The petitioner is the 1st accused in Crime No.1139 of 2014 of Kaduthuruthi Police Station, Kottayam district registered for the offence under Section 420 of Indian Penal Code. The petitioner has approached this Court seeking anticipatory bail by invoking the remedy under Section 438 of the Code of Criminal Procedure. 2. The gist of the allegations as per the private complaint initiated by the de facto complainant is that on 06.06.2014, the petitioner entered into an agreement for sale in respect of her properties having an extent of 6 Ares 13 Sq. Meters comprised in Sy. No.186/1A/1 900/2014 and 2201/2014 of Kaduthuruthy Village and 1 Are 11 Square meters in Sy. No.186/1/A of the said Village, with the wife of the de facto complainant, who is working as a nurse in Australia, agreeing to sell the said property for a total sale consideration of `40,00,000/- (Rupees Forty Lakhs Only) and that the petitioner had received an advance sale consideration of `8,10,000/- (Rupees Eight Lakhs Ten Thousand Only) at different points of time and that the said agreement was extended up to 08.08.2014. The 2nd accused is the witness to the receipt issued by the petitioner, to the advance sale consideration. It is further alleged that the petitioner has not executed the sale deed in favour of the person she suggested, ie, the de facto complainant, on 08.08.2014. The gist of the allegations raised is that the petitioner has executed the above said agreement for sale with the husband of the de facto complainant suppressing the subsistence of another sale agreement that she had entered into with one Sri.Sadanandan, in respect of the very same property for a total sale consideration of `35,00,000/- (Rupees Thirty Five Lakhs Only) agreeing to sell the said property on 06.03.2013, wherein the 2nd accused is a witness. It is further alleged that an advance sale consideration of `3,50,000/- (Rupees Three Lakh Fifty Thousand only) had been received by the petitioner in the above said transaction with Sri.Sadanandan and hence, the petitioner is alleged to have committed the offence of cheating.
3. The petitioner submits that no case of dishonest intention to deceive is made out and at best, the allegations can give rise to civil liability and not criminal culpability. It is further submitted that O.S No.248 of 2014 has been instituted on the file of Munsiff Court, Vaikom by the de facto complainant herein against the petitioner and the same is pending. It is further submitted that custodial interrogation of the petitioner is not warranted in the facts of this case and that the plea of pre-arrest bail may be allowed in this case.
4. Heard the learned Public Prosecutor, who submits on instructions from the Investigating Officer that the arrest of the petitioner is not necessary in the facts of the case and custodial interrogation is not necessary. It is further submitted by the learned Prosecutor that the investigating officer has furnished instructions that the investigation so far conducted has revealed the case is one of violation of agreement for sale of property and that the case is of a civil nature. The learned Public Prosecutor would further fairly submit that in case this Court is inclined to grant the plea of pre-arrest bail in this case, sufficient safeguards may be incorporated in the order so as to protect the interest of prosecution.
5. Having heard the submissions of the learned counsel for the petitioner and the learned Public Prosecutor and taking into account the totality of the facts and circumstances emerging in this matter, this Court is inclined to grant the plea of pre- arrest bail to the petitioner but, subject to strict conditions so as to protect the bonafide interest of the prosecution.
Accordingly, it is ordered that in the event of the arrest of the petitioner in connection with Crime No.1139 of 2014 of Kaduthuruthi Police Station, Kottayam district, he shall be released on bail on his executing a bond for Rs.35,000/- (Rupees Thirty Five Thousand Only) with two solvent sureties each for the like amount to the satisfaction of the investigating officer in the aforementioned crime, and subject to the following conditions:
i) The petitioner shall surrender his passport, if any, before the jurisdictional Magistrate concerned within three days from the execution of the bail bond before the Investigating Officer and if he is not a holder of passport, he shall file an affidavit to that effect in the said court. If the petitioner requires his passport in connection with his travel abroad, then he shall approach the court concerned for the release of the same and for necessary permission in that regard. In case such an application is filed, the trial court or the jurisdictional Magistrate concerned, as the case may be, is free to consider the same on merits and to pass appropriate orders thereon, taking necessary guidance from the principles laid down in the decision of this Court in the case Asok Kumar v State of Kerala, (2009(2) KLT 712), notwithstanding the aforementioned conditions imposed by this Court.
ii) The petitioner shall not involve in any criminal offence of similar nature.
iii) The petitioner shall not influence the witnesses or shall not tamper or attempt to tamper evidence in any manner whatsoever.
iv) The petitioner shall fully co-operate with the investigation and report before the Investigating Officer as and when required by him.
If there is any violation of any of the aforementioned conditions, the bail granted to the petitioner is liable to be cancelled.
Sd/-
ALEXANDER THOMAS, JUDGE.
vdv //True Copy// P.A to Judge