Bangalore District Court
B.T.Srinivasa Reddy vs The State Of Karnataka on 12 July, 2018
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 20th day of February 2018
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
Crl.Misc.No. 644/2018
Petitioner : B.T.Srinivasa Reddy
S/o. Thimma Reddy
Aged about 50 years,
R/at #22, Basapura,
Bengaluru South
Electronic City
Bengaluru - 560 010.
(By Sri Ganesh G.G., Advocate)
Vs.
Respondent : The State of Karnataka,
(Complainant) Represented by it's
The Sub-Inspector of Police,
Madiwala Police Station,
Bengaluru - 560 068.
C.I.D. (EOD) Squad,
Bengaluru.
(By Public Prosecutor)
* * * *
O R D E R
This is a petition filed by the instant-petitioner, U/Sec.438 of Cr.P.C. seeking for the grant of anticipatory-bail in anticipation of his arrest by the Madiwala P.S. (CID), Bengaluru, in it's 2 Crl.Misc.No.644/2018 Cr.No.103/2017, registered for the alleged offences punishable U/Secs.406, 409, 420, 120(B) r/w Section 34 of IPC.
2. The epitomized-contents of the complaint and F.I.R. run thus:
On 20.02.2017, the Madiwala police basing-on the complaint lodged by one S.Jayashankar s/o K Subramanya Acharya, against the TGS Construction Private Limited Company at Cr.No.103/2017 for having cheated the complainant with a dis-honest intention by publishing the advertisement in the daily Times of India news paper to the effect that TGS Constructions Private Limited company has formed a private layout in the name of Vinayaka Project in and around Bengaluru City; Wherefore, the complainant having the interest to buy the site therein, approached with others and deposited a total sum of Rs.1,37,36,874/- and entered-into the agreement of purchase. But, unfortunately the TGS Construction Private Limited Company neither formed the layout within the stipulated period nor returned the amount deposited by the complainant and others. Accordingly, committed the offences punishable u/s 406, 409, 420 and 120(B) r/w 34 of IPC.
3. The contents in nut-shell and grounds endeavored to urge in the bail-petition run thus:
In pursuance of the said Cr.No.103/2017 having registered by the Madiwala Police and thereafter it having been transferred to 3 Crl.Misc.No.644/2018 the CID Special Wing for further investigation, the respondent police are visiting the petitioner's house by putting there hectic efforts to nab him wherefore, he has been constrained to approach the instant court seeking for the anticipatory bail for the following among amongst the other-grounds.
GROUNDS (1) Though the petitioner is innocent of the alleged offences, he has been endeavoured to target by the respondent police in the criminal case without any reason. (2) Neither the FIR and complaint nor the remand application discloses the name of the instant petitioner originally, wherefore there is no embargo to grant the anticipatory bail to the instant petitioner.
(3) There is no any substantial material to full-fill and attract the ingredients of the alleged offences. (4) The petitioner is an absolute owner of the property bearing Sy.No.69/1 measuring 14.8 guntas situated at Basapura village in Bangalore South Taluk, Hobli by way of acquiring the same through a judgment and decree passed by the Additional Civil Judge (Sr.Dn.,), Bangalore Rural Court, Bangalore.
(5) The instant petitioner and accused TGS Company having entered-into a joint development agreement (MOU) by agreeing and accepting certain terms and conditions of MOU dated 21-09-2015, in view of which a sum of huge amount was paid to the petitioner as a goodwill for the purpose of purchasing the said property. (6) The accused TGS Company has not at-all purchased the property mentioned in the MOU whereas, the said MOU 4 Crl.Misc.No.644/2018 having been cancelled, the earnest amount paid by the TGS Company to the petitioner at the inceptional stage having been returned, there is no existence of any nexus between the complainant and the instant petitioner. (7) The criminal cases having been registered by way of FIR against the TGS Construction Private Limited Company represented by it's Directors, the accused No.1, 3 and 6 have been nabbed by the respondent police and got them remanded to the judicial custody and accordingly, they are in JC since last more than one year.
(8) Basically, the case having been registered by the Madiwala Police against the accused persons and thereafter it can be transferred to the CID Special Wing, Carlton House, Bangalore, the said respondent police issued a notice u/s 41(A) of Cr.P.C., against the instant petitioner directing him to appear before it and give statement.
(9) The ingredients of the offence punishable u/s 406 and 420 do not run simultaneously.
