THOMAS & ANR vs STATE OF KERALA

This petition is filed under Section 439 of the Code of Criminal Procedure.

The petitioners herein are the accused Nos. 3 & 4 in Crime No.4350/2017 of the Kothamangalam Police Station reregistered as CBCID

Cr.353/CR/OCW II/EKM/2017, registered under Sections 406 and 420 r/w. Section 34 of the IPC.

The prosecution allegation is that the petitioners herein are the Directors of M/s.Phenomenal Health Care Services Ltd. The Company induced

the complainant and others to part with a sum of Rs.53.5 lakhs on the assurance that the said amount would be repaid with 100% appreciation in a

period of 9 years. They were also assured with health assurance and medical assistance. On the failure of the accused to provide the de facto

complainant the benefit of the schemes launched by them, a complaint was lodged, based on which, the aforesaid Crime was registered.

The learned counsel appearing for the petitioners submitted that several crimes have been registered against Phenomenal Health Care Pvt. Ltd.,

the parent Company, which is having its Head office at Mumbai. The petitioners herein are merely employees and they had no role to play in the

day-to-day conduct of the business. It is further submitted that the 1st and 2nd petitioners were arrested on 14.09.2017 and 13.09.2017

respectively in Crime No.529 of 2017 of the Chalakkudy Police Station. They had undergone prolonged incarceration. In the instant Crime, formal

arrest of the petitioners was recorded on 5.2.2018. According to the learned counsel, the 1st petitioner is aged 71 years and is suffering from

Coronary Artery disease, Diabetes mellitus and Lateral Wall Ischemia. Insofar the 2nd petitioner is concerned, he is suffering from orbital

lymphoma and the vision of his left eye is totally lost. The principal accused, who are the Directors of the Company, have not been arrested till

date.

The learned Public Prosecutor has opposed the prayer. It is submitted that Phenomenal Group of Companies was initially registered at

Maharashtra and started its functioning in Kerala from 1992 onwards. Initially, the Company commenced its business in the name and style as

''Phenomenal Plantations in the year 1996. However, the said Company was liquidated. In the year 1998, a new Company was registered in the

name and style as ''Phenomenal Health Care Services Ltd.'' and continued its functioning in Kerala. It is submitted that the petitioners were

prominent field staff workers of the Company during that period and gradually, they became the top agents of the Company. It is urged that by

inducing the general public, the Company received deposits in the name of membership fee and the same was misappropriated. In the year 2008, a

new Company was formed under as Phenomenal Health Care (Malayali) Pvt. Ltd. The 1st petitioner herein was made one of the Directors of the

said Company and in the year 2012, the 2nd petitioner was made the Director. It is also alleged that the Company had issued various cheques to

its customers which were all dishonoured. It is finally submitted that the founder Directors of Phenomenal Health Care Services Pvt. Ltd., have not

been arrested till date. About 58 cases have been registered against the petitioners in various Police Stations in the State of Kerala and those cases

are now being transferred to the CBCID for investigation. The learned Public Prosecutor submits that the investigation is still in the early stages and

several documents are to be obtained from Banks, Income Tax Departments etc. to ascertain the exact amount defrauded by the accused.

I have considered the submissions advanced and have gone through the case diary.

The allegations in the instant case relate to amounts which were deposited by the de facto complainant with M/s. Phenomenal Health Care

Services Pvt. Ltd. In respect of the said Company, the prosecution has no case that the petitioners herein are the Directors. The allegation is that

the petitioners were the prominent canvassing agent and they were instrumental in persuading the investors to invest in the Schemes of the

Company. However, the prosecution does not have a case that the petitioners herein were in-charge and responsible to M/s. Phenomenal Health

Care Services Pvt. Ltd. Further more, the petitioners have been in custody from 14.9.2017 and 13.9.2017 respectively. The principal officers of

the Company have not been apprehended till date. Further detention of the petitioners, in the facts and circumstances, does not appear to be

warranted. I am of the view that by imposing stringent conditions to safeguard the interest of the prosecution, the petitioners can be released on

bail.

In the result, this petition will stand allowed. However, it shall be subject to the following conditions:

(a) The petitioners shall be released on bail, if not required to be detained otherwise, on their executing a bond for a sum of Rs.1,00,000/-(Rupees

One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.

(b) The petitioners shall appear before the Investigating Officer as and when directed.

(c) The petitioners shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence.

(d) The petitioners shall not commit any offence while they are on bail.

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.