Saleel Kumar V.S vs State Of Kerala

Mohammed Nias C.P., J

Apprehending arrest in Crime No.42/2023 of Town East police station, Thrissur, registered for offences under Sections 406 and 420 of the Indian Penal Code, and under Section 3 r/w Section 21, Section 5 R/w Section 23 of the BUDS Act, 2019. accused has filed this petition.

The prosecution allegation is that the accused has collected an amount of Rs.1,00,000/- from Ms Honey Thomas as a deposit in the guise of franchisee security in the company Safe a & Strong Business Consultant Pvt.Ltd, a company which was managed and run by the accused by promising a monthly return of Rs.2,000/- as a franchisee stipend. He also promised as another option that after the period of five years, the security amount of Rs.1,00,000/-would be refunded along with an additional benefit of Rs.2.5 lakh as a franchisee stipend and thereby committed the above offence.

Learned counsel for the petitioner Sri. K.R. Vinod argues that there is no averment either in the FIR or in the FIS that the second accused, the petitioner, has taken any money from the defacto complainant. It is also his contention that he resigned from the directorship on 5.12.2021, though his original date of appointment was 26.6.2019, and he had produced Annexure A2 to prove the same. His further argument is that in the absence of any allegation against him that he was the director or that he is a director now, or that while functioning as a director, he had taken any amount from the defacto complainant, no charge would lie against him. He also argues that under law, a director's vicarious liability is only when any involvement is alleged against him. In the absence of any of the above, no offence could be alleged against him. Under such circumstances, when the offence itself is not made out, he prays that he may be granted anticipatory bail. To support his contention, he has cited the following decisions of the Supreme Court in National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal and another [2010 (2) KHC 355], Sunil Bharti Mittal v. Central Bureau of Investigation (2015 KHC 4015), R.Kalyani v. Janak C Mehata and others (2009 KHC 4064) and Sushil Sethi and another v. State of Arunachal Pradesh and others (2020 KHC 6109), and also the decisions of this Court in Govind M.S. And others v. State of Kerala and others [2020 (1) KHC 74], Ashok Kumaran @ Sabu C v. State of Kerala [2023 (4) KHC 545].

Learned Public Prosecutor Smt. T.V. Neema, opposing the bail application, has filed a report stating that the petitioner was a director during the relevant time. The relevant paragraphs in the report are extracted hereunder:-

“It is submitted that the petitioner in this BA was the founder director (DIN number 07291539) of the accused companies 1) Safe and Strong Business Consultants Pvt. Ltd, 2) Safe and Strong Nidhi Ltd during the period 12.11.2015 to 05.12.201 and 03.01.2019 to 13.12.2021 respectively along with the accused No.1 Praveen K.P. @ Praveen Rana who was the Managing director as per the details obtained from the office of Registrar of Companies.

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It is submitted that on primary verification of one of the personal bank account details of the petitioner in this BA, A/c.No.12560100102176 in the Federal Bank Chowallurpady, Thrissur, it is seen that the account was credited every month repeatedly with an amount of Rs.21450/- continuously for 33 months during the period 01.02.2019 to 06.10.2021 (Total Rs.7,07,850/-) (Seven lakh seven thousand and eight hundred and fifty rupees only). Additionally an amount of Rs.22,70,000/- (Rupees twenty two lakh seventy thousand only) is seen credited to this account from the account of the accused company vide 44 transactions for the period from 10.06.2019 to 03.10.2022 as salary and other emoluments from the account (A/c 253505500053 of ICICI Bank Thrissur) of the Safe & Strong Business consultants Pvt Ltd and other accounts. The petitioner led a luxurious life during his tenure as the director of the accused company. Besides, a huge amount of money is seen credited to his account from many persons during the period of his directorship in the company which has to be verified.

On Primary verification of another account owned by the petitioner in this BA (A/c 67202975551 of SBI), Chavakkad branch, Thrissur), here also, Rs.7,11,450/- (Rupees seven lakh eleven thousand four hundred and fifty only) is seen credited during the period 28/11/2018 to 24/09/2021, and huge amount of money is seen deposited to this account as cash deposit directly from cash depositing machine in Thrissur district especially from Chavakkad. It is also noted that petitioners wife was a staff at Chavakkd branch of the accused company. Therefore the personal accounts of his wife also should be scrutinised in order to find the volume of the amount diverted by the petitioner in this BA.

