Mohammed Ibrahim vs State Of Kerala
2024 Latest Caselaw 31810 Ker

Kerala High Court

Mohammed Ibrahim vs State Of Kerala on 7 November, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                                    2024:KER:82909
BAIL APPL. NO. 4501 OF 2024

                               1
           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
 THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA,
                                1946
                   BAIL APPL. NO. 4501 OF 2024
CRIME NO.1412/2023 OF PALAKKAD TOWN SOUTH POLICE STATION,
                              PALAKKAD
        AGAINST THE ORDER/JUDGMENT DATED 23.12.2023 IN CRMC
NO.6059    OF   2023   OF   DISTRICT   COURT   &   SESSIONS   COURT,
PALAKKAD

PETITIONERS:

    1      MOHAMMED IBRAHIM,
           AGED 49 YEARS
           S/O MOHAMMED ALI, ALIF MANZIL,CHULLIMADA,
           KANJIKODE P.O, PALAKKAD DISTRICT, PIN - 678621

    2      HASEENA,
           AGED 39 YEARS
           W/O MOHAMMED IBRAHIM, ALIF MANZIL, CHULLIMADA,
           KANJIKODE P.O, PALAKKAD DISTRICT, PIN - 678621

    3      ABDUL AHTH,
           AGED 36 YEARS
           S/O BASHEER AHAMMED, HOUSE NO 18 1019 BAIT EL
           EZ, POODUR HOUSE, KUZHIYAKKAD, KALLEPPULLY P.O,
           PALAKKAD DISTRICT, PIN - 678005


           BY ADVS.
           C.DHEERAJ RAJAN
           ANAND KALYANAKRISHNAN




RESPONDENT:

    1      STATE OF KERALA,
           REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
                                                      2024:KER:82909
BAIL APPL. NO. 4501 OF 2024

                                2
             KERALA, PIN - 682031

     2       STANLY SAIMON,
             S/O SAIMON C THOMAS, ADITYA NIVAS, THEJAS NAGAR,
             KANNADI, PALAKKAD ( SOUGHT TO BE IMPLEADED )

             SR.PP SMT.SEETHA S.



         THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON   07.11.2024,    THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
                                               2024:KER:82909
BAIL APPL. NO. 4501 OF 2024

                              3



          Dated this the 7th day of November, 2024

                       ORDER

The application is filed under Section 438 of

the Code of Criminal Procedure, 1973, for an order of

pre-arrest bail.

2. The petitioners are the accused 1,3 and 4 in

Crime No.1412/2023 of the Palakkad Town South

Police Station, Palakkad, which is registered against

14 accused persons for allegedly committing the

offences punishable under Sections 420, 506, 201,

and 120B r/w Section 34 of the Indian Penal Code,

Sections 5,23, 25(1) and (3) of the Banning of

Unregulated Deposits Schemes Act and Section 5 of

the Kerala Protection of Interests of Depositors in

Financial Establishments Act, 2013.

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

accused, in furtherance of their common intention, to

cheat the de facto complainant and also make 2024:KER:82909 BAIL APPL. NO. 4501 OF 2024

unlawful gain, the 4 accused introduced the de facto th

complainant to the accused 1 to 3 and 5 to 14 who

were said to be the officials of a company named "Gen

to Gen Trend Enterprises, Gentrend Trade Services

Ltd and Ever Being Nidhi Ltd, Chandranagar" ( for

short, Company). Accordingly, the de facto

complainant's wife transferred Rs.10/- lakh to the

bank account of the Company on 13.5.2019.

Subsequently, on 15.5.2019, 17.5.2019 and

20.5.2019, the de facto complainant paid Rs.10/- lakh

each, in cash, to the Company. On 25.9.2019, itself a

further amount of Rs. 1/- lakh was also paid to the

Company in cash. Thus, the de facto complainant

paid a total amount of Rs.50/- lakh to the Company.

However, the accused persons failed to pay any profit

and refused to return the capital to the de facto

complainant. Thus, the accused have committed the

above offences.

4. Heard; Sri. C.Dheeraj Rajan, the learned 2024:KER:82909 BAIL APPL. NO. 4501 OF 2024

counsel appearing for the petitioners and Smt.Seetha

S., the learned Senior Public Prosecutor.

5. The learned counsel for the petitioners

submitted that the petitioners are totally innocent of

the accusations levelled against them. There is no

material to substantiate that the petitioners have

received any money from the de facto complainant.

Even going by the prosecution case, the de facto

complainant paid Rs.50/- to the Company. There is no

material to show that the petitioners have any role in

the said Company. The fact that the alleged

transaction took place between 13.5.2019 and

20.5.2019, but Annexure 1 FIR is registered only on

9.10.2023, by itself proves the falsity in the crime.

