Karnataka High Court
Ms Charusmitha P N vs State Of Karnataka on 16 April, 2019
Equivalent citations: AIRONLINE 2019 KAR 382
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.482/2019
c/w.
CRIMINAL PETITION NO.761/2019
CRIMINAL PETITION NO.762/2019
CRIMINAL PETITION NO.815 /2019
IN CRL.P NO.482/2019
BETWEEN :
Ms. Charusmitha P.N.
Daughter of Sri. Narasimhan
Aged about 31 years
Presently residing at B-04
V.K. Residency
Dr. Shivramkaranth Road
Chikkalsandra, Bangalore-560 004 ... Petitioner
(By Sri. B.A. Belliappa, Advocate for
Sri. Gautam S. Bharadwaj, Advocate)
AND :
State of Karnataka
The Station House Officer
Cubbon park Police Station
Represented by the Public Prosecutor
Bangalore-560 001 ... Respondent
(By Sri. C.V. Nagesh, Sr. Counsel for
Sri. Satyanarayana S. Chalke, Special PP)
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This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in
Cr.No.257/2018 of Cubbon park Police Station, Bengaluru
City for the offences p/u/s 420, 465, 467, 468, 471 of
IPC.
IN CRL.P NO.761/2019
BETWEEN :
Vishal Somanna
Aged about 35 years
S/o B.M. Chengappa
R/at No.311, Crystal, 4th Block
7th B Main, Koramangala
Bengaluru-560 034 ... Petitioner
(By Sri. M.T. Nanaiah, Sr. Counsel for
Sri. M.R.C. Manohar, Advocate)
AND :
The State of Karnataka by
Cubbon park Police Station
Bengaluru, Rep by
State Public Prosecutor
High Court Complex
Bangalore-560 001 ... Respondent
(By Sri. C.V. Nagesh, Sr. Counsel for
Sri. Satyanarayana S. Chalke, Special PP)
This Criminal Petition is filed under Section 438 of
Cr.P.C praying to enlarge the petitioner on bail in the
event of his arrest in Cr.No.257/2018 of Cubbon park
Police Station, Bengaluru City for the offences p/u/s 420,
465, 467, 468, 471 of IPC.
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IN CRL.P NO.762/2019
BETWEEN :
Smt. Meera Chengappa @ Meera
Aged about 59 years
W/o B.M. Chengappa
R/at No.311, Crystal, 4th Block
7th B Main, Koramangala
Bengaluru-560 034 ... Petitioner
(By Sri. M.T. Nanaiah, Sr. Counsel for
Sri. M.R.C. Manohar, Advocate)
AND :
The State of Karnataka by
Cubbon park Police Station
Bengaluru, Rep by
State Public Prosecutor
High Court Complex
Bangalore-560 001 ... Respondent
(By Sri. C.V. Nagesh, Sr. Counsel for
Sri. Satyanarayana S. Chalke, Special PP)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in
Cr.No.257/2018 of Cubbon park Police Station, Bengaluru
City for the offences p/u/s 420, 465, 467, 468, 471 of
IPC.
IN CRL.P NO.815/2019
BETWEEN :
Mrs. Amrita Chengappa
Aged 34 years
W/o Hemanth Ponnappa
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R/at No.201, Andaz CHS Limited
Opp BMW Showroom, Juhu Lane
Andheri West, Mumbai
Maharashtra-400 049
Presently lodged in
Central Prison, Bangalore ... Petitioner
(By Sri. P.P. Hegde, Advocate for
Sri Satish V., Advocate)
AND :
State by Cubbon park Police
Represented by Public Prosecutor
High Court of Karnataka
Bangalore-560 001 ... Respondent
(By Sri. C.V. Nagesh, Sr. Counsel for
Sri. Satyanarayana S. Chalke, Special PP)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in
Cr.No.257/2018 of Cubbon park Police Station, Bengaluru
City for the offences p/u/s 420, 465, 467, 468, 471 of
IPC.
