Dileep Shikhamoni vs State Of Kerala

A. Badharudeen, J

Dileep Shikhamoni, who is the 3rd accused in Crime Nos.336/2023, 234/2023, 261/2023, 162/2023, 596/2023, 271/2023, 907/2023 and 1734/2023 of Thiruvalla Police Station, Pathanamthitta, and Praveena Bineesh who is the 4th accused in Crime Nos.162/2023, 271/2023, 907/2023, 261/2023, 596/2023, 234/2023, 336/2023 and 1734/2023 of Thiruvalla Police Station, Pathanamthitta, seek regular bail in these petitions filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS for short hereinafter).

Heard the learned counsel for the petitioners in all these petitions and the learned Public Prosecutor in detail. Perused the records available, including the reports submitted by the Investigating Officer.

The prosecution case-18in- Crime No.336/2023 is that the 1st accused being the Managing Director and accused Nos.2 to 5, who are the Directors of M/s.S.N.Chitty Fund and Bankers offered 18% interest (Rs.1,500/- per month for Rs.1 lakh) and on the said offer jointly collected Rs.7 lakhs (Rs.4 lakh from the husband and Rs.3 lakh from the wife) in between 26.05.2019 to 17.06.2019 on assuring them that M/s.S.N.Chitty Fund and Bankers obtained licence from Reserve Bank to run finance business after suppressing the fact that they had no licence to do financial business. Accordingly, they illegally collected the above said amount and they failed to give interest along with the principal amount as agreed and thereby committed breach of trust as well as cheating punishable under Sections 406, 409 and 420 r/w 34 of the Indian Penal Code (‘IPC’ for short hereinafter). They also committed offences punishable under Section 3 r/w 21(1)(2),(3) and Section 5 r/w 23 and 25(1)-9-of the Banning of Unregulated Deposit Schemes Act, 2019 (hereinafter referred to as ‘BUDS Act’).4. The prosecution case in Crime No.234/2023 is that the 1st accused, being the Managing Director, accused Nos.2 to 5, who are the Directors and accused No.6, who is the Manager of M/s.S.N.Chitty Fund and Bankers, jointly collected Rs.13,20,000/-from the defacto complainant offering 18% interest on assuring them that M/s.S.N. Chitty Fund and Bankers obtained licence from Reserve Bank to run finance business after suppressing the fact that they had no licence to do financial business. Accordingly, they illegally collected the above said amount and they failed to give interest along with the principal amount as agreed and thereby committed breach of trust as well as cheating punishable under Sections 406, 409 and 420 r/w 34 IPC. They also committed offences punishable-20under- Sections 3 r/w 21(1)(2), (3), 5 r/w 23 and 25(1) of the BUDS Act.

The prosecution case in Crime No.261/2023 is that the 1st accused, who is the Managing Director, accused Nos.2 to 5, who are the Directors and accused No.6, who is the Manager of M/s.S.N. Chitty Fund and Bankers, jointly collected Rs.44,52,360/- from the defacto complainant offering 10% interest from 08.10.2014 to 12.06.2020 on assuring them that M/S. S.N. Chitty Fund and Bankers obtained licence from Reserve Bank to run finance business after suppressing the fact that they had no licence to do financial business. Accordingly, they illegally collected the above said amount and they failed to give interest along with the principal amount as agreed and thereby committed breach of trust as well as cheating punishable under Sections 406 and 420 r/w 34 IPC. They also committed offences punishable under Sections 3 r/w-2121(2),(3),- 5 r/w 23, 25(1) of the BUDS Act.

The prosecution case in Crime No.162/2023 is that the 1st accused, who is the Managing Director, accused Nos.2 to 5, who are the Directors and accused No.6, who is the Manager of M/s.S.N.Chitty Fund and Bankers, jointly collected Rs.6,00,000/-from the defacto complainant offering 18% interest from 01.06.2010 on assuring them that M/s.S.N.Chitty Fund and Bankers obtained licence from Reserve Bank to run finance business after suppressing the fact that they had no licence to do financial business. Accordingly, they illegally collected the above said amount and they failed to give interest along with the principal amount as agreed and thereby committed breach of trust as well as cheating punishable under Sections 406, 409 and 420 r/w 34 IPC. They also committed offences punishable under Sections 3 r/w 21(1)(2),(3), 5 r/w-22- 23, 25(1) of the BUDS Act.

The prosecution case in Crime No.596/2023 is that the accused herein, with deceitful intention, so as to cheat and defraud the defacto complainant, collected amount from the public as against the restrictions imposed by the Reserve Bank of India and run M/s.S.N.Chitty Fund and bankers. Thereafter, the defacto complainant was joined as a subscriber in a chitty, having sala of Rs.50,000/- during 2018 and also obtained deposit of Rs.2,40,000/- on 02.11.2020. Thereafter, the accused failed to pay either the interest or the principal sum. On this premise, the prosecution alleges commission of offences punishable under Sections 406, 409 and 420 read with Section 34 of IPC as well as Section 3 r/w 21(1)(2)(3), 5 r/w 23, 25(1) of the BUDS Act.

The prosecution case in Crime No.271/2023 is that the 1st accused, being the Managing Director, accused Nos.2 to 5, who are the directors, and accused-23- No. 6, who is the Manager of M/s.S.N.Chitty Fund and Bankers, jointly collected Rs.15,00,000/-from the defacto complainant offering 12% interest from 01.10.2017 to 23.10.2019 on assuring them that M/s. S.N.Chitty Fund and Bankers obtained license from the Reserve Bank to run finance business after suppressing that fact that they had no licence to do financial business. Accordingly, they illegally collected the above said amount and they failed to give interest along with the principal amount as agreed and thereby committed breach of trust as well as cheating punishable under Sections 406,409, 420 r/w.34 of IPC. They also committed offences punishable under Sections 3 r/w 21(1)(2)(3) and 5 r/w 23, 25(1) of the BUDS Act.

