Martin Davis vs State Of Kerala

This petition is filed under Section 438 of the Code of Criminal Procedure.

The petitioners herein are the accused Nos.1 to 3 in Crime No.2076 of 2017 of the Nedumbassery Police Station registered under Sections 406, 420, 506 r/w Section 34 of the IPC.

The aforesaid crime was registered at the instance of one Rajan John who alleged that the petitioners had cheated him of a sum of Rs 1.25 Crores. According to the de facto complaint, the petitioners 1 and 2 are husband and wife respectively. They were successfully running an establishment by name Mr.Cook at Angamaly. The 3rd petitioner was their employee. The de facto complainant came down to India in the year 2015 after spending more than 35 years in Switzerland. He wanted to invest in some business. While so he happened to meet the 1st petitioner. He managed to induce the de facto complainant to become part of his new endeavor. He was told that the 1st petitioner intends to tap the home appliances market by opening franchises all over Kerala under the brand name Mr.Cook Super Shoppee. He was assured that he would be made a partner in the business and some documents were executed. Believing the words of the 1st petitioner, the de facto complainant transferred a sum of Rs.95 lakhs through his Bank and a sum of Rs.29 lakhs was handed over by way of cash. A total sum of Rs.1.25 Crores was thus entrusted with the 1st petitioner. According to the complainant, without investing the amount in the partnership, the amounts were misappropriated for his personal needs. He was not provided with profit or interest. Disputes arose and the matter was mediated. On 1.11.2017, an agreement was entered into between the 1st petitioner and the de facto complainant by which the de facto complainant was assured that a total sum of Rs. 1.25 Crores would be repaid within 10 years. Until then the 1st petitioner undertook to pay a sum of Rs.One lakh per mensem towards interest. However, till the date of filing of the complaint, no sums were paid. When the amount was demanded back, the de facto complainant was allegedly threatened and intimidated by the petitioners. Hence, the complainant.

The learned counsel appearing for the petitioner submitted that the allegations levelled against the petitioners are untrue and without basis. It is submitted that a partnership firm was indeed commenced in the name and style "R.J..Business Corporation". The de facto complainant had other business pursuits. Substantial sums were transferred as requested by the de facto complainant for purchase of an apartment and also to his relatives. Sums were also transferred to the de facto complainant to finance his trip to Kenya and also for publishing the books authored by him. One fine morning the de facto complainant demanded that he intends to retire from the firm and demanded back the entire amount invested by him. As the business was a going concern, it was impossible to immediately hand over the money which had already been invested. Some time was sought for repayment. According to the learned counsel, even if the allegations are admitted as such, the offence under section 406 of 420 will not be made out. It was a purely business investment and the de facto complainant cannot now allege fraud and get the petitioners arrested and humiliated. According to the learned counsel, the petitioners are respectable persons who have no criminal antecedents and have a permanent place of abode. They be spared from the rigours of custodial interrogation is the submission advanced.

The learned Public Prosecutor has opposed the prayer.

I have considered the submissions advanced and have gone through the agreement dated 11.1.2017, a copy of which was handed over by the learned counsel for the petitioners and also Annexure-A1 FI statement. It is evident that the parties had decided to commence business in partnership and substantial investments were made by the de facto complainant. If the profits are not shared or if the de facto complainant wants to retire from the firm, he can very well proceed against the petitioners or the firm in accordance with law. If the version of the complainant is believed, an agreement has been entered into fixing the terms of settlement of the accounts. If there is any violation, he can very well proceed against the petitioners. Insofar as petitioners 2 and 3 are concerned, the allegation is mainly that they had criminally intimidated the informant. The prosecution has no case that the petitioners are persons with prior criminal antecedents. In that view of the matter, it does not appear to me that the custodial interrogation of the petitioners are necessitous in the instant case for the purpose of investigation.

In the result, this petition will stand allowed. In the event of arrest of the petitioners in the aforesaid Crime, they shall be released on bail by the officer effecting the arrest on their executing a bond for a sum of Rs.50,000/- (Rupees Fifty thousand only) each with two solvent sureties each for the like sum. The above order shall be subject to the following conditions:

i)The petitioners shall co-operate with the investigation and shall appear before the Investigating Officer as and when directed.

ii)The petitioners 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 him/her from disclosing such facts to the court or to any police officer.

iii)The petitioners shall not commit any similar offence while on bail.

iv).The petitioners shall surrender their passports before the court below or if they do not have one, they shall file an affidavit to that effect within five days of their release. Application for release of the passport, if any, shall be considered by the Trial court at the appropriate stage.

v). If the petitioners intend to leave India, they shall obtain previous permission from the court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.