IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 Bail Appl..No. 5810 of 2008() ----------------------------- CRIME NO. 659/2008 OF VALAPATTANAM POLICE STATION PETITIONER/ACCUSED -------------------------------------- P.M.ASHRAF, S/O.ABDUL RAHIMAN, NABEESA BEEVI MANZIL, MILL ROAD, VALAPATTANAM, KANNUR DIST. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, VALAPATTANAM POLICE STATION, KANNUR. (THROUGH PROSECUTOR, HIGH COURT OF KERALA) PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 5810 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of October,2008 O R D E R Petition for anticipatory bail. 2. The alleged offence is under section 420 IPC. According to prosecution, petitioner executed an agreement with the owner of a property on 23-5-2007, which would be valid for a period of six months. But, he did not execute the sale deed within the said period instead, after expiry of the time, on 27-12-2007 he executed an agreement with de facto complainant for sale by the same property and obtained Rs.1,90,000/- from him. But he did not execute the sale deed, despite expiry of the period in the agreement executed in favour of de facto complainant. Thereby, petitioner cheated de facto complainant and de facto complainant filed a private complaint and on the basis of which a crime was registered on 1-9-2008. 3. Learned counsel for the petitioner submitted that petitioners are in possession of the property. First agreement was executed on 235-2007 and the period will expire only on 23-1- 2008 (ofcourse, he admits the agreement will be valid only six months). As per the second agreement dated 23-5-2007 executed in favour of de facto complainant, the money has to be BA 5810/08 -2- paid within 10-1-2008 but it was not paid. Therefore, anticipatory bail may be granted, it is submitted. He also submitted that petitioner is prepared to execute sale deed also. Learned counsel for petitioner also submitted that petitioner is prepared to return the money to de facto complainant after deducting damages. 4. Learned Public Prosecutor opposed this petition and submitted that it is not correct to say that first agreement would expire only on 23-1-2008. There is evidently a calculation error from the side of petitioner's counsel. It is clear from the submissions made by learned counsel for petitioner himself that agreement with de facto complainant was executed after expiry of the time within which the sale deed was to be executed as per the first agreement. Petitioner has no right to execute the second agreement and obtain Rs.1,90,000/- or sell the property. He had done so with deliberate intention of cheating, it is submitted. It is also submitted that even now the proposal is only return the money after deducting the damages, which is unjustifiable. On consideration of the nature of offence committed it is not a fit case to grant anticipatory bail, it is submitted. 5. On hearing both sides, considering rival contentions and also the proposals made by learned counsel for petitioner , I am BA 5810/08 -3- satisfied that in the nature of the allegations made, this is not a fit case to grant anticipatory bail. The crime was registered as early as on 1-9-2008 and petitioner is not available for investigation. Hence, petitioner is directed to surrender before the Magistrate court concerned or before the Investigating Officer within seven days from today and co-operate with the investigation. Whether he surrenders or not as directed, the police will be at liberty to arrest petitioner and proceed in accordance with law. This petition is dismissed. K.HEMA, JUDGE. mn.