These Criminal Petitions having been heard and
reserved on 19.03.2019 coming on for pronouncement of
orders this day, the Court made the following:-
ORDER
Criminal Petition No.482/2019 is filed by accused No.2; Criminal Petition No.762/2019 is filed by accused No.5; Criminal Petition No.815/2019 is filed by accused -5- No.4 under Section 439 of Cr.P.C. praying to release them on regular bail and Criminal Petition No.761/2019 is filed by accused No.3 under Section 438 of Cr.P.C. praying to release him on anticipatory bail in Crime No.257/2018 of Cubbon Park Police station, for the offences punishable under Sections 420. 465, 467, 468, 471 of IPC pending on the file of VIII Additional CMM, Bengaluru.
2. I have heard Sri M.T.Nanaiah, learned Senior Counsel and other counsel appearing on behalf of the petitioners-accused Nos.2, 3, 4 and 5, so also Sri C.V.Nagesh, learned Senior Counsel for Sri Satyanarayana Chalke, learned Special PP appearing on behalf of the respondent-State.
3. The gist of the complaint is that one Sri Viatheeswaran, Chief Executive Officer of Manipal Integrated Services Private Limited filed the complaint against the accused persons alleging that accused No.1 -6- was working as Deputy General Manager in the said Company. He wrongfully diverted certain amount of Manipal Group Companies and also personal account of the Chairman of Manipal Group Companies in favour of accused Nos.2 to 5. It is further alleged that accused Nos.3 to 5 have colluded with accused No.1 in committing such offence. The auditors were asked to look into the accounts relating to Manipal Group Companies and the personal account of the Chairman. On the basis of the interim report dated 16.11.2018 they confirmed the diversion of funds from various bank accounts to the accounts of wife of accused No.1 and to his personal account maintained in the State Bank of India as well as to the account of the firm M/s.Beehive Advisors, of which accused Nos.1 and 2 were partners. The audit report disclosed that the accused persons have cheated an amount of Rs.7,65,31,564/-. On the basis of the said complaint, a case has been registered. -7-
4. It is the submission of the learned Senior Counsel Sri M.T.Nanaiah that accused No.1 in his capacity as an employee of Manipal Integrated Services Private Limited has discharged his duties. There were certain disputes which are civil in nature. By taking advantage, a false complaint has been registered. He further submitted that accused No.2 is a dormant partner in the firm M/s.Beehive Advisors said to have been run by accused No.1. She has not participated in any transactions in relation to the said firm. He further submitted that the accused persons have not been charge sheeted under Section 120B of IPC for conspiracy and there are no specific overt acts alleged as against accused Nos.2 to 5. The only allegation which has been made is that accused No.1 transferred the amount to the personal account and the accounts of accused Nos.2 to 5. In so far as accused Nos.2 to 5 are concerned, it amounts nothing, but at the most it amounts to receiving of a stolen property. He further submitted that the -8- allegation in the complaint is that from the personal account of the Chairman of Manipal Group Companies, the amount has been transferred. But without his knowledge and consent, no such online transfer of the amount can be done. He further submitted that so far, the accused persons have co-operated during the course of investigation and subsequently they have been apprehended only on the behest of the complainant. The alleged offences are not punishable with death or imprisonment for life. Already the accounts have been frozen and the amount has been recovered. The accused-petitioners are not required for the purpose of interrogation or investigation. He further submitted that accused Nos.2, 4 and 5 are women. They being the women, as per the Proviso to Section 437 of Cr,P.C. they are entitled to be released on bail. He further submitted that grant of bail is a rule and rejection is an exception. In order to substantiate his arguments, he relied upon the decisions in the case of Prema Vs. The State of -9- Karnataka [2014 SCC Online Kar 4523] and in the case of Savitri Devi Vs. State of H.P. [2016 SCC Online HP 83]. He further submitted that accused No.5 is the mother of accused No.1, who is aged about 62 years and some amount has been transferred to her account. But she was not having any knowledge of the said transaction. He further submitted that her son accused No.1 has transferred the amount to her personal account. The alleged offences are triable by the Court of the Magistrate. He further submitted that no loss has been caused to the exchequer or there is no loss of public money. Whatever the money which has been transferred is from one private organization to another. Under such circumstances, a civil dispute lies and no complaint can be registered in this behalf. By relying upon the decision in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, reported in (2011) 1 SCC 694, he further submitted that the Hon'ble Apex Court has elaborately
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discussed the parameters to consider the bail application. In that light, the petitioners are entitled to be released on bail. He further submitted that in case of misappropriation, it is a matter of record and the documents will be available. He further submitted that there is no question of the petitioners tampering with the prosecution witnesses and if they are detained behind the bars, it amounts to nothing but pre-trial conviction which is not the purport of the law. In order to substantiate his said contention, he relied upon the decisions of this Court in the case of Kushal Rao Vs. The State of Karnataka (Criminal Petition No.201389/2016, disposed of on 13.1.2017); T.R.Ananda & others Vs. The State of Karnataka & another (Criminal Petition No.5959/2018 & connected matters, disposed of on 3.10.2018). He further submitted that bail is a matter concerning the liberty of a person who is detained in prison. Pre-conviction detention is discouraged by the
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Hon'ble Apex Court. In that light, the accused- petitioners are entitled to be released on bail.