There is no plausible explanation for the inordinate

delay. Moreover, Annexure 1 FIR has been

registered due to the previous animosity of the de

facto complainant towards the petitioners, who have

registered Annexures 2 to 4 FIRs' against the de 2024:KER:82909 BAIL APPL. NO. 4501 OF 2024

facto complainant. The de facto complainant is a

habitual offender since five crimes have been

registered against him for committing the offence

under Section 420 of the IPC. The petitioners are

law-abiding citizens without any criminal antecedents.

Despite notice in this application being served on the

de facto complainant, there is no appearance for him.

The petitioners are ready to abide by any stringent

condition that may be imposed by this Court and co-

operate with the investigation. Hence, the application

may be allowed.

6. The learned Public Prosecutor opposed the

application. She submitted that there are

incriminating materials to substantiate that the

petitioners are the members of the Board of Directors

of the Company. The accused 6 to 13 and 14 to 16 are

the Directors of the Company. The petitioners'

custodial interrogation is necessary and recovery is to

be effected for the proper investigation of the crime.

2024:KER:82909 BAIL APPL. NO. 4501 OF 2024

If the petitioners are granted an order of pre-arrest

bail, it may hamper the investigation. Hence, the

application may be dismissed.

7. When the application came up for

consideration on 26.9.2024, this Court directed the

Investigating Officer to serve notice of the application

on the de facto complainant, since the notice that was

sent by this Court was returned unserved with an

endorsement "addressee left".

8. Today, when the application was taken up

for consideration, the learned Public Prosecutor, on

instructions, submitted that even though the

Investigating Officer made efforts to serve notice on

the de facto complainant, it is reported that the de

facto complainant is no longer residing at the said

address.

9. The prosecution allegation is that, the de

facto complainant invested Rs.50/- lakh with the

Company between 13.5.2019 and 20.5.2019 on the 2024:KER:82909 BAIL APPL. NO. 4501 OF 2024

assurance made by the accused persons that they

would give him substantial interest. However, the

accused failed to pay any interest and refused to

return the capital. On a prima facie evaluation of the

materials on record, it is seen that the alleged

transaction took place between 13.5.2019 and

20.5.2019. However, Annexure 1 FIR is registered

only on 9.10.2023 i.e. after four years. Prima facie,

there is no plausible explanation for the inordinate

delay. Nonetheless, that is a matter to be

investigated and ultimately decided after trial.

10 On a close scrutiny of the materials placed

on record, it is seen that there is only proof of Rs.10/-

lakh being transferred by the de facto complainant's

wife to the bank account of the Company on

13.5.2019. There is no other material to show that

the de facto complainant had paid Rs.40/- lakh to the

Company. Similarly, there is no material to

substantiate that the petitioners were in charge of the 2024:KER:82909 BAIL APPL. NO. 4501 OF 2024

day to day affairs and administration of the Company.

Again, that too is a matter to be decided after trial.

11. The parameters to grant an order of

pre-arrest bail have been succinctly laid down by the

Hon'ble Supreme Court in Siddharam Satlingappa

Mhetre v. State of Maharashtra [(2011) 1 SCC

694] in the following lines:

"112. 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 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;

(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 the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common 2024:KER:82909 BAIL APPL. NO. 4501 OF 2024

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, the accused is entitled to an order of bail."

12. After bestowing my anxious consideration

of the facts, the rival submissions made across the

Bar, and the materials placed on record, particularly

on considering the inordinate delay in registering the

Annexure I FIR that there is no material to

substantiate that the petitioners were in charge of the

affairs and management of the Company and prima

facie, there is no material to substantiate that the

petitioners have received money from the de facto

complainant, I am convinced and satisfied that the

petitioners have made out valid grounds to invoke the 2024:KER:82909 BAIL APPL. NO. 4501 OF 2024

extraordinary jurisdiction of this Court under Section

438 of the Code, Hence, I am inclined to allow the

application, but subject to stringent conditions:-

In the result, the application is allowed subject

to the following conditions:

(i) The petitioners are directed to surrender before the Investigating Officer within two weeks from today.

(ii) In the event of the arrest of the petitioners, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.1,00,000/- (Rupees one lakh only) each with two solvent sureties for the like amount each;

(iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer.

(iv) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

2024:KER:82909 BAIL APPL. NO. 4501 OF 2024

(v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passport, they shall file affidavits to the effect before said court within the said period;

(vi)The petitioners shall not get involved in any other offence while on bail;

(vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(viii)Applications for deletion/modification of the bail conditions shall also be filed before the jurisdictional court.

(ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) And another [2020 2024:KER:82909 BAIL APPL. NO. 4501 OF 2024

(1) KHC 663].

(x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case, which shall be decided by the competent Courts.

SD/-

C.S.DIAS,JUDGE rmm/7/11/2024