SABITHA BALAKRISHNAN ALIAS SABITHA RAJESH vs STATE OF KERALA

These petitions are filed under Section 438 of the Code of Criminal Procedure.

The petitioners in B.A.No.323/2018 are the accused Nos.1 and 2 and the petitioner in B.A.No.297/2018 is the 4th accused in Crime No.22 of

2018 of Kalamassery Police Station. The aforesaid Crime has been registered alleging offence punishable under Sections 406, 409, 420, 120B of

the IPC on a complaint filed by the 2nd respondent herein before the Station House Officer, Kalamassery.

The accused Nos.1 and 2 are the Managing Director and Branch Manager respectively of M/s. Oceanus Estates India Pvt. Ltd., a Company

registered under the Companies Act and engaged in construction activities. The 3rd accused in the aforesaid Crime is the Branch Manager of

HDFC Bank, Kalamassery and the 4th accused is an individual who had purchased an apartment from M/s.Oceanus Estates. According to the de

facto complainant, he was approached and was offered an apartment in the multi storied residential apartment complex proposed to be

constructed by the 1st accused. An agreement dated 25.10.2010 was entered into between the parties. The total consideration for the apartment

was fixed at Rs.80,37,100/- and the payments were to be effected in various stages. It was undertaken by the accused Nos. 1 and 2 that the

construction would be completed in the year 2012 and the last date of handing over the apartment would be on 30.06.2012. The maximum grace

period , thereafter was six months. The de facto complainant asserts that he availed a loan from M/s India Bull Housing Finance Ltd., for financing

the purchase and a total sum of Rs.75,30,565/- was paid by the de facto complainant. Though 95% of the payment was effected, the Company

failed to complete the project in time. As the interest rate of M/s.India Bull Finance was exorbitant, the de facto complainant closed the loan

transaction with M/s. India Bull and entered into an arrangement with the HDFC Bank, who took over the loan. The de facto complainant had

effected substantial payments to the 1st accused out of his own pocket. However, due to demonetization and implementation of the GST, some

defaults had occurred in payment of the EMIs to the HDFC Bank. At this stage, a conspiracy was hatched among the accused and to cause

wrongful loss to the de facto complainant, took money from the 4th accused and paid the same to the HDFC bank and closed the loan account.

Thereafter, the 1st accused assigned the apartment to the 4th accused. According to the de facto complainant, he was kept in the dark and the

acts committed by the accused was with intent to cheat. The value of the apartment had appreciated substantially and by selling the apartment to

the 4th accused, wrongful gain was obtained by the accused.

Heard the learned counsel appearing for the petitioners, the learned counsel appearing for the de facto complainant as well as the the learned

Public Prosecutor.

The learned counsel appearing for the petitioners in B.A.No.323 of 2018 relying on Annexure-2 submitted that a tripartite agreement was

entered into between the HDFC Bank, the 1st petitioner and the de facto complainant for the purchase of the apartment and the de facto

complainant had agreed to pay a sum of Rs.64,29,000/- to the HDFC Bank by way of EMIs. The monthly EMI was Rs.63,886/-. However, right

from the inception, the de facto complainant defaulted in payment of the EMIs and consequently Annexure-3 and 4 notices were sent by the

HDFC to the defaulter and a copy was also sent to the 1st petitioner. The secured asset was the apartment itself and it is evident from Annexure-4

that a sum of Rs.61,00,306/- was disbursed directly to the builder by the bank. As per the agreement entered into between the parties, the 1st

petitioner had stood as a guarantor and, in case of default, it was the 1st petitioner who had to pay back the loan granted together with dues and

interest. By Annexure-4, the 1st petitioner was directed to repay the entire loan totaling to an amount of Rs.66,68,897/- in the event of the de

facto complainant not clearing off the defaults on or before 10.7.2017. On receipt of Annexure-4, the 1st petitioner had issued Annexure-5 notice

calling upon the de facto complainant and others to clear off the amount due to the Bank. They had noticed that in the event of the failure of the de

facto complainant to clear the loan amount, they would be constrained to cancel the agreement for sale executed in respect of the said apartment.

