Jayaprakash J vs State Of Kerala

R. Narayana Pisharadi, J

This is an application for anticipatory bail filed under Section 438 Cr.P.C.

The petitioners are the accused 1 to 4 in the case registered as VC/02/2021/PTA by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Pathanamthitta under Section 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1988, as amended by Act 16 of 2018 (for short 'the Act') and also under Sections 420, 468 and 471 of the Indian Penal Code.

The first petitioner, who is the first accused in the case, was the Administrative Officer of the Travancore Devaswom Board. The second and the third petitioners, who are the second and the third accused in the case, were Executive Officers in the Travancore Devaswom Board at Sabarimala. The fourth petitioner, who is the fourth accused in the case, was employed as Junior Superintendent in the Travancore Devaswom Board.

The prosecution case, in short, is as follows: The de facto complainant, the proprietor of J.P.Traders, had supplied vegetables and groceries to the Travancore Devaswom Board. The first accused was in charge of conducting the mess (supplying food) at Nilakkal during the Makaravilakku Festival in the year 2018-19. He forged and fabricated bills and invoices, purportedly issued by J.P.Traders and on the basis of such forged documents, sanctioned a total amount of Rs.59,98,029/- to J.P.Traders. Preparation of cheques for the sanctioned amount was the duty of the Executive Officer at Sabarimala. On the basis of the forged bills and invoices and the order sanctioning the amount, the second and the third accused prepared and signed four cheques bearing the numbers 351013, 441302, 441543 and 601430, in the name of J.P. Traders. Out of the four cheques, only one cheque for Rs.8,20,935/- was crossed and the de facto complainant had received that cheque and encashed it. The three other bearer cheques, for a total amount of Rs.51,77,094/-, were encashed by person/persons whose identity could not be established. It was the duty of the fourth petitioner, who was the Junior Superintendent, to verify the bills and vouchers and to issue the cheques to the party concerned. It is alleged that the three bearer cheques were received not by the de facto complainant, the proprietor of J.P Traders, but they were got encashed by the accused and that they misappropriated the amount of Rs.51,77,094/- (wrongly stated as Rs.51,77,194/- in the F.I.R) and cheated the de facto complainant.

Heard learned counsel for the petitioners and the learned Public Prosecutor. Perused the case diary.

Learned counsel for the petitioners has contended that the investigation of the case being conducted by the VACB is without obtaining the prior approval of the competent authority as contemplated under Section 17A of the Act and the investigation is illegal for that reason. These contentions need not be considered in this bail application because such prior approval would be required only for an investigation into an offence under the Act. Offences punishable under Sections 420 and 468 of the I.P.C, which are non-bailable, are also alleged to have been committed by the petitioners. Moreover, whether any prior approval from the competent authority is required or not for conducting investigation, is a matter for consideration by this Court in the petition filed as Crl.M.C.No.5714/2021 by the petitioners for quashing the FIR.

The case diary contains the statement of the de facto complainant. His statement shows that he had given bills for supply of articles worth only Rs.30,000,93/-. His statement further shows that he is not the author of the signature on the reverse side of the bearer cheques and that the seal affixed on them is not that of his firm. His statement also shows that he is not the author of the signature seen in the invoices and the vouchers. The statement of the de facto complainant clearly reveals that the invoices and the bills on the basis of which the amount was sanctioned by the first accused were not invoices and bills really issued by the complainant but they are fabricated documents. Prima facie, there are materials to show that the amount was sanctioned by the first accused on the basis of forged bills and invoices, knowing fully well that they are not genuine documents.

In the above circumstances, custodial interrogation of the first petitioner, who is the first accused in the case, would be absolutely necessary to have an effective investigation. Custodial interrogation is qualitatively more elicitation orientated than questioning a suspect who is well ensconced with a favourable order under Section 438 Cr.P.C. Effective interrogation of the suspected person is of tremendous advantage in disinterring useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person is well-protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would be a mere ritual (See C.B.I v. Anil Sharma : AIR 1997 SC 3806). Granting pre-arrest bail to the first accused would definitely hamper proper investigation of the case.

However, the case against the other accused stands on a different footing. The allegation against the second and the third accused is only that they prepared and signed the cheques without properly verifying the bills and invoices submitted to them. The order sanctioning the amount was before them. The bills and invoices had been submitted to them after verification by the fourth accused. Their duty was only to prepare the cheques and entrust them with the fourth accused. True, the fact that they prepared and gave cheques, which were not crossed for payment through the account of J.P.Traders, makes the needle of suspicion to point also towards them. Still, considering their role in the transaction, I find that custodial interrogation of them is not essential and pre-arrest bail can be granted to them.

The fourth petitioner, who is the fourth accused in the case, was the person responsible for delivery of the cheques to the party concerned. It is possible that when receipts, with the seal of J.P.Traders, were submitted to him, he delivered the cheques. It is pertinent to note that there is no allegation against the fourth accused that he had entered into any criminal conspiracy with the first accused to commit misappropriation of money. In fact, no offence under Section 120B of the I.P.C is alleged against the accused. Considering all these aspects, I find that the fourth accused is also entitled to get the benefit of pre-arrest bail in the case.

Consequently, the prayer for granting anticipatory bail to the first petitioner, who is the first accused, is rejected. The prayer for granting pre-arrest bail to other petitioners is allowed and it is ordered as follows:

i) Petitioners 2 to 4 shall be released on bail on executing a bond for Rs.50,000/- (Rupees fifty thousand only) each with two sureties each for the like amount in the event of their arrest by the investigating officer of the VACB in the case registered as VC/02/2021/PTA .

ii) The investigating officer is entitled to interrogate petitioners 2 to 4 before releasing them on bail.

iii) Petitioners 2 to 4 shall appear before the investigating officer as and when required to do so.

iv) Petitioners 2 to 4 shall not leave the State of Kerala without the prior permission of the jurisdictional court concerned till the investigation of the case is completed.

v) Petitioners 2 to 4 shall not directly or indirectly make any inducement, threat or promise to any person having acquaintance with the facts of the case so as to dissuade him from disclosing such facts to the court or to the investigating officer and they will not make any attempt to tamper with the evidence in the case.

vi) If petitioners 2 to 4 violate any of the conditions of bail, the jurisdictional court is at liberty to cancel the bail granted to them by this Court without any further orders of this Court but only in accordance with law.