Binimol vs State Of Kerala

K.Haripal, J

These are applications filed under Section 438 of the Criminal Procedure Code seeking to grant anticipatory bail to the petitioners, who are the accused in Crime No.176/2021 of Ernakulam Central Police Station. Petitioners in B.A.No. 2678/2021 are accused Nos. 2, 5 to 7 respectively in the crime. Third accused is the petitioner in B.A.No.2825/2021 and fourth accused is the applicant in B.A. No. 4529/2021. That crime was registered on 17.02.2021 alleging offence under Sections 406, 420, 506 read with 34 of the Indian Penal Code. The defacto complainant is one Harris who gave First Information Statement to the Sub Inspector, Central Police Station. According to him, he is an ex-NRI, doing some business in ice and cold storage. For his business purposes, he wanted certain amounts and was in search of availing loans. At that time, the first accused Geo Mathew and his seven associates, between period from 02.11.2020 and 20.11.2020, received an amount of Rs. 73,50,000/- towards deposit and commission, offering to arrange a loan of Rs.11 crores at the rate of 4% from Moksha Bank in Maharashtra. The said Geo Mathew and his wife Binimol, who is the first petitioner in B.A. No. 2678/2021, had introduced themselves as consultants of Moksha Finance and they reached Navarasa Sea Food Restaurant, belonging to the third accused in Chittor road, Ernakulam. The defacto complainant and his father Haneefa along with his friend Suresh reached Navarasa hotel in October, 2020, where the said Geo Mathew and his wife Binimol were present. Shaji Yohannan, the third accused is the owner of the hotel. Shaji Yohannan claimed that he has crores of rupees in deposit in Moksha Bank and then Sreekumar, Arjun, Babu Riyas and Karthik were introduced to him as the staff members of the bank. They were also told that Noorudhin Koya is a benami of Sri. K. C. Venugopal, who had contacts with very many higher-ups and that they have large amounts in deposit in Moksha bank. On that representation, Rs.73.5 lakhs were collected from him in different instalments. Those amounts were paid in cheque in favour of Geo Mathew. Later, for completing the formalities, he was taken to Bombay, where they stayed in Ibis Hotel for 15 days. Even though they spent 15 days in Bombay, the loan could not be arranged and then only he understood that the accused persons were playing fraud on him. He also understood that the said Geo Mathew and his wife were involved in such cheating cases earlier also. Immediately after the transfer of amount from him to the first accused, a car spending Rs. 19 lakhs was purchased from the M.G. Hector showroom in the name of the second accused, i.e., the first petitioner in B.A. No. 2678/2021 and an amount of Rs.3.3 lakhs was collected from him for paying the insurance. But as he had stopped payment in the cheque, that amount is not yet disbursed. Whenever he demanded back the amount, that was not paid but he was threatened stating that he would be murdered by giving quotation to Maradu Aneesh, a known goonda. Thus the crime was registered and during the course of investigation, petitioners moved the Sessions Court seeking anticipatory bail which were dismissed and thereafter, they have moved this Court under Section 438 of the Code of Criminal Procedure.

Heard the learned counsel for the petitioners, the learned counsel for the defacto complainant and also the learned Senior Public Prosecutor.

The Court had also directed the Investigating Officer to file a statement detailing the specific roles played by the petitioners in the commission of the alleged crime and also necessity of their custodial interrogation.

The learned counsel for the petitioners in B.A. No.2678/2021 submitted that they have absolutely no connection with the money transactions alleged in the crime, that the first petitioner is the wife of the first accused, that she has no knowledge about the transaction. She is the Managing Trustee of Holy Angels Charitable Trust created by her husband. She knew about her status as Trustee only after her husband was arrested for the case and remanded to judicial custody. Later the defacto complainant and his goondas wanted to seize her car which was purchased using the money given by her father, they also trespassed into her residence in Alappuzha and intimidated her and at that time, her husband was not there. Still the miscreants remained in her house, that the petitioners 2 to 4 are her neighbours who had helped her. According to the learned counsel for the petitioners, the defacto complainant had given a complaint against her husband before Alappuzha police, where her name is not stated, and the amounts allegedly collected by her husband also differs from the amount stated in the First Information Statement. Whatever it may be, the learned counsel asserted that the petitioners are totally innocent. According to him, the first petitioner in B.A. No. 2678/2021 is prepared to surrender the car to the police.

On the other hand, according to the learned counsel for the third accused i.e., petitioner in B.A. No. 2825/2021, he is a business man and has chain of hotels; he wanted to develop his business in cold storage and had some business deal with the defacto complainant; he wanted to take a cold storage on lease from the defacto complainant. Similarly, an amount of Rs. 20 lakhs was transferred to his credit by the first accused on the basis of an agreement for sale, which was executed on 30.10.2020. But that deal did not strike and that he has absolutely no role in the alleged crime. The reason that the first accused and the defacto complainant had business discussions in his hotel cannot be justified for implicating him in the crime. The fourth accused i.e., the petitioner in B.A. No. 4529/2021 also submits that he has no role in the alleged crime and that he does not know the defacto complainant or other accused persons.

