IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL PETITION NO.931/2019 BETWEEN SRI MOHAN KUMAR KALMADY S/O SUNDAR, AGED ABOUT 43 YEARS, R/AT KALMADY VILLAGE, MALPE POST, UDUPI TALUK, UDUPI DISTRICT-574001 PRESENTLY IN DISTRICT JAIL, MANGALORE (IN THE CHARGE SHEET IT IS SHOWN AS MOHAN KALMADY) (BY SRI R. MAHESH, ADVOCATE) AND ... PETITIONER THE STATE BY MANGALORE NORTH POLICE STATION, MANGALORE CITY, REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU-560 001.
... RESPONDENT (BY SMT. NAMITHA MAHESH B.G., HCGP) THIS CRIMINAL PETITION IS FILED U/S.439 CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.31-32/2015 (SPL.CASE NO.68/2018) OF MANGALORE NORTH P.S, MANGALORE CITY FOR THE OFFENCES P/U/SS 415, 417, 418, 419, 420, 421, 422, 406, 409, 120B R/W SECTION 34 OF IPC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The present petition is filed by accused No.9 under Section 439 of Cr.P.C. to release him on bail in Crime Nos.31-32/2015 of Mangalore North Police Station for the offences punishable under Sections 409, 420, 120B read with 34 of IPC and Section 9 of Karnataka Protection of Interest of Depositors Establishment Act.
2. I have heard the learned counsel for the petitioner and the learned HCGP for the respondent-State.
3. The gist of the complaint is that the petitioner along with other accused persons started a Company under the name and style ‘Maithri Plantation and Horticulture Pvt. Ltd.,’ and they have advertised that, the Company will give highest returns to its customers whoever investing the amount in their Company. It was further alleged that in pursuance of the said advertisement, the complainant and others invested a sum of Rs.52,95,000/- in the said Company. Subsequently, the Company was closed with an intention to cheat the complainant and other customers, who have invested the amount. On the basis of the said complaint a case came to be registered against the accused persons and after investigation charge sheet has been filed.
4. It is the submission of the learned counsel for the petitioner that the petitioner was also working as an agent in the Company as the complainant was working, to eke out his livelihood. He further submitted that he has not collected any money and not made any person to invest in the said Company. He further submitted that already charge sheet has been filed and the petitioner is no way connected to the said Company. Accused Nos.1 to 7 were the Directors of the said Company, who have taken the amount and invested the said amount in Andhra Pradesh and other places and the petitioner has nothing to do with the said act. He also submitted that neither the petitioner has instigated nor precipitated any one to invest the amount in the said Company. He further submitted that the petitioner is ready to abide by any conditions and to offer sureties.
On these grounds, he prayed to allow the petition and to release the petitioner on bail.
5. Per contra, the learned HCGP vehemently argued and submitted that the petitioner-accused was managing the affairs of the Company being one of its Directors. He along with other accused persons got invested huge amount in the Company, thereafter they have closed the Company with an intention to cheat the investors. She also submitted that all the transactions which has taken place are with dishonesty and fraudulent intention. The petitioner is associated with its functioning and day-to-day affairs. It made the investors to believe and subsequently the Company has been closed only with an intention to cheat the customers. She further submitted that the conduct and the action of the petitioner and other accused clearly go to show that huge amount has been attracted and with an intention to cheat they have taken the amount and closed the Company. She further submitted that while granting bail in these type of case every question has to be looked into that if the petitioner is released on bail, it is likely to send a wrong signal, whether he may abscond and may not be available for trial. On these grounds, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the parties and also perused the records, including the contents of the complaint.
7. On close reading of the contents of the complaint and other material it goes to show that after forming the Company the accused have attracted the investors and the investors have invested lakhs of amount in the said Company. Thereafter, the said Company has been closed. Whether the accused-petitioner is involved as a Director or as an Agent is the matter which has to be considered at the time of trial. Already charge sheet has been filed and petitioner is not required for the purpose of investigation and interrogation. When the consideration of the facts related to the offences involving economy with a series of capital investment, then the Court must be very cautious and careful while releasing the accused on bail. But the prosecution material clearly goes to show that no overt act has been alleged against the petitioner to show that he initiated and instigated other persons to invest the amount, thereafter they got closed the said Company. Under these facts and circumstances of the case, I feel that by imposing some stringent conditions, if the petitioner is ordered to be released on bail, it would meet the ends of justice.
8. In the light of the discussions held by me above, the petition is allowed and accused-petitioner herein is ordered to be released on bail in Crime No.31-32/2015 of Mangalore North Police Station for the offences punishable under Sections 409, 420, 120B read with 34 of IPC and Section 9 of Karnataka Protection of Interest of Depositors Establishment Act, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.5,00,000/- (Rupees Five Lakhs Only) with two sureties for the like sum to the satisfaction of the trial Court.
ii) He shall be regular in appearing before the trial Court as and when he is ordered to do so.
iii) He shall not tamper with the prosecution evidence directly or indirectly and he shall not threaten the complainant in any manner.
iv) He shall surrender his Pass-Port to the Investigating Officer, and he shall mark his attendance before the Investigating Officer once in fifteen days between 10.00 a.m. and 5.00 p.m., till the trial is concluded.
v) He shall not leave the jurisdiction of the trial Court without prior permission.
vi) In the event of tampering of the prosecution evidence by the accused, the prosecution is at liberty to move for cancellation of the bail.
Sd/- JUDGE Sbs*