IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE BUDIHAL R.B.
Criminal Petition No.8451 of 2017 Between:
1. Sri.M.G.Mohan Kumar, Aged about 60 years, S/o Sri.M.Gundu Rao, R/a No.404, Skyline Beverly Park, Amruthhalli Main road, Bengaluru – 560 092.
2. Sri.G.V.Sudhindra, Aged about 64 years, S/o Sri.G.V.Venkanna, R/a #B – 2102, ‘Elita Promonade’, 18th main, 7th Phase, J.P Nagar, Bengaluru – 560 078.
3. Sri.K.Rajendra, Aged about 47 years, S/o Late Sri.Keshavamurthy, R/a No.109/1, NHCS Layout, 3rd Stage, 4th Block, Basaveshwaranagar, Bengaluru – 560 079.
... Petitioners (By Sri.Satyanarayana Chalke.S, Advocate.) And State of Karnataka by The Station House Officer, High Grounds Police Station, Bengaluru.
(By Sri.Chetan Desai, HCGP) ... Respondent This 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.87/2017 of High Grounds Police Station, Bengaluru for the offence punishable under Sections 406, 420, 465, 468, 477(A) and 120(B) of IPC.
This petition coming on for Orders this day, the court made the following:
ORDER Heard the learned counsel for the applicant and the learned counsel for the petitioners on the application I.A.No.2/2017 seeking permission of this Court to assist the public prosecutor.
2. Perused the application. Application I.A.NO.2/2017 is allowed and the counsel is permitted to assist the prosecution in hearing the petition.
3. This is a petition filed by petitioners-accused Nos.1 to 3 under Section 438 of Cr.P.C seeking anticipatory bail and to direct the respondent police to release the petitioners-accused on bail in the event of arrest of the petitioners for the alleged offences punishable under Sections 406, 420, 465, 468, 477A and 120B of IPC registered by the respondent police in Crime No.87/2017.
4. Heard the arguments of the learned counsel for the petitioners-accused Nos.1 to 3, learned counsel for the applicant who has come on record and the learned High Court Government Pleader for the respondent state.
5. Learned counsel for the petitioners submit that vague and bald allegations are made in the complaint alleging that there is misappropriation of the funds. Looking to the Audit Report which is produced by the petitioners, the Auditor has clearly opined that there is no misappropriation of any funds of the company. In this connection learned counsel for the petitioners drew the attention of this Court to Page No.85 of the file and to the last paragraph of the Auditor’s Report wherein it is stated as follows:
“During the course of our examination of the books and records of the company, carried out in accordance with generally accepted auditing practices in India and according to the information and explanation given to us, we have neither come across any fraud on or by Company noticed or reported during the year, nor have been informed of such case by management.”
6. Referring to this observation made by the Auditor i.e., Chartered Accountant, learned counsel submits that it clearly goes to show that there is no misappropriation of the funds at all. He also drew the attention of this Court to the contents of the complaint and to clause 9 in the said complaint and submitted that complainant has mentioned in the said paragraph that audited report will be submitted in due course of investigation. In this connection, he submits that already Audit Report is produced by the learned counsel for the petitioners herein and there is no misappropriation. Hence, the question of producing the Auditor’s Report will not arise at all. Hence, he submits that there is no prima-facie case made out by the complainant to attract the alleged offences. Further he submits that all the offences are triable by the Magistrate Court and they are not exclusively punishable with death or life imprisonment. Hence, by imposing reasonable conditions petitioners may be admitted to anticipatory bail.
7. Per contra, counsel representing the complainant made submission that he has also produced the documents and looking to the Auditors Report produced for the period 31.03.2015 to 31.03.2016, learned counsel drew the attention of the Court to the relevant part in the said report and stated that it is very clear at this stage that prosecution has established prima-facie material regarding the misappropriation of the funds in the company. Hence, he submits that matter requires consideration and it is necessary to interrogate the petitioners herein. Therefore, petitioners are not entitled to anticipatory bail at this stage and the petition may be rejected.
8. Learned HCGP representing the State also submits that petitioners are not entitled to be granted with anticipatory bail.
9. I have perused the grounds urged in the bail petition, FIR, complaint and other documents produced by the petitioners along with petition including the Audited Report and the documents produced by the respondent-complainant. Looking to these materials, at this stage, I am of the opinion that there is prima-facie case to show that there is misappropriation of the amount by the petitioners. The documents, receipts, vouchers, bills were not properly maintained. Even for loan there is no security taken. Therefore, considering these aspects of the matter and the magnitude of the amount alleged to be involved in the case, it is not a fit case to grant anticipatory bail.
10. Hence, petition is hereby rejected.
In view of the disposal of the main petition I.A.No.1/2017 does not survive for consideration. Hence, I.A.No.1/2017 is disposed of Sd/- Judge dn/-