5. He further submitted that accused No.5- petitioner in Criminal Petition No.762/2019 is the mother of accused No.1, who has transferred some amount to her account without her knowledge and it is only a personal transaction of accused No.1 alone. He further submitted that accused No.3-petitioner in Criminal Petition No.761/2019 has co-operated with the investigation and even till today he is ready to co-operate with the investigation and ready to abide by any conditions imposed by this Court.
6. It is the submission of the learned counsel appearing for accused No.4-petitioner in Criminal Petition No.815/2019 that only bald allegations have been made as against the accused-petitioners only on suspicion. No properties have been purchased out of the said amount either at Mumbai or at Bengaluru. The said amount is
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borrowed amount of accused No.1. He further submitted that in the complaint and other material there is no allegation of cheating and forgery and even no incriminating material has been produced as against accused No.4. The alleged offences are triable by the Court of Magistrate and while considering the bail application, seriousness of the offence and whether the accused-petitioners are available for trial and whether there is any likelihood of tampering with the prosecution evidence has to be looked into. It is not necessary that till the charge sheet is filed, the Court should wait and thereafter to release the accused on bail.
7. On the above grounds, the learned Senior Counsel and other counsel appearing for petitioners- accused Nos.2, 3, 4 and 5 pray to allow the petitions and to release the petitioners in Criminal Petition Nos.482/2019, 762/2019 and 815/2019 on bail and petitioner in Criminal Petition No.761/2019 on anticipatory bail.
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8. Per contra, Sri C.V.Nagesh, learned Senior Counsel appearing for the respondent-State vehemently argued and submitted that the material produced along with the complaint clearly goes to show that prima facie accused persons have cheated the complainant by fabricating the documents. There is embellishment of the amount by the accused persons. He further submitted that accused Nos.1 and 2 are the husband and wife. Accused No.1 has transferred the amount to his Company wherein accused No.2 is a partner and he has also transferred the amount to the accounts of accused Nos.3 to 5. Accused No.3 is working as a Pilot and a huge amount has been transferred to his account also. Accused No.1 has misused the trust and confidence of the complainant and thereby misappropriated the amount. He further submitted that accused No.1 has operated both the individual account as well as the institutional account and without there being any sanction from the competent authority, he has
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transferred the huge amount. Accused Nos.1 and 2 are also having joint accounts. Accused No.1 transferred the amount to other accounts and even there is an extra- judicial confession of accused No.1 for having misappropriated the amount that itself is sufficient incriminating material as against accused No.1 to show that he has been involved in the said unlawful transactions. He further submitted that the accused persons have been prosecuted under Section 120B of IPC though there will not be any direct evidence to show the conspiracy of the accused persons. If the conduct and other aspects are taken into consideration, it clearly goes to show that the accused persons have conspired and formulated a group of company and thereafter the amount has been transferred. The alleged incident has not taken place in a single day. Even the call details clearly go to show that the accused persons used to talk over the phone though they never met personally. There is lot of interaction between them. Under such
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circumstances, it cannot be held that accused No.1 is a receiver of a stolen property. He further submitted that accused persons have opened the bank accounts and thereafter transacted and misused lot of money of the complainant. If the magnitude of the offence is taken into consideration, the Investigating Agency has to further investigate and to ascertain whether any other transactions are made by accused No.1 other than the transactions in question. He further submitted that if the petitioners are enlarged on bail, they may operate the accounts and suppress the evidence. They may be having many more accounts and they may clear the amount which is there in the accounts. Still the investigation is in progress and at this infant stage, if the accused- petitioners are enlarged on bail, they may likely to tamper with the prosecution evidence. There is sufficient material collected by the Investigating Agency to substantiate the case of the prosecution. The accused- petitioners have been involved in enrichment by transfer
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of the funds of the complainant. They may influence the witnesses and tamper with the prosecution case. By relying upon the decision in the case of Nimmagadda Prasad Vs. Central Bureau of Investigation, reported in AIR 2013 SC 2821 he further submitted that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. Economic offences are having deep-rooted conspiracies and involving huge loss of public funds. They should be viewed seriously. Sometimes it may affect the financial health of the country. On these grounds, he prayed to dismiss the petitions.
9. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records, including the decisions quoted by the learned counsel appearing for the parties.
10. It is not in dispute that accused No.1 was working in Manipal Integrated Services Private Limited as
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a Deputy General Manager. It is alleged in the complaint that he misused the trust reposed in him and committed acts of financial impropriety. I am conscious of the fact that the primary purpose of bail in a criminal case is to release the accused of imprisonment and at the same time to keep the accused constructively in the custody of the Court assuring that he will be submitted to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. But at the same time, the Court has to keep in mind the accusation made as against the accused and the gravity of the offence with which he has been charged. Grant or refusal of bail is entirely is a discretionary power, but it should be used depending upon the facts and circumstances of each case. In the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, (cited supra), it has been enumerated as to what are the parameters which the Court has to keep in mind while considering the bail application. Keeping in view the said proposition
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of law, let me consider the case of the prosecution as well as the accused to decide as to whether the petitioners-accused are entitled to be released on bail.
11. It is alleged in the complaint that accused No.1 being the Deputy General Manager has wrongfully diverted certain amount of money in favour of accused Nos.2 to 5. Accused No.2 is the wife of accused No.1 and she is also a partner of M/s.Beehive Advisors, wherein accused No.1 is also a partner. Though it is contended that accused No.2 is dormant partner and has not participated in any transactions, the fact remains is that accused No.1 being the Deputy General Manager of the complainant-Company has diverted the amount to the said partnership firm. Even the material also discloses the fact that in the same fashion the amount has been transferred in favour of accused Nos.3 to 5. It is contended by the learned counsel for accused No.3 that accused No.3 is a pilot in Qatar Airways and he is nothing to do with the complainant-Company affairs. The
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alleged money transfer is made by accused No.1 to his account and he has not met accused No.1 and there is no conspiracy. But it is not seriously disputed that the amount has been transferred by accused No.1 to accused No.3 in whose name the said account stands. During the course of arguments though it is contended that accused No.3 never opened any bank account for transferring the said amount, immediately after coming to know that the amount has been transferred to his account by opening the account, neither he has complained nor questioned accused No.1 as to why he has transferred the amount by opening the account in his name. Even he could have informed the bank to close the account by transferring the amount to accused No.1 as it does not pertain to him as someone who is not known to him has opened the account. He being a pilot working in Qatar Airways and having knowledge of the same, if he keeps quiet, the said conduct of accused No.3 clearly goes to show that he has conspired with accused No.1 and in that conspiracy
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accused No.1 has got transferred the amounts pertaining to the complainant-Company and the Chairman of the said Company.
12. In so far as petitioners-accused Nos.4 and 5 are concerned, the amount has also been transferred to their accounts. Accused No.4 is the daughter of accused No.5. She has also co-operated in opening the account and the amount has been transferred. So also in the name of accused No.5. On going through all the transactions and the papers made available, it is accused No.1 who is the kingpin. As he was working in the complainant-Company, all the accounts are accessible to him knowingly fully well, he has got diverted the amount of the Company to the accounts of accused Nos.2 to 5.
