Andhra Pradesh High Court - Amravati
Venkateswara Rao V, vs The State Of Andhra Pradesh, on 9 February, 2021
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI TUESDAY, THE NINETH DAY OF FEBRUARY TWO THOUSAND AND TWENTY ONE : PRESENT: THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO: 173 OF 2021 . Between: a 1. Venkateswara Rao V, S/o.Kodanada Ramaiah, Aged about 62 years, R/o. 1174, Nandivada Mandal, Nandivada, Krishna District-521 321. 2. Meenakshi Devi V, W/o.Venkateswara Rao, Aged 60 years, R/o.1/74, Nandivada Mandal, Nandivada, Krishna District-521 321. 3. Venkateswara Kodanada Ramaiah V, S/o.Venkateswara Rao, Aged about 36 years, R/o.1/74, Nandivada Mandal, Nandivada, Krishna District-521 321. 4. Mrudula M, D/o.Dharmaswara Rao, Aged about 33 years, R/o.9- 45/2/Gavaravaram, Sriram Nagar, Eluru Mandalam, West Godavari District, Andhra Pradesh-534004. 5. Kalayan Kumar Bolla, S/o.Venkata Swamy, Aged about 44 _ years, - R/o.Flat.NO.204, Oak Gardens, New Narayanapuram Colony, Nidamanuru, Krishna District-521104. 6. Rama Seetamma Bolla, W/o.Kalyan Kumar, Aged about 37 _ years, R/o.Flat.No.204, Oak Gardens, New Narayanapuram Colony, Nidamanuru, Krishna District-521104. 7. Lakshmi Meenakshi Ganta, W/o.Srikanth, Aged 38 years, R/o.Door.No.5-41/2, TF-5, Sivannanda Residency, SER Center, Prasadampadu, Vijayawada, Krishna District-521108, 8. Naga Ratna Hanumara, W/o.Chaitanya Kumar, Aged about 34 years, R/o.Nandivada Mandal, Nandivada, Krishna District-521231. 9. Srinivasa Rao Vankayalapati, S/o.Prasad, Aged about 45 years, R/o.5-23, Nandivada Mandal, Nandivada, Krishna District-521321. 10.Suresh Kumar Dukkipati, R/o.Nandivada Mandal, Aged about 55 years, Nandivada, Krishna District. 11.Raghavendra Prasad Tummala @ Tummala Rajendra Prasad, S/o. Prasad Gopala Krishna, Aged about 55 years, R/o.6-43, Srinivasapuram, Nandivada Mandal, Nandivada, Krishna District. 12.Vankayalapati Sridhar Babu, S/o.Prasad, Aged about 43 years, R/o.5-23, Nandivada Mandal, Nandivada, Krishna District-521321. 13.Purnachandra Rao Kodali, S/o.Gandi, Aged about 47 years, R/o.Nandivada Mandal, Nandivada, Krishna District. 14.Bomma Prasad Deevi, S/o.Venkatacharyulu, Aged about 41 years, R/o.Nandivada Mandal, Nandivada, Krishna District-521321. 15.Venkata Ramana Tummala, W/o.Ragavendra Prasad, Aged about 53 years, R/o.6-43, Srinivasapuram, Nandivada Mandal, Nandivada, Krishna District- 521321. Petitioners/Accused No.1 to 15 AND The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of Andhra Pradesh at Amaravathi, Guntur District. Respondent Petition under Section 438 of Cr.P.C, praying that in the circumstances stated in the grounds of the Criminal Petition, the High Court may be pleased enlarge the petitioners /A1 to A15 on Anticipatory Bail in the event of their arrest in Crime No.311 of 2020 on the file of the Gudiwada | Town Police Station, Gudivada, Krishna District The petition coming on for hearing, upon perusing the Petition and the grounds filed in support thereof and upon hearing the arguments of SRI PAVAN KUMAR ANNABATHUNI Advocate for the Petitioners, and of PUBLIC PROSECUTOR for the Respondent, the Court made the following. ORDER:
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.173 of 2021 ORDER:-
This criminal petition is filed under Sections 438 of Code of the Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking pre- arrest bail to the petitioners/A-1 to A-15 in connection with Crime No.311 of 2020 of Gudivada I Town Police Station, Gudivada Krishna District, wherein the petitioners are alleged to have committed the offences punishable under Sections 408, 467, 420, 468, 471, 477-A, 120-B r/w 34 of Indian Penal Code, 1860 (for short "IPC").
