IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 Bail Appl..No. 2419 of 2010() ----------------------------- APPLICANTS(S): ACCUSED ------------------------------------ 1. VASANTHAKUMAR, AGED 52 YEARS, S/O. DAMODARAN, THAMBALATH, NALLALAM.P.O, KOZHIKODE. 2. JAGANATH, AGED 33 YEARS, S/O. RAMAN, RAM VIJAY, P.O. KOTTOOLI, KOZHIKODE. BY ADV. SRI.P.VIJAYA BHANU SRI.VIPIN NARAYAN RESPONDENT(S): COMPLAINANT --------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE S.I OF POLICE, NALLALAM POLICE STATION, KOZHIKODE DISTRICT. PUBLIC PROSECUTOR MR. V. TEK CHAND. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J ---------------------- B.A.No.2419 OF 2010 ----------------------------------- Dated this the 21st day of May, 2010 O R D E R This petition is for anticipatory bail. 2. Alleged offences are under sections 420, 465, 467, 468 and 471 r/w 34 IPC. According to prosecution, first accused fled a suit for specific performance against defacto complainant on the allegation that defacto complainant and her sister executed an agreement for sale in respect of about 44 cents of land in favour of the first accused and that petitioner paid Rs.50,000/- and thereafter, the defacto complainant and her sister failed to execute the sale deed within time stipulated in the agreement etc. Defacto complainant and her sister had not executed any such document, but it is forged by first and second accused, in furtherance of common intention to cheat defacto complainant and her sister. Therefore a private complainant was filed on 30.3.2006 which was forwarded to the police and a crime was registered against first ad second accused, who are the petitioners herein. 3. Learned counsel for the petitioner submitted that an B.A. No.2419/10 2 agreement for sale was executed by defacto complainant and her sister as early as in 2004, about six years back and Rs.50,000/- was also paid by first accused to them towards advance. Since they did not execute the sale deed within the time stipulated, in 2005, first accused was forced to file suit for specific performance after paying court fee in the year 2005 itself. 4. It is also admitted that much after filing of the suit in 2006, a private complaint was filed by defacto complainant stating that petitioners committed forgery etc in respect of the agreement etc. In fact, defacto complainant and her sister had executed the sale deed and her sister is no more. Second accused has absolutely no connection with the transaction. He was falsely implicated in the case. In fact, defacto complainant's son had beaten up second accused and a case was registered against him on a complainant made by him. The said case has come up for trial and as a pressure tactics to settle the case, the present case is being proceeded with after six years of registration of crime. 5. It is also submitted that first and second accused had already appeared before the police years back and explained their innocence. Police was convinced about the same and hence B.A. No.2419/10 3 nothing happened thereafter. Petitioners were available in the locality and they were not arrested so far. But recently there is a move to arrest petitioners at the instance of defacto complainant and this is being done to see that defacto complainant's son's case is settled. In such circumstances, anticipatory bail may be granted, it is submitted. 6. Learned public prosecutor pointed out that delay in investigation occurred only because alleged forged document was sent for expert opinion and it was obtained only a few months back in the year 2009, It was not due to laches on the part of the police. However, it is conceded that there is no specific allegation against second accused in respect of the alleged forgery etc. except that this alleged offence was committed in furtherance of common intention. But, as far as first accused is concerned, there are allegations that he had committed forgery. Second accused is required for interrogation and investigation. It is also pointed out that suit filed by the first accused for specific performance is dismissed and the decree has become final. 7. On hearing both sides, and considering the facts and circumstances of the case, it appears to me that second accused is being proceeded against without much basis. But according to B.A. No.2419/10 4 prosecution, first accused committed forgery of document. However, learned public prosecutor admitted that expert opinion is inconclusive. There was no reason why petitioner could not have been arrested earlier if he was actually involved. Considering the long delay in investigation, for whatever reason it is, and on the facts and circumstances of this case, I find that it is only just and proper that anticipatory bail is granted, while considering the failure to arrest petitioners earlier. 8. Hence, the following order is passed: i) First accused shall report before the investigating officer and co-operate with the investigation within seven days from today. ii) Petitioners shall, in the event of arrest, be released on bail on their executing bond for Rs.25,000/- with two solvent securities each for the like amount to the satisfaction of the Magistrate court concerned on condition that they will not tamper with evidence and influence witness and intimidate them and that they shall co-operate with the investigation. This petition is allowed. K. HEMA, JUDGE. Sou.