IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 Bail Appl..No. 5705 of 2009 CRIME NO.335 OF 2009 OF PERINTHALMANNA POLICE STATION PETITIONER: 1ST ACCUSED: -------------------- ABDUL AZEEZ T, S/O. KOYAKUTTY HAJI, THONIKKARA HOUSE, THACHINGANADOM P.O., ARIKKANDAMPACK, MALAPPURAM DIST. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: COMPLAINANT & STATE: --------------- 1. THE SUB INSPECTOR OF POLICE, PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN -31. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 5705 OF 2009 ------------------------------------------------------ Dated this the 16th day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the first accused in Crime No.335 of 2009 of Perinthalmanna Police Station. 2. The offences alleged against the accused persons are under Sections 120B, 420, 467, 468 and 479 read with Section 34 of the Indian Penal Code. 3. The de facto complainant is the Perinthalmanna Service Co-operative Bank Limited. A compliant was filed by the Bank before the Judicial Magistrate of the First Class, Perinthalmanna against the petitioner and two others alleging the offences. The complaint was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure. Accordingly, the crime was registered. 4. 25 cents of land belonged to the second accused Abdul B.A. NO. 5705 OF 2009 :: 2 :: Razack. He transferred the property to his wife, the third accused. Later, a loan was taken by a partnership firm, of which one Harris, the second accused and the third accused are partners, from the District Co-operative Bank, Malappuram. The loan was for Rs.7,50,000/-. The property belonging to the third accused was given as security and it was mortgaged to the Bank. 5. Thereafter, the third accused transferred the property to the second accused. The first accused, who is the brother-in-law of the second accused, availed a loan from the Perinthalmanna Service Co-operative Bank Limited for Rs.5 lakhs. The property which was already mortgaged to the District Co-operative Bank, Malappuram was given as security for the loan. At the time when the property was given as security to the District Co-operative Bank, Malappuram, the third accused was the owner. It is alleged that later the property was transferred in the name of the second accused and as if the property belonged to him, he mortgaged the property to the Perinthalmanna Service Co-operative Bank Limited. 6. The first accused did not repay the loan amount. ARC.No.801 of 2001 was filed by the Bank. The first accused did B.A. NO. 5705 OF 2009 :: 3 :: not appear. The ARC was allowed. Later, E.P.No.54 of 2007 was filed by the Perinthalmanna Service Co-operative Bank Limited for execution of the decree. The property in question was sold in auction for a sum of Rs.11,39,331/- and it was purchased in auction by the decree holder Bank. When the Execution Petition was posted for confirmation of sale, E.A.No.736 of 2007 was filed by the District Co-operative Bank, Malappuram, contending that they have got first charge over the property. 7. It is alleged that only then it was revealed that the complainant Bank was cheated by the accused persons. Thereupon, the complaint was filed. 8. Learned counsel for the petitioner submitted that if at all the offence of cheating was committed, it was done by accused Nos.2 and 3. The first accused was not aware of the mortgage of the property to the District Co-operative Bank, Malappuram, and therefore, he cannot be made criminally liable. It is also contended that the first accused is a heart patient. He had undergone two surgeries. It is also submitted that custodial interrogation of the first accused is not required in the case. B.A. NO. 5705 OF 2009 :: 4 :: 9. In the facts and circumstances of the case, I do not think that the petitioner is entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. The question whether the petitioner had the required intention and he was aware of the earlier mortgage are all matters for evidence. It cannot be said that there is no prima facie case against the petitioner. The relationship of the parties is also a matter to be taken into account. If the petitioner is granted anticipatory bail, it would adversely affect the proper investigation of the case. The Bail Application is accordingly dismissed. However, the investigating agency shall take note of the contention of the first accused that he is a heart patient and that he has undergone surgery for the same. (K.T.SANKARAN) Judge ahz/