IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941
Crl.MC.No.7508 OF 2019(G)
AGAINST THE ORDER/JUDGMENT IN CMP 3977/2019 OF ADDITIONAL CHIEF
JUDICIAL MAGISTRATE (EO),ERNAKULAM
CRIME NO.1288/2018 OF Ernakulam Town South Police Station ,
Ernakulam
PETITIONER/PETITIONER:
ANIL JOSE,
AGED 53 YEARS
S/O.SIMON, MANAGING DIRECTOR, M/S.GREEN CHANNEL
HOLIDAYS INDIA PVT.LTD., PANAMPILLY NAGAR,
ERNAKULAM.
BY ADVS.
SRI.DINESH R.SHENOY
SRI.EBIN MATHEW
SRI.P.ROHIT PREMANANDAN SHENOY
SMT.PREETHU PRADEEP
RESPONDENT/STATE:
STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM – 682 031.
OTHER PRESENT:
SMT.V.SREEJA PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
18.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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O R D E R
Dated this the 18th day of November, 2019
The petitioner had approached the Additional Chief
Judicial Magistrate’s Court (EO), Ernakulam with CMP
No.3977/2019 under Section 451 Cr.PC seeking release of
his laptop, three mobile phones and two pen drives
which were produced before the court in connection with
crime No.1288/2018 of Ernakulam Town South Police
Station and is presently in the possession of the
court.
2. The application was dismissed by the court for
the reason that the investigation is at the infant
stage and that aid of the Cyber Cell is sought for by
the investigating officer to examine the laptop, mobile
phones and pen drives, which contain the details of
tour package and monetary dealings with the customers
and are connected with the crime, and therefore,
releasing of those material objects before scientific
investigation is completed, would hamper the
investigation, and hence the application was dismissed.
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3. The present crime was registered for an
offence punishable under Sections 406 and Section420 IPC for
having received money of Rs.1,70,000/- from the defacto
complainant promising to procure visa to go on a tour
to Israel. The petitioner had allegedly failed to
arrange the visa as promised. There are other cases
also in which he is involved, with similar allegations
and in most of the cases the petitioner was granted
bail by this Court and he had deposited the due amount
as bail condition.
4. In the instant case, he has deposited the
entire amount of Rs.1,70,000/- as a condition for bail.
The petitioner has not disputed receipt of any amount
from the customers. He was unable to arrange visa for
them as promised and that is the reason why the
customers filed complaint before the Police for
committing breach of trust and for cheating under
Section 406 IPC and under Section 420 IPC. The fact
that the petitioner had deposited the the amount
received from the complainants itself would negative
the case under Section 406 IPC because he has not
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appropriate the sum for himself and he is willing to
return the amount to the defacto complainant.
5. The fact whether the petitioner has dishonest
intention to cheat his customers prior to the receipt
of money for arranging visas to go abroad, is the only
question that remains to be decided by the court. For
that purpose, the scientific examination of laptop,
mobile phones and pen drives is not at all essential
because this is a case where the petitioner has
admitted receipt of the money and he has expressed
desire to return those amounts. The apprehension of
the petitioner that retention of laptop and mobile
phones in the court for longer period would render them
useless and obliterate his dealings with customers,
making it almost impossible to proceed with his
business of tour operation. This is a justifiable
reason and I do not find it necessary to retain the
aforesaid properties in the court till investigation or
trial is over.
6. The impugned order of the learned Magistrate
is therefore set aside and CMP No.3977/2019 is allowed
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and the articles are returned to the petitioner on
execution of a bond for Rs.1,00,000/- (Rupees one lakh
only) with two solvent sureties each for the like sum
to the satisfaction of the court below.
The Criminal M.C. is allowed.
Sd/-
ASHOK MENON
JUDGE
jg
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APPENDIX
PETITIONER’S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF THE ORDER DATED
17/10/2019 IN CMP NO.3977/2019 IN CRIME
NO.1288/2018, ERNAKULAM TOWN SOUTH
POLICE STATION ON THE FILE OF THE ADDL.
CHIEF JUDICIAL MAGISTRATE COURT
(ECONOMIC OFFENCES), ERNAKULAM.