K.V.Mohammd Kunhi vs State Of Kerala

Viju Abraham, J

This is an application for anticipatory bail.

The petitioners 1, 3 to 6 are the Directors and the 2nd petitioner is the Managing Director of Fathima Gold Pvt.Ltd, a company incorporated under Indian Companies Act. It was established in the year 2011. Main business of the company is to deal with gold and gold ornaments.

The above crime has been registered against Fathima Gold Pvt. Ltd and two other named accused viz. Samad and Rabi alleging offences under Section 420 of the Indian Penal Code (pursuant to Annexure -A1 complaint filed by one Afsal.P.P. before the Station House Officer, Kannur Town Police Station on 05-05-2022. Pursuant to which Annexure-A2 FIR No. 901 of 2022 has been registered alleging offence under Section 420 IPC.

Gist of the allegation in the complaint is that the two named persons shown as accused 2 and 3 in the complaint are the jewellery owners in Kannur and they made to believe the de-facto complainant that they are the owners of Fathima Gold and made a false representation to the complainant that if the amount is invested in their jewellery attractive profit would be paid from the business and believing their version to be true the de-facto complainant had invested a sum of Rs.23,00,000/-(Rupees twenty lakhs) in the year 2013.

Specific case of the petitioners is that they have absolutely no role in the alleged crime and there is not even an allegation against the petitioners in the complaint. One Mohammed Rafi Elambara and Madayil Mohammed were the Managing Director and Chairman of Fathima Gold, during 2011-2014 and they collected investment from various persons promising them to give attractive profits. On coming to know about the same, the 2nd petitioner who is the Managing Director of Fathima Gold has submitted Annexure A6 complaint before the police regarding the same.

Learned Public Prosecutor opposed the application for bail contending that the amounts were received at the head office of Fathima Gold Pvt. Ltd but submitted that the petitioners have no other criminal antecedents. It is further submitted that except for the 1st and 3rd petitioners, other petitioners are not arrayed as an accused and 1st and 3rd petitioners are arrayed as accused Nos. 6 and 7 and therefore I am considering the bail application in respect of the said petitioners alone.

Considering the facts and circumstances of the case and the nature of the allegations and further that the petitioners have no other criminal antecedents, I am inclined to grant pre-arrest bail to petitioners 1 and 3, but on stringent conditions. Petitioners 1 and 3 shall surrender before the investigating officer on 10.08.2022 and subject themselves to interrogation and also on any other day or days as directed by the investigating officer. In the event of arrest of the petitioner in connection with Crime No.366 of 2022 of Kodungallur Police Station, petitioners 1 and 3 shall be produced before the jurisdictional Magistrate and shall be released on bail on the following conditions:

(i) Petitioners 1 and 3 shall execute a bond for Rs.50,000/-(Rupees fifty thousand only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.

(ii) They shall appear before the investigating officer on all Saturdays at 11.00 a.m. until filing of charge sheet.

(iii) They shall not tamper with any evidence;

(iv) They shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any police officer;

(v) They shall not involve in any other crime while on bail.

(vi) They shall surrender her passport before the jurisdictional court. If the petitioner does not have a passport, she shall file an affidavit to that effect before the jurisdictional court within a period of one week from the date of release on bail.

If any of the aforesaid conditions are violated, the Investigating Officer in Crime No.366 of 2022 of Kodungallur Police Station may file an application before jurisdictional court for cancellation of bail.

It is made clear that it is within the power of the police to investigate the matter and if necessary to effect recoveries on the information if any given by the petitioner even when the petitioner is on bail as per the judgment of the Apex Court in Sushila Aggarwal and others v. State (NCT of Delhi) and another (2020 (1) KHC 663)..