2. A complaint was lodged on 26.10.2020 by the President of General and Technical Education Society, Gudivada (for short "Society") stating that he belongs to the founder family of the Society, which was established to encourage and promote general and technical education and also to create atmosphere conducive for the growth and development of technical skills. The Society is a non-profit, non-commercial and apolitical institution. The defacto complainant was elected as President of the Society in the year 2016. The Society was established in an extent of 4 acres approximately in Nagavarapadu village, Gudivada Mandal, Krishna District. In the year 2008, by virtue of an additional donation received from one Adusumilli Gopala Krishna, an engineering college was set up and named as VKR, VNB and AGK College of Engineering.
3. It is stated that from 2002, the 1st petitioner who is A-1 was discharging his office bearer role as a General Secretary of the este Society, who was responsible for day to day affairs of the Society to ensure that funds of the Society are not misappropriated and that the Society was run according to its MOA & AOA. He was also instrumental in handling the income and expenditure of the Society. The 3rd petitioner/A-3, who is son of A-l is the Correspondent and the 5th petitioner/A-5 was the Administrative Director of the Society and they are also running the day to day affairs of the Society.
4. It is stated in the complaint that the mother of defacto complainant received an anonymous letter stating that several irregularities took place in the Society. As per the discrete enquiry they came to know that A-1, A-3 and their family members created forged and fabricated documents in respect of properties of the Society. It is stated that A-1 made the defacto complainant and other members to believe that certain properties of the Society have to be alienated to discharge the debts. Though A-1 and other accused sold the properties at Rs.70 lakhs per acre, they have accounted to the Society only at Rs.50 lakhs per acre, thereby caused wrongful loss to the Society. Again in the year 2016, at the inducement of A-1 and other accused, the defacto complainant arrangeed Rs.5 crores for creation of additional infrastructure, but they misappropriated the said amount without creating any additional infrastructure and converted into their own property by forging, fabricating and falsifying the accounts and records. Recently, on 18.09.2020 General Body of the Society acknowledged the debt.
5. It is stated that A-1 and his family members have formed another Society under the name and style of M/ s VKR Educational Society (for short "VER Society") in the year 2016 with dishonest and fraudulent intention to knock away the properties of the Society and to take control over the educational societies run by the Society. It is stated that the Society built an auditorium from its own fund in the year 2009-10 and the Society is getting revenue from the auditorium in the form of rentals, whenever it is hired for marriages and other functions. The revenue received from the auditorium was also misappropriated by A-1 and his family members without accounting for the Society. It is stated. that in the land belonging: to the Society, A-1 and his family: members established an industry in the name and style of Bhaskar Metal Industry, Gudivada.
6. It is stated in the complaint that on further enquiry, the defacto complainant came to know that there was a resolution to sell the property of an extent of 4 acres "and it is very strange that there was only a single bidder, who is T Ramakrishna and whose identity and relationship with the petitioners is required to be unravelled. A_ total extent of Ac.10.90 cents of land was fraudulently transferred from the Society to the VKR Society. The accused further fraudulently forged and fabricated the minutes book of the Society, as if he and another executive committee member were authorized to carry out this fraudulent sales. It is mentioned in the complaint about several sales, which were for meagre amounts. Further, all the accused sent proposals to AICTE "Bien, for change of management of VKR, VNB & AGK college of nee Engineering to M/s VKR Society with forged and fabricated documents to take over control of Engineering college.
