IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 3RD DAY OF MARCH 2016/13TH PHALGUNA, 1937 Bail Appl..No. 7592 of 2015 ()

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CRIME NO. 1224/2015 OF VANCHIYOOR POLICE STATION , THIRUVANANDAPURAM PETITIONER(S)/ACCUSED:

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1. SHANAVAS B. AGED 33 YEARS S/O.V.M.BASHEER, BEE & BEE INVESTMENTS, DOOR NO.XL/251 KALATHIL BUILDINGS, HOSPITAL ROAD, ERNAKULAM KOCHI-11, RESIDING AT AYYAPPANKAVU, ERNAKULAM.

2. V.M.BASHEER S/O.MOHAMMED YOUSEF, BEE & BEE INVESTMENTS DOOR NO.XL/251, KALATHIL BUILDINGS, HOSPITAL ROAD ERNAKULAM, KOCHI-11, RESIDING AT AYYAPPANKAVU ERNAKULAM.

3. K.M.SHEERIJAN, AGED 58 YEARS W/O.V.M.BASHEER, RESIDING AT SHANAVAS MANZIL AYYAPPANKAVU, ERNAKULAM.

BY ADVS.SRI.K.RAMAKUMAR (SR.)

SRI.S.M.PRASANTH SRI.G.RENJITH SMT.ASHA BABU SMT.S.PARVATHI SRI.ARUNBABY STEPHEN SRI.ASHWIN SHANKER Bail Appl..No. 7592 of 2015 ()

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RESPONDENT(S)/STATE AND COMPLAINANT:

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1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031. 2. THE ASSISTANT COMMISSIONER OF POLICE DISTRICT CRIME BRANCH, THIRUVANANTHAPURAM CITY THIRUVANANTHAPURAM-695001.

3. THE STATION HOUSE OFFICER VANCHIYOOR POLICE STATION THIRUVANANTHAPURAM DISTRICT, PIN-695005.

BY PUBLIC PROSECUTOR SRI. C. RASHEED (SR. G.P.)

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

B. SUDHEENDRA KUMAR, J.

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Dated this the ORDER The petitioners are accused in Crime No. 1224 of 2015 of Vanchiyoor Police Station for the offence under Section 420 read with Section 34 IPC. This application has been fled under Section

438 of the Code.

2. The prosecution allegation can be briefly stated thus:-

rd The first petitioner is the son and the 3 petitioner is the nd wife of the 2 petitioner. They are having a partnership firm having gold business. The de facto complainant placed an order for 25 kgms of gold on 13-8-2015. An amount of Rs. 6,30,50,000/-was also paid by the de facto complainant at the time of placing the above order. Thereafter, on 17-8-2015, the de facto complainant placed another order in favour of the petitioner for supplying 30 kgms of gold. For that order, an amount of Rs. 7,71,60,000/- was paid by the de facto complainant. Thereafter, the second order was cancelled by the de facto complainant. Thereafter, the de facto complainant demanded the money paid in connection with the second order. An amount of Rs. 6,67,60,000/- was re-paid by the firm of the petitioners. While so, the de facto complainant approached the firm of the petitioners for issuing receipt showing that the gold as per the first order had been delivered to the de facto complainant, for the purpose of producing the same before the Income Tax and Sales Tax authorities. Accordingly, the firm of the petitioners issued the receipt. Thereafter, the firm of the petitioners did not give the 25 Kgm of gold ordered by the de facto complainant on 13-8-2015. They also did not return the money paid by the de facto complainant.

3. Heard.

4. The learned Public Prosecutor has submitted that this Court has to ensure that the petitioners will be available or interrogation even if this Court grants relief under Sec. 438 of the Code.

5. Having gone through the relevant inputs, it appears that the transaction involved in this case is mainly civil in nature. It further appears that the parties have transaction for so many years even in the past. Therefore, whether there is any element of cheating involved in this case is a matter for investigation.

6. However, considering the facts of the case, I am of the view that custodial interrogation is not necessary for the progress of this case. In such circumstances, the order under Sec. 438 is justified in this case.

7. In the result, this application stands