9911796707
TMI Blog2025 (1) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... and are being disposed of by this common order. 2. The prosecution case, in brief, is that, from 2014 to 2020, the accused 1 to 6 had sanctioned and disbursed multiple loans from the Karuvannur Service Co-operative Bank Ltd - 112 ('Bank', in short) to the same person, against the loan limits set by the Bank, by accepting the title deeds of the same property as collateral security, forging the membership records of the Society and including persons who are not members of the Society. The accused persons had furnished false addresses, manipulated the software of the computer system and disbursed loans in the names of property owners without their knowledge or consent. The accused persons had also manipulated the supermarket's inventory run by the Bank. Consequently, the accused persons have cheated the Bank Rs. 100/- Crore. The first informant, Smt. Sreekala (Secretary-in-Charge of the Bank) filed a complaint before the Irinjalakkuda Police Station and FIR No.650/2021 was registered on 14.7.2021 against Sunil Kumar T.R, the former Secretary of the Bank (the thirty-third accused); Biju. M.K, the former Branch Manager of the Bank (the thirty-fourth accused); Jilse. C.K, the forme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant of the bank. He was not entitled to avail any loan from the bank as per the bye-laws. Yet, he has availed loans in the names of his family members by mortgaging the properties owned by his father. He availed three loans for Rs. 1,50,00,000/-. Now, the outstanding loan amount is Rs. 1,44,17,365/-. He has also availed loans in the names of five other persons for Rs. 2,75,00,000/-. Now, the outstanding loan amount is Rs. 3,62,46,556/-. Therefore, the total outstanding amount in the name of the 16th accused is Rs. 5,06,63,921/-. He has parked the proceeds of the crime in the real estate business. The investigation has revealed that the 16th accused has not filed his income tax returns. But he has purchased immovable properties, with the proceeds of the crime, in his and his wife's names. He has sold the properties and re-invested the proceeds of the crime in real estate. His wife was the Director of the CCM Traders in 2019. She also worked as a pharmacist. However, she could not produce any evidence for the source of her income. In her statement given on 10.11.2022, she stated that her husband did all the monetary transactions. Three items of properties purchased with the proceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns but are members of the Society. They had given incorrect addresses in their application forms. The Bank granted the seven persons loans after getting sanction from the Administrative Board. The investigation in the case is complete, and a partial complaint has been filed, which runs into 30,000 pages. Although he had filed similar applications for bail, the same were dismissed by Annexures A1 and A2 orders. The 16th accused is suffering from hypertension and is under treatment. He has been in judicial custody for the last nearly 15 months. The investigation into the predicate offence is still ongoing. There is no likelihood of the trial commencing in the near future. He is also ready to abide by any stringent condition that this Court may impose. There are no reasonable grounds to find that the 16th accused has committed the above offences. He also has no criminal antecedents. Hence, the application may be allowed. 7. The respondents have filed a bail objection report in B.A No.2339/2024 refuting the contentions in the said application. The respondents have reiterated the allegations in the complaint and have narrated the statements of each of the witnesses. It is contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded it over to the 14th accused. The punishment that can be imposed on the 15th accused is between 3 and 7 years. There is no material to substantiate the 15th accused's involvement in the crime. There is no likelihood of the trial in the case commencing in the near future. The petitioner does not have any criminal antecedents. The learned counsel relied on the decisions of the Honourable Supreme Court in Shaheen Welfare Association vs. Union of India and Others [(1996) 2 SCC 616], Prem Prakash vs. Union of India[MANU/SC/0943/2024], Javed Gulam Nabi Shaikh vs. State of Maharashtra and Others [2024 SCC Online SC 1693], Manish Sisodia v. Directorate of Enforcement [(2024 SCC Online SC 1920], Sekar @ Sekar Reddy.J vs. Directorate of Enforcement[2022 (7) SCC 370], Senthil Balaji V. vs. Deputy Director, Directorate of Enforcement [2024 SCC Online SC 2626] and South Indian Bank Ltd. Thrissur vs. Directorate of Enforcement, Cochin[2024 (5) KHC 214], to support his contentions. He prayed that the application may be allowed. 10. The learned counsel appearing for the 16th accused also vehemently argued that there is no material to substantiate the said petitioner's involvement in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees] may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by; - (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed; (2) The limitation on granting of bail specified in [***] of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." 13. Section 45 of the Act starts with a non-obstante clause, which has an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk accounts and received Rs. 20,00,500/-from the 14th accused by bank transfer. 18. The defence of the 15th accused is that the investigation pertains to the transactions between 2014 and 2016. He is not an accused in the predicate offence. He has not availed of any loan from the Bank; he had sufficient income as honorarium, quarry business, salary as a driver and his hotel business. Although it was initially alleged that he received Rs. 63,56,400/- in his mother's name, the allegation has been given up in the complaint. The 14th accused had transferred Rs. 20,00,500/- to his bank for the purpose of getting a demand draft for the admission of the 14th accused's daughter to the Malabar Medical College, Calicut. The amount was received and withdrawn on the same day, and a demand draft was drawn in favour of the college. 19. Similarly, the allegations against the 16th accused are that he had availed loans for Rs. 1,50,00,000/- in the name of his family members by mortgaging the properties owned by his father. He has also availed loans in the names of seven other persons for Rs.2,75,00,000/-. Now, the outstanding amount in the above loan accounts is Rs.5,06,63,921/-. He has parke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor. 51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra6 wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, Shri Gurbaksh Singh Sibbia v. State of Punjab, Hussainara Khatoon (I) v. Home Secretary, State of Bihar, Union of India v. K.A. Najeeb and Satender Kumar Antil v. Central Bureau of Investigation. The Court observed thus: "19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is to secure the attendance of the prisoner at trial. 56. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State. 57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant. .............................................." 24. Subsequently in Senthil Balaji V v. Deputy Directorate of Enforcement [2024 SCC Online SC 2626] the Honourable Supreme Court has reiterated the principles in Manish Sisodia's case, by observing in the following lines: "27. Under the Statutes like PMLA, the minimum sentence is three years, and the maximum is seven years. The minimum sentence is higher w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rerogative writs. An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary. 28. Some day, the courts, especially the Constitutional Courts, will have to take a call on a peculiar situation that arises in our justice delivery system. There are cases where clean acquittal is granted by the criminal courts to the accused after very long incarceration as an undertrial. When we say clean acquittal, we are excluding the cases where the witnesses have turned hostile or there is a bona fide defective investigation. In such cases of clean acquittal, crucial years in the life of the accused are lost. In a given case, it may amount to violation of rights of the accused under Article 21 of the Constitution which may give rise to a claim for compensation. 29. As stated earlier, the appellant has been incarcerated for 15 months or more for the offence punishable under the PMLA. In the facts of the case, the trial of the scheduled offences and, consequently, the PMLA offence is not likely to be comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation in the present crime is completed. They shall also appear before the Investigating Officer as and when required; (ii) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioners shall not commit any offence while they are on bail; (iv) The petitioners shall surrender their passports, if any, before the jurisdictional court at the time of execution of the bond. If they have no passport, they shall file an affidavit to the effect before the said court on the date of execution of the bond; (v) The petitioners shall not leave the territorial jurisdiction of the jurisdictional court without its previous permission; (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law; (vii) Applications for deletion/modification of the bail conditions shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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