IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 Bail Appl..No. 886 of 2008() ---------------------------- CRIME NO.25/08 OF CHANGANACHERRY POLICE STATION PETITIONER/10TH ACCUSED ---------------------------------------- CHACKO ABRAHAM, S/O.LATE ABRAHAM VARGHESE, AGED 57 YEARS, PALLIKIZHAKKETHIL HOUSE, RESIDING AT VAZHAPALLY, CHANGANACHERRY- 686 103. BY ADV. SRI.BIJU M.JOHN RESPONDENTS: ------------- 1. THE SUB INSPECTOR OF POLICE, CHANGANACHERRY POLICE STATION. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 886 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of March, 2008 O R D E R Application for anticipatory bail. The petitioner is the 10th accused. The accused persons face allegations for offences punishable, inter alia, under Section 420 I.P.C. Accused 1 to 4 are said to be the Partners of a business by name 'MCUBE'. It is a finance establishment. Fraudulent representations were made to deceive gullible members of the public to make deposit of amounts in the said financial establishment. Accused 1 to 4 are Partners and accused 5 to 10 are allegedly employees of the said establishment. All the accused persons, in furtherance of their common intention, had indulged in fraudulent acts of deception against members of the public. Huge amounts were collected. The establishment initially started in the premises of the petitioner. Thereafter the petitioner has been functioning as the Sales Manager of the Partnership firm. This was done with contumacious and fraudulent intention. Crime has been registered. Some of the co-accused had come to this Court B.A.No. 886 of 2008 2 seeking anticipatory bail and by common order dt.8.2.2008 in B.A.Nos. 677 and 770 of 2008, their applications were dismissed with the observation that the said accused must surrender before the learned Magistrate and seek regular bail. 2. The learned counsel for the petitioner submits that the petitioner is innocent. He is not an employee of the firm. He is also one of the many subscribers, who had deposited amounts with the Partnership firm. The Partnership firm had given returns to the petitioner, but some of the cheques have now bounced. The petitioner is also a victim. He has nothing to do with accused 1 to 4. He has not been working as Sales Manager of accused 1 to 4. There is discrepancy in the name of the petitioner. Initially a totally different name was shown as 10th accused. But subsequently the petitioner has been brought on the array of accused by substituting his name for the name of the 9th accused shown earlier. In these circumstances it is prayed that the petitioner may be granted anticipatory bail. 3. The learned Prosecutor stoutly opposes the application. He submits that there is no justification in the request to treat the petitioner differently from accused 5 to 9. All the available indications do show B.A.No. 886 of 2008 3 that the petitioner has been functioning as an employee of the firm and had played an active role in fraudulently inducing gullible members of the public to part with amounts, with dishonest intention. At any rate, the petitioner has to be interrogated in detail. There are clinching indications to show that the petitioner had worked for the firm and had received substantial remuneration for such activities. In these circumstances he may not be permitted to arm himself with an order of anticipatory bail. He may be directed to surrender before the Investigating Officer or the learned Magistrate and then seek regular bail in the normal course. 4. I have considered all the relevant inputs. The change made in the name of the 10th accused did initially arouse reservation in the mind of the Court. But after discussions at the Bar, the learned Prosecutor explains that it was only an innocuous misstatement of the name of the 10th accused. It is easy to come to a conclusion that the 10th accused was always the petitioner, notwithstanding the innocuous discrepancy in the name narrated. The petitioner had a substantial role to play in the commencement of the business, which was run initially in his premises. In these circumstances the petitioner may not be permitted B.A.No. 886 of 2008 4 to arm himself with an order of anticipatory bail. He has to be interrogated, submits the learned Prosecutor. 5. Having considered all the relevant inputs, I am unable to perceive any features in this case, which would justify the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the petitioners. This I agree with the learned Prosecutor, is a fit case where the petitioners must resort to the ordinary and normal procedure of appearing before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the usual course. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioners appear before 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 orders on merits, in accordance with law and expeditiously. (R. BASANT) tm Judge B.A.No. 886 of 2008 5