IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 5133 of 2007()
1. P. RADHAKRISHNAN, S/O. CHOYIKUTTY,
... Petitioner
2. P. VELAYUDHAN, S/O. THAMI,
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SMT.LATHA PRABHAKARAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :22/08/2007
O R D E R
R.BASANT, J.
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B.A.No.5133 of 2007
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Dated this the 22nd day of August 2007
O R D E R
Application for anticipatory bail. Petitioners are accused 3 and
2 in a crime registered inter alia under Sections 420 and 406 I.P.C.
They are Secretary and Assistant Secretary of a Co-operative Bank.
The crux of the allegations against them is that they, in collusion with
the first accused and others, had accepted spurious gold ornaments as
security and helped the principal accused to siphon out funds of the
co-operative society. Investigation is in progress. Investigation has
revealed that a huge amount of more than Rs.14,00,000/- has been
siphoned out of the bank’s funds pledging spurious gold of 2471
grams. Investigation is in progress. The petitioners apprehend
imminent arrest. The learned counsel for the petitioners submits that
the petitioners are absolutely innocent of the allegations raised
against them. There is no expert appraiser appointed by the bank.
The petitioners have to take the decisions to accept or reject the gold
security on the basis of their personal long experience. It is further
submitted that the Director Board has to sanction the loan and the
petitioners have only the obligation to receive the gold as security and
pay the amounts. In fact, on coming to know that the principal
accused had committed identical fraud in respect of his transaction
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with other banks, the petitioners had initially lodged a complaint
against the principal accused. If they did have any contumacious or
culpable responsibility, it is unlikely that they would have initiated any
such proceedings. It is, in these circumstances, prayed that the
petitioners may be granted anticipatory bail and saved of the
undeserved trauma of arrest and detention.
2. The learned Public Prosecutor opposes the application.
The learned Public Prosecutor submits that the available inputs
including the confession statement of the principal accused clearly
show the contumacious and culpable involvement of the petitioners in
the huge fraud that is played by the bank. The learned Public
Prosecutor submits that at any rate, this is not a fit case where the
extraordinary equitable discretion under Section 438 Cr.P.C can or
ought to be invoked in favour of the petitioner. This is an eminently
fit case where the petitioners must be left to seek the ordinary and
regular course of appearing before the investigating officer or the
learned Magistrate having jurisdiction and then seek regular bail.
The learned Public Prosecutor further submits that an equipment to
assess the purity of gold was made available to the officers of the
bank prior to the date of commission of the offence in respect of some
transactions.
3. I have considered all the relevant inputs. At this early
B.A.No.5133/07 3
stage of investigation, I shall not venture to embark on a detailed
discussion on the acceptability of the allegations and the credibility of
the data collected. Powers under Section 438 Cr.P.C have to be
invoked sparingly and in exceptional cases in aid of justice. Such
jurisdiction cannot be invoked as a matter of course.
4. Having considered all the relevant inputs, I am unable to
find any features in this case that would justify the invocation of the
extraordinary equitable discretion under Section 438 Cr.P.C. I agree
with the learned Public Prosecutor that this is a fit case where the
petitioners must appear before the learned Magistrate or the
investigating officer having jurisdiction and then seek regular bail in
the normal and ordinary course.
5. In the result, this petition is dismissed. Needless to say, if
the petitioners surrender before the investigating officer or the
learned Magistrate and apply 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, in accordance
with law and expeditiously.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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B.A.No.5133/07 5
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007