13. The learned Senior Counsel appearing on behalf of the respondent-State contended that accused No.1 conspired with other accused persons and has transferred the amount. But that is a matter which has
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to be considered and appreciated only at the time of trial. Though the alleged offences are not punishable with death or imprisonment for life, by taking into consideration the nature of accusation and the involvement of accused No.1 and other accused persons, in an economic offence, it appears to be that they are having deep-rooted conspiracies and thereby a huge loss has been caused to the complainant-Company. In that light, the said act of accused No.1 has to be viewed seriously, that too when the charge sheet has not yet been filed and the investigation is in progress.
14. It is well settled proposition of law in the case of Y.S.Jagan Mohan Reddy Vs. Central Bureau of Investigation, reported in 2013(7) SCC 439, wherein at paragraphs-34 to 36 it has been observed by the Hon'ble Apex Court as under:-
"34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The
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economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.
36.Taking note of all these facts and the huge magnitude of the case and also the request of CBI asking for further time for completion of the investigation in filing the charge-sheet(s), without expressing any
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opinion on the merits, we are of the opinion that the release of the appellant at this stage may hamper the investigation. However, we direct CBI to complete the investigation and file the charge-sheet(s) within a period of 4 months from today. Thereafter, as observed in the earlier order dated 5.10.2012, the appellant is free to renew his prayer for bail before the trial court and if any such petition is filed, the trial court is free to consider the prayer for bail independently on its own merits without being influenced by dismissal of the present appeal."
15. In the aforesaid paragraphs, it has been observed that in case of economic offences, they constitute a class apart and need to be visited with a different approach in the matter of bail and they should be viewed seriously. In view of the aforesaid proposition of law and as observed in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others (cited supra), the Court must evaluate the entire
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material as against the accused, it must clearly comprehend the role of the accused, his implication, overwhelming effect on the investigation and other aspects and thereafter pass appropriate orders. In that light, there is ample material as against accused No.1 for having been involved in a serious economic offence and he is the kingpin and it is his master plan by which he got transferred the amount to the accounts of other accused persons. However, he is not before this Court.
16. In so far as accused No.3 is concerned, he is out of country and he was not available for the purpose of interrogation and investigation. When he has been involved in a serious economic offence, then the discretionary power of anticipatory bail cannot be exercised in his favour. In that light, accused No.3 is not entitled to be released on anticipatory bail.
17. In so far as accused Nos.2, 4 and 5 are concerned, they being women, even as per the Proviso to
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Section 437 of Cr.P.C. they are entitled to be released on bail. As already they have co-operated with the investigation and as they are not required for the purpose of investigation and interrogation, their custodial continuation is not necessary. By imposing some stringent conditions, if they are released on bail, it would meet the ends of justice.
Accordingly, Criminal Petition No.761/2019 is dismissed.
Criminal Petition Nos.482/2019, 762/2019 and 815/2019 are allowed and accused Nos.2, 4 and 5 are enlarged on bail in Crime No.257/2018 of Cubbon Park Police station, for the offences punishable under Sections
420. 465, 467, 468, 471 of IPC pending on the file of VIII Additional CMM, Bengaluru, subject to the following conditions:-
i) Each of the petitioners in Criminal Petition Nos.482/2019, 762/2019 and 815/2019, i.e., accused Nos.2, 5 and 4, namely
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Ms.Charusmitha P.N., Smt.Meera
Chengappa @ Meera and Mrs.Amrita
Chengappa shall execute personal bond for Rs.2,00,000/- (Rupees two Lakhs only) with two sureties for the like sum to the satisfaction of the trial Court.
ii) They shall co-operate with the
investigation.
iii) They shall surrender their original
passports to the jurisdictional trial Court.
iv) They shall not leave the jurisdiction of the trial Court without prior permission.
v) They shall not leave the country.
vi) They shall not tamper with the prosecution
evidence in any manner.
vii) They shall mark their attendance before
the jurisdictional police on 1st of every month between 10.00 a.m. and 5.00 p.m. till the charge sheet is filed.
viii) They shall not indulge in similar type of activities.
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ix) They shall not operate the said accounts till the trial is concluded.
In view of disposal of the petitions, I.A.No.1/2019 filed in Criminal Petition No.761/2019 is dismissed as it does not survive for consideration.
Sd/-
JUDGE *ck/-