Madras High Court
The vs The State Of Maharashtra) on 22 January, 2011
Author: G.M. Akbar Ali
Bench: G.M. Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22-1-2011 CORAM THE HON'BLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.No.22436 of 2010 ORDER
The petitioner apprehends arrest at the hands of the respondent for a case registered by them for the alleged offences punishable under Sec.420 and 34 of IPC in Cr.No.150 of 2010 on a complaint lodged by M/s MINDLOGICX Infotech Limited (hereinafter referred to as Defacto-complainant).
2. The brief facts of the case are as follows:
M/s MINDLOGICX Infotech Limited of Bangalore/defacto-complainant herein was approached by the petitioner, who represented M/s SSAAFF Technology, promising to secure project funds and an assurance was also given by them for arranging a loan for Rs.20 crores against collateral security.
3. A Memorandum of understanding was also entered into between the Managing Director of MINDLOGICX Infotech Limited and M/s SSAAFF Technology, represented by the petitioner. A commission of 0.5% was to be paid by the defacto-complainant to the said Funding Company. Accordingly, the defacto-complainant paid a sum of Rs.10 lakhs by way of Demand Draft, dated 29.10.2009, in favour of the Funding company. One Thiagarajan of the Funding Company visited the defacto-complainant and the documents were sent to one Pachiappan, an Advocate representing as the legal adviser of the Funding Company. The petitioner insisted for further payment of Rs.10,00,000/- to one Vijayakumar, who also represented the Funding Company and the same was also paid to him by cash. Later, a further loan of Rs.5 crores was promised and a further sum of Rs.5 lakhs was also paid to the Funding Company. In total, the defacto-complainant parted with a sum of Rs.25 lakhs to the Funding Company, which is represented by the petitioner. Despite the same, the funding company has not made any loan arrangement, whereupon, the defacto-complainant lodged a complaint with the Inspector of Police, Central Crime Branch, Chennai, who registered a case in Cr.No.150 of 2010 for offences punishable under Sec.420 r/w 34 IPC.
4. Earlier, the petitioner approached this Court for anticipatory bail by filing Crl.O.P.No.9220 of 2010. He made a representation that the amount involved was only Rs.10 lakhs, out of which, Rs.3 lakhs has been spent for processing the loan and only Rs.7 lakhs has to be repaid to the defacto-complainant. Based on such representation, this Court granted anticipatory bail on 6.5.2010 observing as follows:
"3. The learned counsel for the petitioner submitted that out of Rs.10,00,000/-, Rs.3,00,000/- has been spent in the process of getting loan. Further the petitioner has filed an affidavit and undertakes to repay Rs.7 lakhs within a period of three months".
5. Complying with the condition, the petitioner had also made payment of Rs.7,00,000/- by way of demand draft to the defacto-cmplainant.
However, the defacto-complainant filed a petition in MP No.3/2010 seeking cancellation of the anticipatory bail granted on 6.5.2010 on the ground that there was suppression of fact, that the amount actually paid by the defacto-complainant being Rs.25,00,000/-, the sum was wrongly stated only as Rs.10,00,000/-. This Court passed a detailed order on 7.9.2010 holding that the petitioner had suppressed the factum about the receipt of Rs.25,00,000/- on three occasions and ultimately cancelled the anticipatory bail granted on 6.5.2010. Under such circumstances, the petitioner has filed the present application for grant of anticipatory bail.
6. Mr.N.R. Elango, the learned Senior Counsel for the petitioner would submit that the petitioner is a law abiding citizen and he has been falsely implicated in the case and he has nothing to do with the alleged offences. The learned Senior Counsel also pointed out that the petitioner has permanent residence within the jurisdiction of the respondent and he is ready to abide by any condition that may be imposed by this court. The learned senior counsel further pointed out that actually there was no suppression of fact on the part of the petitioner as the actual amount received by the petitioner was only Rs.10,00,000/- and not Rs.25,00,000/-. He also pointed out that Rs.7 lakhs has already been paid as per the order of the Court and material part of the investigation is also over.
7. Mr.N.R. Elango, the learned senior counsel relied on a decision reported in 2003 CRL LJ 4167 (Rajesh Ramrao Raut vs The State of Maharashtra), wherein the Bombay High Court has held as follows:
"It is relevant to consider the four circumstances under which the arrest of a person would become inevitable. But all the four circumstances which are necessary for causing the arrest of the accused are missing in the case in hand and therefore it could be safely concluded at this stage itself that the offence alleged to have been committed on the part of the petitioner in running the Multi Level Marketing Company of the dimension mentioned supra, does not fall within the parameters fixed by the National Police Commission's third report extracted in the judgment of the Honourable Supreme Court and therefore the petitioner's case would definitely fall out of the purview of the gravity of the offence for the purpose of arrest".
8. On the contrary, Mrs.Nailini Chindamabaram, the learned senior counsel appearing for the intervenor/ defacto-complainant submitted that the petitioner has dishonestly received Rs.25,00,000/- on a promise to arrange for loan and also misrepresented the facts before the Court for obtaining an anticipatory bail. The learned senior counsel pointed out that, at the instance of the intervenor, this Court had cancelled the anticipatory bail on considering various factors adverted to and now, there is no new ground raised for a positive consideration of the plea of the petitioner for grant of anticipatory bail. The learned senior counsel again reiterated that the petitioner has misrepresented before this Court by stating that the amount involved is only Rs.10,00,000/-, whereas the amount involved was Rs.25,00,000/-. At any rate, according to the learned senior counsel, the second anticipatory bail application is not maintainable.
