IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 Bail Appl..No. 5780 of 2008() ----------------------------- CRMP.1842/2008 of D.C. & SESSIONS COURT,KOLLAM CRIME NO. 369/2008 OF KOLLAM WEST POLICE STATION PETITIONER (S): ACCUSED 1 AND 3 ----------------------------------- 1. BEENY K. JOY, S/O.K.M. JOY, KUNNATHU VATTATHIL HOUSE, MUDAVOOR.P.O, MUVATTUPUZHA. 2. LAZAROUS ALOYIOUS, S/O. LAZAR, MARIYALAM, SAKTHIKULANGARA, KOLLAM. BY ADV. SRI.ALAN PAPALI RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, (CRIME NO. 369/08 OF KOLLAM WEST POLICE STATION, S.I OF POLICE) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. SRI.M.S.BREEZ SRI.RAJA VIJAYARAGHAVAN (DEFACTO COMPLAINANT) SRI.M.T.SURESHKUMAR(DEFACTO COMPLAINT) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 5780 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of September,2008 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 420, 463, 467, 468, 471 and 120B IPC. According to prosecution, 2nd accused who is the eldest son of defacto-complainant fraudulently obtained original of sale deed of the property belonging to defacto-complainant and also signed cheque leaves from her, while she was under his care, after the death of her husband. Pursuant to a conspiracy hatched between accused 1 and 3 with the 2nd accused, the property was sold in favour of the 2nd accused and the cheque was forged in the name of 1st accused and 1st accused filed a suit and got attachment of the property of the defacto-complainant. A petition was given before the Superintendent of Police, on the basis of which, a crime is registered under sections 420, 463, 467, 468, 471 and 120B IPC against petitioners as accused 1 and 3 and defacto-complainant's son as accused No.2. 3. Learned counsel for petitioner submitted that this is only a counter blast to the suit filed by 1st accused against defacto-complainant, since the cheque issued by her in favour of BA 5780/08 -2- the 1st accused bounced. Defacto-complainant had obtained a loan of Rs.4,00,000/- from the 1st accused, after her husband died in 1985, to pay off the debts incurred by her husband. When the suit was filed, a complaint is raised that the cheque is forged. In fact even the sale deed was handed over to the 1st accused for the purpose of obtaining loan and the sale deed is in possession of the 1st accused. This is only a counter blast to the suit filed by the 1st accused, it is submitted. 4. Learned counsel for petitioner also submitted that signature of the cheque is admitted and in the light of a decision reported in Som Mittal V. Government of Karnataka ((2008)2 SCC (Cri) 73), anticipatory bail may be granted to petitioner, since he is not likely to abscond. As per object of section 438 Cr.P.C. unnecessary detention of a person has to be avoided by granting anticipatory bail, it is submitted. 5. This petition is opposed by learned Public Prosecutor as well as learned counsel appearing for defacto-complainant. Both were heard in detail. According to them, defacto-complainant's husband died in the year 1985 and she is residing with the eldest son who is the 2nd accused herein. He had filed petition for anticipatory bail as B.A. no.5798/2008 before this Court and it is BA 5780/08 -3- admitted that all the affairs of the defacto-complainant were looked after by her son 2nd accused. The 2nd accused fraudulently obtained the sale deed and also the cheque leaves and those were handed over to 3rd accused, and in conspiracy with 1st and 3rd accused, the cheque was forged and a suit was filed by the 1st accused. The property was also sought to be attached. The property was fraudulently transferred in the name of 2nd accused and some constructions were effected thereon, with the help of the 3rd accused. On knowing this, defacto-complainant resisted the same and she went and resided with her daughter. It is on enquiry that she came to know that 2nd accused committed fraud and the offences, behind her back, while she was under his care. In a case of this nature, it is submitted that anticipatory bail may not be granted. 6. On hearing both sides, considering the nature of the allegations made, I am not persuaded to grant anticipatory bail. Anticipatory bail cannot be granted to a person on the basis of a mere request made. Every apprehension of arrest in a non bailable offence would not entitle an accused to get anticipatory bail. In cases where there may be chances of false implication or unwanted detention alone, the court may intervene, and grant BA 5780/08 -4- anticipatory bail. This shall be done only in deserving cases. In the nature of the allegations made, I am satisfied that petitioners would be required for custodial interrogation also. Hence, I do not think it fit to grant anticipatory bail. This petition is dismissed. K.HEMA, JUDGE. mn.