It is humbly submitted that based on the statements of the witnesses and the above mentioned facts and evidence, the petitioner in this BA have been arrayed as the second accused (A2) in this case and a report was sent to the Honourable court in this regard on 05.04.2023.

At present out of 267 cases are being investigated by Crime Branch and the petitioner was arrayed as accused in 223 cases.

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On verifying the records of the investigation done by the formed investigating officer Lalkumar P., it is evident that the accused A1 escaped from the Heera Waters Flat Complex located at Chilavannur Kochi, just before the arrival of the police party there using this vehicle which is owned by the petitioner in this BA.

It is submitted all the above facts revealed a close association of the petitioner with the accused No.1 and with the accused companies even after his resignation from the company on 01.10.2021 as stated.

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It is submitted that the accused A1 and the petitioner (A2) in this BA being the Managing Director and director of the accused companies

Safe & Strong Business Consultants Pvt. Ltd and 2. Safe and Strong Nidhi Ltd, accepted crores of rupees from several people all over the state under the manner franchisee security by offering up to 5% monthly income as franchisee stipend and accepted deposits in Nidhi Ltd by offering 12.5% to 18% interest. Later, they opened company officers in various districts and appointed staffs for collecting the security and deposit amounts.

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Petitioner in this BA is arrayed as accused (A2) in 223 cases investigated by the Crime branch. Custodial interrogation of the accused is necessary to unearth the exact money that was diverted by the petitioner in this BA. The petitioner along with the prime accused, as director and managing director from the beginning of the accused companies, led a luxurious life using the deposited money of the victims. If the petitioner gets bail, he may influence and intimidate the prime witnesses and it will be a wrong message to the society.”

After having heard the learned Counsel on either side, It is to be noted that in the instant case, there are around 233 cases registered involving allegations of having taken money promising higher returns offering franchise, and in all the above crimes, the petitioner herein was arrayed as the second accused on the ground that he was a director at the relevant time and also there being proof for his active involvement along with A1.

In a case involving the misappropriation of huge amounts, if the petitioner is released on anticipatory bail, the same will infringe the opportunity of the Investigating Officer to have a custodial interrogation to effectuate meaningful investigation and effective prosecution to find out the details of misappropriation, including the details of the diversion of the amount involved, and the same would not only hamper the investigation but also would destroy the investigation. It was held in Sudhir v. State of Maharashtra and another (2015 KHC 4657) that while considering the prayer for the grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused. In Chidambaram P. v. Directorate of Enforcement (2019 KHC 6886), it is held that the grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information and materials that might have been concealed. Success in such interrogation would elude if the accused knew that an order of the court protected him. Grant of anticipatory bail, particularly in economic offences, would definitely hamper the effective investigation.

In Jagan Mohan Reddy Y.S. v. Central Bureau of Investigation (2013 KHC 4402), it is held that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the country's economy as a whole and thereby posing a serious threat to the country's financial health. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment that conviction will entail, the character of the accused, circumstances that are peculiar to the accused, the reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.

As the report of the Prosecutor reveals, considering the number of cases against the petitioner, the amount allegedly misappropriated, his involvement with the first accused, the contention of the learned counsel for the petitioner that he was not the director at the relevant time, no amounts were collected when he was the director, no allegation against the petitioner are all matters to be found out in a proper investigation. The FIR only puts the criminal law into motion and cannot be treated as an encyclopedia of everything about the crime. The contention of the petitioner could have been considered if he was implicated only in one case, but as pointed out in the report filed by the prosecution, he is involved in 233 cases. To find out which accused had taken the money and where the money is parked are all matters to be found out only on a proper investigation. For the above reasons, granting anticipatory bail to the petitioner in the instant case will adversely affect a proper investigation.

Accordingly, the bail application is dismissed.