BETTY JOSEPH vs STATE OF KERALA

In Crl.M.C. 5306/2017, the order dated 24.07.2017 in Crl.M.C. 1206/2017 by which bail was granted to accused Nos. 1 and 2 in Crime

No.798/2017 is under challenge at the instance of the de facto complainant. The contention of the petitioner herein is that the court below was not

justified in granting bail to accused Nos. 1 and 2, by Annexure III order since huge amounts were involved and documents were stated to have

been forged by the accused. It was also contended that certain observations were made by the court below which may affect the further

prosecution.

The case of the de facto complainant is that she and her husband had deposited huge amounts with the 1st accused institution, which undertook

to repay it with interest. In stead of doing it, a portion of it was converted into debentures which was stated to be without permission of the de

facto complainant, nor with the concurrence of the de facto complainant. It is alleged that necessary documents for the conversion have not been

signed by her and it appears to be forged documents.

It appears that the court below, while granting bail, had considered it as an allegation based on a money transaction. Hence, the court concluded

that there is no question of attracting the above offences. It was also noted that civil disputes were pending between the parties and the learned

counsel for the petitioner had produced certain documents to establish it. Consequently, anticipatory bail was granted.

It seems that monetary transactions are covered by documents. Of course, there are certain documents which are stated to have been forged,

according to the de facto complainant. The learned Public Prosecution submitted that at the time of investigation, several deposit receipts have

been recovered but not the registers kept in the office. It is also stated that the alleged forged documents have not been recovered. On the other

hand, learned counsel for the accused Nos. 1 and 2, who are the petitioners in Crl.M.C. No.6637/2017 contended that in one case they

surrendered and were in custody for one day and had undergone interrogation completely. In such a circumstance, their further custody is not

required. Having considered the fact that essentially monetary transaction is covered by some documents and necessarily there must be

corresponding documents in the possession of the 1st accused and their defence of the accused as claimed by the accused seems to be based on

certain documents which they are bound to produce, I feel that a custodial interrogation may not be absolutely essential. Though I cannot agree

with the conclusion arrived by the court below that being a civil dispute, offences alleged against them will not lie, still ultimate conclusion of the

court below seems to be justified. Hence, I am not inclined to tinker with the order granting anticipatory bail in Crime No. 798/2017 which is the

subject matter in Crl.M.C.5306/2017.

Crl.M.C. No.6637/2017 arises from Crime No.798/2017 of Thrissur West Town Police Station. Accused Nos. 1 and 2 were granted

anticipatory bail by the court below. Thereafter, by Annexure AVII order in Crl.M.P.No.3199/2017 in Crl.M.P.No.1206/2017, the court

cancelled the bail granted in Crl.M.P. No.1206/2017, on the ground that accused Nos. 1 and 2 did not comply with the order granting

anticipatory bail. It seems that the learned Sessions Judge had directed the accused, while granting bail, to surrender within a specified period. It

seems that they sought an extension of time, which was also granted by the court below by Annexure AIV order. Even during the extended period,

they did not surrender before the court below. Consequently, the prosecution moved for cancelation of bail. Accordingly, bail was cancelled and

an application for further extension was rejected.

After having considered the entire nature of allegations, I feel that definitely it was obligatory on the part of the accused Nos. 1 and 2 to have

complied with the directions imposed by the learned sessions Judge while granting bail. Though it was stated at the time of hearing that, since other

crimes were registered, the accused could not appear before the court below apprehending arrest, that does not seems to have been advanced

before the court below. However, having considered the fact that the court below had granted bail after detailed hearing and that situation now

subsists, I do not feel that it was justified on the part of the court below to have cancelled the bail, though it was a situation created by the accused

themselves.

Having considered these, I am inclined to grant one more opportunity to the petitioners herein to surrender before the Investigating Officer.

Consequently, Crl.M.C. No.6637/2017 stands allowed setting aside Annexure AVII order and granting ten days from today to the accused to

surrender before the Investigating Officer. All other conditions incorporated by the court below while granting bail will continue subject to the

above modification. Accordingly, condition No.1 will stand modified as every alternate Monday commencing from the date of surrender.

In Crl.M.C.No.5532/2017 the de facto complainant challenges the order granting bail to accused Nos. 5 and 8. I have given a detailed analysis

of the facts in relation to the case earlier. For the reasons mentioned earlier, I feel that the order granting bail does not require any interference at

this length of time. Having considered this, I am inclined to dismiss the Crl.M.C., however, holding that the conclusions arrived at by the court

below that the dispute involved is purely civil in nature was unwarranted. I do not agree with that finding, since even in the case of a civil

transaction, criminal offences may arise. Having regard to the fact that this is only an observation made at the interim stage, this observation should

not hamper the ultimate evaluation of the evidence by the court below.

Crl.M.C.No.7773/2017 is preferred at the instance of the 3rd accused in Crime No.986/2017 and 798/2017. In that, anticipatory bail was

granted by the court below to the 3rd accused. He sought an extension of time for surrender by filing Annexure II application. According to the

petitioner herein pending the proceedings Crime No.986/2017 was settled with the de facto complainant pursuant to which Crime No.986/2017

was quashed in a Crl.M.C. In Crime No.798/2017, extension was not granted by the court below. It seems that extension was sought on medical

grounds along with a medical certificate. The court below thereafter extended the time with a direction that in case of failure, bail will be cancelled.

Subsequently, he filed Crl.M.P. No.3304/2017 seeking further extension, which was dismissed by the court below. Having regard to the fact that

bail was already granted and considering the fact that no person is likely to remain absolute lethargic and invite an adverse order rejecting the

benefit granted to him already, I am inclined to interfere with the above order and to grant a further extension. Hence, the impugned order in

Annexure II will stand set aside subject to the condition that the petitioner shall surrender before the Investigating Officer within 10 days from

today, between 10.00 a.m. and 11.00 a.m. All other conditions will remain. The 1st clause will stand modified directing the petitioner to appear

before the Investigating Officer on all alternate Mondays between 9.00 a.m. and 11.00 a.m., commencing from the date of appearance before the

court below.

In Crl.M.C. No.6917/2017, the order granting bail to the 3rd accused is challenged by the de facto complainant on a premise that while

granting the bail, the court below had made an observation that allegation was based on a money transaction and there is no question of attracting

the above offences. It was held that there were civil disputes between the parties. I cannot agree with this observation, since merely because the

allegation is based on a money transaction, offences alleged cannot be attracted. It is a matter to be considered on the basis of the facts and

circumstances of the case. Hence, that observations made in all the above impugned orders is to be held as one for the limited purpose of deciding

the question of bail and the trial court shall proceed in accordance with law untramelled by the above observations. It is seen that the investigation

has not been effective since the filing of these Crl.M.Cs. It also seems that alleged forged documents have not been seized. The investigating

agency shall in the above circumstance take all effective steps to investigate the crime and to seize all essential and necessary documents. In case of

failure, the right of the de facto complainant to move this Court is reserved.