Jamuna Krishnakumar vs State Of Kerala

P.V.Kunhikrishnan, J

This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.)

Petitioners are the accused Nos.3 and 4 in Crime No.1234/2021 of Thrissur West Police Station. The above case was registered against the petitioners and others alleging offences punishable under Sections 120B, 406, 415, 417, 418, 420, 421, 424, 463, 464, 465 and 468 read with Section 34 of the Indian Penal Code. The case is registered based on a private complaint filed by M/s.Dhanlaxmi Bank before the Chief Judicial Magistrate Court, Thrissur, which was forwarded under Section 156(3) of the Code of Criminal Procedure. Annexure-A1 is the FIR

The prosecution case is that the petitioners, along with Accused Nos.1 and 2, with a common intention, conspired to cheat the de-facto complainant bank, by standing as guarantors for enabling the 1st accused to avail "Dhanam Business Overdraft Facility" to the tune of Rs.2 Crores, from the de-facto complainant bank on 3rd December, 2012 by executing a guarantee agreement by creating security interest over the property belonging to the 1st petitioner and a property which previously belonged to the mother of the 2nd petitioner.

Heard the learned Senior Counsel Sri.S.Sreekumar, who is instructed to appear by Sri.A.S.Dileep and the learned Public Prosecutor.

The Senior Counsel submitted that the case itself is registered based on a private complaint. The Senior Counsel also submitted that there is an interim order passed by this Court directing the Investigating Officer not to arrest the petitioners. The Senior Counsel further submitted that the petitioners are ready to abide any conditions if this Court grant them bail. The Public Prosecutor opposed the bail application and submitted that if this Court is granting bail, stringent conditions may be imposed.

After hearing both sides, I am of the considered opinion that the custodial interrogation of the petitioners may not be necessary in the facts and circumstances of the case. The case itself is registered based on a private complaint filed before the jurisdictional Magistrate Court, which was forwarded under Section 156(3) of the Code of Criminal Procedure. The case is to be proved only through documentary evidence. In such circumstances, custodial interrogation of the petitioners may not be necessary. In such circumstances, there can be a direction to the petitioners to surrender before the Investigating Officer so that the Investigating Officer can interrogate the petitioners. After interrogation, if the arrest of the petitioners is necessary, there can be a direction to release them on bail. Considering the facts and circumstances of the case, I think this bail application can be allowed on stringent conditions.

Moreover, it is a well accepted principle that, the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram P. v. Directorate of Enforcement (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that, the accused has the opportunity of securing fair trial.

Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:

Petitioners shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation.

After interrogation, if the Investigating Officer proposes to arrest the petitioners, they shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned;

Petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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;

Petitioners shall not leave India without permission of the jurisdictional Court;

Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected;

If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court.