IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9009/2018 C/W CRIMINAL PETITION NO.286/2019 IN CRL.P.NO.9009/2018 BETWEEN:
1. Girish Rai, W/o. Late Deranna Rai, Aged about 43 years, R/at Sai Palace Apartment, Ballal Bagh, Mangalore, D.K.District-575 003.
2. Sunil Rai @ Sudhakar Rai, S/o.B.T.Sanjeeva, Aged about 31 years, R/at Hanegal Village and Post, Somavarapet, Coorg District-571 236. ...Petitioners (By Sri. Nishit Kumar Shetty, Adv.,) AND:
State of Karnataka by S.H.O, Mangalore North Police Station, Represented by State Public Prosecutor, High Court Building, Bengaluru-560 001. ... Respondent (By Sri. K.P. Yoganna, HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioners on bail in the event of their arrest in Crime No.268/2018 of Mangalore North Police Station, Mangaluru for the offences p/u/s 406 and 420 of IPC.
IN CRL.P.NO.286/2019 BETWEEN:
Devendra Nayak, S/o. Chatrayya Nayak, Aged about 42 years, R/at No.533, 18th Main, 23rd Cross, Judicial Layout, Bengaluru-560 065. ...Petitioner (By Sri. Nishit Kumar Shetty, Adv.,) AND:
State of Karnataka by S.H.O, Mangalore North Police Station, Represented by State Public Prosecutor, High Court Building, Bengaluru-560 001. ... Respondent (By Sri. K.P. Yoganna, 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.268/2018 of Mangalore North Police Station, Mangaluru for the offence p/u/ss 406 and 420 of IPC.
These Criminal Petitions coming on for Orders, this day, the Court made the following:
O R D E R The Crl.P. No.9009/2018 has been filed by the petitioners/accused Nos.1 and 3 and Crl.P. No.286/2019 has been filed by the petitioner/accused No.2 under Section 438 of Cr.P.C., praying this Court to release them on anticipatory bail in the event of their arrest in Crime No.268/2018 of Mangalore North Police Station for the offences punishable under Sections 406 and 420 of IPC.
2. I have heard the learned counsel for petitioners and the learned High Court Government Pleader for respondent-State.
3. Gist of the complaint is that on 24.10.2018, a complaint was registered alleging that the accused persons have duped him to the tune of Rs.1,01,00,000/-(Rupees One Crore One Lakhs only) by promising to get gold from the Customs Office at Mangaluru and stated that the accused persons had even issued two cheques of YES Bank for a sum of Rs.50,00,000/- each towards repayment of the amount. When the said cheques was presented, there was only Rs.5,000/- in the credit of the concerned bank account. It is further submitted that the accused persons had no intention of honoring the said cheques. Thereafter, they have sent different messages to the complainant thereby, cheated the complainant. On the basis of the complaint, a case came to be registered.
4. It is the submission of the learned counsel for petitioners that earlier the complainant and the accused persons were doing the hotel business and have invested the funds in the hotel business. Now due to loss in the business, in order to refund the said amount, the said cheques have been issued. The cheques have been wrongly used for the purpose of purchase of gold. It is further submitted that the accused petitioners have not committed any offences punishable with death or imprisonment for life and they are ready to co-operate with the investigation and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioners/accused Nos.1 to 3 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the accused petitioners have cheated the complainant and they have issued cheques and other documents. The said cheques were also not encashed and the amount has not been recovered. It is further submitted that the accused petitioners are absconding and were not available for the investigation or interrogation. The Investigating Officer has to recover the said amount and collect the documents from the accused petitioners therefore, the accused petitioners are very much necessary for the purpose of interrogation and investigation. Further it is submitted that if the accused petitioners are enlarged on bail, they may fly out of Country and may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for both the parties and perused the records.
7. The complaint and other materials indicates that the allegation which has been made in the complaint is that the accused petitioners duped the complainant to the tune of Rs.1,01,00,000/-(Rupees One Crore One Lakhs Only) by promising to get the gold from the customs office at Mangaluru. Thereafter, they have issued two cheques of Rs.50,00,000/- each and the said cheques are not been encashed. Whether the accused petitioners have cheated the complainant or not? and there were transaction existed between the parties or not? is a matter which has to be considered and appreciated at the time of trial but not at this pre- mature stage. The alleged offences are not punishable with death or imprisonment for life and further it is submitted that the accused petitioners are ready to co- operate with the investigation and ready to offer the sureties. Under such circumstance, I feel that by imposing some stringent conditions, if the accused petitioners are ordered to be released on bail, it is going to meet the ends of justice.
8. In that light petition is allowed and the petitioners/accused Nos.1 to 3 are enlarged on anticipatory bail in the event of their arrest in Crime No.268/2018 of Mangalore North Police Station for the offences punishable under Sections 406 and 420 of IPC subject to the following conditions:
1. Each of the petitioners shall execute a personal bond for a sum of Rs.5,00,000/- (Rupees Five Lakhs Only) with two sureties each for the likesum to the satisfaction of the Investigating Officer.
2. They shall surrender before the Investigation Agency within 15 days from today.
3. They shall not tamper with the prosecution evidence directly or indirectly.
4. They shall surrender their passport to the Investigating Agency when they surrender before the Investigating Officer.
5. They shall co-operate with the investigation.
6. They shall not leave the jurisdiction of the Court without prior permission.
Sd/- JUDGE VBS