9. The learned Additional Public Prosecutor appearing for the respondent police submits that the investigation is at progress and that charge sheet would be filed in the near future.
10. I have given my thoughtful consideration to the arguments advanced by the learned senior counsels appearing on either side and meticulously perused the materials available on record.
11. On a complaint given by the defacto-complainant against the petitioner and others, a case has been registered by the respondent in Cr.No.150/2010 for offences under section 420 r/w34 IPC. This court had granted anticipatory bail in Crl.O.P.No.9290/2010 with the following observation:
3. The learned counsel for the petitioner submitted that out of Rs.10,00,000/-, Rs.3,00,000/- has been spent in the process of getting loan. Further the petitioner has filed an affidavit and undertakes to repay Rs.7 lakhs within a period of three months".
12. The petitioner has complied with the condition without any violation and also repaid a sum of Rs.7,00,000/- However, the defacto-complainant moved a miscellaneous petition in MP No.3/2010 for cancellation of bail. This court found that the amount received by the petitioner being Rs.25,00,000/-, it was misrepresented that the amount received was only a sum of Rs.10,00,000/- and there was suppression of fact and, ultimately, cancelled the anticipatory bail.
13. In an alike situation, while considering the question of second application for anticipatory bail after cancellation of earlier order of granting of anticipatory bail, this Court in 2003 CRL LJ 4167 (Rajesh Ramrao Raut vs The State of Maharashtra) (cited supra), held that the second application for anticipatory bail is maintainable by relying on a judgment reported in 1989 1 Crimes 524 Rajasthan (Gheesya vs State of Rajasthan) This court categorically held that if additional grounds are raised, the court can very well take up the second petition to go into the question of granting anticipatory bail. Therefore, I am of the considered view that there is no bar in filing a second application for anticipatory bail on additional grounds or on change of circumstances.
14. In the present case, the bail was cancelled only on the ground of suppression of facts. It is pertinent to note that there is a Memo of Understanding between the parties (a copy available in the records) under which a sum of Rs.10,00,000/- was advanced to arrange, earmark and facilitate the fund for the defacto-complainant. Even according to the defacto-complainant, a further sum of Rs.10,00,000/- by cash was paid to one Vijayakumar. It is also admitted that, for arrangement of additional amount of Rs.5,00,00,000/-, a sum of Rs.5,00,000/- was paid as process fee.This sum of Rs.5,00,000/- was received by one Pachiappan, a legal adviser for the fund raising company.
15. Thus, it is quite apparent that in the entire transaction for arrangement of loan to the tune of Rs.20 crores or Rs.25 crores, the defacto-complainant paid the commission amount to different persons of the Funding Company and one amongst them is the petitioner for whom, admittedly, the sum paid was Rs.10,00,000/-. It is pertinent to note that while granting anticipatory bail in the earlier occasion, the defacto-complainant was also heard by this Court.
16. It shall also be taken note of that the second respondent, who registered the case, never evinced any interest in apprehending the petitioner to subject him to custodial interrogation either prior to granting of anticipatory bail or after cancellation of the same.
17. While considering the prayer for granting anticipatory bail, Sec.438 Cr.P.C contemplates that the Court may take into consideration the following factors:
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
18. Though the interest of the accuser who filed a complaint under Sec.420 r/w 34 IPC, is also to be taken into consideration, considering the back ground of the case that here is an accuser who wanted funds to the tune of Rs.25 crores and was ready to pay Rs.25,00,000/- to the person who promised to arrange, earmark and facilitate funds, the factors to be considered for granting anticipatory bail is only under Sec.438 Cr.P.C.
19. In 1989, Crl.LJ NOC 82 Madras = 1988 Madras LJ (Crl) LJ 268 (David Annoussamy, J) this Court held that the accused though available for arrest and if the police found to be not interested in arresting him, the inference would be that police thus exercised the discretion in favour of the accused. Once the police acted so, they cannot thereafter arrest without any warrant issued by the Court.
20. Considering the fact that the 2nd respondent has not chosen to arrest the petitioner even after cancellation of bail and not even filed final report and all along hesitant to obtain a non-bailable warrant for the arrest of the petitioner and further taking note of the fact that the admitted case of the defacto-complainant itself is that he paid a sum of Rs.10,00,000/- by way of demand draft in favour of the fund raising company represented by the petitioner and the payment made thereafter was by way of cash in favour of one Vijayakumar and not to the petitioner and the third transaction is a payment to the so called legal adviser, who admitted his liability and repaid partial amount, I am of the considered view that no prejudice will be caused to the investigation in granting anticipatory bail to the petitioner.
21. Therefore in contrasting the case of the petitioner with Sec.438 of the Criminal Procedure Code and in the light of the foregoing discussions, this Court is inclined to grant anticipatory bail.
22. Accordingly, the petitioner is ordered to be released on bail in the event of arrest or on his appearance before the learned Magistrate on his executing a bond for a sum of Rs.1,00,000/-(Rupees one lakh only) with two sureties each for the likesum to the satisfaction of the learned Chief Judicial Magistrte, Egmore, Chennai or to the satisfaction of the respondent police of the police officer who intends to arrest and on condition that the petitioner shall report before the respondent police daily at 10.30 a.m for a period of thirty days. The investigating agency is hereby directed to complete the investigation expeditiously and in such course, the petitioner is directed to co-operate by promptly appearing before the investigating officer for interrogation.
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