(10) The entire case being based on the documentary evidence, the complainant has got every right to institute a civil suit before the appropriate competent court for the redressal as the dispute is purely a civil in nature. (11) There is no material to nab the petitioner in violation of fundamental right and personal liberty guaranteed to him under Article 21 of Constitution of India.
(12) It is not mandatory or pre-requisite condition to register the FIR for seeking discretionary relief of anticipatory bail u/s 438 of Cr.P.C.
5 Crl.Misc.No.644/2018(13) The alleged offences are neither punishable with death sentence nor imprisonment for life but the same are triable by the concerned Magistrate Court.
(14) The petitioner being an agriculturist by profession with good reputation in the society having deep roots, his entire family will be put to greater hardship and irreparable loss, if the petitioner is not granted with anticipatory bail.
(15) The petitioner is the permanent resident of the address mentioned in the cause title and he is ready and willing to abide by the conditions if imposed by this court and also ready to co-operate and appear before the trial court and IO regularly and to ensure the same, he is ready to offer the surety.
Hence, prayed for allowing the bail-petition by granting the anticipatory bail.
4. The learned Public Prosecutor has filed his sturdy objections denying and resisting the entire contents of the main petition and reiterated the contents of the original FIR and Complaint and further contended that the Managing Director of TGS Construction Private Limited Company by name Mandeep Kour and her husband Sachin Naik being the prime accused persons together opened the TGS Constructions Private Limited Company assuring the public that they would distribute/allot the residential sites at the reasonable rate in and around Bangalore City and thereby received the crores together amount but they did 6 Crl.Misc.No.644/2018 not either formed the sites or return the amount and therefore they having cheated dis-honestly for their self-gain and to cheat the public. The victims have lodged the various complaints; Wherefore, in the Madiwala Police Station about 39 cases in Sanjay Nagar in Hanumantha Nagar and Kengeri Police Stations each one case have been registered against them. The instant petitioner being originally owner of the said Sy.No.69/1 to the extent of 14.8 guntas situated at Basapura village in Begur Hobli in Bangalore South Taluk has executed the MOU on 21-09-2015 in favour of the TGS Construction Private Limited Company by receiving Rs.30,00,000/- from the accused company and allowed it to display the board as Geneva Project and thereby mingled with the original main accused persons to cheat the public, though the name of the instant petitioner is not appearing in the original FIR. By way of investigation the fact that having received the amount by the instant petitioner from the accused TGS Construction Private Limited Company having come to the notice of the police, issued police notice u/s 160 of Cr.P.C., on 19-11-2017 but the petitioner having ignored the same, he has not appeared and co-operated before the respondent police and also ignored the telephone calls made to him. Thereafter, on 16-01-2018 inspite of notice having duly served the police notice u/s 41(A) of Cr.P.C., the petitioner instead of appearing before the respondent police, he has 7 Crl.Misc.No.644/2018 approached this court seeking for anticipatory bail without any reasonable grounds. About more than 40 cases having been registered against TGS Company yet, the investigation being under progress, the instant petitioner having not co-operated with the respondent police, is absconding inspite of having issued the notice to him to appear before it for enquiry purpose. The offences leveled against the instant petitioner and accused persons being heinous in nature, the instant petitioner is not entitle for the relief of anticipatory bail as sought in the main petition. Hence, prayed for dismissing the instant bail petition.
5. Having heard both the learned counsel for the instant- petitioner and the learned Public Prosecutor and perused the entire-material placed on record, the points that arise for consideration are as under:
(1) Whether the instant-petitioner has made-out the substantial and reasonable-grounds for the grant of anticipatory-bail by resorting to the special-powers U/Sec.438 of Cr.P.C. vested with this court?
(2) To what order?
6. The answers to the above points are:
Point No.1 .. In the Negative
Point No.2 .. As per the final-order for
the following:
8 Crl.Misc.No.644/2018
R E A S O N S
7. Point No.1:- Admittedly, the respondent-police have originally registered the Cr.No.103/2017 against the original accused persons for the alleged offences punishable U/Secs.406, 409, 420 and 120(B), r/w Section 34 of IPC.
8. The certified copies of FIR and complaint available on record do not disclose the name of the instant petitioner but they disclose only the names of the other original accused persons.
9. It is significant to note that, it is also admitted fact by the prosecution's side itself that, the instant petitioner is the original owner of the property bearing Sy.No.69/1 to the extent of the 14.8 guntas situated at Basapura village in Begur Hobli of Bangalorre South Taluk and the accused TGS Company represented by the original accused persons entered-into MOU with instant petitioner on 21-09-2015 in connection with which the instant petitioner had received the advance as earnest money.
10. But it has been contended under one of the grounds of the instant bail petition by the petitioner's side that, the said MOU has been cancelled and the amount received by him has already been returned back to the TGS Company and therefore no any transaction of the transfer of the said property has never taken place and accordingly, there is no nexus between the instant petitioner and the complaint and therefore, the petitioner is not 9 Crl.Misc.No.644/2018 liable for any offences alleged against the original main accused persons.
11. It is pertinent to note that, in respect of these two rival contentions, it requires the further investigation and the evidence which could be sought-out only during the full-dressed trial but, in respect of same it is not the appropriate spell to make any observation and give any opinion because admittedly the investigation is still under progress.
12. By considering the over-all rival contentions of both the sides, it goes to demonstrate that as per the prosecution very role of the instant petitioner is also prevailing though not to that extent as of the other prime accused persons.
13. Apart from the same there are further more allegations of the respondent police alleged against the instant petitioner along with the other accused persons; But the same cannot be dealt with at that point of juncture.
14. The only aspect that which is required to be looked-into at this point of juncture is that, whether the instant petitioner is entitle for the anticipatory bail or otherwise? If Yes, then whether he has made-out the reasonable apprehension of his arrest by the respondent police.
15. In view of that matter, on delving-into the material placed on record, the petitioner has produced a copy of the police 10 Crl.Misc.No.644/2018 notice u/s 41(B) of Cr.P.C., dated 16-01-2018 which discloses clearly that already he was issued with earlier another notice dated 20-11-2017 calling upon him to appear before the respondent police, but it has been alleged further more there-in that, he (petitioner) did not appear before the police and therefore again the instant notice has been directed to the petitioner to appear before it on 20-01-2018 on 10.30 a.m., in the morning at CID office and in case of failure, it would take the legal action.
16. Admittedly, the petitioner has not produced the earlier notice dated 19-11-2017. In the open court the learned counsel for the petitioner has submitted that the petitioner has neither received nor the respondent police have served any notice earlier.
17. It is significant to note that, per contra, the learned Public Prosecutor has produced the report of the Investigation Officer along-with his objections. It is inclusive of the copies of two notices, out of which one is dated 19-11-2017 calling-upon the instant petitioner for enquiry purpose to the CID office on 20-11- 2017 at 10.30 a.m., in the morning and the another copy of the notice is dated 16-01-2018 which synchronizes the notice copy produced by the instant petitioner along-with the main petition.
18. According to the submission of the learned counsel for the petitioner, the earlier notice was not at-all served upon the 11 Crl.Misc.No.644/2018 petitioner and accordingly, the petitioner has not received the same.
19. Per contra, the learned Public Prosecutor has submitted vehemently that, earlier the notice was issued duly and obtained the signature of the petitioner on the copy of the notice dated 19- 11-2017 as an acknowledgement towards the receipt of the said notice. In connection with the same, the learned Public Prosecutor has drawn the attention of this court towards the copy of the notice dated 19-11-2017 which discloses the signature as stated to be the instant petitioner for having received the said notice dated 19-11-2017. Even the instant notice dated 16-01-2018 copy also discloses the signature of the instant petitioner for having received the same on 17-01-2018. The signatures appearing on the notices dated 19-11-2017 and 16-01-2018 tally with each-other and both the said signatures certainly tally with the admitted signature of the instant petitioner on the vakalath/power filed before this court on record. Therefore, on the face of record itself, it is clear that the submission made by the learned counsel for the petitioner is absolutely contrary to the documentations placed on record; Wherefore, it is clear at the very prima facie that, though the notice was duly served on the instant petitioner on 19-11-2017 earlier directing him to appear before the respondent police at 10.30 a.m., in the morning in CID office annex, the said petitioner has not 12 Crl.Misc.No.644/2018 appeared before the respondent police which is clear from the very recitals in the later police notice dated 16-01-2018 which is duly and admittedly served on the petitioner on 17-01-2018.
20. In addenda of the same, there is no any whisper made by the petitioner's side as to why the petitioner could not go to the CID police office and appear before it for his enquiry on 20-11- 2017 in pursuance of the earlier notice duly served upon him. But it has been endeavored to the misdirect this court urging that earlier the notice has not been issued and served upon him. It is clearly goes to indicate that, there is no any regard towards the law and procedure by the instant petitioner.
