Baburaj vs State Of Kerala

Viju Abraham, J.

Application for anticipatory bail.

Petitioner is the accused in Crime No.1374 of 2021 of Adimaly Police Station, Idukki District registered alleging commission of offence punishable under Section 420 of IPC.

A crime was registered based on a private complaint before the Judicial Magistrate of First Class, Adimaly, on the allegation that, the accused with dishonest intention leased the property belongs to the petitioner to the defacto complainant and collected an amount of Rs.40 lakhs and the accused did not leased the property in tune with the agreement and thereby committed the above said offence. The above complaint was forwarded to the police under Section 156(3) Cr.P.C and a crime was registered.

The petitioner submits that he has been falsely implicated in the above said crime and the dispute is essentially of a civil nature. The petitioner is the owner of the property who agreed to lease the property to the defacto complainant as per the terms of the agreement. The case of the petitioner was that an agreement was executed on 22.7.2016 between the petitioner and the defacto complainant, thereafter, another lease agreement was executed between the parties and as the petitioner could not properly operate the resort due to the wide spread of Covid-19 pandemic the defacto complainant demanded return of the advance amount of Rs.40 lakhs, which was not done by the petitioner. The petitioner submits that he has been regularly harassed and threatened by the defacto complainant, thereupon he was forced to file a suit as O.S.No.399 of 2021 before the Sub Court, Thodupuzha wherein an order of interim injunction was granted, as is evident from Annexure-III.

The defacto complainant entered appearance through counsel. The learned counsel for the defacto complainant opposed the application for bail mainly contending that only after the property was taken on lease he came to know that the building was constructed in a Government land and therefore, when he made an application for GST registration he could not obtained the same, and therefore he could not run the business and on demand the advance amount was not returned back.

The learned Public Prosecutor upon instructions submitted that the petitioner has encroached upon Government land and constructed a building in the said property and adjudication notice was issued to the petitioner to vacate the property. The learned counsel for the petitioner thereupon submits that the same is challenged and the matter is still pending consideration.

When the matter was taken up for consideration on an earlier occasion an interim order was passed 'not to arrest the petitioner' as early as on 22.4.2022, and the same is still in force. Even though the matter was sent for mediation, the issue could not be settled.

Having regard to the facts and circumstances of the case, and nature of the allegations, I am of the opinion that custodial interrogation is not required for the purpose of investigation and only a limited custody be granted for the same. I am inclined to grant anticipatory bail to the petitioner, but on conditions. The above bail application is allowed with the following directions. The petitioner shall surrender before the investigating officer on 23.01.2023 and make himself available for interrogation on that day or on any other day/days (in between 9 am & 6 pm) as directed by the investigating officer. The petitioner shall co-operate with the investigation. In the event of arrest of the petitioner in Crime No.1374 of 2021 of Adimaly Police Station, Idukki, he shall be produced before the jurisdictional Court on the same day and be released on bail on the following conditions:

(i) The petitioner shall execute a bond for sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court;

(ii) The petitioner shall appear before the investigating officer in Crime No.1374 of 2021 of Adimaly Police Station, on every Saturday at 11 am, for a period of one month;

(iii) The petitioner shall appear before the investigating officer as and when summoned to do so for the purpose of investigation;

(iv) The petitioner shall not tamper with any evidence;

(v) The petitioner shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with him from disclosing such facts to the court or to any police officer;

(vi) The petitioner shall not involve in any other crime while on bail.

If any of the aforesaid conditions are violated, the Investigating Officer in Crime No.1374 of 2021 of Adimaly Police Station, may file an application before the jurisdictional court for cancellation of bail.

It is made clear that it is within the power of the police to investigate the matter and if necessary to effect recoveries on the information if any given by the petitioner even when the petitioner is on bail as per the judgment of the Apex Court in Sushila Aggarwal and others v. State (NCT of Delhi) and another (2020 (1) KHC 663).