some money on 16.04.2021."
8. That apart, as item No.5 it has been stated as under:
"V. The defacto complainant has an alternate remedy of
filing a case under S.138 of Negotiable Instruments Act. It would
reveal from the FIS that after mediation talks from the office of
the Commissioner of Police, the accused had issued three cheques
each for an amount of Rs.8 lakh, as security to the defacto
complainant. The present FIR was filed only after it was
dishonoured for insufficiency of funds. No explanation is given
why he has not moved before a civil court for return of money or
before a criminal court under S.138 of N.I. Act."
B.A.No.8464/2022 &
11. Since the prosecution records would suggest transfer of
huge money in the accounts of accused Nos.1 to 3, as alleged, if it is
held that no offence is made out in the given facts of the case, that
too, at the premature stage of the investigation, without divulging
into detailed investigation, the same would be akin to honourable
acquittal of the accused at the extreme initial stage of investigation.
It is relevant to note that as per order of this Court dated 11.01.2023
another learned Judge of this Court granted interim bail with
direction to the petitioners to surrender before the investigating
officer on 16.01.2023 between 9 a.m and 6 p.m for subjecting
interrogation. It is submitted by the learned counsel for the
petitioners that in obedience to the said directions, accused No.2
appeared before the Investigating Officer and subjected himself for
interrogation. When his arrest was recorded, he was produced
before the Magistrate Court and he was released on interim bail. In
fact, grant of interim bail, before consideration of the matter on
merits against the petitioner, has no binding effect, while considering
B.A.No.8464/2022 &
bail on merits. Therefore, grant of interim anticipatory bail, without
looking into the merit of the case, by itself is not a reason to grant
anticipatory bail on merits.
12. It is shocking to note that the 3rd accused herein even not
obeyed the interim order of this Court to subject himself for
interrogation and he is a person who has least respect to the order of
the Court, at least in obeying directions of this Court as per the
interim order dated 11.01.2023.
13. Since procurement of a huge sum of Rs.48,62,500/-
involved in this case, I do not think that the petitioners deserve
discretionary relief of anticipatory bail in these cases, where
custodial interrogation, recovery of the money from the accused are
absolutely necessary. Therefore, I am not inclined to allow these
petitions.
14. Accordingly, these anticipatory bail applications at the
instance of the petitioners stand dismissed.
B.A.No.8464/2022 &
The interim order of bail granted by this Court stands vacated
and the police is at liberty to arrest and proceed with investigation
without fail, ignoring the status of the petitioners as leaders/men of
the ruling party.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
B.A.No.8464/2022 &
APPENDIX OF BAIL APPL. 8464/2022
PETITIONER'S ANNEXURES
Annexure1 TRUE COPY FIRST INFORMATION REPORT (FIR)
DATED 04.07.2022 IN CRIME NO.471/2022 OF
KOLLAM WEST POLICE STATION, KOLLAM
DISTRICT.
Annexure2 CERTIFIED COPY OF ORDER DATED 19.10.2022
IN CRL.M.C.NO.1578/2022 PASSED BY THE
ADDITIONAL SESSIONS JUDGE-II, KOLLAM
B.A.No.8464/2022 &
APPENDIX OF BAIL APPL. 8542/2022
PETITIONER's ANNEXURES
Annexure1 TRUE COPY FIRST INFORMATION REPORT (FIR)
DATED 04.07.2022 IN CRIME NO.471/2022 OF
KOLLAM WEST POLICE STATION, KOLLAM
DISTRICT.
Annexure2 CERTIFIED COPY OF ORDER DATED 19.10.2022
IN CRL.M.C.NO.1393/2022 PASSED BY THE
ADDITIONAL SESSIONS JUDGE-II, KOLLAM.
Annexure 3 A TRUE COPY OF FIS IN CRIME NO.471/2022
OF KOLLAM WEST POLICE STATION, KOLLAM
DISTRICT.
Annexure 4 TRUE COPY OF TRANSACTION RECEIPT DATED
19.07.2022 SHOWING THE TRANSACTION OF
RS.50,000/- TO THE DEFACTO COMPLAINANT.
Annexure 5 TRUE COPY OF TRANSACTION RECEIPT DATED
06.06.2022.
Annexure 6 A TRUE COPY OF PRESCRIPTION SLIP DATED
07.01.2023 FROM FAMILY HEALTH CENTRE
KUNNAMANGALAM, KOZHIKODE DISTRICT.
Annexure 7 A TRUE COPY OF MEDICAL CERTIFICATE DATED
13.01.2023 FROM GOVERNMENT TALUK
HOSPITAL, THAMARASSERY.