21. Even otherwise, basically to seek for the anticipatory bail the applicant or petitioner is bound to make-out the apprehension of his arrest by the police. In the instant case on hand, if really the instant petitioner had any such apprehension of his arrest by the respondent police, there was no bar for him to seek for the anticipatory bail immediately after due service of police notice dated 19-11-2017 but he has not done so. In addition to the same, if really there was such intention of the respondent police to nab him in the guise securing the petitioner for enquiry, then certainly the respondent police would have nabbed him even prior to the filing of the instant petition, during which time there was sufficient 13 Crl.Misc.No.644/2018 spacious time for the respondent police to arrest him if really they had an ultimate intention to arrest him.
22. It could be seen from the documentaries that, in view of the instant petitioner having not appeared before the respondent police for the enquiry on 20-11-2017 despite having duly served the police notice on 19-11-2017, as per the due procedure the respondent police having issued the further notice on 16-11-2018 contending that in case if he (petitioner) fails to appear before it on 20-01-2018 at 10.30 a.m., for enquiry, it would take the legal action. Therefore, it does not mean that very intention of the respondent police is to nab and make him to let and set behind the bars.
23. It is no doubt, the learned counsel for the petitioner has endeavored to place his reliance on a well settled principle of law reported in AIR 2011 SC page 312 in a case between Siddharam Satlingappa Mhetre v/s. State of Maharashtra in which it has been observed by their lordships that, in case of anticipatory bail under section 438 of Cr.P.C., discretion must be exercised on the basis of available material and facts of the particular case and if the accused has joined the investigation and he is fully co- operating with the investigation agency and is not likely to abscond, in that event, custodial interrogation should be avoided. Similarly, it has also enunciated certain principles and factors 14 Crl.Misc.No.644/2018 which are to be considered for the grant or refusal of anticipatory bail under Section 438 of Cr.P.C.
24. In the light of the said settled principle of law, if the material placed on record is taken into consideration, it is clear that, at the very outset, the petitioner has not at-all responded to the earlier police notice dated 19-11-2017 despite having duly served upon him; But the petitioner's side has endeavored to urge the fake contention before this court that the said notice has not at-all been served on him. Apart from the same, it clearly goes to indicate that the accused is not a person of credence to trust and believe that he is likely to be available and co-operate with the investigating agency i.e., the instant respondent police for further enquiry and investigation. When that is so and also when there is no apprehension to the reasonable extent much-less with regard to nabbing him by the respondent police, made-out by the instant petitioner, the question of granting the anticipatory bail in favour of him, does-not arise at-all.
25. Therefore, with a due respect to the Hon'ble Supreme Court of India, the instant petitioner does not deserve to invoke the aid of the instant citation or ruling reported in AIR 2011 SC 312. But to put into simple terms on the face of record itself, it is clear that the petitioner is not fair-enough with clean hands to knock the doors of the instant court to seek for the anticipatory bail and 15 Crl.Misc.No.644/2018 also failed to make-out the minimal extent of the apprehension by the respondent police; Wherefore, he does not deserve for granting the anticipatory bail as sought-for in the main petition.
26. With these observations, without venturing-in to make any more s or the discussion regarding other aspects of the merits which need to be dealt-with during the main case, this court is inclined to answer point No.1 in the negative.
27. Point No.2:- For the reasons discussed while answering Point No.1 in the Negative, this court is inclined to proceed to pass the following:
ORDER The instant petition filed by the instant-petitioner, U/Sec.438 of Cr.P.C. seeking for the grant of anticipatory-bail in anticipation of his arrest by the Madiwala P.S. (CID), Bengaluru, in it's Cr.No.103/2017, registered for the alleged offences punishable U/Secs.406, 409, 420, 120(B) r/w Section 34 of IPC is hereby rejected/dismissed.
(Dictated to the Stenographer, transcribed and typed by her and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 20th day of February, 2018) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.16 Crl.Misc.No.644/2018
(Orders pronounced in the open-court. Operative-portion of the same is extracted as under) ORDER The instant petition filed by the instant-petitioner, U/Sec.438 of Cr.P.C. seeking for the grant of anticipatory-bail in anticipation of 17 Crl.Misc.No.644/2018 his arrest by the Madiwala P.S. (CID), Bengaluru, in it's Cr.No.103/2017, registered for the alleged offences punishable U/Secs.406, 409, 420, 120(B) r/w Section 34 of IPC is hereby rejected/dismissed.
LI Addl. City Civil & Sessions Judge, Bengaluru City.