IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 Bail Appl..No. 4648 of 2009() ------------------------------------- CRIME NO. 556/2009 OF THRISSUR TOWN EAST POLICE STATION .................... PETITIONER: ----------------- M. SHAHEED, AGED 54 YEARS, BISMI MANZIL, AYYANTHOLE, THRISSUR. BY ADVS. SRI.DENIZEN KOMATH SRI.SHERRY J. THOMAS RESPONDENT(S): ------------------------ - STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, THRISSUR TOWN EAST POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. M.S.BREEZ PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 4648 of 2009 ------------------------------------ Dated this the 9th day of September, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No. 2 in Crime No. 556/2009 of Thrissur Town East Police Station. 2. The offences alleged against the petitioner are under Sections 406 and 420 read with Section 34 of the Indian Penal Code. 3. The petitioner is a partner of Bismi Fancy Store, Post Office Road, Thrissur. The first accused, who is the brother of the second accused, is the Managing Partner of the firm. The gist of the allegation made by the defacto complainant is the following: The defacto complainant Sajitha and the sister of the accused persons are neighbours and are known to each other. The sister of the accused approached the defacto complainant and induced her to deposit money with the accused, so that it could be utilized for the business purpose of the accused persons. The defacto complainant was assured that she could get back the amount at any time. She was also assured share of B.A. No. 4648 of 2009 2 profits in the business. A total sum of Rs. 22,00,000/- was received from the defacto complainant by the accused. Share of profits was given for a few months. Later the payment was stopped. On 17.07.2009, the defacto complainant and certain other persons who are similarly situated, approached the accused persons and demanded repayment of the amount. The accused persons threatened them and stated that if money is claimed, the defacto complainant and others would be dealt with the help of goondas. It is also stated in the petition filed by the defacto complainant that the accused persons have collected amounts from various persons in Kunnamkulam and Chavakad areas assuring share of profits . It is also stated that the accused persons made them believe that payment of interest is against Islamic tenets while sharing of profits is not anti Islamic. It is alleged that the accused persons were exploiting the religious principles and tenets of Islam and thereby they cheated the defacto complainant and others. According to the defacto complainant, the amounts were taken from her with an intention to cheat her making her believe that she would be given the share of profits. The learned Public Prosecutor submits that the B.A. No. 4648 of 2009 3 accused persons have collected more than Rs. One crore from several persons on such false promise. 4. The learned counsel for the petitioner relied on the decision of Supreme Court in K. C. Builders and another Vs. Assistant Commissioner of Income Tax ((2004) 2 S.C.C. 731) and S.N. Palanitkar and others Vs. State of Bihar and another (AIR 2001 SC 2960) and contended that the ingredients of Sections 406 and 420 are not made out in the case. The Supreme Court held in the decision refered to above that for establishing the offence of cheating the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making the promise or misrepresentation. Failure to keep up a promise is not a ground to presume the culpable intention of the accused at the beginning of the transaction. 5. In the present case, prima facie, I am not inclined to accept the contention of the petitioner that the ingredients of Sections 406 and 420 Indian Penal Code are not made out. The culpable intention is a state of mind. It is to be revealed in evidence. What is required to be made in a complaint or in a F.I. Statement is the necessary facts to found such a culpable B.A. No. 4648 of 2009 4 intention. The rest is a matter for proof. The investigation is at the initial stage. At this stage, it cannot be presumed that there was no guilty intention as provided in Sections 406 and 420 of the Indian Penal Code. 6. The allegations made against the petitioner and the other accused are grave in nature. It is submitted by the learned Public Prosecutor that several ladies of the locality were so cheated by the accused persons and those ladies parted with huge amounts. It is submitted by him that the accused persons were exploiting the religious sentiments of the defacto complainant and others. 7. In the facts and circumstances of the case, I do not think that the petitioner is entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. This is not a case where the petitioner can be granted an order for Anticipatory Bail. Accordingly, the Bail Application is dismissed. K.T. SANKARAN, JUDGE ln