Sarvanath vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.1105/2022 of Adoor Police Station, Pathanamthitta, registered against the accused (five in number), for allegedly committing the offences punishable under Sections 420, 465, 468 & 471 read with Section 34 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioner was arrested on 21.01.2024.

The crux of the prosecution case is that: the accused Nos. 1 to 3 in order to cheat the de-facto complainant and make wrongful gain, made the de-facto complainant believe that they would secure a loan from the Bank to enable him to buy an Aluminium Fabrication Company abroad. Consequently, the de-facto complainant gave the title deeds of 1 acre and 28 cents of property owned by the complainant, and in furtherance of their common intention with the other accused, created an equitable mortgage with the South Indian Bank, where the fifth accused was the Branch Manager, and took the loan in the name of the fourth accused by making her the main applicant and the complainant as the guarantor, that too by fabricating the documents and without the knowledge of the complainant. Consequently, an amount of Rs.93,00,000/- was sanctioned in favour of the fourth accused, who in turn transferred the amount to accused 1 to 3. The accused did not pay any amount to the complainant or return the title deeds. Thus, the accused caused a loss of Rs.1,60,00,000/- to the de-facto complainant. Accordingly, the accused have committed the above offences.

Heard; Smt.Sindhu Santhalingam, the learned Counsel appearing for the petitioner; Smt.Neema T.V., the learned Senior Public Prosecutor and Sri. Krishnakumar V R , the learned counsel appearing for the de-facto complainant/ intervenor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The alleged incident occurred as early as in the year 2018. However, Annexure-I First Information Report was registered only in the year 2022, which by itself establishes the falsity in the crime. At any rate, the offences under Section 420 of the IPC cannot be attracted. The petitioner has been in judicial custody since 21.01.2024. The investigation in the case, as far as the petitioner is concerned, is practically complete and the recovery has been effected. Therefore, the petitioner’s further detention is not necessary. Hence, the petitioner may be released on bail.

The  learned  Public  Prosecutor  opposed  the application. She contended that the investigation in the case is still in progress. Few of the accused are yet to be arrested. Nonetheless, she conceded to the fact that the petitioner has been in judicial custody for the last 35 days. The investigation in the case, so far the petitioner is concerned, is practically complete.

The learned counsel for the intervenor also opposed the application. He contended that the accused have cheated the de-facto complainant by obtaining the title deeds of his property and failing to secure the loan and return the amount. The accused have caused a loss of more than Rs.1,60,00,000/- to the de-facto complainant. The investigation in the case is only in the preliminary stage. Many matters would have to be looked into by the Investigating Officer. Therefore, if the petitioner is released on bail, it would hamper with the investigation. Hence, the application may be dismissed.

The prosecution allegation is that, the accused had promised the de-facto complainant of securing a loan for his business purpose. However, they in furtherance of their common intention got the loan sanctioned in the name of the fourth accused by using the title deeds of the complainant and fabricating the documents, got the loan amount paid to the fourth accused, who in turn transferred the money to the accused Nos.1 to 3. The complainant was not paid any money and his title deeds have also not been returned. Thus, the accused have committed the above offences.

In Sanjay Chandra v. CBI [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence until a person is found guilty. Any imprisonment prior to conviction is to be considered as a punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct.

In Dataram Singh v. State of U.P. [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is a rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner.

Subsequently, in State of Kerala v. Raneef [(2011) 1 SCC 784], the Honourable Supreme Court has again held that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution.

On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly taking note of the fact the petitioner has been in judicial custody since 21.01.2024, that the  investigation in the case so far as the petitioner is concerned, is practically complete and the recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application.

In the result, the application is allowed, by directing the petitioner to be released on bail on  him executing a bond for Rs.1,00,000/- (Rupees one lakh only)  with two solvent sureties each for the like sum, to  the  satisfaction  of  the  court  having  jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is filed, whichever is earlier. He shall also appear before the Investigating Officer as and when required;

(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 in any manner, whatsoever;

(iii) The petitioner shall not commit any offence while he is on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below.

(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].