IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 Bail Appl..No. 6113 of 2009 CRIME NO.840 OF 2009 OF MULAVUKAD POLICE STATION, ERNAKULAM PETITIONER/2ND ACCUSED ------------------------------------------ SHANAVAS.P.K.,AGED 36 YEARS, S/O.P.M.KUNJAPPAN, PUNNAKKATTUTHARA, PANAMBUKAD, VALLARPADAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.NAGARAJ NARAYANAN RESPONDENT: STATE -------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02/11/2009, ALONGWITH B.A.NO.6169 OF 2009, THE COURT ON 10/11/2009, PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS.6113 & 6169 OF 2009 ------------------------------------------------------ Dated this the 10th day of November, 2009 O R D E R Accused Nos. 1 and 2 in Crime No. 840 of 2009 of Mulavukad Police Station seek anticipatory bail under Section 438 of the Code of Criminal Procedure. Bail Application No. 6169 of 2009 is filed by accused No.1 (Shajahan, son of Muhammed, Chenthara House, Thottumugham, Kuttamassery, Aluva) and Bail Application No.6113 of 2009 is filed by accused No.2 (Shanavas.P.K., son of Kunhappan, Punnakkattuthara, Panambukad, Vallarpadam). The defacto complainant is V.K.Omanakuttan, son of Karunan, Velanmaruparambil, Vallarpadom. It is said that the second accused Shanavas is a relative and neighbour of the de facto complainant. 2. The gist of the prosecution case is the following: The de facto complainant owned an extent of 3.25 cents of land in Mulavukad village. He is running a tea stall there. He is residing with family in the same building on its rear side. The property was purchased by him in 2005. The de facto complainant became indebted owing to the treatment of his sister, a cancer patient, B.A. NOS.6113 AND 6169 OF 2009 :: 2 :: education of his two daughters and the purchase of the property. A sum of Rs. 1,50,000/- was due to the Ernakulam District Co- operative Bank from the de facto complainant. The de facto complainant requested his relative, the 2nd accused, to help him to tide over the situation. The second accused took the de facto complainant to the office of the first accused near the High Court. The first accused asked the de facto complainant as to how much amount he required to discharge the debts. The de facto complainant requested for granting loan of Rs. 5,50,000/-. The first accused paid the loan due to the Bank. He secured possession of the title deed in respect of the property of the de facto complainant. The first accused demanded that for giving the balance amount, the de facto complainant had to execute a document showing that the property was assigned in favour of the first accused. A document was executed and registered. Before signing the document, the first accused read over to the de facto complainant, the consideration shown in the document as Rs. 5,50,000/-. Thereafter, the accused used to collect Rs. 6,500/- per month from the de facto complainant towards repayment of the loan. For the last few months, they did not collect the monthly payment. On enquiry by the de facto complainant, it was revealed that in the registered document, the B.A. NOS.6113 AND 6169 OF 2009 :: 3 :: consideration shown was Rs. 26,50,000/-. The de facto complainant realised that he was cheated by the accused. On 29-9-2009, the de facto complainant gave the First Information Statement which was registered by the police as Crime No.840 of 2009 under Sections 406 and 420 read with Section 34 of the Indian Penal Code. 3. Investigation revealed the following facts: The first accused paid a sum of Rs.1,30,000/- for the purpose of discharging the loan taken by the de facto complainant from the bank. A Savings Bank Account was opened in the name of the de facto complainant in the United Bank of India with the help of the first accused. The first accused obtained three blank cheques signed by the de facto complainant in his account in the United Bank of India, Ernakulam. After one month, the first accused requested the de facto complainant to come the former’s office. An amount of Rs.Two lakhs was given to the de facto complainant. At that time, the first accused got the signatures of the de facto complainant in blank stamp papers and plain papers. One month thereafter, the first accused and one Ibrahim went to the shop of the de facto complainant. They took the de facto complainant to the Sub Registrar’s office. The de facto complainant executed and B.A. NOS.6113 AND 6169 OF 2009 :: 4 :: registered the document (sale deed) in favour of the first accused. The first accused assured to give the balance amount (to make up the total of Rs.5,50,000/- demanded by the de facto complainant) within one month of the registration of the document. After one month, the second accused told the de facto complainant that the balance amount was ready. The de facto complainant, the second accused and one Salim, son of Kesavan, met the first accused. The first accused gave a cheque for Rs.Two lakhs to the de facto complainant. The cheque was encashed with the help of Salim. After deducting Rs.30,000/- payable to Salim, a sum of Rs.1,70,000/- was paid to the de facto complainant. Thereafter, Rs.6,500/- per month was being collected from the de facto complainant by the first accused. When several people in the neighbourhood received notice of attachment of their properties, the de facto complainant enquired with the United Bank. It was then revealed that the first accused had taken a loan of Rs.26,50,000/- from the bank mortgaging the property belonging to the de facto complainant, after getting a registered document executed in favour of the first accused. 