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A person accused of defrauding a sum of money from the complainant can be granted anticipatory bail if the complainant has already initiated civil proceedings : High Court of Kerala

Petitioner who is accused of defrauding a sum of money from the de facto complainant on promise that he will give returns was granted anticipatory bail as he has already initiated civil proceedings against him and it couldn’t be a criminal motion and was upheld by High Court of Kerala through the learned bench led by HONOURABLE MR. JUSTICE GOPINATH P. in the case of GOWRI SHANKAR vs. STATE OF KERALA (BAIL APPL. NO. 7831 OF 2021) on 4th April, 2022.

Brief facts of the case are that the allegation against the petitioners is that they defrauded a total amount of Rs.41,00,000/- which was transferred through bank account to the account of Sree Sastha Engineering Works, Coimbatore, a business establishment owned and operated by the 2nd accused in the case. It is alleged that the amount was paid on the promise that substantial returns would be made available to the de facto complainant. It is alleged that despite demand no return as promised was given and that only an amount of Rs.8,00,000/- was returned to the de facto complainant.

Learned counsel for petitioner submitted that even if the entire allegations in the First Information Statement are true the matter is purely a civil dispute between the petitioners and the de facto complainant could not have set criminal law in motion. He submitted that the petitioner in B.A. No.2710/2021 has no connection with the business being run by her husband and she has been unnecessarily arrayed as an accused only for the purpose of forcing the 2nd accused in the case to settle the matter. It is submitted that O.S. No.66/2021 has been filed by the de facto complainant against the 1st accused in the case and the same is pending before the Sub Court, Thrissur. He further submitted that an order of attachment of the residential property of the petitioner has also been obtained and the claim of the de facto complainant is secured.

Learned Public Prosecutor submitted that there are clear allegations that would suggest that the petitioners had defrauded the de facto complainant. He submitted that the fact that a suit had been filed for recovery of money that does not mean that the offence had not been committed, the petitioners are not entitled to be released on bail. It is also pointed out that the 2nd accused in the case had failed to appear before the investigating officer despite issuance of a notice under Section 41 A of the Cr.P.C. He submitted that this fact must be taken into account while deciding whether the petitioners are entitled to anticipatory bail.

In view of the facts and circumstances of the case and considering the nature of the allegations and also taking into account the fact that the de facto complainant has already initiated civil proceedings as mentioned above against the petitioners in respect of the same amount which is subject matter of the complaint, Court held that the petitioners can be granted anticipatory bail subject to conditions.

Click here to read the Judgment

Judgment reviewed by – Amit Singh

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