IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO. 6628 OF 2018 BETWEEN:
Muzamil Ali Khan S/o Sharvath Ali Khan, Aged about 33 years, R/at : IGS Bakery, 2nd Cross, Bismillahnagar, Bannur Town, T.Narasipura Taluk Mysore District – 578 432.
...Petitioner (By Sri.Rahamathulla Shariff, Advocate-Absent) AND:
State of Karnataka Rep. by The Officer Incharge of Police Station, Nagamangala Police Station, Nagamangala, Mandya District -578 432. Rep. by Spl. 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 event of his arrest in Cr.No.172/2011 (S.C.No.27/2016) of Nagamangala Town Police Station, Mandya for the offences P/U/S 420 of IPC and Section 9 of the Karnataka Protection of Interest of Depositors in Financial Establishment Act, 2004.
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 petitioner-accused No.3 under Section 438 of Cr.P.C. to release him on anticipatory bail in Crime No.172/2011 of Nagamangala Police Station for the offences punishable under Section 420 of IPC and also under Section 9 of the Karnataka Protection of Interest of Depositors in Financial Establishment Act, 2004 (hereinafter referred to as ‘Act’ for short).
2. Learned counsel for the petitioner-accused No.3 remained absent inspite of sufficient opportunity being given.
3. I have heard the learned High Court Government Pleader for respondent-State.
4. The gist of the complaint is that one Imran and Safeer Ahmed duped him to the tune of Rs.50,000/- stating that there is an offer of public insurance in a company called Tricuble Marketing (India) Pvt. Ltd. which is having office at Chandra Layout, Bengaluru. It’s Manager is Muzamil Ali and all three persons received a cash of Rs.50,000/- on 06.06.2011 and a cheque for Rs.50,000/- to be drawn on SBM, Chandra Layout Branch was issued. When he visited the bank, he came to know that the account was in the name of Muzamil Ali Khan and Andani Gowda, the funds are insufficient and there is no seal of the company. Then, he made a visit to the address given by Muzamil Ali Khan and came to know that there is no such company. The said company is a fake company and is created only with an intention to cheat the public and thereby, cheated the public to the tune of lakhs of rupees. On that basis, case has been registered.
5. It is contended in the petition that the petitioner is innocent and accused Nos.1 and 2 are the agents of the said company who collected money from the complainant and they used to issue Insurance Certificate. It is further stated that the bank account was in the name of the petitioner and one Andani Gowda. The respondent police blindly on the basis of representation of the complainant have registered a case against the petitioner. It is further submitted petitioner-accused No.3 has not committed any offence under Section 9 of the Act. He further submits that he is ready to abide by the conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused No.3 on bail.
6. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner-accused No.3 along with other co-accused have framed ficticious company and thereby secured amount with an intention to cheat the public. Though there is no such company exists, thereby, committed an offence under Section 420 of IPC and under Section 18(2) of the Act and also under Section 9 of Act. The petitioner-accused No.3 is absconding. He is not available for investigation and interrogation. It is further submitted that provisions of Section 438 of Cr.P.C are not applicable since there is a bar under Section 18 of the Karnataka Protection of Interest of Depositors in Financial Establishment Act, 2004. On these grounds, she prayed to dismiss the petition.
7. I have carefully and cautiously gone through the contents of the complaint and other materials and perused the records. Section 18(2) of the Act clearly indicates that the Special Court for the purpose of the said provisions shall be deemed to be a Court of Judicial Magistrate, First Class or Metropolitan Magistrate as the case may be and as such, provisions of Section 438 of Cr.P.C cannot be exercised. In that light, the petition is dismissed.
Be that as it may, even today also the learned counsel for the petitioner has remained absent and he has not substantiated the case. Even though accused Nos.1 and 2 have applied for regular bail and have been released on regular bail, when the contents of the material and other materials do not show that there is apprehension of arrest by the police. Under such facts and circumstances of the case, present petition is not maintainable and it is not a fit case to exercise power under Section 438 of Cr.P.C to release the petitioner on anticipatory bail. In that light also, the petition is dismissed.
Sd/- JUDGE UN