Thereafter, they had issued Annexure-6 notice on 22.7.2017 reminding the de facto complainant to clear off the dues or in the alternative to come

forward and execute the sale deed by paying the entire amount. The learned counsel would also refer to Annexure-7 legal notice issued by the

HDFC Bank to the concerned parties reminding them of their liability to pay off the defaulted arrears. In Annexure-7, the total outstanding loan is

shown as Rs.66,68,897/-. The learned counsel relied on Annexure-8 notice issued by the HDFC Bank to the 1st petitioner, wherein the 1st

accused have been informed about the revocation of the loan. It is submitted that by Annexure-9, the de facto complainant was informed that the

total loan amount was closed after settling all the accounts and a cheque for a sum of Rs.6,74,646/- was sent to the de facto complainant towards

the amount due to him. On the basis of these records, it is submitted that the petitioners have acted in terms of the arrangement between the parties

and the allegations of fraud and conspiracy is totally without basis. The de facto complainant had defaulted and the loan was recalled by the Bank

and thereafter the builder was asked to settle the dues. After repeated notices and after alerting the de facto complainant, the loan account was

settled and the apartment was sold to the 4th accused. This is a purely contractual issue, according to the learned counsel, and the arrest and

detention of the petitioners are unwarranted.

The learned counsel appearing for the 4th accused supported the contentions of the learned counsel and submitted that the 4th accused is a

bank employee and she is a bonafide purchaser of the apartment.

The learned counsel appearing for the de facto complainant, on the other hand, very vehemently opposed the prayer. It was very emphatically

submitted that for a minor default, the whole loan was recalled and the apartment was sold to the 4th accused. It is submitted that the construction

of the apartment was unduly delayed due to the lapses of the builder. Substantial sums were paid out of the own pocket of the de facto

complainant. The 1st accused was bound to pay compensation of Rs.7,500/- per mensem to the de facto complainant for his failure to complete

the construction in time. The default committed by the de facto complainant was due to reasons beyond his control and that alone was no reason

for recalling the loan and to assign the apartment to the 4th accused. It is evident that a conspiracy was hatched among the accused and only a

detailed investigation will bring out the mode in which the offence was committed.

I have considered the submissions advanced and gone through the records.

Annexures-1 to 9 produced by the petitioners in B.A.No.323 of 2018 reveals the entire sequence of events. It is evident that there was some

default and the bank had initiated proceedings to recall the loan after noticing the de facto complainant. After anxiously considering the entire

records and also the submissions advanced, I am of the considered view that the custodial interrogation of the petitioners is not necessitous for an

effective investigation in the instant case. All the materials are borne out from documents and even if the de facto complainant has sustained any

loss, as a result of the acts of the accused, it has to be thrashed out in appropriate civil proceedings. The petitioners are persons with strong links to

the society and there cannot be any apprehension that they would not join investigation or that they would evade from the process of law.

Having regard to the nature and gravity of the allegations, the materials in support thereof, the role attributed to the petitioners and attendant

facts, I am inclined to allow these petitions and to grant an order of anticipatory bail.

In the result, this petition will stand allowed. The petitioners shall appear before the investigation officer within ten days from today and shall

undergo interrogation. Thereafter, if they are proposed to be arrested, they shall be released on bail on their executing a bond for a sum of

Rs.2,00,000/- (Rupees two lakhs only) each with two solvent sureties each for the like sum. However, the above order shall be subject to the

following conditions:

i) They shall co-operate with the investigation and shall appear before the Investigating Officer as and when directed

ii)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/ her from disclosing such facts to the court or to any police officer.

iii)The petitioners shall not commit any similar offence while on bail.

vi) They shall not leave India with out prior permission of the court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any,

and pass appropriate orders in accordance with the law.