IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4391 of 2007()
1. BINEESH, AGED 36 YEARS,
... Petitioner
Vs
1. SATE OF KERALA REPRESENTED BY
... Respondent
For Petitioner :SRI.RAJIT
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :20/07/2007
O R D E R
R.BASANT, J
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B.A.No.4391 of 2007
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Dated this the 20th day of July, 2007
ORDER
Application for anticipatory bail. The petitioner is the 2nd
accused in a crime. According to the defacto complainant, the
petitioner runs a chit claiming the same to be a registered chit. There
is no required registration for the chitty at all, he now realises. The
defacto complainant has been induced to subscribe to a chit on the
basis of false representations made. He had remitted Rs.7,000/-
(Rupees Seven thousand only). The amount has not been returned.
The chit is not being run now. In these circumstances, he came to the
police to complain of the fraud practised on him by the accused
persons including the petitioner. Crime has been registered under
Section 420 I.P.C. Investigation is in progress.
2. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. It is true that there has been an
obstruction in the running of the chitty because of certain unforeseen
circumstances. The petitioner was involved in a murder case and
consequently he has not been able to run the chit as expected. A
Receiver has been appointed for the chitty company also. The
petitioner is being harassed unnecessarily with such prosecution. The
petitioner apprehends that the police, on account of objectionable
B.A.No.4391 of 2007 2
political motives, may vex and harass him by unnecessarily arresting
him. In these circumstances, it is prayed that directions under
Section 438 Cr.P.C may be issued.
3. The learned Public Prosecutor opposes the application.
All the elements of the offence of cheating are clearly made out, it is
submitted. The learned Public Prosecuto,r in these circumstances,
submits that this is not a fit case where direction under Section 438
Cr.P.C can or ought to be issued in favour of the petitioner. The
petitioner must resort to the ordinary and normal procedure of
appearing before the Investigating Officer or the learned Magistrate.
He must then seek regular bail, it is submitted.
4. Having considered all the relevant inputs, I am satisfied,
that appropriate directions can be issued to ensure that the petitioner
appears before the learned Magistrate and is given an opportunity to
seek regular bail.
5. In the result, this application for anticipatory bail is
allowed in part. The following directions are issued under Section
438 Cr.P.C.
i) The petitioner shall appear before the learned Magistrate
at 11 a.m on 27.07.07. He can apply for bail. Notice can be given to
the prosecutor even prior to such surrender. The learned Magistrate
shall consider the application for bail of the petitioner and application
B.A.No.4391 of 2007 3
for custody, if any, of the investigator and pass appropriate orders on
such applications on the date of surrender itself, unless there are
compelling reasons. The petitioner shall abide by such orders of the
learned Magistrate;
ii) If the petitioner does not appear before the learned
Magistrate as directed in clause (i), directions issued above shall
thereafter stand revoked and the police shall be at liberty to arrest
the petitioner and deal with him in accordance with law as if those
directions were not issued at all;
iii) If the petitioner were arrested prior to his surrender on
27.07.07 as directed in clause (1) above, he shall be released from
custody on his executing a bond for Rs.25,000/- (Rupees Twenty Five
thousand only) without any sureties undertaking to appear before the
learned Magistrate on 27.07.07.
(R.BASANT, JUDGE)
rtr/-