Nishad vs State Of Kerala

Shircy V, J

Apprehending arrest in connection with Crime No.94 of 2021 of Vazhikadavu Police Station, Malappuram District registered for the offences

punishable under Sections 420, 465, 468, 471,427, 294(b), 379, 381, 506 read with Sec. 34 of IPC, these petitioners have moved this application under

Section 438 of the Code of Criminal Procedure.

Heard the learned counsel for the petitioners and the learned Public Prosecutor.

The prosecution allegation in brief is as follows:

The defacto complainant and her husband are residing abroad. They are having certain properties including shop rooms at their native place. The

petitioners were appointed as care takers to manage the property. But the petitioners have not accounted the income derived from the property which

includes the rent of the shop room and thus cheated the defacto complainant. They have also promised to make the defacto complainant and her

husband as partners in the business run by the first petitioner and received certain amount. But they were not made as partners and did not return the

amount also. They have also created certain forged documents in order to extract money. They have also misused the car owned by the son of the

defacto complainant and caused damages to the same. Thus the defacto complainant had to suffer a loss of more than Rs.8,78,000/-. When the

amount was demanded, the petitioners intimidated and threatened them and thereby committed the aforesaid offences.

It is the case of the petitioners that the first petitioner was appointed as the care taker by the defacto complainant and he was attending the entire

works entrusted to him. He had to upkeep the residential house, shop rooms and paddy fields belonged to the defacto complainant. The entire works

entrusted to him were done by him in a perfect manner and he had even remitted the tuition fee due to the son of the defacto complainant in the

college where he was pursuing his studies. Though the huge amount due to the petitioners was demanded, the defacto complainant and her husband

refused to remit the same and in order to evade payment of the amount actually due to the petitioners, a false complaint has been registered against

them. In fact the first petitioner was compelled to lodge a complaint against the defacto complainant and her husband in the month of February 2021.

As a counter blast to that case, these petitioners were falsely implicated in this case. In fact his aged mother was also implicated as the third accused

though she had absolutely no connection with the defacto complainant. But they apprehend unnecessary arrest and torture at the instigation of the

defacto complainant and hence this application.

On the other hand, the learned Public Prosecutor has submitted that the petitioners have forged certain documents with the intention to extract

money from the defacto complainant and they have also received money under the false promise that the defacto complainant and her husband will be

made as partners in the business run by them. It is also pointed out by the learned Public Prosecutor that the investigation is only in the preliminary

stage and if bail is granted to them that will definitely affect the prosecution case adversely. Hence, the application is opposed.

Of course the allegations levelled against the first petitioner is grave and serious in nature. But in fact there is no serious allegation against the

petitioners 2 and 3. The documents produced by the petitioners would show that as entrusted by the defacto complainant the first petitioner was

managing the affairs as a care taker and he used to pay the dues before the authorities and an amount of Rs.6,50,000/- was paid by him to the worker

engaged in the property owned by the defacto complainant and he had received receipt for the payment effected by him.

Considering the nature of the accusations levelled against the first petitioner and the other two petitioners, I find absolutely no genuine reason to

conclude that custodial interrogation of them are quite inevitable for the prosecution to proceed with the investigation of the case which is well in

progress. Possibility to abscond also appears to be remote.

Moreover as per the interim bail granted by this Court in favour of the petitioners vide order dated 7.10.2021 they have appeared before the

Investigating Officer and interrogation was also carried out. Such being the state of affairs I think that this petition for pre-arrest bail can be granted

subject to the following conditions:

(i) The petitioners shall be released on bail on executing bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum each in

the event of arrest by the police in connection with the above crime.

(ii) The petitioners shall appear before the Investigating Officer for interrogation as and when required by him in writing. They shall co-operate with the investigation

of the case.

(iii) 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

from disclosing such facts to the court or to any police officer or tamper with the evidence.

(iv) The petitioners shall not commit any offence while on bail.

In case of violation of any of the above conditions, the learned Magistrate is empowered to cancel the bail in accordance with the law.