IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 Bail Appl..No. 2049 of 2008() ----------------------------- CRIME NO.111/08 OF NJARAKKAL POLICE STATION PETITIONERS ---------------------------- 1. KRISHNADAS.O.K. @ KOCHUBAVA, AGED 59 YEARS, S/O.KOCHAPPAN, OLIPARAMBIL VEDA NILAYAM, PAMBADI P.O., THIRUWILVAMALA, THRISSUR. 2. VALSALA, AGED 52 YEARS, W/O.KRISHNADAS.O.K. @ KOCHUBAVA, OLIPARAMBIL VEDA NILAYAM, PAMBADI P.O., THIRUWILVAMALA, THRISSUR. 3. DIVYA, AGED 22 YEARS, D/O.KRISHNADAS.O.K. @ KOCHUBAVA, OLIPARAMBIL VEDA NILAYAM, PAMBADI P.O., THIRUWILVAMALA, THRISSUR. 4. DHANYA, AGED 24 YEARS, D/O.KRISHNADAS.O.K. @ KOCHUBAVA, OLIPARAMBIL VEDA NILAYAM, PAMBADI P.O., THIRUWILVAMALA, THRISSUR. 5. DEEPA, AGED 25 YEARS, D/O.KRISHNADAS.O.K. @ KOCHUBAVA, OLIPARAMBIL VEDA NILAYAM, PAMBADI P.O., THIRUWILVAMALA, THRISSUR. BY ADV. SRI.DENIZEN KOMATH RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, NJARAKKAL POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY D.G.P. SRI.P.G. THAMPI. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No.2049 of 2008 ------------------------------------------------- Dated this the 10th day of April, 2008 ORDER Application for anticipatory bail. The petitioners are accused 1 to 5. They are the father, mother and the three adult children of theirs. They face allegations in a crime registered alleging offences punishable, inter alia, under Secs.120B, 406 and 471 of the IPC. A crime has been registered. Investigation is in progress. They apprehend imminent arrest. 2. The crux of the allegations against the petitioners is that they together executed an assignment deed in favour of the de facto complainant and two others conveying an extent of 1.26 acres of land at Elamkunnappuzha. In the said document, they had traced their title to a Will dated 10/5/90 executed by the father of the 1st accused. It is the contention of the de B.A. No.2049 of 2008 -: 2 :- facto complainant in the complaint that the said Will is a forged document and has been pressed into service to fraudulently deceive the de facto complainant and other assignees and thus induced them to part with an amount of Rs.76.5 lakhs. 3. The petitioners have a totally different story to advance. According to them, the property admittedly belonged to the father of the 1st accused. He had executed a Will dated 10/5/90. The Will was duly executed and attested in accordance with the provisions of law. The testator had expired on 10/12/93. There was an attestation by a Notary on 8/12/93 under which the deceased testator had allegedly confirmed to the Notary that the said Will was in force and he had duly executed the same. Thereafter, on the strength of the said Will dated 10/5/90, there were various transactions and it was ultimately that the said assignment deed dated 5/10/07 was executed by accused 1 to 5 in favour of the de facto complainant and other assignees. 4. The de facto complainant alleged that this extent of 1.26 acres included 52 cents of land, the ownership and title of the 1st accused over which was disputed. A sister of the 1st accused – Baby by name, had claimed that she had rights under a subsequent Will dated 1/11/90 allegedly executed by the deceased testator. According to her, the Will dated 10/5/90 was B.A. No.2049 of 2008 -: 3 :- not valid or genuine and, at any rate, in the light of the subsequent Will dated 1/11/90 no rights can be claimed by the legatees under the said Will dated 10/5/90. Thus, she contended that 53 cents out of the 1.26 acres covered by the assignment deed dated 5/10/07 belong to her and did not belong to accused 1 to 5. She had initiated proceedings before the civil court and by a decree dated 29/6/076 her rights have been declared and prohibitory injunction had been granted in her favour. The de facto complainant alleged that all these transactions were suppressed by accused 1 to 5 and they had executed the document dated 5/10/07 keeping the assignees in the dark about the dispute which A1 had with his sister over the said extent of 52 cents. 5. According to the petitioners, the de facto complainant and other assignees knew fully well of the dispute between A1 and the sister. A perusal of the price fixed for the various items of land covered by the document dated 5/10/07 must convey eloquently that the de facto complainant and other assignees knew of the dispute relating to the 52 cents of property, though that dispute was not specifically recited in the document for obvious reasons. The contention of the petitioners is that the de facto complainant and other assignees had, with full awareness B.A. No.2049 of 2008 -: 4 :- of the dispute, chosen to purchase the entire property showing a much lesser amount than the market rate for the said 52 cents of land. The total consideration of about 76.5 lakhs under that document was paid by a cheque for Rs.55 lakhs and the balance by cash, contends the learned counsel for the petitioners. That cheque for Rs.55 lakhs had bounced and notice of demand was issued against the assignees. It is at that stage that they, to cook up a defence in such possible prosecution, have chosen to feign ignorance about the suit between A1 and his sister and have chosen to initiate the present proceedings. The learned counsel for the petitioners contends that the de facto complainant and other assignees are very influential and affluent persons. They belong to a group which deals in real estate. Their influence and clout has prompted the police to register this case with the transparent intention of vexing and harassing the petitioners. 6. The learned Public Prosecutor submits that the cheque at Rs.55 lakhs has nothing to do with the present transaction. Why was such a cheque given? In answer to this query, it is said that the said cheque was given only as advance of consideration for another oral transaction for transfer of an adjacent plot of land. B.A. No.2049 of 2008 -: 5 :- 7. I have considered all the relevant inputs. The Case Diary has been placed before me. The parties are before the civil and criminal courts. I shall carefully avoid any detailed discussions on merits about the acceptability of the allegations or the credibility of the data collected. Suffice it to say that on an anxious consideration of all the relevant inputs I am persuaded to agree that this is a fit case where the petitioners are entitled to the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. 8. In the result, this petition is allowed. Following directions are issued under Sec.438 of the Cr.P.C: (i) The petitioners shall appear before the learned Magistrate having jurisdiction at 11 a.m. on 17/4/08. They shall be released on regular bail on their executing bonds for Rs.1,00,000/- (Rupees one lakh only) each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (ii) The petitioners shall make themselves available for interrogation before the Investigating Officer between 10 a.m. and 3 p.m. on 18/4/08 and 19/4/08. During this period the Investigator shall be at liberty to interrogate the petitioners in custody and take all necessary steps for the proper conduct of B.A. No.2049 of 2008 -: 6 :- the investigation. Thereafter the petitioners shall appear before the Investigating Officer on all Mondays between 10 a.m. and 12 noon for a period of one month. Subsequently, they shall so make themselves available for interrogation before the Investigating Officer as and when directed by the Investigating Officer in writing to do so. (iii) If the petitioners do not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioners and deal with them in accordance with law as if these directions were not issued at all. (iv) If the petitioners were arrested prior to their surrender on 17/4/08 as directed in clause (i) above, they shall be released on their executing bonds for Rs.1,00,000/- (Rupees one lakh only) each without any sureties undertaking to appear before the learned Magistrate on 17/4/08. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge