Point of Law : Power under Section 438 of Cr.P.C, being an extraordinary remedy, has to be exercised sparingly, otherwise same would adversely affect investigation.

ORDER :

B.A.No.1035/2023 is an anticipatory bail application filed by the 3rd accused under Section 439 of the Code of Criminal Procedure in Crime No.1266 of 2022 of Vanchiyoor Police Station, Thiruvananthapuram, alleging commission of offences punishable under Sections 408, 409, 420, 477 r/w 34 of the Indian Penal Code. The 1st accused in the above crime has filed B.A.No.1131/2023 seeking anticipatory bail. Similarly, accused No.6 in the above crime seeks anticipatory bail in B.A.No.1146/2023.

2. Heard the learned Senior Advocate Shri K.Ramakumar appearing for the 6th accused; learned Senior Advocate Shri P.Vijaya Bhanu appearing for the 1st accused; learned Advocate Sri R.Anil, representing learned Senior Advocate Shri B.Raman Pillai appearing for the 3rd respondent and the learned Public Prosecutor as well as the learned Senior Counsel Shri P.Vijayakumar and Shri Suman Chakravarthy appearing for the respective defacto complainants, in detail.

3. The prosecution allegation is that the accused persons, who are the Director Board members and staff of BSNL Engineers Co-operative Society Ltd. T 950 (hereinafter referred to as `Society' for convenience) had received fixed deposits from the depositors and siphoned off an amount of Rs.44,14,37,950/-(Rupees Forty four crores fourteen lakhs thirty seven thousand ninety hundred and fifty only) in between 01.06.2019 to 16.06.2020 by maintaining parallel registers and, by issuing forged fixed deposit receipts. The learned counsel for the 6th accused would submit that the 6th accused has no involvement in this crime and he is a person, who bona fidely made deposit to the tune of Rs.1 crore as per Annexure-A4, copies of fixed deposit receipts produced along with the bail application. It is submitted further that the said amount includes the amount of 87 year old mother of the 6th accused also. Therefore, the allegation against the 6th accused that he had misappropriated the amount of the society along with the other accused, is absolutely false and, therefore, the petitioner is liable to be released on anticipatory bail.

4. The learned Senior Counsel also submitted that, in fact, the 6th accused is the person, who had lodged complaint regarding scam in the society as on 20.11.2022. It is also pointed out by the learned Senior Counsel that it is at the instance of the 6th accused, the crime was registered and the investigation has been going on. But shockingly the complainant also got arrayed as an accused, on flimsy reasons without justification. Ultimately, it is submitted by the learned counsel for the 6th accused that custodial interrogation of the 6th accused is not necessary, as the investigation could very well be possible otherwise, since there is no allegation for the prosecution that there is either conspiracy or common intention for the accused in commission of the crime, since no offences under Section 120B or 34 of the IPC was incorporated in the FIR.

5. While pressing for anticipatory bail to the 1st accused, learned Senior Advocate P.Vijaya Bhanu submitted that even as per the prosecution case, the period of misappropriation is in between 01.06.2019 to 16.06.2020. According to the learned counsel for the 1st accused, the 1st accused was the Secretary of the society initially from 1987 onwards and there was no allegation of any misappropriation during the period when the 1st accused was the Secretary of the society and allegation arose for the first time when he took the responsibility of the President because of his age old condition. That shows the innocence of the petitioner. It is also pointed out that there is no reason to have custodial interrogation of the petitioner who held the post of Secretary for a period of 30 years starting from 1987 without room for any complaints. Highlighting the relevant documents forming part of the case diary, the learned counsel pointed out that the allegation of misappropriation is pertaining to the period in between 1.6.2019 to 16.06.2020.

6.