IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.6179 OF 2018 BETWEEN:
1. Imtiyaz Ismail Dangra, S/o. Ismail, Aged about 36 years, Residing at B-604, Faiz Complex, Opp. Dada Motors, Gorat Road, Adajanpatiya, Surat, Navyug College, Gujarat – 395 009.
2. Mohammad Fakira, S/o. Asif, Aged about 26 years, Residing at A-504, A1 noor Residency, Gorat Road, AdajanPatiya, Surat, Navyug College, Gujarat – 395 009.
...Petitioners (By Smt. Lavanya, K., Advocate for Sri R. Nataraj, Advocate) AND:
State of Karnataka By Marathalli Police Station Bengaluru Represented by SPP High Court of Karnataka Bengaluru – 01.
...Respondent (By Sri. M. Divakar Maddur – HCGP) This Criminal Petition is filed under Section 438 of Cr.PC praying to enlarge the petitioners on bail in the event of their arrest in Cr. No. 349/2018 of Marathahalli Police Station, Bengaluru city for the offence P/U/S 420 R/w 34 of IPC.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R The present petition has been filed by the petitioners under Section 438 of Cr.PC to release them on anticipatory bail in Crime No.349/2018 of Marathahalli police station, Bengaluru for the offence punishable under Section 420 of IPC.
2. I have heard learned counsel for the petitioners-accused and learned HCGP for the respondent-State.
3. The case of the complainant is that on 13.07.2018, a renowned artist Bandagikalra advertised about sale of I-phone X mobile phone on e-commerce platform and accordingly the complainant ordered two I-phone X mobile at cost of Rs.61,000/- and paid a sum of Rs.13,000/- through his PAYTM account. On 18.07.2018, he received a parcel from Blue Dart Courier after paying cash of Rs.48,000/-, when he opened the parcel, he found the I-phone X mobile was fake and duplicate. As such, he went to the police station and lodged a complaint in this regard.
4. It is the contention of learned counsel for the petitioners- accused that the petitioners are the partners of different collection.nexafashion.com. She further submitted that the petitioners are mere courier agents who facilitate the sale of consumer products on their e-commerce website. She further submits that the petitioners accused are in no way responsible for the manufacture or sale of the alleged fake I-phone. Further, the said I-phones have been prepared by one Salman Peer Mohammed Tailor who is responsible for the said sale of I-phones. She further submitted that the complaint has been registered against the unknown persons and the name of the petitioners- accused is not forthcoming either in the complaint or in the FIR. The accused petitioners are in no way concerned to the said transaction. She further submits that the alleged offence is not punishable with death or imprisonment for life and the accused petitioners are ready to abide by any of the terms and conditions that may be imposed by this Court and ready to offer sureties, if they are released on bail. On these grounds, he prays to allow the petition and to release the accused petitioners on bail.
5. Per contra, learned HCGP vehemently argued and submitted that the complainant lodged the complaint alleging that the petitioners have given advertisement in social media to make view to the public and to order for mobile phone and in terms of the said order, they have sent fake mobiles with an intention to cheat. Further the accused petitioners are from Gujarath, if they are ordered to be enlarged on bail, they may abscond and may not be available for the trial. He further submitted that the mobile phones are yet to be recovered and the amount which is already paid by the complainant to the petitioners has to be recovered. He further submitted that the accused petitioners are absconding since from the date of registration of case and they may not be available for the purpose of investigation or interrogation, if they are ordered to be enlarged on bail. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submissions of learned counsel appearing for the parties and also perused records.
7. As could be seen from contents of the complaint, it discloses that on the basis of the advertisement given in the web site, mobile phones have been ordered, when he received the parcel, he came to know the I-phones sent is fake mobile. Whether the mobile sent through parcel is fake one and whether the accused petitioners are responsible for the alleged transaction is the matter which has to be considered and appreciated during the course of investigation and at the time of trial. It is the specific contention of learned counsel for the petitioners that the petitioners are the partners of different collection.nexafashion.com and they are mere courier agents who facilitate the sale of consumer products on their e-commerce website, if that is accepted, whether they are aware of the fact that the mobile sent by the manufacturer is fake, that is again a matter which has to be considered and appreciated at the time of trial. However, the alleged offence is not punishable with death or imprisonment for life. The only apprehension of the learned HCGP is that the accused petitioners are from Gujarath, if they ordered to be enlarged on bail, they may abscond and may not be available for the trial.
In order to protect the interest of the prosecution, by imposing some stringent conditions, the accused petitioners are ordered to be released on bail. Accordingly, the petition is allowed. The accused petitioners are ordered to be released on anticipatory bail in the event of their arrest in Crime No.349/2018 of Marathahalli police station, Bengaluru for the offence punishable under Section 420 of IPC, subject to following conditions;
1. Each of the Petitioner-accused shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two lakhs only) with two sureties for the likesum to the satisfaction of the Investigating Officer.
2. They shall surrender before the Investigating Officer within 15 days from today.
3. They shall appear before the Investigating Officer as and when they are required for the purpose of investigation or interrogation.
4. They shall not tamper with the prosecution evidence directly or indirectly.
5. They shall mark their attendance once in two months before the jurisdictional police on every first.
6. They shall be regular in attending the trial.
Sd/- JUDGE PN/-