Karnataka High Court
Mohd Azeem Ali Baig vs State Of Karnataka on 19 March, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL PETITION No.688/2018
C/W
CRIMINAL PETITION No.922/2018
CRL.P.NO.688/2018:
BETWEEN:
1.MOHD AZEEM ALI BAIG
S/O NAYEEMULLA BAIG
AGED ABOUT 31 YEARS
R/O NO.148, 4TH CROSS,
JHBCS LAYOUT,
BSK 2ND STAGE,
BENGALURU-560 078.
2.SUNDARAM SUBRAMANIAN
S/O LATE K.M.SUBRAMANIAN
AGED ABOUT 55 YEARS
R/O A10/603, ELITA PROMENADE,
RBI LAYOUT, J.P.NAGAR,
7TH PHASE,
BENGALURU-560 078. ..PETITIONERS
(BY SRI SHANKARAPPA S., ADVOCATE)
AND:
STATE OF KARNATAKA
BY CUBBON PARK P.S.
REPRESENTED BY SPP
2
HIGH COURT BUILDING,
BENGALURU-560 001. ..RESPONDENT
(BY SRI. K NAGESHWARAPPA, HCGP)
THIS CRIMINAL PETITION IS FILED U/S.438 CR.P.C
BY THE ADVOCATE FOR THE PETITIONERS PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO ENLARGE THE
PETITIONERS ON BAIL IN THE EVENT OF THEIR ARREST
IN CR.NO.198/2017 OF CUBBON PARK POLICE STATION,
BENGALURU PENDING ON THE FILE OF VIII ACMM,
BENGALURU FOR THE OFFENCE PUNISHABLE UNDER
SECTION 420 OF IPC.
CRL.P.No.922/2018:
BETWEEN:
S. ZULFIQAR AHMED KHAN
S/O LATE SANAULLA KHAN
AGED ABOUT 45 YEARS
RESIDING AT NO 248-D,
J M ROAD,
ILYAZ NAGAR,
BENGALURU - 560078 ..PETITIONER
(BY SRI Y.R.SADASHIVA REDDY, SENIOR ADVOCATE A/W
SRI S ISMAIL ZABIULLA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY CUBBON PARK POLICE
BANGALORE CITY
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560001 ..RESPONDENT
(BY SRI K.NAGESHWARAPPA, HCGP)
3
THIS CRIMINAL PETITION IS FILED U/S.438 CR.P.C
BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO ENLARGE THE
PETITIONER ON BAIL IN THE EVENT 0F HIS ARREST IN
CR.NO.198/2017 OF CUBBONPARK P.S., BENGALURU FOR
THE OFFENCE P/U/S 420 OF IPC, PENDING ON THE FILE
OF VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU AND FURTHER TO QUASH THE ORDER DATED
27.09.2017 PASSED IN CRIMINAL MISC.NO.7517/2017 ON
THE FILE OF LIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU.
THESE CRIMINAL PETITIONS COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
These are the two petitions filed under Section 438 of Cr.P.C. wherein respective petitioners seek anticipatory bail for their release on bail in the event of their arrest in Crime No.198/2017 for the offence punishable under Section 420 of IPC.
2. Complainant is said to be an aspirant to become a pilot, a group of persons including him joined FlyEasy India as trainee first officers by paying a total amount of more than `4 crores.
4
3. FlyEasy India is a company formed with an object of procuring human resources for the jobs relating to flying.
4. As such it is submitted that he liaisoned for the human resources with ABC Aviation and Training Services Private Limited. Its object to establish, maintain, operate and provide safe, efficient, adequate, and the related acts (including scheduled and chartered Domestic and International Services) for the carriage of passengers, baggage, mail and freight.
