High Court Kerala High Court

S.Anil Kumar vs State Of Kerala on 24 October, 2007

Kerala High Court
S.Anil Kumar vs State Of Kerala on 24 October, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl No. 6441 of 2007()


1. S.ANIL KUMAR, AGED 50,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.BLAZE K.JOSE

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :24/10/2007

 O R D E R
                               R.BASANT, J
                       ------------------------------------
                        B.A.No.6441 of 2007
                       -------------------------------------
              Dated this the 24th day of October, 2007

                                   ORDER

Application for anticipatory bail. The petitioner is the 3rd

accused. This is the second application for anticipatory bail filed by the

petitioner. An earlier application for anticipatory bail was dismissed by

another Bench of this Court as per order dated 29.10.03 in

B.A.NO.1673 of 2003.

2. The petitioner faces allegations in a crime registered for

offences punishable, inter alia, under Sections 120B and 409 I.P.C.

The accused persons are the appraiser/cashier, the manager and

senior clerk of a Co-operative Urban Bank. The petitioner is the senior

clerk. The crux of the allegations is that 3 accused persons in collusion

have created false documents to make it appear that applications for

gold loan were made by the members/customers. Without the said

customers applying for loan or offering any gold as security, amounts

under the gold loan scheme were allegedly shown as released to such

persons. The accused persons had allegedly misappropriated such

amounts illegally taken away from the coffers of the bank.

3. The learned counsel for the petitioner submits that the

petitioner is absolutely innocent. According to him, though he had

B.A.No.6441 of 2007 2

admittedly held charge as manager for 7 days during the span of 11

months during which period, the offence is alleged to have been

committed, he had no culpable or contumacious responsibility at all.

The 1st accused in the departmental proceedings had admitted his

liability. He has admitted that the other accused have no

contumacious responsibility. He has, in fact, produced back the gold

ornaments which were taken out of the bank by him. In these

circumstances, the petitioner may not be subjected to the trauma of

undeserved arrest and detention. The petitioner may be granted

anticipatory bail, prays the learned counsel for the petitioner.

4. Notice was given to the learned Public Prosecutor . The

learned Public Prosecutor opposes the application. The learned

Public Prosecutor submits that the plea of innocence of the accused

cannot at all be accepted at this stage. Prudence demands that the

culpable role of the petitioner must be inferred from the circumstances

available. During the period during which the petitioner was holding

charge as manager for 7 days, amounts have been shown as released

to customers who had never applied for loans. It is impossible for

such a transaction to take place without the culpable involvement and

collusion of the petitioner. The theory of inadvertance and negligence

of the petitioner cannot at all be accepted. In these circumstances,

B.A.No.6441 of 2007 3

the petitioner may not be granted anticipatory bail. He may be

directed to resort to the ordinary course of appearing before the

Investigating Officer or the learned Magistrate having jurisdiction

then seek regular bail in the ordinary course, submits the learned

Public Prosecutor .

5. This is the second application for anticipatory bail. To

persuade this Court to entertain a second application for anticipatory

bail when the rejection of the first application has not been challenged,

the petitioner must show change in circumstances. Except that a

period of about 4 years have elapsed from the dismissal of the earlier

application dated 29.10.03, no other circumstance has been revealed.

I am proceeding to consider the application for bail on merits only

because of such lapse of a period of 4 years. The lapse of the period

of 4 years has not in any way led the investigator to any conclusion or

inference in favour of the petitioner. I take note of the specific

allegation that during the period during which the petitioner was

holding charge of the manager also, loans have been sanctioned on

fake applications which the alleged applicants explain that they had not

submitted at all.

6. I shall carefully avoid any detailed discussion about the

acceptability of the allegations or the credibility of the data collected. I

am not at this stage called upon or expected to consider the materials

B.A.No.6441 of 2007 4

on golden scales. Suffice it to say that I am persuaded to agree with

the learned Public Prosecutor that there are no features in this case

which would justify or warrant the invocation of the extraordinary

equitable discretion under Section 438 Cr.P.C. This, I agree with the

learned Public Prosecutor, is a fit case where the petitioner must

appear before the Investigating Officer or the learned Magistrate

having jurisdiction and then seek regular bail.

7. This application is, in these circumstances, dismissed, but I

may hasten to observe that if the petitioner surrenders before the

Investigating Officer or the learned Magistrate and applies for bail after

giving sufficient prior notice to the Prosecutor in charge of the case,

the learned Magistrate must proceed to pass appropriate orders on

merits and expeditiously.

(R.BASANT, JUDGE)
rtr/-