SANDEEP Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the accused in Crime No. 2218 of 2012 of Kannur Town Police Station. Offence alleged are under S.465, S.468, S.477, S.409, S.420 and S.381 of the IPC. He was arrested on 05/12/2012 and ever since he is in judicial custody. His application for bail was dismissed by the learned Magistrate thrice as evidenced by Annexures - A, B and C. Now this petition.

(2.) The learned Government Pleader would strongly oppose the petition for bail. The learned counsel appearing for the petitioner would submit that though offence under S.409 is alleged, going by the averments in the complaint basing upon which the case was registered, only an offence under S.408 IPC is made out and therefore, the petitioner is now entitled to default bail under S.167(2)(a)(ii) CrPC. From the averments in the complaint it is revealed that the petitioner was an accountant of the defacto complainant and he manipulated the accounts and other documents and committed misappropriation in respect of a sum of Rupees seventy five lakhs. Therefore, it is evident that this is a case of misappropriation committed by the servant of the de facto complainant. There is no sort of entrustment to the de facto complainant as a banker, merchant, factor, broker, attorney or agent so as to attract offence under S.409 IPC. For a better appreciation of the argument, I find that a reading of S.408 and S.409 IPC would be relevant:

(3.) The specific pleading in the complaint would show that there was no sort of entrustment as a banker, merchant, factor, broker, attorney or agent. Whereas the offence alleged was committed by the petitioner in his capacity as an accountant of the de facto complainant. Therefore, I find that prima facie materials discloses only offence under S.408 IPC. In the above circumstance, since the petitioner had been in custody for more than sixty days, I find that he is entitled to default bail under S.167(2)(a)(ii) CrPC.