IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADE THURSDAY, THE THIRD DAY OF JULY, TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE DR. JUSTICE B. SIVA SANKARA RAO CRL.P.No. 6908 of 2014 Between:
Doboroto Mandal, S/o. Nital Mandal Petitioner/Accused No.2 AND The State of A.P., through Station House Officer, Uppalagupatnam PS., East Godavari District, rep. by Public Prosecutor, High Court, of Judicature at Hyderabad, for the State of Telangana and the State of Andhra Pradesh.
Respondent/Complainant COUNSEL FOR THE PETITIONER: SRI. A. NAVA MOHAN RAO COUNSEL FOR THE RESPONDENT: THE PUBLIC PROSECUTOR Petition under Section 438 of Cr.P.C., praying that in the circumstances stated in the memorandum of grounds filed herein, the High Court may be pleased to grant anticipatory bail by directing the polie to enlarge the petitioners/Accused on bail in the vent of his arrest I Crime No.11 of 2014 on the file of P.S. Uppalaguptam, East Godavari Dsitrict.
The Court made the following Order:
This Criminal Petition is filed under Section 438 Cr.P.C by the petitioner/A.2 in Crime No.11 of 2014, on the file of the Station House Officer, Uppalaguptam, East Godavari district, registered against him along another for offences punishable under Sections 406 and 420 I.P.C.
2. Heard the Learned Counsel for the Petitioner, the Learned Public Prosecutor for the Respondent-State and perused the material placed on record.
3. The accusation is against two accused, one is the entity-M/s. Vesta Engineering and the other is Doboroto Mandal-Managing Partner of A.1. It is outcome of a dispute regarding to supply of the machinery i.e. acoustic, 500 KVA D.G. Set and AMP Panel by M/s Vesta Engineering, Mumbai to the defacto-complainant by name Soumen Dev, Manager of M/s. Cairn India Limited, S.Yanam Village covered by purchase order dated 29.01.2013 by the A.1 and A.2 and report showing there was advance payment on 14.06.2013 and balance paid on 22.07.2013 towards supply of machinery and having received the entire amount, the A.1 deceived and cheated by timely non-delivery of the machinery.
2
4. It is the contention of the learned counsel for the petitioner that it is purely a civil nature and there is no any element of criminal act much less to attract Sections 406 and 420 of I.P.C.
5. There is a thin line of difference between civil and criminal liability which all depends upon the mens rea. It is the averment that there is a breach of trust and cheating. For the offence of cheating, it has to be established that from the beginning of the entering into contract to supply machinery, there must be intention on the part of the so called accused not to deliver to have wrongful gain, but any discussion at this stage in this matter will definitely prejudice rights of the parties and not requires for the purpose of bail application.
6. Having regard to the above, with the propensity of the crime and balancing personal liberty of the accused, this Court feels it just to grant anticipatory bail to the petitioner.
7 . In the result, the Criminal Petition is allowed by granting anticipatory bail to the petitioner-A.2 subject to the following conditions:
[1] Petitioner-A.2 shall execute a self-bond for Rs.25,000/- [Rupees twenty five thousand only] with two sureties for the like sum each to the satisfaction of the arresting authority, otherwise giving liberty to the petitioner to submit before the Judicial Magistrate of First Class having the jurisdiction for taking to custody and enlarge within two weeks. The bond to be obtained is not only to appear before the Court pending investigation and after filing of final report in the form of charge sheet or the like for enquiry or pre committal enquiry before said Court, but also thereafter on committal before the Court of Sessions or by virtue of any transfer of proceedings for want of jurisdiction or otherwise before any other Court and even after trial before such Court to appear before provisional or appellate Court or other superior Court - vide decision - Pre-Legal Aid Committee, Jamshedpur vs State of Delhi 1982[2]APLJ 43(SC); so that at stage of committal or other proceedings obtaining of fresh bond from accused and even affidavits of sureties of bonds and solvency earlier produced are ratifying and in existence and enforceable, without even insisting their further presence, serves the purpose. Such recourse quickens the proceedings at such committal or other stages without loss of time and it also to some extent complies with the requirement of Section 437A CrPC.
