IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.8235/2018 BETWEEN :
Shri Bolanath R. Shukla Aged about 53 years S/o Rajpathi Shukla Propriter of S.S. Enterprises B-101, Jupiter Apartments Poonam Sagar Complex Mira Road (E), Thane-401 107.
… Petitioner (By Sri P.P. Hegde, Advocate) AND :
The State of Karnataka by Police Inspector, Economic & Narcotic Crime Police Station, Mangaluru Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
… Respondent (By Smt. Namitha Mahesh B.G., HCGP) 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 Crime No.30/2018 of Economic & Narcotic Crime Police Station, Mangalore City for the offences punishable under Sections 406, 409, 420, 465, 466, 467, 468, 471, 472, 489A and 120B of IPC.
This Criminal Petition coming on for orders this day, the Court made the following:-
O R D E R The present petition is filed by the petitioner under Section 438 of Cr.P.C. praying to grant him anticipatory bail in Crime No.30/2018 of Mangaluru City Police Station for the offences punishable under Sections 406, 409, 420, 465, 466, 467, 468, 471, 472, 489A, 120B of IPC.
2. I have heard the learned counsel for the petitioner and the learned HCGP for the respondent- State.
3. In nutshell, the case of the prosecution is that accused No.1 along with other accused persons gave bank guarantee to the complainant for participation in the auction of parking place and a license was given to M/s.S.S.Enterprises, represented by the petitioner herein for the period from 10.12.2016 to 9.12.2019. In pursuance of the said contractual relationship petitioner herein furnished bank guarantee for sum of Rs.1,99,62,000/- from Bank of India, Mumbai, as a surety in favour of the complainant. Subsequently, a letter has been received from the bank that they have not given the bank guarantee and for having played fraud by the petitioner, the complaint has been registered.
4. It is the submission of the learned counsel for the petitioner that earlier when the bank guarantee has been furnished, the same was got confirmed by the complainant from the Bank of India, Mira Road Branch as per its letter dated 22.5.2017. The alleged complaint has been registered only on receipt of E-mail dated 20.8.2018 informing the complainant that the bank guarantee is not issued by the Bank of India, Mira Road Branch. He further submitted that the petitioner is not required for custodial interrogation and the said complaint is registered only on the basis of rivalry. He further submitted that a similar case was also registered by Airport Authorities wherein the matter has been challenged before the Court and the said Court has given direction to furnish fresh bank guarantee and accordingly, he has furnished bank guarantee of another bank. He further submitted that under similar facts and circumstances, Madras High Court has also granted the anticipatory bail to the petitioner in Criminal Original Petition No.22064/2018 by its order dated 25.9.2018. He further submitted that the petitioner is ready to abide by the conditions imposed by this Court and to offer sureties. On these grounds, he prayed to allow the petition and to grant anticipatory bail in favour of the petitioner.
5. Per contra, the learned HCGP vehemently argued and submitted that the petitioner has been involved in playing fraud not only in one case but four other cases have been registered against the petitioner along with two more bank officials. She further submitted that the petitioner with collusion of bank officials has furnished the bank guarantee and subsequently it has been traced that no such bank guarantee has been given and a fraud has been played in this behalf. Therefore, she submitted that custodial interrogation of the petitioner is very much necessary and if he is enlarged on bail, he may abscond and may not be available for trial. On these grounds, she prays to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and also perused the records including the documents which have been produced in this behalf during the course of arguments.
7. It is not in dispute that parking license was given to M/s.S.S.Enterprises, represented by the petitioner herein and he has furnished the bank guarantee of Bank of India for a sum of Rs.1,99,62,000/-. It is also not in dispute that said bank guarantee was got confirmed by the letter dated 22.5.2017. Subsequently only on 20.8.2018 it came to the notice of the bank that the bank guarantee which has been furnished by the petitioner was not given by the bank and hence the complaint was filed. It is the submission of the learned counsel for the petitioner that earlier to the present case, he has continuously given bank guarantees and there was no objection or any such fraud played in this behalf. It is for the first time, such an objection has been raised. He further submitted that the petitioner has issued the letter dated 21.8.2018 for replacement of the bank guarantee. Under such circumstances, and as the bank guarantee was not furnished by the petitioner to the complainant, the contractual relationship became cancelled.
8. As could be seen from the records, it would indicate that writ petitions have been filed as against the complainant before the Madras High Court in WP.Nos.22106 & 22430/2018 & allied matters, and the same have been disposed of with certain observations. Whether the fraud has been played or not or bank officials have been colluded with the petitioner is a matter which has to be considered only at the time of trial. The offences in question are not punishable with death or imprisonment for life. The investigation may take some more time. Though it is contended that the custodial interrogation of the petitioner is very much necessary, by imposing some stringent conditions, if the petitioner is granted bail, it would safeguard the interest of the prosecution.
In view of the above, the petition is allowed and the petitioner is granted anticipatory bail. In the event of his arrest in Crime No.30/2018 of Mangaluru City Police Station for the offences punishable under Sections 406, 409, 420, 465, 466, 467, 468, 471, 472, 489A, 120B of IPC, the petitioner herein is ordered to be released, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.5,00,000/- (Rupees five lakhs only) with two sureties for the like sum to the satisfaction of the Investigating Agency.
ii) He shall surrender himself before the Investigating Agency within a period of fifteen days from today.
iii) He shall surrender his passport if any, to the Investigating Agency when he surrenders himself before the Investigating Agency.
iv) He shall cooperate for interrogation and investigation in the matter.
v) He shall not leave the jurisdiction of the Court without prior permission.
vi) He shall mark his attendance once in a week i.e., on every Saturday between 10.00 a.m. and 5.00 p.m. till the investigation is completed.
Sd/- JUDGE *ck/-