IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 Bail Appl..No. 4696 of 2008(B) ----------------------------- (AGAINST CRIME NO.411/2008 OF GURUVAYUR POLICE STATION) PETITIONER/ACCUSED: ------------------- K.R.SUNILKUMAR, UDC, GURUVAYUR DEVASWOM, GURUVAYUR, RESIDING AT “SREE PADMA”, SABAYILPARAMBU, KARAKKAD, GURUVAYUR. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.T.S.SHYAMPRASANTH RESPONDENTS/COMPLAINANT & STATE: -------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE , GURUVAYUR POLICE STATION, GURUVAYUR (CRIME NO.411/2008) BY SRI. M.S.BREEZ,PUBLIC PROSECUTOR SRI. SANTHEEP ANKARATH - DEFACTO COMPLAINANT THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------ B.A. No.4696 OF 2008 ------------------------------ Dated this the 2nd day of September, 2008 O R D E R This petition is for anticipatory bail. 2. A crime is registered against the petitioner under Section 420 of IPC and Section 409 of IPC is also added thereafter. According to the prosecution, the defacto complainant who is an employee of Devaswom Board had applied for two loans - one from the provident fund, and another in respect of a vehicle. The loans were sanctioned and the cheques were also issued in the name of defacto complainant. The petitioner who was working as a U.D. Clerk in the same office at the relevant time was bound to fill up the details in the cheques and he shall hand over the same to next section. The cheque was issued but it was not handed to the next section. Instead, the signature of the defacto complainant was forged on one of the cheques and the amount was collected from the bank and misappropriated. The other cheque was handed over by petitioner to one Gopalakrishnan who is a close friend of the petitioner aiding him to fraudulently procure money. Pay-in-slip was filled up and given to the bank and the amount covered by the B.A.4696/2008 2 cheque was deposited in the defacto complainant's account in the Canara Bank. Thereafter, by misusing a blank cheque which was given by petitioner to the said Gopalakrishnan in connection with another transaction, an amount of Rs.29,500/- was withdrawn from defacto complainant's account. The cheque was forged for drawing the amount from petitioner's account. 3. Learned counsel for the petitioner submitted that the petitioner is absolutely innocent of the allegations made against him. According to him, the matter was enquired into by the Chief Finance and Accounts Officer and it was found that the allegations are untrue and a report was also submitted as Annexure A. There is a clear finding on the said report that “the complaint of Sri.Gopalakrishnan, that he has not received the payment is not correct”. It was also reported by him that the procedure followed in the Devaswom for disbursement of money is not correctly followed etc. In writ petition No.13192 of 2008, the matter came up for consideration again before another bench of this Court and after hearing both sides, the court passed an order as follows: “There will be a stay of further proceedings pursuant to Exhibits P7 and P9, in so far as B.A.4696/2008 3 the proceedings before the Devaswom Board or at the instance of Devaswom Board are concerned”. 4. Exhibits P7 and P9 are the decisions of the Devaswom Board to refer the complaint to the police. Therefore, the argument is that the proceedings initiated on the complaint itself is illegal and the petitioner is entitled for anticipatory bail. It was also pointed out that the incident occurred in the year 2002 and 2003. But the complaint is filed only in 2008 and it is highly belated and it is a motivated one. It is also submitted that the cheques were received by defacto complainant and money was also collected by him but he did not file any complaint before police because he knew that the present complaint is false. 5. The defacto complainant appeared through his counsel and file a petition to grant permission for hearing and hence he was heard. Learned Public Prosecutor was also heard. This petition is strongly opposed by them. Learned counsel for the defacto complainant submitted that the allegation that there is a long delay in lodging the complaint is absolutely incorrect. The defacto complainant had taken steps in the matter, immediately on knowing B.A.4696/2008 4 that the cheques were issued and those were not handed over to him. The first instance happened in the year 2002 and the other in 2003. A complaint was lodged by him before the Devaswom authorities alleging that the cheque was not handed over to him, even though the cheque is only was issued in 2002 and 2003 itself. It is also submitted that pursuant to this the Devaswom Board issued memo to the petitioner, but he did not respond to the memo issued by the Devaswom Board. He did not give any reply to the memo and still, no action is taken against the petitioner. He continued to work as an employee in the Devaswom Board even now, because of his influence. The failure to reply to the memo itself is insubordination but still the Devaswom board allowed the petitioner to continue in service. All these would show that the Devaswom Board is interested in the petitioner and hence the Board caused delay in taking a decision to make a complaint to police. According to the learned counsel for the defacto complainant the petitioner bonafide believed that the complaint need be filed only before the Devaswom Board but the Devaswom Board has delayed in making a complaint before the police. Therefore the delay cannot be made a ground to grant anticipatory bail, it is submitted. B.A.4696/2008 5 6. It was also pointed out by the learned counsel for the defacto complainant that it may not be proper to rely upon the report of the Chief Finance and Accounts Officer or the finding in the domestic enquiry, since the questions referred in those proceedings were different. Neither the enquiry officer nor the Chief Accounts Officer were requested to find out whether any forgery was committed and whether the petitioner acted in the manner, as alleged by the defacto complainant. The question referred was whether there was any procedural irregularity and whether there was insubordination by the petitioner in not responding to the memo. The answers given to such reference may not be made a ground to hold that the allegations regarding forgery etc are false and that no offence was committed by the petitioner or any other person. 7. It is also submitted that the crime was already registered much before the order was passed on 27.06.2008 in writ petition No.13192 of 2008. It is observed in the said order (Annexure G) that if the petitioner is aggrieved by the registration of the crime is remedy lies by way of separate proceedings as is available to him in law. It is clear from such observations that the B.A.4696/2008 6 order passed in the said writ petition will not have any bearing on the criminal proceedings initiated and there is no bar in proceedings with the investigation into the crime against the petitioner. Learned Public Prosecutor also shared the same views expressed by the learned counsel for the defacto complainant and submitted that this is not a fit case to grant anticipatory bail. On hearing both sides and on going through the documents, I find that the defacto complainant had made a complaint to the Devaswom authorities on knowing that the cheques were not handed over to him. The fact that he made a complaint to Devaswom authorities is admitted. There is an allegation that both the cheques were forged and an investigation will be required into the same and on the facts and circumstances of this case, I am of view that the matter requires a detailed investigation. In the nature of allegations made, it is likely that many matters will be in the exclusive knowledge of the petitioner and those can be ascertained only by interrogation of the petitioner. It will be necessary to take specimen handwriting, signature etc. That apart, in the absence of any specific prohibition imposed, as per Annexure G - order, in proceeding with the criminal complaint already lodged, I do not B.A.4696/2008 7 think that it will stand in the way of investigation into the crime. This is specially so, since, in the same order, Annexure G this court has observed that petitioner can seek remedy regarding the registration of crime as is available to him. Taking all these facts into consideration and on considering the nature of allegations made, I do not think it fit to grant anticipatory bail to the petitioner. The petition is dismissed. K.HEMA, JUDGE pac