Mohammed Nias C. P., J
1. This bail application is filed under Section 438 of the Code of Criminal Procedure, 1973, seeking pre-arrest bail.
2. Petitioner is the first accused in crime No.25/2023 of Kulavallur police station, Kannur district, alleging offences under Sections 406 and 420 of the Indian Penal Code.
3. According to the prosecution, the accused is conducting a trading establishment in Qatar and had obtained a loan and thereafter failed to repay the same, thereby committing the alleged offences.
4. The learned Senior Counsel for the petitioner, Sri Joseph Kodiyanthara, instructed by Sharan Shahier, submitted that the firm in which the accused was the managing partner had availed a loan from the Qatar Bank in Qatar. The loan was taken when the petitioner was the managing partner, and it was before 2017. By February 2017, he had sold his shares and exited the partnership and returned to India. The FIR is seen registered on 11.01.2023, six years after the loan was availed, and the restructuring of the loan after March 2017 could not have been done with the junction of the petitioner. It is submitted that the petitioner was also not aware of the change in the investigation to the Crime Branch, and that is how the petitioner happened to surrender before the Investigating Officer who originally investigated the crime. The learned Senior Counsel argues that the shares having been sold and, at best, it is the liability of the firm to the bank, there cannot be any element of cheating in the transaction, even if the allegation of diversion of funds is true. It is also pointed out that the crime was registered this year after his return to India. It was pointed out that even according to the prosecution case, the loan was taken by a trading establishment of which the petitioner was only a shareholder. It was also asserted that even if the entire prosecution allegations are assumed to be true, the same would only reveal a transaction where the petitioner or the other entity failed to repay the amount taken as a loan and therefore, no criminal offence will lie.
5. This Court had earlier granted bail to the petitioner by order dated 08.06.2023 in this bail application. However, that order was recalled by order dated 25.8.2023, as this Court found that it was a suppression of material facts as the bail was obtained without noticing the change in the Investigating Officer. Accordingly, the order granting bail was recalled, and the bail application was directed to be re-heard.
6. The learned Public Prosecutor, Sri. Manu has filed a memo opposing the bail application and submitted that the allegation against the accused, who was then a resident of Qatar, that he had borrowed an amount of QAR 30,643,204 equivalent of 61,28,64,080 Indian Rupees on 14.03.2017 from United Bank Limited at Qatar for the expansion of his business establishment namely Grant Mart Trading located at Doha and later committed cheating and criminal breach of trust to the bank and power of attorney of the bank as well, by neither utilising the amount as requested nor repaying the amount.
7. The defacto complainant also had filed an objection. The learned Counsel Sri. K.R. Sunil, appearing for the defacto complainant, submits that the petitioner also submitted several documents by misrepresenting his identity and, as the Managing Director of ‘GRAND MART TRADING’ Doha Qatar, applied for the above loan. The petitioner, after the sanction of the loan, immediately withdrew the complete amount and thereafter, with an intent to deceive the bank, transferred all the amount to his brother and near relatives. The petitioner’s cousin and the shareholder of the Company, V. K Noushad, who is also involved in the above money fraud, was arrested by the Qatar Police and is presently in jail. The petitioner and his relatives committed financial fraud of several banks in UAE, and the aggrieved banks had already initiated proceedings against the petitioner and his relatives. While the case was being investigated by the SHO, Kulavallur police station, Kannur, considering the gravity of the offences, the amount involved and the necessity of a detailed investigation, the case was transferred to the Crime Branch of Police, CB, EOW, Kannur and Kasaragod Unit by the State Police Chief on 27.3.2023. He argues that a detailed investigation is therefore required and prayed for the dismissal of the application for anticipatory bail.
8. Upon consideration of the rival submissions, a few facts deserve mention:
The allegations against the petitioner appear to be of taking a loan for a firm of which he was the Managing Partner, selling his shares, diversion of funds, etc., that allegedly took place in the year 2017, while the FIR is seen registered only on 11.01.2023, Almost all the allegations of the de facto complainant are to be proved by documentary evidence, most of the alleged violations and the accusations against the petitioner, exfacie, would not amount to an offence of cheating, the petitioner had appeared before the Investigating Officer, and his statements were recorded, the statement of the Investigating Officer which says that no evidence is available in India to prove the allegation against except the statement of the complainant and the photocopy of some documents produced by the complainant and that, to proceed with the investigation, the following documents are to be received from the State of Qatar. The details of the documents to be received are also mentioned.
1. Loan application submitted by the accused and the Grand Mart Trading Company from United Bank Ltd., Qatar.
2. Bank account statement of the accused and the Grand Mart Trading Company from United Bank Ltd., Qatar.
3. Documents pertaining to the registration of establishment and change of share holders namely Grand Mart Trading Company run by the accused in Qatar.
4. Original documents regarding the sale of shares of the accused Ismail and the Qatar citizen named Sheikh Jasim Thamir IT Al thani.
5. Details of civil/criminal cases pending against the accused and the alleged company at Qatar in connection with the same matter if any.”
9. The reasons for opposing the bail are that the petitioner may repeat the offence, and there is a chance of tampering with the evidence by the accused if released on bail.
10. It is pertinent to note that these two reasons for opposing the bail are non-existent as the petitioner has no intention as of now to leave the country and that the evidence to be collected in the investigation is from Qatar, there is no chance of the petitioner tampering with the same. Under such circumstances, custodial interrogation of the petitioner is not required, and anticipatory bail is granted without prejudicing a proper investigation and ensuring the cooperation of the petitioner.
Accordingly, this bail application is allowed on the following conditions:-
i. The petitioner shall appear before the Investigating Officer within two weeks from today and subject himself to interrogation.
ii. After interrogation in the event of the investigating officer deciding to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned.
iii.The petitioner shall appear before the investigating officer as and when directed.
iv. He shall also cooperate with the investigation and shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case to dissuade them from disclosing such facts to the court or the police officer.
v. The petitioner shall not leave India without the permission of the jurisdictional court.
vi.The petitioner shall surrender his passport, if any, within seven days from the date of his release before the Court concerned, and if the release of the passport is required at a later period, the petitioner shall be at liberty to move an appropriate application for the same before the court having jurisdiction. If he has no passport, he shall file an affidavit to that effect before the court concerned on the date of execution of the bond or within three days thereafter.
vii.The petitioner shall not commit any offence while on bail.
viii.If the petitioner violates any of the above conditions, the jurisdictional court is empowered to cancel the bail in accordance with law.
It is made clear that it is within the power of 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 [2021 (1) KHC 663].
