DILSHAD Vs. STATE OF KERALA

JUDGEMENT

(1.) Application for anticipatory bail under Section 438 Cr.P.C.

(2.) The 1st applicant is the son of the 2nd applicant. They are accused numbers 1 and 2 in Crime No. 179 of 2020 of Kalamassery Police station for having allegedly committed offences punishable under Sections 323 and 392 read with Section 34 of the Indian Penal Code. The prosecution case in brief is this:- On 29/02/2020 the applicants in furtherance of common intention with 3 other persons approached the de facto complainant/2 nd respondent expressing the intention to purchase his BMW car bearing registration No. KL 01 CF 9798. They wanted to test drive the vehicle. The de facto complainant agreed and the applicants sat on the front seats with the 1st applicant behind the wheel and drove the vehicle. The de facto complainant and his brother sat on the back seat of the car. When the car reached the Palarivattom, three others got into the vehicle. Pointing a knife at the neck of the de facto complainant, they assaulted him and his brother, caused hurt to them, and drove the car towards Vytilla. On reaching there, they pushed the de facto complainant and his brother out of the car by force, robbed the vehicle and sped away. The de facto complainant filed a complaint before the Kalamassery Police on 12/03/2020, on the basis of that, the aforesaid Crime was registered and the F.I.R is at Annexure A1.

(3.) The applicants state that they are innocent and the allegations made against them in this Crime are not true. It is stated that the applicants belong to a decent family of businessmen. They are builders by profession and are also engaged in cashew export. The 2nd applicant's wife Narghees is the registered owner of the aforesaid BMW car. Annexure A4 shows details of the vehicle registration in her name. It is stated that the vehicle was agreed to be sold to a person named Sanjay for a sale consideration of ? 50 lakhs. He paid ?10 lakhs as advance, and agreed to pay the balance amount in two installments, for which he issued two cheques. Narghees was made to believe that the ownership of the car need to be transferred only on receipt of the entire sale consideration. Though the possession of the vehicle was handed over to the aforesaid Sanjay, the cheques issued by him were dishonoured for want of sufficient funds in his account. On attempting to contact him, he was absconding. The applicants and Narghees realised that they have been cheated by the aforesaid Sanjay. They made further inquiries regarding his antecedents and came to know that he has been cheating other persons also in a similar manner. Annexure A2 is the F.I.R in Crime No.1841/2019 registered against him at the Museum Police Station for having cheated a person named Sulaiman by taking possession of his Mercedes-Benz car bearing registration No. KL 01 BT 1111 on 18/05/2019 and issuing cheques which were dishonoured. The 2nd applicant had filed a complaint before the City Police Commissioner, Thiruvananthapuram on 26/02/2020, and the copy of that complaint is at Annexure A3. The extract Annexure A4 also indicate that Narghees has raised an objection to the sale of the vehicle, and had blacklisted it on an objection filed before the RTO. Subsequent enquiry revealed that the vehicle was kept in the house of the de facto complainant. Though the applicants attempted to retrieve the vehicle with the help of the local Police, it proved futile. On coming to know about the information that the vehicle is intended to be transported to Tamil Nadu, the applicants approached the de facto complainant and informed about how Sanjay had duped them. The de facto complainant agreed to accompany the applicants to Karamana Police Station to settle the dispute. However when they reached Aroor, the applicants were informed that the person who had sold the vehicle to him had agreed to settle his payment within a week. Thus, as requested by him, he dropped from the car. He was not pushed out of the car by force or assaulted as alleged. The version of the de facto complainant about the applicants and three others getting into the car while the de facto complainant and his brother were inside the car is hard to believe as there is only seating capacity for three persons on the back seat of the car. Moreover, there is an unexplained delay 12 days in lodging the complaint before the Kalamassery Police Station by the de facto complainant. The applicants were threatened by goons on intervention by a political leader from Kalamassery. They had even broke open the gate of the applicants' house and took away the vehicle by force. Annexure A5 complaint was filed before the City Police Commissioner and DGP on 20/03/2020. Annexure A6 complaint was also filed before the Deputy Commissioner of Police, Kochi on 27/04/2020. The vehicle still stands in the name of the 2nd applicant's wife as evident from Annexure A7. The loan outstanding with the ICICI bank with regard to the vehicle was closed by the applicants as evidenced by Annexure A8. The above-mentioned Sanjay had obtained anticipatory bail in the crime registered against him as Annexure A2. The copy of the bail order is produced as Annexure A9. This indicates that Sanjay is a fraudulent person. The applicants have produced Annexure A10 a complaint against Sanjay pending before the Judicial First Class Magistrate Court, Malapuram as C.C. No. 61 of 2020 filed on 31/01/2020. Annexure A11 shows that a warrant of arrest was issued against Sanjay and his wife in the aforesaid case. On the basis of the complaint filed by the applicants against Sanjay, Annexure A12 Crime No. 653 of 2020 was registered at Karamana Police Station against him. The applicants contend that the de facto complainant and the aforesaid Sanjay are glove in hand to cheat the applicants. This allegation is fortified by the fact that the de facto complainant has not proceeded against Sanjay in respect of the transaction despite being informed about it by the applicants.