Prakash V.T vs State Of Kerala

R.Narayana Pisharadi, J

This is an application for anticipatory bail filed under Section 438 Cr.P.C.

The petitioner is the accused in the case registered as Crime No.408/2021 of the Karuvarakundu Police Station under Sections 420 and 409 of the Indian Penal Code and also under Section 13(1)(a) of the Prevention of Corruption Act, 1988 (for short 'the Act').

The prosecution case, in short, is as follows: The accused was employed as an Office Attendant in the Sub Treasury of Karuvarakundu. Smt.A.N.Saraswathy Amma is a pensioner. She was drawing the pension from the Sub Treasury, Karuvarakundu. On 20.01.2021, she went to the treasury to update the entries in the passbook issued to her in respect of the savings bank account in her name in the treasury. The details were furnished to her from the treasury on that day. On the next day, she went to the treasury and made a complaint to the Sub Treasury Officer that there was deficit of about three lakhs rupees in her account in the treasury. On verification of the records by the Sub Treasury Officer, it was revealed that a total amount of Rs.2,88,550/- had been transferred from the account of the pensioner to the savings bank accounts of the accused, through 27 online transactions. It was further revealed that, without the consent or knowledge of the pensioner, the accused had entered his mobile phone number in the KYC and updated it with that number and thereafter, without the consent or knowledge of the pensioner, he transferred the amount to his savings bank accounts by using the OTP number received in his mobile phone.

Heard learned counsel for the petitioner and also the learned Public Prosecutor. Perused the case diary.

Learned counsel for the petitioner would submit that the pensioner is an old lady, an octogenarian, and she had no mobile phone or ATM card and that the petitioner used to help her in all matters. It is submitted that it was on the direction of the pensioner that the petitioner gave the mobile phone number in the KYC and that he had given the entire amount drawn from the account of the pensioner to her. The petitioner has produced a copy of the affidavit allegedly sworn to by the pensioner before a Notary.

Learned Public Prosecutor would submit that only on conducting a deep probe it could be revealed whether the amount was withdrawn by the accused from the account of the pensioner with her consent. Learned Public Prosecutor would also submit that the pensioner is now residing in New Delhi and she could not be contacted by the investigating officer to ascertain the genuineness of the affidavit allegedly sworn to by her before the Notary.

The case diary reveals that deficit of the amount in the account of the pensioner in the treasury was revealed on 21.01.2021. On that day itself, on verification of the records in the treasury, it was found out that an amount of Rs.2,88,550/-from the account of the pensioner had been transferred to the savings bank accounts of the petitioner. The Sub Treasury Officer had made a complaint on 25.01.2021 to the police in the matter but no case was registered against the petitioner by the police on the ground that the pensioner gave statement to the police that she had no complaint in the matter.

The averments in the affidavit dated 23.01.2021 sworn to by the pensioner, that she had voluntarily given the mobile phone number of the petitioner for the purpose of the transactions to be conducted in her account in the treasury and that she had received the entire amount and that she has got no complaint against the petitioner, cannot be swallowed as such. If that be so, it eludes comprehension why the pensioner made a complaint to the Sub Treasury Officer on 21.01.2021 with regard to the deficit of the amount in her account. Whether the petitioner had in any manner threatened or influenced or persuaded the pensioner to withdraw the complaint made against him is a matter which requires investigation. It is to be ascertained whether the affidavit was sworn to by the pensioner and the complaint was withdrawn by her on account of any threat or coercion made by the petitioner.

Moreover, subsequent payment of the amount by the petitioner to the pensioner has no consequence with regard to the crime, if any, committed. Refund of the amount, when the act of defalcation came to be discovered, does not absolve the accused of the offences allegedly committed by him (See Viswa Nath v. State : AIR 1983 SC 174).

While the aforesaid matters go against the petitioner, there are certain circumstances which are in his favour. The F.I.R was registered only on 13.10.2021 on the basis of a complaint made to the police by the Director of Treasuries. During the investigation, the accused was not arrested by the investigating officer. The case diary does not reveal that the accused was absconding and it was the reason for not arresting him. This would indicate that the arrest of the accused and custodial interrogation of him, in the opinion of the investigating officer, are not necessary to have an effective investigation.

Further, the petitioner was only an Office Attendant in the treasury. Even in the complaint made by the Director of Treasuries, there is nothing mentioned with regard to the access of the petitioner to the computer and the passwords with regard to the financial transactions in the treasury. In the ordinary course, an Office Attendant will not be handling or dealing with any financial transactions in the treasury by using computer. If that be so, entering the mobile phone number of the petitioner by him for conducting the treasury transactions in the name of the pensioner cannot be an act done by him by abusing his official position as an Office Attendant. Therefore, prima facie, it is doubtful whether an offence under the Act has been committed by the petitioner. At any rate, it is a matter which requires investigation.

The prosecution has no apprehension that the petitioner would abscond and flee from justice on getting bail. The apprehension of the investigating officer is only that the petitioner may influence the witnesses in the case. The pensioner is now residing in New Delhi. Therefore, chances of the petitioner directly influencing her is very remote. Further, the details of the transactions conducted by the petitioner in relation to the treasury account of the pensioner would be borne out by the records in the treasury. The case diary reveals that the investigating officer has already collected such documents.

Considering the aforesaid matters in favour of the petitioner, I find that the discretion of this Court can be exercised to grant him the benefit of pre-arrest bail.

Consequently, the petition is allowed and it is ordered as follows:

(i) The petitioner 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 amount in the event of his arrest by the police in Crime No.408/2021 of the Karuvarakundu Police Station.

(ii) Before releasing the petitioner on bail, the investigating officer is entitled to interrogate him.

(iii) The petitioner shall appear before the investigating officer as and when required.

(iv) The petitioner shall co-operate with the investigation of the case.

(v) The petitioner shall not leave the State of Kerala without the prior permission of the jurisdictional court concerned.

(vi) The petitioner shall not in any manner, over phone or otherwise, contact Smt.A.N.Saraswathy Amma, the victim, till the investigation is completed.

(vii) The petitioner shall not in any manner intimidate or influence the prosecution witnesses.

(viii) If the petitioner violates any of the conditions of bail, the jurisdictional court is at liberty to cancel the bail granted to him by this Court without any further orders of this Court, but in accordance with law.

Registry  shall  forthwith  return  the  case  diary produced.