4. The sale deed was executed in favour of the first accused B.A. NOS.6113 AND 6169 OF 2009 :: 5 :: on 24-1-2008 showing a consideration of Rs.26,50,000/- in the document. The document shows that out of this amount, a sum of Rs.23,45,000/- was paid as per the pay order issued by the United Bank of India, Ernakulam branch and the balance of Rs.3,05,000/- was paid in cash. 5. Investigation revealed that on 18-12-2007, the de facto complainant had opened a Savings Bank Account in the United Bank of India. Ernakulam. The first accused had introduced the de facto complainant and it was certified by the first accused that the de facto complainant was known to him for the past ten years. On 28.1.2008, a sum of Rs.23,45,000/- was credited into this account. On 28-1-2008, there were two withdrawals from this account, one for Rs.Ten lakhs and the other for Rs.Twelve lakhs. On 29-1-2008, a sum of Rs.1,45,000/- was withdrawn. The case of the prosecution is that these three withdrawals were made by the accused persons using the three blank cheque leaves obtained by the first accused from the de facto complainant. One of the cheques used for withdrawal of amount was issued in favour of World Net Group. United Bank of India has certified that OD Account No.12690 of M/s World Net Group with the Bank was closed. B.A. NOS.6113 AND 6169 OF 2009 :: 6 :: 6. The first accused moved an application for anticipatory bail before the Sessions Court. The learned Sessions Judge dismissed the application. However, it was observed in the order passed by the learned Sessions Judge that the case of the de facto complainant that he was cheated is prima facie not convincing. This finding is based on the following reasons. (1) Out of the sale consideration shown in the sale deed, a sum of Rs.23,45,000/- was paid to the de facto complainant by a Pay Order issued by the Bank; (2) The Sub Registrar has stated that without the presence of the seller before the Sub Registrar’s office, the sale would not be registered; and (3) The Sub Registrar stated that usually the document would be registered after ascertaining from the seller that he received the sale consideration shown in the document. After holding thus, the learned Sessions Judge dismissed the application on the following reasons: “Therefore, the circumstances under which such a written complaint was filed by the complainant before the Inspector General of Police is a matter to be investigated into. The possibility of the de facto complainant attempting to defraud others, including the bank concerned from which the loan was availed of, is also to be looked into. The question as to whether the de facto B.A. NOS.6113 AND 6169 OF 2009 :: 7 :: complainant, by filing such a complaint before the Inspector General of Police, was trying to mislead the authorities, must also be verified. The role of the petitioner as also his accomplice in fabricating documents for the purpose of cheating others is to be properly investigating into. In such circumstances I am convinced that this is not a case where this Court is justified in grating the relief as to pre- arrest bail u/s 438 Cr.P.C. It follows that this application is without any merit.” 7. The learned counsel for accused No.1 submitted that the learned Sessions Judge having found that the case of the de facto complainant that he was cheated is not prima facie convincing, anticipatory bail should have been granted. It is submitted that the de facto complainant has executed and registered a sale deed in favour of the first accused. So long as the sale deed stands, the offences alleged against the accused persons would not be maintainable. 8. The learned counsel appearing for the second accused has stated in the Bail Application that the father of the second accused had sold his property to “the company of the 1st accused and the B.A. NOS.6113 AND 6169 OF 2009 :: 8 :: said Company had pledged the said property for an amount of Rs.17,00,000/- and the said property is under the threat of take over of possession by the Bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.” Annexure I Notice is relied on in this context. Annexure I shows that the borrowers are M.A. Ibrahim and Suresh Babu, partners of M/s Gayathri Business and Services. 