IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 Bail Appl..No. 4850 of 2008() ----------------------------- CRIME NO.396/08 OF MULANTHURUTHY POLICE STATION PETITIONER/ 4TH ACCUSED ---------------------------------------- MATHEW SCARIA, S/O.LATE SCARIA, AGED 56, MANAGING PARTNER, FARMERS CENTRE, RESIDING AT IYKKAROTTU HOUSE, KONNULLY BUILDING, THOPPUMPADY, ERNAKULAM DIST. BY ADV. SRI.KRISHNA PRASAD. S SRI.S.ASHOK KUMAR. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SRI.C.N.SREEKUMAR RESPONDENTS: COMPLAINANT STATE ------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA REPRESENTING SUB INSPECTOR OF POLICE, MULANTHURUTHY POLICE STATION, ERNAKULAM DISTRICT. BY PUBLIC PROSECUTOR SHRI.M.S.BREEZE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01/09/2008, ALONG WITH BA NO. 5062 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.4850 of 2008 & B.A.No.5062 of 2008 ----------------------------------------- Dated this the 1st September, 2008 O R D E R This petition is for anticipatory bail. 2. According to prosecution, the petitioner in B.A.No.5062 of 2008 is an employee of the de facto complainant Company. He, along with three others, committed offence under Sections 409 and 34 of Indian Penal Code. The first accused is the Marketing Manager in the Company and he takes orders from different customers and those orders are sent to the Company at Mumbai and the Company, on confirmation, will issue delivery orders to the Marketing Manager and on receipt of such delivery orders, the goods are to be delivered from the godown, which is under the control of the first accused. But the first accused colluded with the other accused, and without informing the Company or getting delivery orders, supplied various goods to various customers, including the fourth accused and obtained huge amount and thereby misappropriated the amount. The fourth accused has filed B.A.No.4850 of 2008. 3. Learned counsel for first accused submitted that the fourth accused sent a letter to the Company stating that more than Rs.11 BA.4850 & 5062/08 2 lakhs are due from the Company to him and that a cheque was also issued for discharge of the dues. The cheque was also presented by the Company. The first accused is only the Marketing Manager and he has nothing to do with the goods in the godown. He is only canvassing the orders. The first accused is made an accused without any basis, it is submitted. It will be clear from the letter written by the fourth accused to the Company itself that the fourth accused is a distributor and articles were supplied to him, with the knowledge of the Company and they have also accepted the cheque issued by the fourth accused. 4. According to learned counsel for fourth accused, he had dealings with the Company, as evidenced by Annexure A1 series. He had also sent Annexure A2 letter to the Company stating that some amounts are due. As per the said letter, he requested the Company to send the purchase bills for the purchase of certain articles from the Company in January and February, 2008. He also requested to adjust an amount of more than Rs.1,00,000/- which is already received by the Company and issue cash receipts. But the Company informed the fourth accused by Annexure A3 that the first accused is terminated by the company and that he shall not enter into any kind of transaction with him. BA.4850 & 5062/08 3 5. According to fourth accused, he has been entering into transaction with the first accused believing that he is a representative of the Company. It is also submitted that offence under Section 409 IPC will not be attracted against the fourth accused, since he is only a distributor and not an employee of the Company. It is also submitted that a statement was filed by the Company against the first accused and the fourth accused was not impleaded as a party to the suit and this itself will indicate that the fourth accused has absolutely no role in the offence committed. 6. The de facto complainant entered appearance through a counsel and he was heard. Learned Public Prosecutor was also heard. According to learned counsel for de facto complainant, the fourth accused was a distributor long back. But, later he was black listed and the Company had no dealing with him. On entertaining some doubt regarding the transaction in the Company, the representative of the Company visited the godown and found that there was huge deficiency in the stock and on enquiry, it is understood that some foul play was committed by the first accused. A complaint was filed before the police and it is revealed that the fourth accused, along with the first accused, committed the offences and both of them have colluded with each other and acted BA.4850 & 5062/08 4 in conspiracy and committed the offence pursuant to the conspiracy, it is submitted. 7. This petition is strongly opposed. Learned Public Prosecutor submitted that investigation is being conducted into the allegations made and at this stage, if anticipatory bail is granted, it will adversely affect the investigation. 8. On hearing both sides, I am satisfied that in the nature of the allegations made against the petitioners, many facts may be in the exclusive knowledge of the petitioners and their interrogation will be required for bringing all those facts out, for the purpose of an effective investigation. If anticipatory bail is granted, it will affect the investigation adversely and hence, I am not inclined to grant anticipatory bail to the petitioners. Petitioners' innocence, if any, can be disclosed to the investigating officer in interrogation. Petition is dismissed. K.HEMA, JUDGE vgs.