Sreekumar.S vs State Of Kerala

Bechu Kurian Thomas, J.

This is an application for pre-arrest bail filed under Section 438 of the Code of Criminal Procedure, 1973.

Petitioner is the 2nd accused in Crime No.1190/2022 of Chadayamangalam Police Station, Kollam District, alleging offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code, 1860. During the course of investigation, offences under Sections 3, 4, 5, 21(3), 22, and 23 of BUDS Act, have also been incorporated.

According to the prosecution, the accused, who are the owners and employees of M/s.Kechery Chits Private Limited, had cheated the general public after accepting deposits and failed to return the same causing unlawful gain to the accused and unlawful loss to the de-facto complainant and thereby committed the offences alleged. The petitioner was the Branch Manager of the establishment and has been roped in as an accused being an employee of the 1st accused.

Sri. Alexander George, the learned counsel for the petitioner contended that the prosecution allegations are false and the offences against the petitioner will not lie. Petitioner had not collected any deposit and he was only the Branch Manager of the establishment carrying the duties and obligations bestowed upon him as a Manager of the establishment. It was further submitted that the petitioner has no role in the demand, collection or refusal to return the amount and therefore he cannot be roped in as an accused. Even otherwise learned counsel submitted that petitioner is willing to abide by any condition that may be imposed and also relied upon the order of this Court dated 5.6.2023 in B.A No.4139 of 2023, wherein petitioner was granted anticipatory bail in a similar crime.

Sri. Noushad.K.A, the learned Public Prosecutor opposed the application and submitted that as per the provisions of Section 25(3) of the BUDS Act, not only the deposit taker but even the Manager and other employees are also deemed to be guilty of the offences under the said Act. Therefore, the petitioner can be implicated as accused and custodial interrogation is essential for the purpose of bringing out the truth of the allegations. It was further submitted by the learned Public Prosecutor that, the 1st accused is in custody and therefore unless the petitioner is also arrested and interrogated truth of the allegations will not be able to be revealed. It was also pointed out that, there are 25 criminal cases against the petitioner, all with similar allegations.

I have considered the rival contentions.

Admittedly the petitioner was only a Manager of M/s.Kechery Chits Private Limited. Section 25 of the BUDS Act applies only in the circumstances mentioned in the provision. On a reading of the FIR, I am prima facie of the view that, the petitioner may not come within the purview of Section 25(3) of the Act. However, that is a matter to be determined by the Investigating Officer after investigation.

Since, admittedly the petitioner was the Manager of an establishment/person, he falls in the category of a deposit taker and money has also been collected from various members of the public. Interrogation of the petitioner is essential. Considering the fact that the nature of offences alleged against him are based upon his employment as a manager of an establishment, I am of the view that, limited custody of the petitioner would suffice the investigation. I am also fortified in this conclusion by the order of this Court in B.A No.4139 of 2023,wherein in a similar instance had directed the accused to be released on bail in the event of arrest.

From the nature of allegations as contained in the FIR, petitioner cannot prima facie said to be an accused.

Taking note of the entire circumstances, I am of the view that the petitioner can be released on anticipatory bail subject to conditions of limited custody.

Accordingly, this application is allowed on the following conditions:

a) Petitioner shall appear before the Investigating Officer on 27.06.2023 and shall subject himself to interrogation from 9.00 am to 5.00 pm.

b) If after interrogation, the Investigating Officer proceeds to arrest the petitioner, then, he shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum before the Investigating Officer.

c) Petitioner shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation.

d) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence.

e) Petitioner shall not commit any similar offences while he is on bail.

f) Petitioner shall not leave India without the 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, notwithstanding the bail having been granted by this Court.