5. It is in this connection based on the efforts made by the company was formed by the accused persons 2 to 7. Huge sums were said to have been paid to the company by the prospective candidates to become pilots. It was in this connection the complainant paid the amount of `37,00,000/- to the company. In the 5 meanwhile, it is also stated that there are 12 other persons who believed the company and had paid the amount of `37,00,000/- per head. It is in this connection it is stated that accused and the company represented by them did not keep up the word in fulfilling their part of job and complaint came to be filed on 14.09.2017 by the 13 aggrieved persons including the complainant and it was registered in Crime No.198/2017 for the offence punishable under Section 420 IPC. Amount that was paid was through cheque and cash to the company. Thus the total amount that is stated to be calculated by the company and paid by the said 13 aspirants is `4,17,00,000/- as some of the aspirants had made part payments. The names of the trainee first officers as reflected in the complaint are as under:
6
NAME OF THE TRAINEE FIRST OFFICERS 1. Prashant Dhingra 2. Achal M.S. 3. Saahil More 4. Chetan Chinmay Joshi 5. Aabhas Dave 6. Gurucharan Prabhakar 7. Anshum Aditya Ghai 8. Akshay Gupta 9. Narender Kaushik 10. Vinay Somshekar 11. Mohammed Abraar Hussain 12. Omair Kadir 13. Sahibjit Bhullara
6. Insofar as Achal M.S. is concerned has said to have paid `27,00,000/-. In order to avoid wastage of judicial time it is proper to cull out the substance of 7 complaint in the order that was passed by this Court while disposing the previous petitions for anticipatory bail in Criminal Petition Nos.8412/2017, 7894/2017 and 7938/2017 that were disposed of in common on 28.12.2017 and which is as under:
"14. The substance of the complaint is that Prashant Dhingra, Achal MS, Saahil More, Chetan Chinmay Joshi, Aabhas Dave, Gurucharan Prabhakar, Anshum Aditya Ghai, Akshay Gupta, Narender Kaushik, Vinay Somshekar, Mohammed Abraar Hussain, Omair Kadir, Sahibjit Bhullara, Chinmay, lodged a report on 14.09.2017 at 7.35p.m. to the effect that from 03.12.2014 FLYEASY (ABC Aviation and Training Services Private Limited) 1ST Floor, Airline building Alpha 3 Bangalore International Airport Devanahalli, Bangalore-30 being represented by Shika 8 Developers, 1/18, 1st Floor, Presidency Building, St.Marks Road, Bengaluru-1, the Director Sanaulla Zulfiqur Ahmed Khan, Chairman M.D.Rajesh Ebrahim Kutty and partners Mohd.Azeem Nabir Ali Baig, Sundaram Subramanian and R.Thomas joined together, promised the complainants that they are going to procure job in airlines and to start from Typewriting programme. By so, petitioners collected Rs.37.00 Lakhs from each of the complainants and cheated them without providing employment. The accused persons are benefited through their cheating of an amount exceeding Rs.4.00 Crores. In this background, case came to be registered as mentioned above.9
7. Learned counsel for the petitioners in Criminal Petition No.7938/2017 Mohd. Azeem Ali Bai (accused No.3) Sundaram Subramanian-accused No.4, S.Zulfiqur Ahmed Khan -accused No.1 would submit that complainants have blown the matter out of proportion and lodged a complaint which was totally not necessary as the petitioners never had any animus to cheat and deceive complainants or anybody. Sri Sadashiva Reddy, learned counsel for petitioner in Criminal Petition No.922/2018 would submit that the company was established under the Companies Act, 1956 by investing huge amount of more than `20 Crores for the project and upheavals in the financial policy have slowed down the progress of the company in fulfilling the activities that was thoroughly examined by the complainant and even then have filed the complaint hastily. In this connection, it is necessary to mention that the total 10 amount that was said to have been received by the company from the complainants is `2,27,00,000/- plus `1,90,00,000/-, totally `4,17,00,000/-.
