IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 Bail Appl..No. 1032 of 2008() ----------------------------- CRIME NO.99/08 OF CHANGARAMKULAM POLICE STATION : PETITIONER/ACCUSED ----------------------------------- K.MOIDEENKUTTY, S/O.BEERAN MOLLA, AGED 37 YEARS, KARINKURAYIL HOUSE, THINDALAM P.O., VADAKKUMPURAM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, CHANGARAMKULAM POLICE STATION. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18/02/2008, ALONG WITH BA NO. 1033 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - - - - B.A.Nos. 1032 & 1033 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of February, 2008 O R D E R The common petitioner in these petitions seeks anticipatory bail in two different, but connected crimes, both registered at Changaramkulam police station. The allegations reveal a sad tale of woes of the defacto complainant. 2. The defacto complainant as also the petitioner were employed as teachers in Mali. The defacto complainant was constrained under certain circumstance to leave Mali and return to India after resigning his job as teacher there. According to him, all through he had not repatriated the amounts which he earned at Mali and had kept the same with him. When he has to leave Mali, he went to the State Bank allegedly along with the petitioner and took a draft for his entire earnings, exceeding to Rs. 2 lakhs. By then both of them had booked their flight tickets. Before leaving Mali, the defacto complainant to his shock realised that he had lost the demand draft which he had taken from the S.B.I at Mali. He had to leave Mali. His flight tickets were already booked. He allegedly went to the bank at Mali along with the petitioner herein and apprised the bank of the loss of the demand draft. The bank made note of the said loss. B.A.Nos. 1032 & 1033 of 2008 2 But evidently and obviously the bank was not able to either issue the duplicate demand draft or to pay the money to him. After returning to India allegedly along with the petitioner, the defacto complainant later went to the drawee bank of the S.B.I at Tirur and informed them in writing of the loss of the demand draft. The defacto complainant was allegedly waiting in agony to know the details of the demand draft purchased by him which allegedly was lost on that final day at Mali. He did not get any satisfactory information. As days passed by, he found a change in the attitude of the bank officials. To his shock, he realised that the demand draft had been encashed in yet another bank of the S.B.T at Edappal. A person calling himself to be Monish- the defacto complainant had gone to the bank and had opened an account in his name and had later presented the demand draft for encashment. He by a cheque had withdrawn substantial portion of the cheque amount also. When this information was received by the defacto complainant, he started making frantic enquiry and came to know - or suspect that the petitioner herein was the person who played fraud on him. He now realised that the petitioner had allegedly with fraudulent intention removed the demand draft from his possession. After coming to India, the B.A.Nos. 1032 & 1033 of 2008 3 petitioner encahsed the same after opening an account fraudulently in the name of the defacto complainant using a photocopy of the passport of the defacto complainant. The bank manager of S.B.T, Edappal confirmed that it was not the defacto complainant Monish who had opened the account. On the bank manager's complaint, which evidently was prompted by the conduct of the defacto complainant, complaining to him that a fraudulent account has been opened in his name, a crime has been registered as Crime No.99 /08. The defacto complainant had also filed a complaint before the Magistrate and the learned Magistrate had forwarded the same to the police under Section 156(3) Cr.P.C. The bank complains of fraudulent opening of a bank account in a fake name by a person. The defacto complainant alleges fraudulent removal of the demand draft from his possession and misutilisation of the same by the petitioner herein. Both crimes are being investigated now by the Changaramkulam Police. The needle of suspicion is directed at the petitioner. Investigators are proceeding with the investigation. The petitioner apprehends arrest as accused in both the crimes. He has come to this Court with these applications for anticipatory bail. B.A.Nos. 1032 & 1033 of 2008 4 3. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. According to him, the conduct of the complainant does not rhyme well with the probable conduct of a person in similar circumstance. He was not interested in getting his money, but he was waiting to make allegations against the one who has allegedly committed theft. I fail to understand this argument. The person who has lost his demand draft will not immediately be returned the amount nor shall a duplicate demand draft be straightaway issued by the bank. Any bank official with his head on his shoulders will certainly have to wait for the expiry of the period of validity of the demand draft before returning money or issuing a duplicate demand draft. In these circumstances, the bitter criticism against the conduct the defacto complainant in not applying for return of the draft amount or for issue of duplicate demand draft does not at all appeal to me as a relevant circumstance while considering this application for anticipatory bail. The theory that the defacto complainant is making false allegations does not at all appeal to common sense as the defacto complainant gains nothing by making such a false complaint against anyone who has presented the demand draft. B.A.Nos. 1032 & 1033 of 2008 5 4. Why did the defacto complainant start doubting the petitioner ? Why does he make allegations against the petitioner ? These questions are vehemently advanced by the learned counsel for the petitioner. Putting oneself in the shoes of the defacto complainant if he suspects the petitioner in the broad facts and circumstances of the case, one cannot certainly find fault with him. It was the petitioner who was allegedly present along with the defacto complainant when he purchased the draft. They were together residing in the same dormitory when the demand draft was allegedly lost. The collection of the amount through an account opened at Edappal must also have raised doubts in the mind of the defacto complainant against the petitioner. 5. Investigation is in progress. The investigators will definitely have to ascertain whether it was the petitioner who opened the account and presented the draft in the branch of the S.B.T at Edappal using the copy of the passport. That is the crucial ascertainment that will have to be done now. I find absolutely no merit in the petitioner's prayer for anticipatory bail. The petitioner must co-operate with the investigators and allow them to collect evidence as to whether it was the petitioner who B.A.Nos. 1032 & 1033 of 2008 6 opened the account and presented the demand draft. The needle of suspicion is certainly pointed at the petitioner. I am not satisfied that the extraordinary equitable discretion under Section 438 Cr.P.C can or need be invoked in favour of the petitioner. The question is not whether the bank manager has observed all formalities and caution while opening the account and encashing the draft. He may have committed a mistake. The crucial ascertainment is whether it was the petitioner who had opened the account and handed over the demand draft for collection. It must be vital to authentically verify the same. I am not persuaded to agree that the petitioner deserves to be armed himself with an order of anticipatory bail. He must co-operate with the investigator. He must surrender before the Investigating Officer or the learned Magistrate having jurisdiction and then, if he is arrested, apply for regular bail. No direction under Section 438 appears to be necessary. The learned counsel for the petitioner offers that the petitioner shall appear before the Investigating Officer and make himself available for any further verification. The petitioner must do the same. But I am not satisfied that any direction under Section 438 Cr.P.C ought to be issued in favour of the petitioner. B.A.Nos. 1032 & 1033 of 2008 7 6. These applications are, in these circumstances, dismissed, but I may hasten to observe that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously. (R. BASANT, JUDGE) rtr/