Robin Raphel And Ors vs State Of Kerala And Ors

Application for anticipatory bail under section 438 Cr.PC.

The applicants are accused 1 to 3 in Crime No.0449/2020 of the Kozhinjampara Police Station for having allegedly committed offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code. The crime was registered on the basis of the statement given by the de facto complainant who is a gold smith as well as a gold business dealer.

The prosecution allegation is that accused 1 to 5 in furtherance of common dishonest intention to cheat the de facto complainant dishonestly induced him to deliver an amount of ₹16,70,000 /-(Rupees Sixteen lakhs and seventy thousand only), by making him believe and promising to sell pure quality gold nuggets worth 2 kg 850 gms (two kilo grams and eight hundred and fifty grams) to him. After receiving the money, the gold nuggets delivered to the complainant turned out to be fake gold plated nuggets, and thereby, the accused committed the offence of cheating and criminal breach of trust.

The applicants state that they are innocent. The 2nd accused was engaged in coconut business and used to frequently visit Pollachi. During the course of those visits, he got acquainted to a person named Appunny (A5) with whom he had constant contact over the phone. One day, A5 informed him that the treasure trove was discovered during the process of demolition of the house and it contained pure gold nuggets. He said that the gold is for sale and would be available for a price lesser than the existing market price. Believing that, A2 got in touch with his friends A1 who was the Goldsmith and A3. After conversation with them, A1 said that he knew the de facto complainant (R2) and that he was conducting a jewelry in Ayilur near Nenmara. All the three applicants approached R2 and apprised him about the gold available for sale. The applicants should not have sufficient money with them to buy the entire gold and hence, sought assistance of R2. The 2nd accused rented a car from Irinjalakkuda belonging to a lady named Vilasini on 29/06/2020 and approached R2. The four of them met Appunny at a place called Vannamada. Appunny extracted a small piece of gold from the nuggets and handed it over to R2 for examination. After getting the gold tested at Mahalakshmi testing centre in Pattikara, it turned out to be pure gold. Accordingly, on 30/06/2020, Appunny handed over 2.850 kgs of gold nuggets to R2. A sum of ₹ 16,70,000/-was handed over to A3 and he gave the money to Appunny. R2 alleges that on coming to his jewelry with the gold nuggets, he found that the nuggets were all fake metal covered with gold and that he has been cheated by the accused. Annexure 1 F.I.R was registered on 26/07/2020. The applicants would contend that the de facto complainant was a person having knowledge in the purity of gold and he had purchased the gold directly from A5 and his associate Sivan (A4) after convincing himself about the purity of gold. The applicants are not persons having any knowledge about the quality of gold. None of the applicants had induced R2 to purchase gold. The applicants suspect foul play on the part of the de facto complainant. The applicants have not got any money from the de facto complainant and have not wrongfully gained in the transaction that took place between him and A5. The applicants have no criminal antecedents and therefore, they seek anticipatory bail.

The de facto complainant was impleaded as additional respondent No. 2 and he appeared through counsel of his choice. Written objection was filed and documents produced. Heard the learned counsel appearing for the de facto complainant and the applicants. The learned Public Prosecutor was also heard.

The learned counsel appearing for the applicants submit that soon after they were informed about the fake gold, there were lodged a complaint before the Kozhinjampara Police Station on 01/07/2020 revealing the entire truth about the transaction. R2 and his brother Manoj were also present at the Police station. Not being satisfied with the version narrated by the applicants, the Inspector of Police took the keys of the car in which the applicants had come and had handed over to the de facto complainant, who insisted on getting back is money. On 06/07/2020 the 2nd applicant filed a complaint before the Superintendent of Police, Palakkad. The Maruthi Swift car in which the applicants had travelled was seized by the Police on 28/08/2020.

The learned counsel appearing for the de facto complainant/2nd respondent Sri.Johnson Varikkappallil submits that the applicants were glove in hand with the rest of the accused who came from Tamilnadu. The ignorance pretended by them regarding the transaction is totally unbelievable. The truth would be revealed only if they are subjected to custodial interrogation. It is submitted that R2 had approached Kozhinjampara Police with a complaint but no action whatsoever was taken by them. Annexure-R2 (1) complaint was filed by R2 before the District Police Chief on 19/09/2020. The applicant had also approached this Court with Writ Petition © No. 1168 of 2021 for proper investigation in this case. The investigating officer had filed Annexure R2 (2) statement of facts submitted by the investigating officer in this Writ Petition. In that report, he has stated that the custodial interrogation of the applicants is highly necessary for the progress of the investigation. Hence the application for bail is vehemently opposed. The learned Prosecutor has also opposed the application for bail stating that the custodial interrogation of the applicants is essential for the progress of the investigation.

After having heard the submissions on both sides, I find that the allegations against the the applicants appear to be very grave. The 2nd applicant has admitted that the 5th accused Appunny from Tamilnadu was known to him and that it is on information given by A5 that he got in touch with A1 and A3 and approached the de facto complainant with the offer to purchase gold. The fact whether the applicants were parties to the cheating and whether they have wrongfully gained by the dishonest inducement given to the de facto complainant are all matters which would be revealed only on interrogating the accused. The accused persons from Tamilnadu were known only to the applicants and therefore they could be apprehended only after subjecting the applicants to interrogation. Considering the gravity of the offence and the money involved, this is not a fit case for exercising the exceptional discretion of the remedy of pre-arrest bail in favour of the applicants.

In the result, the application is disallowed and dismissed.