8. At this juncture, it is necessary to emphasize that the receipt of amount is not seriously disputed in the circumstances by either of the parties. However, the amount that was received by the petitioners whose applications are disposed of by this order and there is another accused by name Rajesh Ebrahim. Sri Syed Aqdus, learned counsel appearing for the complainant and assisting the learned HCGP would submit that the said Rajesh Ebrahim had moved for the relief of anticipatory bail before the High Court of Kerala in Criminal Petition No.1901/2015 that is said to have been allowed subject to condition. Learned counsel would further submit as such said Rajesh Ebrahim was supposed to deposit amount of 11 `45,00,000/- as mark of compliance for release by granting anticipatory bail but he did not chose to comply and it is necessary to note said Rajesh Ebrahim is not the petitioner under present application/petition. Further, it is necessary to mention that earlier these petitioners including said Rajesh Ebrahim were said to have moved petition seeking anticipatory bail. However, said petitions came to be rejected. It appears said Rajesh Ebrahim is delinked from that particular stage of proceedings.
9. Sri.Nageshwarappa, learned HCGP would submit that the accused persons 2 to 7 being natural persons and accused No.1 being a representative of company collected huge amount and prepared a road map for clear escape from any kind of legal liability and committed white collar crime and they are not entitled 12 for the relief of anticipatory bail and it is a discretionary remedy.
10. Learned counsel for petitioners Sri Sadashiva Reddy and Sri S.Shankarappa would submit that the petitioners are not having criminal background and they hail from a decent background having reputation in society and they are having good identification in the society. He would submit that the petitioner in Criminal Petition No.922/2018 never ever thought of cheating the complainant or anybody. On the other hand, his client has invested more than `20 crores. Learned counsel would submit being representatives of the company, the amounts were collected from the petitioners among them accused No.2 alone collected `1,90,00,000/- and company collected `2,27,00,000/- and total sum of `4,17,00,000/-. In this connection, a statement was filed by both the learned counsel for 13 petitioners by serving a copy on the prosecution. Thus, the total amount paid by the petitioners to the accused-company in all is as stated above.
11. As this application is filed as a successive one over the previous application that was disposed of on 28.12.2017, learned counsel would submit that the petitioners wanted to place their bonafide before the court in explaining their intention that they never had any idea or plan of cheating complainant. In this connection, it is to be noted that receipt of the amount is not denied by the accused and they place the details for having paid back amount of `1,28,50,000/-. In this connection, learned counsel would submit that they have been genuine and what is legally paid by them they are not going to defray the genuine claim. In the circumstances, the existence of the company, its registered office are not 14 disputed. Its incorporation under the Companies Act not disputed nor receipt of money.
12. No doubt the penal nature of a set of facts are often claimed through the criminal side though remedy is there on civil side. Thus, a criminal act in the form of omission or commission cannot be dislodged from the ambit of criminal side just by quoting matter is of civil nature. It cannot be forgotten for a while that even in the facts and circumstances, the question would be whether ingredients of an offence are present no matter whether they are civil or criminal nature, the liability on the criminal side is attracted. It is also interesting to note that certain offences are scheduled to be compoundable under Section 320(1) of the Cr.P.C. Further Section 420 is one among the compoundable offence as notified in the schedule.15
13. Further I have also considered the payment of money as an independent circumstance. It was also submitted that on the previous occasion when the interim bail was granted and thereafter application came to be rejected. Regard being had to the fact that there is no complaint or violation of the condition. In the circumstances, in case the relief of anticipatory bail is granted to the petitioners, no prejudice would be caused to the prosecution or ends of justice. However, apprehension of prosecution can be resolved by imposing conditions.
Criminal petitions are allowed. The petitioners- accused are enlarged on bail in Cr.No.198/2017 registered by Cubbon Park Police Station, Bengaluru, subject to the following conditions:
i) The petitioners-accused shall execute a personal bond for a sum of `2,00,000/- each with a 16 solvent surety possessing immovable property for the likesum.
ii) The petitioners shall not terrorize the witnesses or tamper with the prosecution evidence.
iii) The petitioners shall not leave the country until further orders by the trial court. If they are holders of Passport they shall surrender the same before the Investigating Officer under acknowledgement.
iv) The petitioners-accused shall co-operate with the investigating officer. They shall ensure that no hindrance is caused to the investigation or to the witnesses.
v) The petitioners-accused shall mark their attendance before the Investigating Officer of the above case on first Saturday of each month 17 between 9 a.m. to 10 a.m. till completion of investigation.
Sd/-
JUDGE SBN