Dhanal vs. State Of Kerala

ORDER 1.This petition is filed under Section 438 of the Code of Criminal Procedure. 2.Crime No. 222/2018 of the Palarivattom Police Station has been registered arraying the petitioners herein as accused Nos. 1 and 2. They are accused of committing offence punishable under Sections 120B and 408 read with Section 34 of the IPC. 3.The de facto complainant is the Managing Partner of DJ Associates, a concern engaged in the sale of home appliances. The 1st petitioner herein was the sales executive and the 2nd petitioner was the Sales Manager of his concern. There were entrusted with sales and collection of money from Thrissur and Palakkad Districts. The 3rd accused in the crime is an employee of IBELL, a prominent manufacturer, whose products are dealt with by the petitioner. It is alleged that during the period from September to December, 2017, the petitioners had collected amounts from the dealers of Palakkad District. However, the said amounts were not credited in the bank account of the petitioners concern. When they were questioned, they stated that the amounts were not paid by the dealers. Thereafter, they unilaterally resigned from the concern. After the resignation, a detailed enquiry was conducted. It was revealed that the petitioners herein with the aid of the 3rd accused had collected amounts from the dealers and thereafter misappropriated the same without crediting the same in the bank account of DJ Associates. Stating these allegations a complaint was filed, based on which the crime was registered. 4.The learned counsel appearing for the petitioners submitted that the petitioners herein had resigned from the concern of the de facto complainant as the service conditions were poor. The amounts due to the petitioners were not settled by the de facto complainant in spite of repeated demands. In view of the above, the petitioners submitted representation before various authorities including the District Labour Officer. Reference is made to Annexures-1 to 4 to substantiate his contention. It is submitted that after resignation, the 1st petitioner herein decided to commence an independent business on his own and obtained GST registration. According to the learned counsel, the allegation of misappropriation of money is untrue. It is further submitted that Annexure-5 complaint was filed only on 8.2.2018, whereas Annexures-1 to 4 were submitted much earlier. It is further submitted that the petitioners herein have already been approached this Court complaining of harassment by the Police and have filed W.P.(C) No.2753/2018, which is still pending consideration. 5.The learned public prosecutor, while opposing the prayer submitted that the dealers of Palakkad have stated in equivocal terms that the amount due to the de facto complainant has been handed over to the petitioners herein. According to the learned Public Prosecutor, the investigation conducted till date shows the involvement of the petitioners. 6.I have considered the submissions advanced by both sides and have gone through the case diary. It appears the dispute is between the employer as well as the former employees. The prosecution has no case that the petitioners herein are persons with poor antecedents. Having considered all the relevant materials, I am of the view that by imposing stringent conditions, the petitioners can be granted an order of anticipatory bail as their custodial interrogation does not appear to be necessary in the instant case for an effective investigation. 7.In the result, this petition will stand allowed. The petitioners shall appear before the investigating officer within ten days from today and shall undergo interrogation. Thereafter, if they are proposed to be arrested, they shall be released on bail on their executing a bond for a sum of Rs.40,000/- (Rupees forty thousand only) each with two solvent sureties each for the like sum. The above order shall be subject to the following conditions: i)The petitioners shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 1 p.m., for one month or till final report is filed, whichever is earlier. ii)The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/ her from disclosing such facts to the court or to any police officer. iii)The petitioners shall not commit any similar offence while on bail.

In case of violation of any of the above conditions, the juri ictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.

RAJA VIJAYARAGHAVAN V, JUDGE al/-xx