The prosecution case in Crime No.907/2023 is that the accused herein, with deceitful intention, so as to cheat and defraud the defacto complainant,-24- collected amount from the public as against the restrictions imposed by the Reserve Bank of India and run M/s.S.N.Chitty Fund and bankers. Thereafter, they obtained deposit of Rs.9,00,000/- during 2013, offering exorbitant interest. Thereafter, the accused failed to pay either the interest or the principal sum. On this premise, the prosecution alleges commission of offences punishable under Sections 406, 409 and 420 read with Section 34 of IPC as well as under Section 3 r/w 21(1) (2)(3), 5 r/w 23, 25(1) of the BUDS Act.

The prosecution case in Crime No.1734/2023 is that the accused herein, with deceitful intention, so as to cheat and defraud the defacto complainant, collected amount from the public as against the restrictions imposed by the Reserve Bank of India and run M/s.S.N.Chitty Fund and bankers. Thereafter, they obtained a total deposit of Rs.7,95,000/-25-- (Rs.3,31,000/- from the defacto complainant and Rs.4,64,000/- from the daughter of the defacto complainant) offering exorbitant interest. Thereafter, the accused failed to pay either the interest or the principal sum. On this premise, the prosecution alleges commission of offences punishable under Sections 406, 409 and 420 read with Section 34 of IPC as well as under Section 3 r/w 21(1) (2)(3), 5 r/w 23, 25(1) of the BUDS Act.

While canvassing regular bail to Dileep Shikhamoni, who surrendered before the Investigating Officer on 13.11.2024, after dismissal of his anticipatory bail applications earlier, the learned counsel for the petitioner submitted that the petitioner is innocent and he has been roped into these proceedings, solely on the ground that he was one among the directors of S.N.Chitty Fund and Bankers, who alleged to have misappropriated the amounts involved in these crimes-26-. Similar is the argument advanced by the learned counsel appearing for Praveena Bineesh, who also surrendered on 18.11.2024 that too after dismissal of her anticipatory bail applications filed earlier.

According to the learned counsel for the petitioners, now the investigation has progressed much. It is also submitted that the petitioners are ready to co-operate with the investigation. According to the learned counsel for Dileep Shikhamoni, he has involvement in 20 crimes altogether out of which he was granted anticipatory bail in 10 crimes earlier and regular bail is canvassed in the other 10 crimes herein. It is submitted by the learned counsel for Praveena Bineesh that she has involvement in 10 crimes.

The learned Public Prosecutor opposed the bail and submitted that allegations are serious and further submitted that lakhs of rupees were misappropriated-27- by the accused persons herein after collecting the same with deceitful intention to cheat and defraud the respective defacto complainants. Therefore, the release of the petitioners on bail at this stage would be fatal to prosecution.

On perusal of the prosecution records, when the 1st accused in this crime approached this Court seeking anticipatory bail, the same was dismissed by this Court as per Annexure 5 common order and thereafter, he was arrested and subsequently released on bail by this Court. The petitioners herein also surrendered before the Investigating Officer after dismissal of their respective anticipatory bail applications that too at a belated stage.

However, in Annexure 3 order, this Court granted regular bail to the 1st accused, taking note of the progress of the investigation and the age of the 1st accused as 86 years.

While addressing the absolute innocence canvassed by the learned counsel for the petitioners, I have no hesitation to observe that the 1st accused and other accused persons including the petitioners being directors of M/s.S.N.Chitty Fund and Bankers have common intention to cheat and defraud the depositors after swallowing lakhs of rupees deposited by them by offering high rate of interest and by running the chitty business without obtaining licence or any legal authorisation, prima facie and the allegations are serious. Therefore, the role of all accused is specifically made out from the prosecution records, prima faciethe and they could not be held as innocent before trial. Thus matter would require effective investigation and trial.

However, taking note of the custody and the progress of investigation, the petitioners can be enlarged on regular bail by imposing conditions.

In the result, these petitions stand allowed as under;

i. The petitioners shall be released on bail on executing bond for Rs.50,000/- (Rupees Fifty Thousand Only) each, with two solvent sureties, each for the like amount to the satisfaction of the Jurisdictional Court concerned.

ii. The petitioners shall not intimidate the witnesses or tamper with evidence. They shall  co-operate with the investigation and shall be  available for trial.

iii. The petitioners shall appear before the  Investigating Officer as and when directed.

iv. The petitioners shall not, directly or indirectly,  make any inducement, threat or promise to  any person acquainted with the facts of this  case, so as to dissuade them from disclosing  such facts to the court or to any police officer.

v. The petitioners shall not involve in any other offence during the currency-30- of bail and any such event, if reported or came to the notice of this Court, the same shall be a reason to cancel the bail hereby granted.

vi. The petitioners shall surrender their passport, if any, within 7 days from the date of their release, before the trial court. If they have no passport, they shall file an affidavit in this regard on the date of execution of the bond or within 3 days thereafter.

vii. The petitioners shall not leave the jurisdiction of the Jurisdictional Court without prior permission of the Jurisdictional Court. In the case of Dileep Shikhamoni, this restriction stands relaxed and widened so that he can reside in the address shown in the petitions during the currency of bail.