7. After receipt of anonymous letter, the defacto complainant insisted for immediate third party chartered accountant internal audit of accounts right from 2016 to till date, for which A-1 and his family members refused to cooperate with him, which strengthened his doubt. But with insistence of defacto complainant, self-audited consolidated balance sheets for the years 2016-17, 2017-18 and 2018-19 were given and the same were given to M/s Seshachalam and Company, a reputed chartered-accountant firm in Begumpet, Hyderabad. The said audit firm after prima facie interim audit, found a lot of discrepancies, misappropriations and diversions from the Society to VKR Society, which belongs to A-1 and his family members. It is also pointed out in the balance sheets that unsecured loans are projected to have taken from VKR Society. On further verification, they found that VKR Society run by A-1 and his family members is only on paper and it does not run any educational institutions. But as per the audit report, VKR Society run by A-1 and his family members lent money to the Society. It is stated that all the accused committed breach of trust and with dishonest and fraudulent intention cheated the Society. Hence, the defacto complainant came up with the present complaint, basing on the which the present crime was registered.
8, Heard Sri S.Ravi, learned Senior Counsel appearing on behalf of the petitioners and the learned Public Prosecutor for the respondent-State. _--
9, Learned Senior Counsel appearing on behalf of the petitioners submits that all the allegations in the complaint do not attract the offences alleged and no role can be attributed to the petitioners. The complaint is filed with an ulterior motive to wreck vengeance. He submits that even according to the complainant all the allegations pertains to the year 2016 and in fact, at the relevant time, the defacto complainant himself was the President of the Society. Further, the inordinate delay itself shows that as an after-thought to implicate the petitioners, the present complaint is filed. He submits that all the allegations are vague, bald, omnibus and general in nature and do not attract the ingredients of the alleged offences. He submits that all the family members are arrayed as accused without attributing any role, which itself shows that the petitioners have been falsely implicated in this case and at the best, it can be a civil dispute, but the same is camouflaged as criminal prosecution.
10. Learned Senior Counsel submits that the Society is registered under the Societies Registration Act, 1860, as such the complaint is barred by the provisions of the said Act. The initiation of prosecution against the petitionérs is pure abuse of process of law, blatantly impermissible and contrary to established jurisprudence. He submits that a bare reading of the complaint disclosed that the motive and intention of the petitioners is not proved, as such criminal law cannot be set into motion, where the commission of offence itself is highly doubtful and suspicious. He submits that all the offences are purely personal in nature and they do not impact the Society in any manner. He further submits that the complaint was givefr en 26.10.2020 and the same was oa registered on the same day without conducting any preliminary enquiry by the police, which speaks volumes about implicating the petitioners falsely in the case. Learned Senior Counsel concluded his arguments stating that thé petitioners will not cause any hindrance with the investigating process and they will cooperate with the investigation.
11. Per contra, learned Public Prosecutor vehemently opposed the bail application and submits that the petitioners have misappropriated the funds of the Society, which is a non-profit organization. He submits that the contention of learned Senior Counsel that since the Society is registered under: Societies Registration Act, the criminal prosecution cannot be initiated is baseless. As regards the contention of learned Senior Counsel about registration of F.I.R on the very same date of filing the complaint, learned Public Prosecutor submits that on receiving any complaint in respect of any cognizable offence, police can register the complaint immediately and it cannot be find fault with. Learned Public Prosecutor has drawn the attention of the Court to 161 Cr.P.C statements of the witnesses and submits that one of the members of the Society has given the statement how the accused forged and fabricated the documents and modus operandi of the accused in committing these offences. He also pointed out at the audit report of the chartered accountant and submits that the report clearly demonstrates how. the money is misappropriated. He submits that if the accused are enlarged on bail, there is strong apprehension to the police that the accused will tamper with the evidence, influence the witnesses and hamper the entire investigation process. 7
12. The Courts while granting bail has to taken into consideration, i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused 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;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." (Satlingappa Mhetre Vs. State of Maharashtra and Ors?) ' AIR 2011 SC 312 = MANU/SC/1021/2010
13. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(b} Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(c} Prima facie satisfaction of the Court in support of the charge."
