Vljeesh vs State Of Kerala

C.S.Dias, J

The application is filed under Section 438 of the Code of Criminal Procedure, 1973(in short, ‘Code’), for an order of pre-arrest bail.

The petitioner is the second accused in Crime No.61/2024 of Palakkad Town South Police Station, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 406, 420 read with Section 34 of the Indian Penal Code,1860, Sections 3, 4, 5 & 6 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 (in short 'PCMCS Act’) and Sections 3 and 21 of the Banning of Unregulated Deposit Schemes Act, 2019 ( 'BUDS Act' in short).

The essence of the prosecution case is that, the accused Nos. 1 and 2 without any sanction or permission collected money from the public for an online project named 'Metaforce'. They made the third respondent believe that they are the promoters of the said project. They conducted motivation classes at various hotels in Palakkad Town and induced the general public to deposit money in the said project. The accused Nos.1 & 2 induced the third respondent to transfer an amount of Rs.28,77,500/- to the bank account of the first accused during the period from 01.08.2023 to 31.12.2023. However, the accused failed to give any profit or return the deposited amount to the third respondent. Thus, the accused have committed the above offences.

Heard; Sri. Mohammed Youseff, the learned Senior Counsel appearing for the petitioner; Smt. Seetha S., the learned Public Prosecutor appearing for the respondents 1 & 2 and Sri. T.K. Sandeep, the learned counsel appearing for the third respondent.

The learned Senior Counsel appearing for the petitioner vehemently argued that the petitioner is totally innocent of the accusations levelled against him. Even if the allegations in Annexure-1 First Information Report[FIR] are taken on its face value, the same will not constitute offences alleged against the petitioner. The petitioner has not committed any offence as alleged by the prosecution. The offences alleged against the petitioner will not be attracted to the facts of the case. Actually, the third respondent was one of the members of the business project named 'Metaforce'. The said project was dealing in virtual currency. Metaforce was born within the polygon ecosystem, combines gaming, social networking and virtual reality into a fast-growing metaverse where users create business communities and participate in NFT trading. The Force Coin dealt with by Metaforce is a crypto coin just like the Bit Coin and other crypto currencies. The first accused in the crime has been maintaining a friendship with the third respondent for the last more than 10 years. The third respondent had misbehaved with a female member of the Metaforce team. When the first accused complained about his misbehavior, he developed a grudge towards the accused. It is an aftermath of the said incident that the third respondent has presently filed the frivolous complaint. Annexure-5 to Annexure-7 series establish that the third respondent was having a cordial relationship with the accused. The transactions conducted by the Metaforce do not fall within the purview of the BUDS Act or the PCMCS Act. The third respondent, his brother and father and some of his relatives are all parties of the business of Metaforce. All of them have separate wallets for the business and transactions with Metaforce. Annexure-2 is the identity card of the third respondent with Metaforce. Annexure-3 series are the screenshots of the Metaforce’s Whats-app group which shows the active involvement of the third respondent in the project. Annexure-4 series Online poster messages shows the income earned by the third respondent. Annexure-1 FIR registered by the second respondent is false and without any cogent reason. The third respondent has already received dollars for equal value of money. Annexure-6 series are the statements of the wallet transactions of the third respondent. All these would show that there is no activity which is banned under the BUDS Act. Annexure-1 is the frivolous and vexatious litigation. The respondents 1 and 2 have ignored the guidelines laid down by the Hon'ble Supreme Court in Salinder Kumar Antil v. Commissioner of Police and Another [2022 Livelaw (SC) 577], Aman Preet Singh v. C.B.I. [2021 SCC Online (SC) 941], Arnesh Kumar v. State of Bihar [(2014) 8 SCC 173].  He also relied on the decisions of the Hon'ble Supreme Court in Vijay Kumar Ghai &Ors. v. The State of West Bengal & Ors. [(2022) 7 SCC 124] and Peethambaran v. State of Kerala & Ors.[(2023) 4 SCR 1144] to fortify his contention that it was imperative on the part of the third respondent to prima-facie establish that there was an intention on the part of the accused to cheat/defraud the third respondent right from the inception. Hence, he prayed that the application may be allowed.

