Subin Philip vs State Of Kerala And Ors

Application for anticipatory bail under Section 438 of Cr.P.C.

The applicant is the accused in crime No. 1251 of 2020 of Harippad Police Station for having allegedly committed offence punishable under Section 406 of the I.P.C.

The prosecution case, in brief, is that on 01/11/2020 the applicant dishonestly induced the defacto complainant, a minor aged 17, to entrust him 46 grams of gold ornaments consisting of a gold chain weighing one sovereign, two rings weighing 6 grams, two ear studs weighing 3 grams, one pendant weighing 4 grams, a bracelet weighing 9 grams and a Sachin chain weighing 2 grams, on promise that it would be returned on demand. He failed to return the ornaments and misappropriated and converted it to his own use and committed criminal breach of trust.

The applicant states that the allegations are not true. He is 23 years old and was in love with the de facto complainant Steffi Mariam Jose for the past several years, and this fact is known to the de facto complainant's family. It was mutually agreed that their marriage would be solemnised after she attained majority, and the applicant got decently employed. Steffi was however living in luxury and was in constant need of money to buy clothes, mobile phone and other luxurious items. The applicant was also gifted certain items to her. Coming to know about their daughters affair with the applicant, the de facto complainant's parents imposed severe restrictions on her movements and also restrained her from accessing money towards her expenditure. Being a minor, she could not have pledged gold. Hence, she requested the applicant to pawn her gold chain and locket weighing 5.990 grams at Muthoot Fincorp Ltd, and on doing so, he obtained a loan of Rs.14,000/- as evidenced by Annexure 1, which he handed over to Steffi to meet her needs. The de facto complainant's mother had caused annexure-A2 lawyer notice to be sent to the applicant on 16-07-2020, demanding repayment of a total sum of Rs.55,200/-allegedly borrowed by the applicant in 61 installments starting from 01/11/2018 to 29/01/2019 in small amounts ranging between Rs.200/- and Rs.15,000/-. The aforesaid notice was sent consequent to the relationship between the applicant and Steffi getting strained. The de facto complainant's parents are not letting the applicant to meet their daughter. Thereafter, the lawyer notice demanding the aforesaid amount and a complaint alleging criminal misappropriation was filed against the applicant with the deliberate intention to harass him. The applicant had appeared before the the investigating officer and apprised him about what had really happened. Annexure A1 indicates that the gold was pledged by the applicant with Steffi as the nominee which would indicate that the amount was actually obtained for meeting her expenses. The applicant was also threatened and intimidated by the de facto complainant's parents stating that he would be implicated in a false case for committing an offence punishable under Section 376 of the I.P.C and also under the POCSO Act. The applicant was intimidated to admit pledging of ornaments for himself and was made to write a letter in the Haripad Police Station on 25/11/2020 in which he was made to write that he had received several ornaments on different dates from the de facto complainant and undertook to return all those ornaments. The applicant states that he is innocent and has been falsely implicated in the crime. He has no criminal antecedents and is not likely to flee from justice. He has already appeared before the investigating officer and is willing to co-operate with the investigation. Hence, he seeks anticipatory bail.

The de facto complainant was impleaded as additional 2nd respondent and Advocate Smt. Sheela Devi appeared for the de facto complainant and filed an objection opposing the application for anticipatory bail. It is contended that the applicant had borrowed money from the de facto complainant's mother as alleged in the notice issued by her as Annexure A2. To support that she has produced Annexure R2 (a) account statement of her mother indicating withdrawal of the amount as stated in the lawyer notice. That apart, the applicant had also received gold chains, a ring, earring, pendant and bracelets from the de facto complainant's daughter making her believe that he required money to clear his debts. Owing to her intimacy with the applicant, she gave all her ornaments to him without telling her parents. However, the applicant did not return the ornaments on time and that is when the de facto complainant's daughter revealed the fact to her mother. Consequent to that, the complaint was filed and the applicant was summoned to the Haripad Police Station where he admitted receiving the ornaments and promised to return the same. The undertaking given by the applicant before the Police is Annexure R2(b). The de facto complainant's father is employed abroad and taking advantage of that situation, the applicant had earned the trust of the de facto complainant and her mother and misappropriated the amounts from her mother and ornaments from the de facto complainant. In case the applicant is released on bail, there is possibility of his intimidating the de facto complainant and her mother.

The applicant has subsequently produced the copies of the A6 First Information Report, A5 copy of the private complaint filed by the de facto complainant and also Annexure A7, the copy of the notice sent on behalf of her seeking return of the ornaments on 16/07/2020. These documents are relied upon to establish that the de facto complainant has no definite case. It is stated that in the complaint the allegation is that the applicant has misappropriated 46 grams of gold ornaments belonging to the de facto complainant, which is equal to 5.75 sovereigns. But annexure A1 receipt received from Muthoot FIncorp indicates that the gold weighing 5.990 sovereigns was pledged by the applicant with the de facto complainant has the nominee. The applicant states that it was as per the request of the de facto complainant that he had pledged to the gold ornaments and obtained Rs.140,000/-. The de facto complainant had voluntarily gifted a sum of Rs. 20,000/- to him and the rest of the amount was given to her for her expenses. The applicant therefore prays that he may be released on anticipatory bail.

Heard Sri K.R. Sunil, the learned counsel appearing for the applicant and Smt. Sheela Devi, the learned counsel appearing for the de facto complainant as also Sri.Santosh Peter, the learned Senior Public Prosecutor appearing for the State. Documents perused.

The contention against the applicant is that he had dishonestly induced the de facto complainant to deliver her ornaments to him. The complaint and the F.I.R which state that gold ornaments weighing 46 grams were entrusted to him which he misappropriated without returning. The applicant has pointed out that this prosecution version is not believable because 46 grams of gold ornaments is equal to 5.75 sovereigns, whereas he has pledged 5.990 sovereigns of gold ornaments at Muthoot Fincorp, to borrow a total sum of Rs.140,000/-. The applicant has produced annexure A1 which indicates that he had pledged a gold chain and Locket weighing 5.99 grams and had obtained Rs.14,000/- on 20/07/2020. In the pleadings, he has admitted having pledged 5.99 sovereigns of gold ornaments and obtained Rs.140,000/-. He has also denied of having received money from the de facto complainant's mother on various occasions as stated in the notice which was sent on behalf of her to the applicant as AnnexureA2.

Even the applicant's version about the entrustment of the gold ornaments is contradictory, at one point in time, he admits of having pledged gold ornaments weighing 5.99 sovereigns and having obtained a sum of Rs. 140,000/-. But he has produced only Annexure A1 evidencing receipt of Rs.14,000/-from the finance company. It is true that the bank account statements produced by the de facto complainant pertaining to her mother does not indicate payments made to the accused. In view of the fact that the applicant was very close to the de facto complainant and her mother and claims to be having a romantic relationship with the de facto complainant, the possibility of the applicant being entrusted with gold ornaments cannot be disbelieved. The applicant was apparently taking disadvantage of the fact that the de facto complainant's father was abroad and there were only two ladies at home. In case the applicant is not subjected to custodial interrogation, the whereabouts of the rest of the ornaments may not be revealed. There is also a possibility of the applicant posing a threat to the helpless ladies. The applicant has misused the trust which was imposed upon him by the de facto complainant and her mother and therefore, he does not deserve any leniency from this Court in the matter of bail. The discretionary relief of anticipatory bail cannot be granted to the applicant.

The application is therefore dismissed.