IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 Bail Appl..No. 6223 of 2011 CRIME NO.157 OF 2011 OF MUNNAR POLICE STATION, IDUKKI DISTRICT PETITIONERS/ACCUSED NO.1 AND 2 -------------------------------------------------- 1. R. JAYAN, S/O. K.K.RAJAN PILLAI, AGED 46, BRANCH MANAGER, MUTHOOT VEHICLE & ASSET FINANCE LTD., MOOVATTUPUZHA, RESIDING AT GAYI NIVAS, HOUSE NO.36, K.T. JACOB NAGAR, MOOVATTUPUZHA. 2. SHIBU JOSEPH, S/O. V.T. JOSEPH, AREA MANAGER, MUTHOOT VEHICLE & ASSET FINANCE LTD THODUPUZHA, RESIDING AT VETTANAL HOUSE, KARIMPANA.P.O., THIRUMARADY VILLAGE, ERNAKULAM. BY ADV. SRI.S.NIDHEESH RESPONDENT: STATE -------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 6223 OF 2011 ------------------------------------------------------ Dated this the 24th day of August, 2011 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Crime No.157 of 2011 of Munnar Police Station, Idukki District. 2. The offences alleged against the petitioners are under Sections 409 and 420 read with Section 34 of the Indian Penal Code. 3. The prosecution case is the following: The petitioners are the Branch Manager and Area Manager of Muthoot Vehicle & Asset Finance Limited. The de facto complainant availed a hypothecation facility from the Muthoot Vehicle & Asset Finance Limited (hereinafter referred to as “the Company”) for purchasing a JCB. Amounts were due to the Company from the de facto complainant. The de facto complainant paid only `2,82,000/-. On 5.3.2008, the Company re-possessed the vehicle. (According to the petitioners, BAIL APPL. NO. 6223 OF 2011 :: 2 :: the vehicle was surrendered by the de facto complainant.) On 27.3.2008, the vehicle was sold for a sum of `4,85,000/-. (According to the petitioners, the sale was for a sum of `3 lakhs.) The de facto complainant says that after adjusting the sale amount, a sum of `1,43,000/- is due to him and since that amount was not paid to him, the accused have committed the offence under Sections 409 and 420 read with Section 34 of the Indian Penal Code. 4. Learned counsel for the petitioners submitted that the sale of the vehicle was not for `4,85,000/-, but it was only for `3 lakhs. He also submitted that arbitration proceedings were initiated and the Arbitrator passed an award dated 10.10.2009. Going by the award, a sum of `3,56,059/- together with interest is due to the Company from the de facto complainant. The counsel submitted that what exactly is the amount due was decided in the arbitration proceedings and the police cannot investigate upon the same. The question whether the offence was committed or not could be decided only after deciding whether any amount was due to the de facto complainant or whether any amount is due from the de facto complainant to the Company. The counsel submitted that such an BAIL APPL. NO. 6223 OF 2011 :: 3 :: exercise cannot be undertaken by the investigating agency, namely, the police. The authority to decide the same being the Arbitrator and the Arbitrator having passed an award, there was no justification for registering the Crime in 2011, on the basis of a complaint filed by the de facto complainant before the Magistrate's Court, which was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure. 5. Taking into account the facts and circumstances of the case, the nature of the offence and other circumstances, I am of the view that anticipatory bail can be granted to the petitioners. There will be a direction that in the event of the arrest of the petitioners, the officer in charge of the police station shall release them on bail on their executing bond for Rupees Ten thousand each with two solvent sureties for the like amount to the satisfaction of the officer concerned, subject to the following conditions: a) The petitioners shall appear before the investigating officer for interrogation as and when required; b) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence; c) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail; BAIL APPL. NO. 6223 OF 2011 :: 4 :: d) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed to the extent indicated above. (K.T.SANKARAN) Judge ahz/