Dharmendra R vs State Of Kerala

Applications are filed by the same person for anticipatory bail under Section 438 Cr.P.C.

The applicant is the 4th accused in Crime No. 1570/2019 of Ernakulam Central Police Station for having allegedly committed offences punishable under Sections 406, 420, 468 and 471 read with Section 34 of the I.P.C for which he has filed BA No. 5811/2020. He is also the 1st accused in Crime No. 1608/2020 of the same Police station for having allegedly committed offences punishable under Sections 177, 182, 199, 209, 211, 466 and 471 read with Section 120 B of the I.P.C for which he has filed BA No. 8691/2020.

Southern Dredging Company Private Ltd, the de facto complainant herein, represented by the 2nd respondent, had sold dredger costing about Rs.3.75 crores to JAT Holdings in Sri Lanka on 20/08/2018. Towards the sale consideration, Rs.1.75 crores is still due. According to the de facto complainant, the applicant and the rest of the accused had allegedly forged the invoice dated 05/04/2018 showing sale of another dredger to JAT Holdings. Thus the accused, including the applicant, had allegedly cheated the de facto complainant of Rs.1.75 crores. It is on the basis of this complaint that Crime No.1570 of 2019 was registered.

The facts in crime No.1608 of 2020 is that the applicant had hatched a conspiracy with the rest of the accused and filed a false complaint against the de facto complainant before the Enforcement Directorate levelling serious charges of fraud. While B. A. No. 5811/2020 was pending before this Court, the de facto complainant approached The Court of the Chief Judicial Magistrate Ernakulam by filing a private complaint which was forwarded by the Court under Section 156 (3) Cr.P.C in consequence of which the 2nd crime was registered. The 1st accused had filed a complaint before the Governor of Kerala seeking a proper investigation in Crime No.1570 of 2019 and the investigation has been transferred to the Crime Branch, Central Unit, Thrippunithura and has been renumbered.

The applicant is an employee of JA paints private Ltd., an associate company of the 1st accused M/s. JAT Holdings working in India and is posted in Bangalore. As per the terms of the agreement, the substantive parts of the dredger and its standard accessories were to be shipped in two shipments for an amount of USD 3,24,000/- and on arrival of the first 2 shipments, the balance amount of USD 3 lakhs needs to be paid within 180 days from the date of the 1st shipment and also after the dredger gets installed and commissioned successfully. The substantial part of the dredger was exported to Sri Lanka on 20/08/2018 and the 1st accused company paid a sum of USD 3,24,000/- as agreed. However the accessories in connection with the dredger which was supposed to come in another shipment did not reach as agreed. The 1st accused company has through its associate company M/s. JAT Agri Private Ltd instituted a civil suit against the de facto complainant in Colombo which is pending consideration. It is submitted that the dispute between the applicant and the de facto complainant is purely civil in nature and the de facto complainant has colluded with certain Police officials to institute criminal cases against the applicant and the other accused. The 3rd accused had filed the bail application before this Court as BA 577 of 2020 which was allowed by this Court vide annexure-7. The applicant therefore prays that he too may be granted anticipatory bail. He is willing to co-operate with the investigation.

Heard the learned counsel appearing for the applicant in both the applications and the learned Public Prosecutor. The de facto complainant, as a party in person, made submissions opposing the granting of anticipatory bail pointing out that the applicant is involved in a crime of very serious nature and has to be confined in judicial custody for the purpose of conducting trial.

In State of Rajasthan Vs Bal Chand [AIR 1977 SC 2447], Justice Krishna Iyer observed thus:

"The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from Court."

Court have generally listed certain factors which have to be kept in view while granting any bail either post-arrest or pre-arrest, namely, (i) nature and seriousness of the accusations, (ii) the nature of the prosecution evidence, (iii) the severity of the likely punishment in case the prosecution succeeds, (iv) status of the accused, (v) likelihood of repeating similar offences, and (vi) likelihood of tampering of prosecution evidence etc.

Ex facie the disputes in these crimes are civil in nature. It is the contention of the de facto complainant that the applicant and the other accused are obliged to pay the balance amount of Rs.1.75 crores on account of the sale of dredger. The applicant has raised several contentions regarding the liability of his company, the quality of the material supplied and such other matters which can only be considered by a civil Court of competent jurisdiction. It is well-settled by a plethora of decisions of the Apex Court as also of this Court that criminal courts are not for realisation of the disputed dues. Regarding the forgery alleged, there are no substantial materials at present to conclude regarding the alleged act of forgery. That is also a fact which needs to be true during trial. There is no allegation that the applicant is a criminal having such antecedents and that he would flee from justice in case he is released on bail. Under the circumstances, I find no reason whatsoever to grant bail to the applicant in both the aforesaid cases.

In the result, the applications are both allowed and in the event of his arrest, the applicant shall be released on bail on the execution of a bond for Rs.1,00,000/- (Rupees one lakh only) in each of the crimes, with 2 solvent sureties for like amount each to the satisfaction of the arresting officer subject to the conditions under Section 438 (2) Cr.P.C.