Anticipatory bail is not granted where prima facie evidence of cheating exists, as failure to disclose material information in a transaction is significant.

O R D E R

Dated this the 18th day of January 2021 Application for anticipatory bail under Section 438 of Cr.P.C.

The applicant is the sole accused in Crime No.919/2020 of Vadakara Police Station for having allegedly committed offences punishable under Sections 420 and 506 of IPC .

2. The prosecution case, in brief, is that the applicant who was the owner of 8.1 cents of land allegedly mortgaged it with Thiruvalloor Corporation Bank and obtained a loan. The applicant, de facto complainant and his wife were directors of a company named Puzhayoram Auditorium Pvt. Ltd. On 13.02.2019, the applicant allegedly sold the property to the company with the de facto complainant and his wife and money was received. Subsequently, the applicant resigned from the company and left the entire property and its liability to the de facto complainant and his wife, who continued as directors. The company received a notice from the bank regarding the mortgage and the bank demanded a sum of Rs.24 lakhs as the balance of the loan amount. It is submitted that the applicant had deliberately not disclosed the mortgage of his property to the bank and sold the property to the company together with liability and put the entire liability on the company and thereafter resigned from it. It is also pertinent to note that in Ext.R2(a), which is the copy of the sale deed executed by the applicant, he has mentioned that the original title deed has been lost and therefore, the certified copy is being produced. Being mortgage created by depositing of title deed, the encumbrances will not be shown in the encumbrance certificate and therefore, taking advantage of that, he dishonestly induced the de facto complainant and his wife, the other director of the company to purchase the property and thus committed the offence.

3. The applicant states that the allegations are not true.

The applicant and the de facto complainant and his wife were directors of the firm. Due to some reasons, he has to resign. The de facto complainant was aware of the mortgage. They had deliberately not mentioned that fact in the sale deed. He was paying the mortgage amount without any default and it is only subsequent to the parties falling out, that difference of opinion arose between them and a complaint like this was filed with the deliberate intention to implicate the applicant in a crime. The applicant states that he has no criminal antecedents. He is willing to cooperate with the investigation and therefore seeks pre-arrest bail.

4. Heard the learned counsel for the applicant, the learned counsel appearing for the de facto complainant and also the learned Public Prosecutor.

5. Going by the facts and circumstances of this case, it is a clear case of cheating, because the applicant after having mortgaged the property by depositing the title deeds, did not disclose it in the sale deed to the de facto complainant and his wife, who are the other directors of the company. He deliberately entered the recital that the original title deed of the property has been lost and that the certified copy of the same is produced. Subsequent to the alleged sale, he resigned from the directorship of the company. All these facts clearly lead to the complicity of the applicant and it is prima facie clear that he had committed an offence of cheating. He is therefore not entitled to the extraordinary remedy of anticipatory bail.

The applicant is therefore directed to surrender before the investigating officer within two weeks. In the event of his being arrested, after interrogation and recovery if any, he shall be produced before the jurisdictional court, where he is at liberty to apply for a regular bail, which shall be considered and preferably disposed of on the same day.