Mohammed Sharif vs State Of Kerala

The petitioner is the first accused in Crime No. 63 of 2018 of Poojappura Police Station for offences punishable under Sections 406, 420 and 468 r/w Section 34 IPC.

The case of the prosecution is that accused Nos. 1 and 2, with an intention to cheat the de facto complainant, promised to execute a sale deed with regard to 3 cents of property comprised in Sy. No. 1656(5) of Thirumala Village in favour of the de facto complainant and on 08.05.2017, the first accused by showing the copy of title deed, borrowed an amount of Rs.10 lakhs from the de facto complainant as advance. It is also alleged that the the sale deed was not executed within the promised time and later, when the de facto complainant demanded money, the first accused issued two cheques in her favour for Rs.5 lakhs each. It is further alleged that till date the accused has not executed the sale deed or repaid the amount.

The learned counsel for the petitioner submits that the petitioner is innocent of the allegations and he has been falsely implicated in the case. It is also submitted that the petitioner has borrowed the money from the husband of the de facto complainant for interest. When the petitioner defaulted the payment of interest, the de facto complainant has filed criminal case against him and that the remedy available to the de facto complainant is to file a suit for specific performance. In fact, the de facto complainant has not presented the cheque before the Bank and therefore, Sections 420 and 468 of IPC is not attracted in this case. It is further submitted that the petitioner is ready to abide by any conditions that may be imposed by this Court and the custodial interrogation of the petitioner is not necessary in this case.

I have heard the learned Public Prosecutor as well.

After hearing the learned counsel on both sides and going through the CD files, I find that this is a case originated from the agreement executed for sale of 3 cents of property. So the element of cheating at the inception of the transaction is not forthcoming. Moreover, the remedy available to the de facto complainant is to file suit for specific performance. The custodial interrogation of the petitioner is not required in this case. Therefore, I am inclined to grant anticipatory bail by invoking Section 438 of the Cr.P.C on the following conditions:

The petitioner herein shall surrender before the SHO, Poojappura Police Station, Thiruvananthapuram on or before 22.03.2018 between 10 a.m and 11 a.m. and he shall be released on bail on executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the Investigating Officer.

The petitioner shall appear before the SHO, Poojappura Police Station at 9 a.m. on every alternate Saturdays for three months, commencing from 24.03.2018 or till the charge sheet is filed, whichever is earlier.

If the petitioner violates any of the above conditions, the bail granted to him shall stand cancelled, forthwith.

This application is allowed as above.