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K.Sivanarayanan vs State Of Kerala Represented By Sub on 24 October, 2008

Kerala High Court
K.Sivanarayanan vs State Of Kerala Represented By Sub on 24 October, 2008
       

  

  

 
 
  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.

                 -----------------------------------------
                       B.A.No. 5222 of 2008
                                    &
                        B.A.No.5254 of 2008
                 -----------------------------------------

               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.

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