The learned Public Prosecutor seriously opposed the application. She submitted that the accused are the masterminds of an online scam and they have cheated several innocent depositors. The accused are the promoters of 'Metaforce'. The accused Nos.1 & 2 conducted meetings at various hotels and solicited the public to invest money in the project. The investigation conducted so far has revealed that nearly 2500 depositors have invested their money. The transactions were conducted through five Whats-App groups consisting of 500 members each. The first accused has five bank accounts and has collected a total amount of Rs.1,29,15,306/-. The accused have received Rs.28,77,500/- from the third respondent. In fact, the first accused has been arrested and he is in judicial custody. His application for bail was dismissed by this Court on 09.02.2024 in B.A.No.774/2024. The petitioner is also an accused in Crime No.53/2024 of Chittur Police Station, for committing a similar offence. His application for an order of pre-arrest bail was also dismissed by this Court on 09.02.2024 in B.A.No.559/2024. The petitioner’s custodial interrogation is necessary and recoveries have to be effected. The investigation is only in the preliminary stage. The present crime is only the tip of the iceberg. The investigation reveals that the accused have committed similar offences. Therefore, if the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. There is every likelihood of the petitioner intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed.

The learned counsel appearing for the third respondent also seriously opposed the application. He contended that the accused Nos.1 & 2 have received an amount of Rs.28,77,500/- from him, assuring him of good profits. However, the accused have not given any profits or returned the money. The accused have cheated several other persons of their hard earned money. If the petitioner is granted an order of pre-arrest bail, he would certainly tamper with the evidence. Hence, the application may be dismissed.

The prosecution allegation is that, the accused Nos.1 and 2 floated a company named 'Metaforce', promoted the said company by conducting motivation classes and meetings at different hotels in Palakkad and induced the public to invest money in the said project by assuring them profit. It is submitted that approximately 2500 depositors have deposited an amount of Rs.1,29,15,306/-. The third respondent has deposited an amount of Rs.28,77,500/-. However, the accused have failed to pay profits to the depositors or returned the amount. Thus, the accused have committed the above offences.

In Siddharam Satlingappa Mhetre v. State of Maharashtra [(2011) 1 SCC 694] the Hon’ble Supreme Court has held as follows:

“111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.

112.The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i)The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for 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;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

We deem it appropriate to reiterate and assert that discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.”

In Jai Prakash Singh v. State of Bihar and Another, [(2012) 4 SCC 379] the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused.

In P. Chidambaram v. Directorate of Enforcement [(2019) 9 SCC 24], the Hon'ble Supreme Court has observed thus:

“69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.”

The learned Senior Counsel submitted that even if the allegations in the FIR are taken on its face value, it would not constitute the offence, and there are no incriminating materials to establish the complicity of the petitioner in the crime. On the contrary, the learned Public Prosecutor submitted that the investigation is only at its nascent stage. The first accused has been arrested and there are sufficient materials to prima facie establish that the petitioner is also involved in the crime. The petitioner’s custodial interrogation is necessary and recoveries have to be effected. He also said that there is another crime registered against the accused and the preliminary investigation reveals that many depositors have been cheated by the accused.

It is well settled that at the stage of granting bail, the courts are not excepted to elaborately examine the materials touching on merits of the case, which may ultimately prejudice the accused. But, the courts are only excepted to indicate in the orders the reasons for prima facie concluding as to why bail was granted or rejected.

In the case on hand, the FIR prima facie reveals that the accused have committed the offences alleged against them. As the investigation is only in its preliminary stage, that the custodial interrogation of the petitioner is necessary and recovery is to be effected for the proper and full investigation of the case, I am not inclined to exercise the discretionary powers of this Court under Section 438 of the Code.

On a consideration of the facts, materials placed on record, the rival submissions made across the Bar, and on comprehending the nature, seriousness and gravity of the economic offences alleged against the petitioner, that the investigation in the case is at the preliminary stage, that the petitioner's custodial interrogation is necessary and that the recovery is to be effected, I am of the definite view that the petitioner has not made any exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. Therefore, I hold that this is not a fit case to grant an order of pre-arrest bail.

Resultantly, the bail application is dismissed.