(Kalyan Chandra Sarkar Vs. Rajesh Ranjan and Ors?)
14. Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.
(Niranjan Singh and Ors. Vs. Prabhakar Rajaram Kharote and Ors.3?)
15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their * (2004) 7 SCC 528 = MANU/SC/0214/2004 3 AIR 1980 SC 785 = MANU/SC/0182/1980 decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static. and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart. from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon 'the Courts by law."
(Gurbaksh Singh Sibbia and Ors Vs. State of Punjab')
17. In the light of the law laid down by the Apex Court in the judgments referred supra, while granting anticipatory bail Courts are not expected to meticulously examine the evidence or undertake elaborate scrutiny of documents. But the Court has to look at the prima facie case with regard to commission of the se?
eer * AIR 1980 SC 1632 = MANU/SC/0215/1980 10 offence. In this case, prima facie there are several allegations leveled against A-1 and A-3. Further, the audit report and several transactions that have taken place over the years make out a prima facie case. This Court is unable to accept the contention of the learned Senior Counsel that the defacto complainant being the President of the Society in the year 2016 having kept quiet for years cannot maintain this complaint, since it is the case of the defacto complainant that through an anonymous letter addressed to his mother, they came to know about the misdeeds committed by the accused. Further, at any stretch of imagination, the offences alleged cannot be treated as giving rise to civil litigation between two private parties, since there are specific overt acts against A-1 and A-3 with regard to forging, fabricating, misappropriation and cheating. Prima facie the allegations in the complaint indicate commission of a non-cognizable offence. Applying the parameters for granting pre-arrest bail, in the facts of the case, as A-1 and A-3 are playing important roles in the affairs 'of the Society, the apprehension of the learned Public Prosecutor that they may tamper with the evidence, influence the witnesses and hamper the investigation process cannot be 'brushed aside. However, insofar as the other accused are concerned, this Court finds that absolutely there are no specific overt acts against them, though in the complaint the name of A-5 was referred at one place, only omnibus allegation is made. In view of the above discussion, this Court is not inclined to grant pre-arrest bail to A-1 and A-3. As far as Accused Nos.2, 4 to 15 are concerned, this Court is inclined to grant pre-arrest bail. --_--
1118. Accordingly, this Criminal Petition is allowed in part. The petitioner Nos.2, 4 to 15 / Accused Nos.2, 4 to 15 shall be enlarged on bail in the event of their arrest in connection with Crime No.311 of 2020 of Gudivada I Town Police Station, Gudivada Krishna District, on their executing each a bond for a sum of Rs. 20, ,000/- (Rupees twenty thousand only) with two sureties each for a likesum to the satisfaction of Station House Officer, Gudivada I Town Police Station, Gudivada Krishna District. The petitioner Nos.2, 4 to 15 shall cooperate with the investigating agency. The criminal petition in respect of petitioner Nos.1 and 3 / Accused Nos.1 and 3 is dismissed.
Consequently, all the pending miscellaneous applications shall stand closed.
Sd/-T.Madhavi ASSISTIS T RE TRAR ITTRUE COPY!/ For To, a) ECTION | FFICER
4. The Station House Officer, Gudivada | Town Police Station, Gudivada, Krishna District
2. One CC to SRI PAVAN KUMAR ANNABATHUNI Advocate [OPUC] ae | 3. Two CCs to PUBLIC PROSECUTOR, High Court of AP [OUT] .
4. One spare copy HIGH COURT LKJ DATED:09/02/2021 ORDER CRLP.No.173 of 2021 ALLOWED