IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 5222 of 2008()
1. K.SIVANARAYANAN, AGED 45 YEARS,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY SUB
... Respondent
For Petitioner :SRI.K.M.KURIAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :24/10/2008
O R D E R
K.HEMA, J.
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B.A.No. 5222 of 2008
&
B.A.No.5254 of 2008
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Dated this the 24th October, 2008
O R D E R
These petitions are for anticipatory bail.
2. The alleged offences are under Sections 406, 420 read with
Section 34 of Indian Penal Code. According to prosecution, accused
1 to 3, who are employees of the Triveni Super Market, in
furtherance of a common intention misappropriated huge amount of
money by depositing only a part of the money in the bank and
misappropriating the balance, by forging chalan. Petitioner in
B.A.No.5254 of 2008 is second accused and petitioner in
B.A.No.5222 of 2008 is the third accused in the crime.
3. Learned counsel for second accused submitted that he was
in charge of the Triveni Super Market, Palakkad for a part of the
relevant date and first accused is the Clerk, who was also dealing
with the transactions. The money used to be entrusted with the
third accused for depositing the same in the bank. Chalan used to
be prepared for depositing the money in the bank. But, if an
amount of Rs.25,000/- is handed over to the third accused for
deposit, he deposited only Rs.5,000/- entering only such details in
BA.5222 & 5254/08 2
the chalan and misappropriated balance amount. Thereafter,
entries are made in the chalan in a such a way that the figure as
well as words to make it appear that Rs.25,000/- is deposited.
Entries are accordingly made in the registers based on the
fabricated chalan. In the same manner, he misappropriated a huge
amount. But, third accused, being in charge of the Super Market, is
also implicated as accused. He has absolutely nothing to do with the
offence. The entries are made in the registers only on the basis of
the chalan which are forged by the third accused behind the back
and brought to the Super Market.
4. Learned counsel for third accused submitted that all the
allegations made are absolutely false. During the relevant period,
he was not even working in Palakkad Trivent Super Market. From
19.6.2007 till 30.11.2007 he was working in Alathur, as evidenced
by various documents but during such period he was not working
there. According to him, he was transferred to Alathur and he was
not even available at Palakkad, as evidenced by the documents
produced. During the pendency of this petition, the police had
taken into custody and detained him in the police without arresting
the petitioner. Thereafter, when he was coming out of the police
station, first accused and some persons forcibly took him away in
a vehicle and he was made to sign several papers to fabricate
BA.5222 & 5254/08 3
documents against the petitioner. They had also created a
document signed by petitioner to make it appear that the third
accused has taken up the responsibility for the offence and
exonerating others. third accused submitted a complaint is given to
the Superintendent of Police also, as per Annexure-G. Third accused
also submitted that he is mortally afraid of the police from his past
experience and hence he expects some torture at the police station.
Therefore, it is submitted that he may be allowed to surrender
before the Magistrate Court concerned. Third accused has no
liability for the offence and he has not committed any offence, it is
submitted.
5. Learned Public Prosecutor submitted that third accused
was working in Palakkad Triveni Super Market during the relevant
period, in which the offence is committed. Though learned counsel
for third accused submitted that during the period from 19.6.2007
to 30.11.2007 third accused was working in Alathur, the facts
submitted are not fully correct. It is true that a transfer order was
issued, but on an oral request made by him, he was allowed to
continue in Palakkad Triveni Super Market, except for the period
from 20.6.2007 to 1.11.2007. During the rest of the period, third
accused was very much available in Palakkad Super Market and it
is found on verification of records, as directed by this Court that
BA.5222 & 5254/08 4
the misappropriation was committed in the Triveni Super Market
only during the period during which, third accused was working at
Palakkad and during no other period there was any instance of
misappropriation.
6. Learned Public Prosecutor however submitted that second
accused may be directed to surrender before the investigating
officer and co-operate with the investigation and subject to that, he
has no objection in granting anticipatory bail to him. As far as third
accused is concerned, it is submitted that he is the main culprit and
anticipatory bail may not be granted to him, it is submitted.
6. On hearing both sides and on perusing the case diary, it
appears prima facie that third accused has some role in the
offence, as revealed from the materials now available in the case
diary. I am also satisfied that it is a case where petitioner is
required for interrogation. On consideration of the nature of
allegations made, it is not a fit case to grant anticipatory bail. He
will be required for interrogation also, in the nature of the
allegations made. I am satisfied that third accused is to be
interrogated by police considering the peculiar nture of the offence.
Hence, the following order is passed:
i) Prayer for anticipatory bail by third accused is
rejected.
BA.5222 & 5254/08 5
ii) Second accused shall surrender before the
investigating officer within seven days from
today and co-operate with the investigation
and make himself available for interrogation
and if he is arrested, he shall be released on
bail on his executing a bond for Rs.25,000/-
with two solvent sureties each for the like sum
to the satisfaction of the arresting officer, on
the following conditions:
a) He shall report before the
investigating officer as and when
directed.
b) He shall not commit any offence
while on bail.
c) Petitioner shall not tamper with
evidence or influence the
witnesses or intimidate them or
commit any offence while on
bail and in case of breach of this
condition, the bail is liable to be
cancelled.
B.A.No.5222 of 2008 is dismissed and B.A.No.5254 of 2008 is
allowed.
K.HEMA, JUDGE
vgs.
