Johny Thomas vs State Of Kerala

R.Narayana Pisharadi, J

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

2. The petitioners are Accused Nos.6, 7 and 10 in the case registered as Crime No.240/2021 of the Museum Police Station.

3. The case was registered against the accused initially under Sections 408, 417 and 420 read with 34 of the Indian Penal Code. Subsequently, the

offences punishable under Section 120B of the IPC and Section 13(1)(a) of the Prevention of Corruption Act, 1988 (as amended by Amendment Act

of 2018) was incorporated.

4. The first accused was the Senior Clerk in the Scheduled Caste Development Office. Accused 2 to 10 in the case are the friends and relatives of

the first accused. It is alleged that the first accused credited the money sanctioned by the Government, which was to be paid to various beneficiaries,

to the bank accounts of accused 2 to 10 and thereafter got the amount withdrawn by them and paid to him. Therefore, it is alleged that the accused

have cheated the Government as well as the real beneficiaries who were entitled to get the money under various schemes of the Government.

5. Heard learned counsel for the petitioners and the learned Public Prosecutor. Perused the statement filed by the investigating officer and also the

case diary.

6. As per the order dated 07.05.2021, a learned Judge of this Court had granted interim bail to the petitioners in this application. The relevant portion

of the aforesaid order reads as follows:

I think in the facts and circumstances of the case, an interim order for the grant of anticipatory bail can be issued in this case for a limited period. If the

petitioners are arrested in connection with the above crime, 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. The investigating officer is free to summon the petitioners for

interrogation after issuing notice under Sec.41A Cr.P.C.â€​

7. Learned counsel for the petitioners submitted that, on 05.05.2021, the second petitioner had surrendered before the investigating officer and he

was arrested and produced before the Magistrate concerned on 06.05.2021. In the statement filed by the investigating officer it is mentioned that the

Magistrate concerned had granted custody of the second petitioner to the investigating officer from 12.00 noon on 06.05.2021 till 15.00 hours on

07.05.2021.

8. Since the second petitioner was arrested even before the order dated 07.05.2021 passed by this Court, the application for anticipatory bail made

by the second petitioner has become infructuous.

9. Learned Public Prosecutor has also submitted that the first and the third petitioners were arrested on 30.05.2021 and they were released on bail

pursuant to the order passed by this Court on 07.05.2021.

10. The case against the first accused and the case against the first and the third petitioners, who are accused 6 and 10, stand on different footings.

The allegations in the F.I.R as well as the statements of witnesses reveal that the first accused is the mastermind behind the entire operation

conducted for embezzlement of money from the establishment in which he was employed. As far as the petitioners are concerned, even if the entire

allegations against them are accepted as true, it can only be presumed that they had acted as facilitators to the crime committed by the first accused.

Of course, the first and the third petitioners cannot pretend that they were not aware of the money which was credited to their bank accounts. The

fact remains that there is an allegation against them that they withdrew the money and gave it to the first accused. Conspiracy between the accused

to commit the crimes cannot be ruled out.

11. The learned Public Prosecutor submitted that, on sanction being granted for payment of money to the beneficiaries, the amount would be

credited directly to the bank accounts of the beneficiaries from the treasury account. If that be so, payment of money would have been got sanctioned

by the first accused on the basis of the forged applications given in the names of accused 2 to 10 or the bank account numbers of accused 2 to 10

would have been shown in the genuine applications made by the real beneficiaries. The statement filed by the investigating officer shows that various

amounts were credited to the bank accounts of the first and the third petitioners, on different dates, from the treasury account.

12. In order to have an effective investigation of the case, interrogation of the first and the third petitioners would be necessary but custodial

interrogation, certainly not. The details regarding the money credited to the bank accounts of the first and the third petitioners and withdrawn from

such accounts could be verified and brought out in evidence from the relevant records kept in the banks concerned. Applications made for sanctioning

the amount also could be obtained from the office concerned and verified.

13. The prosecution has no apprehension that the first and the third petitioners would abscond, if bail is granted to them. There is also no

apprehension expressed by the prosecution that the petitioners may intimidate the witnesses in the case and make attempt to sabotage the investigation

in the case. It is to be noted that most of the witnesses in this case would be Government servants.

14. In the aforesaid circumstances, I am of the view that the first and the third petitioners are entitled to get the benefit of pre-arrest bail. The

interim bail granted to them by this Court can be made absolute on imposing further conditions.

15. Consequently, the prayer for granting pre-arrest bail to the second petitioner is rejected and the application stands dismissed as far as the

second petitioner is concerned. The order dated 07.05.2021 passed by this Court granting interim bail to the first and the third petitioners is made

absolute on the following conditions:

 (i) The first and the third petitioners shall appear before the investigating officer as and when required and they shall co-operate with the investigation of the

case.

(ii)Â The first and the third petitioners shall not leave the State of Kerala, without the previous permission of the jurisdictional court concerned, till final report is filed

in the case.

(iii)Â The first and the third petitioners 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 shall not make any attempt to tamper with any evidence

in the case.

The bail application stands disposed of as above.