Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 3RD DAY OF JANUARY 2023 / 13TH POUSHA, 1944 BAIL APPL. NO. 3885 OF 2022 PETITIONER/ACCUSED:
JOSE FRANCIS AGED 48 YEARS MAANUNULLY HOUSE, S.A. ROAD, KADAVANTHRA P.O.
ERNAKULAM, PIN - 682020 BY ADV RENJITH RAJAPPAN RESPONDENT/STATE:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 OTHER PRESENT:
PP:Seetha S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A. No.3885 of 2022 2 VIJU ABRAHAM, J.
------------------- B.A. No.3885 of 2022 ----------------------------- Dated this the 3rd day of January, 2023 ORDER Application for anticipatory bail.
2. Petitioner is the sole accused in Crime No.586 of 2022 of Pulikeezhu Police Station, Pathanamthitta registered alleging commission of offence punishable under Section 420 of IPC.
3. The prosecution allegation is that, after obtaining amount from the defacto complainant towards construction of a church, the petitioner could not undertake the construction as agreed or the amount was returned back, and thereby cheated the defacto complainant.
4. The learned counsel for the petitioner would submit that the dispute is purely of a civil transaction and he has been falsely implicated in the above said crime. Petitioner has executed
B.A. No.3885 of 2022 3 Annexure-A1 memorandum of understanding with the church and the petitioner was entrusted with the reinforcement and restructuring work of the church building which was in a dilapidated state and an amount of Rs.13,25,000/- was granted him and the said amount was used for obtaining the plan, permit,
drawings,
structural
calculations, structural drawings and elevations. Thereafter, an agreement was executed between the petitioner and the church authorities, which is produced as Annexure-A2, and as per the same the total agreed rate is Rs.3 Crore including GST. After executing the agreement the committee members demanded variation in the approved structural drawings and also demanded to carry out piling work which is not part of the original agreement. Thereafter, the petitioner's staff were detained by the committee members and Annexure-A4 complaint was preferred by the petitioner. It is only a retaliation to the same that the committee members approached the
B.A. No.3885 of 2022 4 Deputy Superintendent of Police, Thriuvalla with a complaint and a meeting was convened by the Officer, the petitioner agreed to complete the construction in terms of Annexure-A2 agreement.
Thereafter, Annexure-A5 communication was issued to the Secretary of the Church undertaking that the expense for the piling work which is part of the new structural drawing will be met by the Church as per the market rate. Annexure-A6 is the request by the petitioner for extension of time to complete the construction. It is thereafter that the present complaint has been preferred. The case of the petitioner is that as per Clause 14 of Annexure-A2 agreement, any dispute between the parties to the said agreement shall be referred to a sole Arbitrator mutually appointed by the parties in accordance with the provisions of the Arbitration and Conciliation Act, 1996.
5. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
B.A. No.3885 of 2022 5
6. The learned Public Prosecutor upon instructions submitted that after receiving an amount of Rs.50 lakh as advance the work was not done as agreed upon and thereupon the present crime was registered based on the complaint preferred by the vicar of the church.
Having regard to the facts and circumstances of the case, and nature of the allegations, I am of the opinion that custodial interrogation is not required for the purpose of investigation and only a limited custody be granted for the same. I am inclined to grant anticipatory bail to the petitioner, but on stringent conditions. The above bail application is allowed with the following directions. The petitioner shall surrender before the investigating officer on 09.01.2023 and make himself available for interrogation on that day or on any other day/days and time as directed by the investigating officer. The petitioner shall co- operate with the investigation. In the event of
B.A. No.3885 of 2022 6 arrest of the petitioner in Crime No.586 of 2022 of Pulikeezhu Police Station, he shall be produced before the jurisdictional Court on the same day and be released on bail on the following conditions:
(i) The petitioner shall execute a bond for sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court;
(ii) The petitioner shall appear before the investigating officer in Crime No.586 of 2022 of Pulikeezhu Police Station, on every Saturday at 11 am, till the final report is filed and shall also co-operate with investigation as and when summoned for the said purpose by the investigating officer;
(iii) The petitioner shall not tamper with any evidence;
(iv) The petitioner shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with him from disclosing such facts to the court or to any police officer;
(v) The petitioner shall not involve in any other crime while on bail.
If any of the aforesaid conditions are violated, the Investigating Officer in 586 of 2022 of Pulikeezhu Police Station may file an application before the jurisdictional court for cancellation of
B.A. No.3885 of 2022 7 bail.
It is made clear that it is within the power of the police to investigate the matter and if necessary to effect recoveries on the information if any given by the petitioner even when the petitioner is on bail as per the judgment of the Apex Court in Sushila Aggarwal and others v. State (NCT of Delhi) and another (2020 (1) KHC 663).
sd/- VIJU ABRAHAM,JUDGE pm