M.K. Anil Kumar vs State Of Kerala

Mohammed Nias C.P., J

These bail applications are filed under Section 438 of the Code of Criminal Procedure, 1973, seeking pre-arrest bail.

Petitioners are the accused 1 and 3 in crime No.216 of 2022 of Kannavam police station of Kannur district alleging offences punishable under Sections 406, 468, 471, 420,120B read with 34 of the IPC based on a complaint filed by M.M.Thomas, Managing Partner of the firm in which the first accused is also a partner, before the Magistrate and forwarded for investigation. The allegation in the complaint is that the accused in furtherance of their common intention had transferred an amount of Rs.2,50,000/- using a cheque bearing No.10236495 to M/s. SS Fuels and later by using the very same cheque a further amount of Rs.50,00,000/- was withdrawn from the account of the firm in which the petitioner and one Mineesh are partners.

BA 1225/2023 is filed by the first accused while BA 1345/2023 is filed by the third accused, an official of the bank in which the firm had the account.

Learned Senior Counsel Sri. Raman Pillai appearing for the third accused submits that the bank had only helped the customer with whom they had a long-standing relationship in transferring the amount on the last working day of the financial year and though the cheque bearing No.10228361 was taken, the same was not used and instead another cheque was given and it was using the first cheque on which no transaction was made initially that the second transfer was made. According to the learned Senior Counsel, there is no question of any cheating anybody being deprived of money or any loss caused to the de facto complainant when the cheque was presented by an authorised signatory of the firm.

Sri.S.Rajeev, appearing for the first accused in BA 1225/2023, apart from adopting the contentions of the learned Senior Counsel, argues that the entire complaint was initially filed on the footing that the petitioner had forged the signature of the other partner, that the same was having been found to be wrong in the forensic examination, the very basis of the complaint is gone and the accusation against the petitioner also will not stand. At any rate, it is pointed out that the disputes between the partners are now pending consideration in arbitration proceedings and the evidence to be adduced is also in documentary form and therefore, prayed for grant of anticipatory bail.

The learned counsel appearing for the de facto complainant argues that it is clear from the accounts that the same cheque was used twice and the subsequent explanation of the bank cannot be accepted.

The learned Prosecutor opposing the bail applications submits that though it is true that the forensic examination found that there is no forgery involved and one of the crimes was closed, she opposed the bail applications and contended that for a proper investigation, custodial interrogation is required.

Having considered the rival submissions, a few facts are to be noticed; the de facto complainant and the petitioner/accused No.1, were the partners of a firm and the allegation is that the money from the firm's account was transferred with the signature forged. The said allegation having been found to be false, the substratum of the case on the basis of forgery becomes shaky, at least prima facie. That apart, the letter issued by the bank on 20.7.2023 stating that the transaction of Rs.2.5 lakhs was held out on 30.3.2019 on the instruction of the first accused who was also an authorised signatory of the firm. But, subsequently, a second cheque was issued for the said amount and it was using the first unused cheque that the second transfer was made. Under such circumstances, prima facie, the contention of the petitioners in this case has to be accepted. That apart, the question involved in this case is regarding the withdrawal of money from the firm's account by one of the partners who was also an authorised signatory. Since these issues are pending before the Arbitrator, and most of the evidence to be adduced are in documentary form, the petitioners were appearing before the very same Investigating Officer as part of a bail condition in another case, there is no reason to hold that a proper investigation will be hampered if anticipatory bail is granted. For the above reasons, I find that a custodial interrogation is not required in this case. Accordingly, I am inclined to grant anticipatory bail and the applications are allowed on the following conditions:-

i. The petitioners shall appear before the Investigating Officer within ten days from today and subject themselves to interrogation.

ii. After interrogation, in the event of the investigating officer deciding to arrest the petitioners, they shall be released on bail on executing separate bonds for a sum of Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like some to the satisfaction of the officer concerned.

iii.The petitioners shall appear before the investigating officer for interrogation as and when directed.

iv. They shall also cooperate 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 to dissuade them from disclosing such facts to the court or the police officer.

v. The petitioners shall not leave India without the permission of the jurisdictional court.

vi.The petitioners shall not commit any offence while on bail.

vii.The petitioners shall appear before the investigating officer every Monday till the final report is filed.

viii.If any of the above conditions are violated by the petitioners, the jurisdictional court is empowered to cancel the bail in accordance with law.

It is made clear that it is within the power of police to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners, even when the petitioners are on bail as per the judgment of the Apex Court in Sushila Aggarwal and others v. State (NCT of Delhi) and another [2021 (1) KHC 663].