9. The learned Public Prosecutor submitted that the accused persons and others constitute a land mafia. After the works for establishing Vallarpadam container terminal project were commenced, the price of the land in Mulavukad area has gone up beyond all proportions. The land mafia has cheated several land holders. In some cases, though the land holders are in possession of their respective properties, the land mafia has created several documents and drawn huge amounts from Banks on the security of those properties. The banks have initiated steps under the Securitisation Act to take possession of the lands. Only then the land holders have realised that they were cheated by land mafia. Investigation has revealed that the local people have formed a Samithy called Vallarpadom Bhoosamrakshana Samithy to protect B.A. NOS.6113 AND 6169 OF 2009 :: 9 :: the victims of cheating by land mafia. The learned Public Prosecutor submitted that if anticipatory bail is granted to the accused persons, it would adversely affect the proper investigation of the case. 10. On a perusal of the Case Diary, it would appear that the investigating officer has not come to close grip of the facts and the crux of the matter involved in the case. The sale deed shows that a Pay Order for Rs.23,45,000/- issued by the United Bank of India was given to the de facto complainant towards part of the consideration shown in the document. That means that the Pay Order must be in the name of the de facto complainant. On 18-12-2007, the de facto complainant had opened a Savings Bank Account in the United Bank of India. The Sale Deed was executed and registered on 24-1-2008 in favour of the first accused. Under what circumstances the Pay Order was issued by the Bank in the name of the de facto complainant ? Did the first accused make available the amount with the Bank so that the Bank could issue a Pay Order ? Or whether the first accused applied for a loan for purchasing the property agreeing to mortgage the property to be purchased and got a Pay Order issued in the name of the de facto complainant and thereafter deposited the title deed with the Bank ? Investigation would reveal B.A. NOS.6113 AND 6169 OF 2009 :: 10 :: that on 28-1-2008 and 29-1-2008, as per three cheques, a sum of Rs. 23,45,000/- was withdrawn from the account of the de facto complainant. The Savings Bank details also show that on 28.1.2008, s sum of Rs.23,45,000/- was credited in the account of the de facto complainant. A thorough investigation with respect to the issue of the Pay Order by the bank, the opening of account by the de facto complainant, withdrawal of the amounts from the account of the de facto complainant, how the property was given as security by the first accused to the Bank etc. should be made by the investigating officer. The investigating agency should equip themselves with all relevant and minute matters with respect to bank dealings, grant of loan etc. so as to effectively conduct the investigation. 11. Prima facie, it is fairly clear that the accused persons had indulged in unfair dealings. The clever methods adopted by the land mafia would not be known to ordinary villagers. The recent increase in price in Mulavukad might have attracted the land mafia to that area. Purchasing lands for a low price is not what is alleged in this case. It is also not alleged that the de facto complainant was not aware of the price of the land. What is alleged is that under the B.A. NOS.6113 AND 6169 OF 2009 :: 11 :: pretext of making available funds for clearing the debts, the de facto complainant was trapped and he was made to execute the sale deed in favour of accused No.1. If it is established that withdrawal of Rs.23,45,000/- from the Savings Bank Account of the de facto complainant was made by any person other than the de facto complainant and that those amounts were withdrawn by persons who are not the creditors of the de facto complainant, then the picture would be clear. 12. It is submitted by the learned Public Prosecutor that Writ Petitions filed by some land holders of Mulavukad complaining that their lands are being taken over under the Securitisation Act without their taking any loan from Banks, are pending. If the allegations are true, it would reveal the magnitude of the misdeeds of land mafia. 13. I am not inclined to agree with the observation made by the learned Sessions Judge that the case of the de facto complainant is not prima facie convincing. 14. Taking into account the facts and circumstances of the B.A. NOS.6113 AND 6169 OF 2009 :: 12 :: case, I am of the view that it is not proper to grant anticipatory bail to the petitioners. Custodial interrogation of the petitioners would be necessary in the case. The petitioners are not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. If anticipatory bail is granted to the petitioners, it would adversely affect the smooth and proper investigation of the case. For the aforesaid reasons, the Bail Applications are dismissed. (K.T.SANKARAN) Judge ahz/