IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 2049 of 2008()
1. KRISHNADAS.O.K. @ KOCHUBAVA,
... Petitioner
2. VALSALA, AGED 52 YEARS,
3. DIVYA, AGED 22 YEARS,
4. DHANYA, AGED 24 YEARS,
5. DEEPA, AGED 25 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.DENIZEN KOMATH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :10/04/2008
O R D E R
R. BASANT, J.
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B.A. No.2049 of 2008
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Dated this the 10th day of April, 2008
ORDER
Application for anticipatory bail. The petitioners are
accused 1 to 5. They are the father, mother and the three
adult children of theirs. They face allegations in a crime
registered alleging offences punishable, inter alia, under
Secs.120B, 406 and 471 of the IPC. A crime has been
registered. Investigation is in progress. They apprehend
imminent arrest.
2. The crux of the allegations against the petitioners is
that they together executed an assignment deed in favour of
the de facto complainant and two others conveying an extent of
1.26 acres of land at Elamkunnappuzha. In the said document,
they had traced their title to a Will dated 10/5/90 executed by
the father of the 1st accused. It is the contention of the de
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facto complainant in the complaint that the said Will is a forged
document and has been pressed into service to fraudulently
deceive the de facto complainant and other assignees and thus
induced them to part with an amount of Rs.76.5 lakhs.
3. The petitioners have a totally different story to advance.
According to them, the property admittedly belonged to the
father of the 1st accused. He had executed a Will dated 10/5/90.
The Will was duly executed and attested in accordance with the
provisions of law. The testator had expired on 10/12/93. There
was an attestation by a Notary on 8/12/93 under which the
deceased testator had allegedly confirmed to the Notary that the
said Will was in force and he had duly executed the same.
Thereafter, on the strength of the said Will dated 10/5/90, there
were various transactions and it was ultimately that the said
assignment deed dated 5/10/07 was executed by accused 1 to 5
in favour of the de facto complainant and other assignees.
4. The de facto complainant alleged that this extent of 1.26
acres included 52 cents of land, the ownership and title of the 1st
accused over which was disputed. A sister of the 1st accused –
Baby by name, had claimed that she had rights under a
subsequent Will dated 1/11/90 allegedly executed by the
deceased testator. According to her, the Will dated 10/5/90 was
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not valid or genuine and, at any rate, in the light of the
subsequent Will dated 1/11/90 no rights can be claimed by the
legatees under the said Will dated 10/5/90. Thus, she contended
that 53 cents out of the 1.26 acres covered by the assignment
deed dated 5/10/07 belong to her and did not belong to accused
1 to 5. She had initiated proceedings before the civil court and
by a decree dated 29/6/076 her rights have been declared and
prohibitory injunction had been granted in her favour. The de
facto complainant alleged that all these transactions were
suppressed by accused 1 to 5 and they had executed the
document dated 5/10/07 keeping the assignees in the dark about
the dispute which A1 had with his sister over the said extent of
52 cents.
5. According to the petitioners, the de facto complainant
and other assignees knew fully well of the dispute between A1
and the sister. A perusal of the price fixed for the various items
of land covered by the document dated 5/10/07 must convey
eloquently that the de facto complainant and other assignees
knew of the dispute relating to the 52 cents of property, though
that dispute was not specifically recited in the document for
obvious reasons. The contention of the petitioners is that the de
facto complainant and other assignees had, with full awareness
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of the dispute, chosen to purchase the entire property showing a
much lesser amount than the market rate for the said 52 cents
of land. The total consideration of about 76.5 lakhs under that
document was paid by a cheque for Rs.55 lakhs and the balance
by cash, contends the learned counsel for the petitioners. That
cheque for Rs.55 lakhs had bounced and notice of demand was
issued against the assignees. It is at that stage that they, to
cook up a defence in such possible prosecution, have chosen to
feign ignorance about the suit between A1 and his sister and
have chosen to initiate the present proceedings. The learned
counsel for the petitioners contends that the de facto
complainant and other assignees are very influential and affluent
persons. They belong to a group which deals in real estate.
Their influence and clout has prompted the police to register this
case with the transparent intention of vexing and harassing the
petitioners.
6. The learned Public Prosecutor submits that the cheque
at Rs.55 lakhs has nothing to do with the present transaction.
Why was such a cheque given? In answer to this query, it is
said that the said cheque was given only as advance of
consideration for another oral transaction for transfer of an
adjacent plot of land.
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7. I have considered all the relevant inputs. The Case
Diary has been placed before me. The parties are before the
civil and criminal courts. I shall carefully avoid any detailed
discussions on merits about the acceptability of the allegations
or the credibility of the data collected. Suffice it to say that on
an anxious consideration of all the relevant inputs I am
persuaded to agree that this is a fit case where the petitioners
are entitled to the invocation of the extraordinary equitable
discretion under Sec.438 of the Cr.P.C.
8. In the result, this petition is allowed. Following
directions are issued under Sec.438 of the Cr.P.C:
(i) The petitioners shall appear before the learned
Magistrate having jurisdiction at 11 a.m. on 17/4/08. They shall
be released on regular bail on their executing bonds for
Rs.1,00,000/- (Rupees one lakh only) each with two solvent
sureties each for the like sum to the satisfaction of the learned
Magistrate.
(ii) The petitioners shall make themselves available for
interrogation before the Investigating Officer between 10 a.m.
and 3 p.m. on 18/4/08 and 19/4/08. During this period the
Investigator shall be at liberty to interrogate the petitioners in
custody and take all necessary steps for the proper conduct of
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the investigation. Thereafter the petitioners shall appear before
the Investigating Officer on all Mondays between 10 a.m. and
12 noon for a period of one month. Subsequently, they shall so
make themselves available for interrogation before the
Investigating Officer as and when directed by the
Investigating Officer in writing to do so.
(iii) If the petitioners do 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 petitioners and deal with them in accordance with law
as if these directions were not issued at all.
(iv) If the petitioners were arrested prior to their surrender
on 17/4/08 as directed in clause (i) above, they shall be released
on their executing bonds for Rs.1,00,000/- (Rupees one lakh
only) each without any sureties undertaking to appear before the
learned Magistrate on 17/4/08.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy// P.S. to Judge