IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 Bail Appl..No. 8647 of 2011() ----------------------------- CRIME NO.1651/2011 OF TRIKKAKARA POLICE STATION PETITIONERS/ACCUSED 2 TO 4: ------------------------------------ 1. P.BEJITH, AGED 27, S/O.K.PONNAPPAN, RELATIONSHIP MANAGER, INDIA INFOLINE LTD., KAKKANADU, KOCHI-682 030. 2. V.M.SAKEER, AGED 31, S/O.MOHAMED ALI, BRANCH MANAGER, INDIA INFOLINE LTD., KAKKANADU, KOCHI-682 030. 3. DENNIS JOSEPH, AGED 33, S/O.K.V.JOSEPH ASST.VICE PRESIDENT, INDIA INFOLINE LTD., AREA OFFICE, JOSE JUNCTION, MG ROAD, KOCHI-682 016. BY ADV. SRI.SEBASTIAN PAUL SRI.M.I.JOHNSON RESPONDENT(S): --------------- 1. THE SUB INSPECTOR OF POLICE THRIKKAKARA KOCHI 682 030. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 25/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.8647 of 2011 --------------------------- Dated this the 25th day of November, 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.2, 3 and 4 in Crime No.1651 of 2011 of Thrikkakara Police Station. 2. The offences alleged against the petitioners are under Sections 403, 405, 406, 409, 420, 463, 465, 467, 468, 470 and 471 read with Section 34 of the Indian Penal Code. 3. When the Bail Application came up for admission on 11.11.2011, the following order was passed : “3. The prosecution case is the following: The defacto complainant deposited Rs.5,00,000/- in M/s.India Infoline Limited, a Bombay based financial service Company for the purpose of trade in shares. The allegation is that instead of purchasing shares which would earn benefit to him, without his consent and knowledge, the Company BA 8647/11 2 purchased shares of Companies other than those suggested by the defacto complainant, which resulted in the loss of money deposited by the defacto complainant. It is also alleged that the defacto complainant was not provided with his account statement, that forged share certificates were given, false E-mail ID was created without the consent and knowledge of the defacto complainant, and that false entries were made in the visitors ledger to show that the trading was done as directed by the defacto complainant. 4. The learned counsel for the petitioners submitted that the defacto complainant made a complaint to the National Stock Exchange of India Ltd, and the dispute was referred to the sole arbitrator. The arbitrator passed Annexure-XII award, and the case put forward by the defacto complainant was not accepted by the arbitrator. The arbitrator held in the award as follows: “4. ISSUE: The main contention of the applicant was that the respondent has done trade in his account without his consent and knowledge which resulted in a loss of his entire investment of Rs.5,00,000/-. Though the applicant has not specifically stated anything about from which transactions he sustained losses, he has mentioned some instances of trading in his account such as trade done on BA 8647/11 3 23.10.2009, 26.10.2009 and 27.10.2009. Moreover, the applicant has not specifically stated about which trade was done without his consent and which trade was done with his consent. The other allegation of the applicant was that he was not receiving any contract notes for the trades done in his account. But the respondent has proved through documents such as Member Client Agreement, Accounts Opening Form executed by the applicant, Receipt of Contractual Notes, Confirmation Notes , Ledger Bills etc. E-mail ID pachatbalakrishnan@yahoo.com as provided by the applicant in KYC form. Apart from the above, respondent has also sent SMS confirmations on the mobile No.91- 9846726262 as provided by the applicant in respect of all trades done in his account with his consent. The respondent has also alleges that the applicant has never objected to the trades done in his account then and there as required of him by the agreement entered into by him with the respondent. The respondent has also filed the E-mail logs in order to prove that the details of the transaction were sent to the applicant. The respondent has also proved that the position of the applicant was squared off due to the debt balance in the account of the applicant and filed the ledger statement to prove their case. The respondent has also filed the ledger statements from 1.12.2009 to 17.12.2009 signed by the applicant and proved that the applicant is bound to accept the effects of the trade done by him in his account. In terms of the clause mentioned in the Broker Client Agreement the applicant cannot blame the respondent for any losses, caused due to the applicant's own decision in speculative trading. The respondent has also proved that the applicant has been regularly visiting the branch office of the respondent through the visitors register of the respondent. Though the applicant alleges that all his signatures in the BA 8647/11 4 visitors register are forged, it could not be accepted on this mere allegation without proving the fact of forgery, for which the applicant has not taken any steps in that direction. Eventhough the allegation of the applicant that a sum of Rs.44,879/- was remitted in his account by the respondent without his knowledge was not specifically denied by the respondent, it does not mean that all the transactions in the account of the applicant were done without his consent and knowledge. When the respondent was able to prove that the details of all transactions done in the account of the applicant were intimated to the applicant through SMS, E-mail, contract notes etc. , it is for the applicant to prove that the transactions were done without his consent and knowledge. But in this case the applicant was not able to prove the same. The claim of the applicant cannot be accepted with the mere allegation of the applicant against the respondent without proof of documents etc. Under the above circumstances, I hold that the claim of the applicant is not true and acceptable and I am giving a finding to the above issue as against the applicant. AWARD: 1. In view of the above findings, the claim of the applicant claiming a sum of Rs.6,60,000/-(Rupees Six Lakhs and Sixty Thousand only) from the respondent is hereby rejected. 2. The parties have to bear their own cost.” 5. The learned counsel for the petitioners also submitted that challenging the order, the defacto BA 8647/11 5 complainant filed Arbitration OP No.575 of 2011 before the District Court, Ernakulam and the Company received notice only two or three days back. 6. It is submitted that the petitioners are employees of the Company and if that they are arrested and detained, they would be put to great hardship. It is also pointed out that the issue of fake share certificate was not put forward in the complaint filed before the National Stock Exchange of India Ltd. or before the arbitrator. 7. Taking into account the facts and circumstances of the case and the nature of the offence, I am of the view that before considering the question of granting anticipatory bail, the petitioners should be directed to appear before the investigating officer. Accordingly, there will be a direction to the petitioners to appear before the investigating officer on 18th and 19th November, 2011. 8. Post on 25th November,2011. 9. It is submitted by the learned Public Prosecutor that the petitioner will not be arrested in connection with BA 8647/11 6 Crime No.1651 of 2011 of Thrikkakara Police Station, till 30th November, 2011. 10. The petitioners shall co-operate with the investigating officer in the matter of investigation and for recovery of incriminating materials, if any. The petitioners shall produce a copy of this order before the investigating officer.” 4. It is submitted by the learned counsel for the petitioners as well as the learned Public Prosecutor that the direction in the order dated 11.11.2011 has been complied with by the petitioners. 5. Taking into account the facts and circumstances of the case, the nature of the offence and also taking note of the fact that the direction in the order dated 11.11.2011 has been complied with by the petitioners, I am of the view that anticipatory bail can be granted to the petitioners. BA 8647/11 7 There will be a direction that in the event of arrest of the petitioners, the officer in charge of the police station shall release them on bail on their executing bond for ` 10,000/- 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 report before the investigating officer between 9 A.M. and 11 A.M. on alternate Mondays, till the final report is filed or until further orders; B) The petitioners shall appear before the investigating officer for interrogation as and when required ; C) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence ; D) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail; E) 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 csl