The respective arguments were reiterated by the learned counsel for the petitioners. I also heard the learned counsel for the defacto complainant, who asserted that all the petitioners have played active role in collecting Rs.73.5 lakhs from him with the promise of arranging Rs. 11 crores of loan from Moksha Bank. According to learned counsel, he was in urgent need of the amount for developing his business. He was told by the first and second accused that they are consultants of the bank, that Sivasena is behind the management of the bank, they were getting easy money from world bank, so that they could disburse loan at 4% interest per annum and that was the attraction in paying so much amount to the accused persons towards commission and also consultation fees.

The learned Senior Public Prosecutor also was heard. After hearing counsel on both sides, I am not persuaded to believe that the petitioners in B.A. Nos. 2678/2021 and 4529/2021 did play any active role in the commission of the crime. It is true that the second accused is the wife of the first accused, who is the kingpin in this crime. He had received Rs.73.5 lakhs from the defacto complainant through cheque transactions. It is very clear from the prosecution records that, that much amount was collected on the promise that he would arrange a loan of Rs.11 crores from Moksha Finance Limited, Thane, Bombay and on that premise, the defacto complainant was taken to Bombay and they remained there for about 15 days, but nothing did happen and then only the defacto complainant realised the hollowness of the promise; then the amount was sought to be returned, which was not possible. By the time, the first accused had purchased a M.G. Hector car spending Rs. 19 lakhs in the name of the second accused and the amount was not repaid. When the amounts were demanded back, the complainant was intimidated and that made him to approach the police.

All the same, there are reasons to think that prior to the registration of the crime, the defacto complainant had earlier taken attempts to get back the amount from the accused persons through his own means, thus along with his men had visited the house of the accused Nos. 1 and 2 in Alappuzha, and that made her to file complaints before the Alappuzha police, alleging acts of threat and intimidation. It is alleged that they had also tried to seize the car registered in her name. While the defacto complainant alleges that the car was purchased using the money extracted from him, the second accused claims that the consideration was given by her father. These are matters to be investigated by the police. Even though the second accused has a similar cheating case against her, there is absolutely nothing, at least at this stage, to say that petitioners in B.A.No. 2678/2021 had played active role in the said deal taken place between the first accused and the defacto complainant.

Similarly, from the statement of the Investigating Officer, it cannot be thought that the fourth accused i.e., the petitioner in B.A.No. 4529/2021 also had played any direct role in the alleged commission of crime. After taking stock of the materials, I am not persuaded to the think that custodial interrogation of accused Nos. 2, 4 to 7 is warranted in the case.

Therefore, the petitioners in B.A. Nos. 2678/2021 and 4529/2021 are at liberty to surrender before the Investigating Officer within ten days from today and will make themselves  available for interrogation; in the event of arrest, they shall be released on bail on executing bond for Rs.1,00,000/-(Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the Investigating Officer; they shall co-operate with the investigation; shall not try to contact or influence the witnesses or tamper with the evidence and shall not involve in any crime during the period on bail. Further, they shall surrender their passport before the jurisdictional court within ten days from today.

But such a view cannot be taken in the case of the third accused, who is the applicant in B.A. No. 2825/2021. There are materials to suggest that there was monetary transactions between the third accused and the first accused, which is suspicious. Even though the defacto complainant had produced a C.D. for the purpose of convincing the role played by him, that was not played. According to the learned counsel for the defacto complainant, that would suggest the telephonic conversation between the defacto complainant and the third accused and now he has come up with a false version of attempt to take on rent a cold storage run by the informant etc. But on his own showing, there is business transaction of Rs. 20 lakhs between himself and the first accused. But according to the learned counsel for the third accused, an amount of Rs. 20 lakhs was credited to his account by the first accused, pursuant to an agreement for sale of a property at Koorachundy in Koilandy taluk, copy of that agreement dated 30.10.2020 was also produced, to say that pursuant to the same, an amount of Rs. 20 lakhs was transferred. Whatever it may be, I am not inclined to believe that version at this stage. There are reasons to believe that the third accused had also played vital role in cheating the defacto complainant and there were money transactions between accused numbers 1 and 3 immediately after the alleged transactions. Moreover, during the course of investigation, the learned counsel for the third accused had offered to re-transfer that amount. But that did not fructify. Genuineness of the said agreement for sale etc., is also a matter should be investigated by the police. The track record of the petitioner also is not clear. He has another crime of similar nature registered in Cherpulassery police station. Custodial interrogation of the third accused is inevitable for the case. Therefore, the application for bail of the third accused cannot be allowed.

Accordingly, B.A. No. 2825/2021 is liable to be dismissed.

Dismissed. B.A. Nos. 2678/2021 and 4529/2021 are allowed.