IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 6441 of 2007()
1. S.ANIL KUMAR, AGED 50,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.BLAZE K.JOSE
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :24/10/2007
O R D E R
R.BASANT, J
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B.A.No.6441 of 2007
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Dated this the 24th day of October, 2007
ORDER
Application for anticipatory bail. The petitioner is the 3rd
accused. This is the second application for anticipatory bail filed by the
petitioner. An earlier application for anticipatory bail was dismissed by
another Bench of this Court as per order dated 29.10.03 in
B.A.NO.1673 of 2003.
2. The petitioner faces allegations in a crime registered for
offences punishable, inter alia, under Sections 120B and 409 I.P.C.
The accused persons are the appraiser/cashier, the manager and
senior clerk of a Co-operative Urban Bank. The petitioner is the senior
clerk. The crux of the allegations is that 3 accused persons in collusion
have created false documents to make it appear that applications for
gold loan were made by the members/customers. Without the said
customers applying for loan or offering any gold as security, amounts
under the gold loan scheme were allegedly shown as released to such
persons. The accused persons had allegedly misappropriated such
amounts illegally taken away from the coffers of the bank.
3. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. According to him, though he had
B.A.No.6441 of 2007 2
admittedly held charge as manager for 7 days during the span of 11
months during which period, the offence is alleged to have been
committed, he had no culpable or contumacious responsibility at all.
The 1st accused in the departmental proceedings had admitted his
liability. He has admitted that the other accused have no
contumacious responsibility. He has, in fact, produced back the gold
ornaments which were taken out of the bank by him. In these
circumstances, the petitioner may not be subjected to the trauma of
undeserved arrest and detention. The petitioner may be granted
anticipatory bail, prays the learned counsel for the petitioner.
4. Notice was given to the learned Public Prosecutor . The
learned Public Prosecutor opposes the application. The learned
Public Prosecutor submits that the plea of innocence of the accused
cannot at all be accepted at this stage. Prudence demands that the
culpable role of the petitioner must be inferred from the circumstances
available. During the period during which the petitioner was holding
charge as manager for 7 days, amounts have been shown as released
to customers who had never applied for loans. It is impossible for
such a transaction to take place without the culpable involvement and
collusion of the petitioner. The theory of inadvertance and negligence
of the petitioner cannot at all be accepted. In these circumstances,
B.A.No.6441 of 2007 3
the petitioner may not be granted anticipatory bail. He may be
directed to resort to the ordinary course of appearing before the
Investigating Officer or the learned Magistrate having jurisdiction
then seek regular bail in the ordinary course, submits the learned
Public Prosecutor .
5. This is the second application for anticipatory bail. To
persuade this Court to entertain a second application for anticipatory
bail when the rejection of the first application has not been challenged,
the petitioner must show change in circumstances. Except that a
period of about 4 years have elapsed from the dismissal of the earlier
application dated 29.10.03, no other circumstance has been revealed.
I am proceeding to consider the application for bail on merits only
because of such lapse of a period of 4 years. The lapse of the period
of 4 years has not in any way led the investigator to any conclusion or
inference in favour of the petitioner. I take note of the specific
allegation that during the period during which the petitioner was
holding charge of the manager also, loans have been sanctioned on
fake applications which the alleged applicants explain that they had not
submitted at all.
6. I shall carefully avoid any detailed discussion about the
acceptability of the allegations or the credibility of the data collected. I
am not at this stage called upon or expected to consider the materials
B.A.No.6441 of 2007 4
on golden scales. Suffice it to say that I am persuaded to agree with
the learned Public Prosecutor that there are no features in this case
which would justify or warrant the invocation of the extraordinary
equitable discretion under Section 438 Cr.P.C. This, I agree with the
learned Public Prosecutor, is a fit case where the petitioner must
appear before the Investigating Officer or the learned Magistrate
having jurisdiction and then seek regular bail.
7. This application is, in these circumstances, dismissed, but I
may hasten to observe that if the petitioner surrenders before the
Investigating Officer or the learned Magistrate and applies 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 and expeditiously.
(R.BASANT, JUDGE)
rtr/-