[2] Petitioner-A.2 shall report before the Station House Officer, concerned on every Sunday till filing of the charge sheet and thereafter once in a month on 1st Sunday till completion of trial/enquiry between 10.00 and 11.00 AM for assurance of his availability and non-interference in any manner with the witnesses.
[3] Petitioner-A.2 shall not enter the area where the victim and witnesses reside, until further orders being passed by the learned Magistrate relaxing the same empowering him by virtue of this order.
3
[4] Petitioner-A.2 shall attend before the Court of law regularly in enquiry and trial without fail, if not his bail shall be cancelled forthwith, without any further order so that, the Magistrate can also issue NBW by cancelling the bail from the power under section 439 [2] CrPC. delegated to the learned Magistrate by this order during pendency of proceedings before the Magistrate.
[5] Petitioner-A.2 shall not leave the State pending enquiry/trial without prior permission of the Court of concerned Magistrate/trial Judge.
[6] Petitioner-A.2 shall furnish his full address with property and Bank Account particulars and submit her passport if any, after enlargement of bail on the next hearing date before the Magistrate Court concerned (for collecting by police as part of their duty to investigate-also the means of accused and to furnish the same in the final report of investigation to enable the trial court in the event of considering the need of awarding compensation under section 357 CrPC. So to award from such material and evidence, apart from securing presence and obtaining of bond with sureties under section 437A CrPC. etc.), failing which it is open to the learned Magistrate concerned by virtue of the power conferred by this order to cancel the bail.
7) In the event of the police making out a case for police custody for the purpose of interrogation, the petitioners shall be liable to be taken in police custody for facilitating the further investigation remained if any, with the permission of the Magistrate concerned who can grant such police custody, within 15 days of his surrender, subject to necessary precautions and instructions as per the constitutional bench expression of Apex Court in guideline No.iv in Gurbaksh Singh Sibbia Vs. State of Punjab (1980)2 SCC 565.
[8] The bail now granted is since a regular one till end of trial (without prejudice to the right to cancel meanwhile in case of need and/or for non- compliance of conditions supra) any absence of petitioners as accused for hearing/enquiry or trial, issuance of non bailable warrant-NBW (unless cancelled before execution) and even its execution and production of accused as per the NBW; that does not tantamount to cancellation of bail including from the wording of Sec.439(2) CrPC. and as such in such event no fresh bail application can be entertained. As it tantamounts to only cancellation of bail bonds earlier executed, (leave about the power of the court to issue surety notices by forfeiting bonds and for imposing penalty on the bonds forfeited); the proper course is to direct the accused to work out the remedy to pay penalty on the previous forfeited bonds as per Section 441 to 446 CrPC. and to submit fresh solvency with self bond for enlarging him by release from custody on payment of penalty of the earlier bonds forfeited without need of enforcing against earlier sureties again.”
//TRUE COPY// ASSISTANT REGISTRAR for ASSISTANT REGISTRAR 4 To
1. The Principal District Judge, Rajahmundry, East Godavari District.
2. The II Additional District & Sessions Judge, Amalapuram, East Godavari Ditrict.
3. The Station House Officer, Uppalaguptam Police Station, East Godavari District.
4. Two CCs to Public Prosecutor, High Court, Hyderabad (OUT)
5. One CC to Sri. A. Nava Mohan Rao, Advocate (OPUC)
6. One Spare copy KK HIGH COURT DR.SSRBJ DT. 4-7-2014 BAIL ORDER CRL.P.NO.6908 OF 2014 DIRECTION Drafted by: KK Drafted on: 4-7-2014 HIGH COURT DR.SSRBJ DT. 4-7-2014 BAIL ORDER CRL.P.NO.6908 OF 2014 DIRECTION