IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.4234/2019 Between:
Sri Punniyamoorthy @ Radhakrishna Nadar, S/o Subalya, Aged about 55 years, R/at No.57-B, Siththi Vinayagar Colony, Siruvani Main Road, Coimbatore North, Tamil Nadu-641 041. ... Petitioner (By Sri H.K.Rajkumar, Advocate) And:
State of Karnataka By Lashkar Police Station, Mysuru – 570 001.
Rep. by Government Pleader High court of Karnataka, Bengaluru -560 001. ... Respondent (By Sri K. Nageshwarappa, 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 Cr.No.16/2018 of Lashkar Police Station, Mysuru City for the offences punishable under Sections 420, 464, 465, 468, 471 read with Section 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 petitioner/accused No.3 under Section 438 of Cr.P.C., to enlarge him on bail in the event of his arrest in Crime No.16/2018 of Lashkar Police Station, Mysore for the offences punishable under Sections 420, 464, 465, 468 and 471 read with Section 34 of IPC.
2. I have heard the learned counsel for the petitioner-accused No.1 and learned High Court Government Pleader for respondent-State.
3. The brief allegations in the complaint are that Sri S.M.Ananda was in need of funds and his friend Balasubramanya Bhat brought to his notice an advertisement in the newspaper ‘The Hindu’ dated 11.08.2017 that the advertiser would secure loans from private sources for applicants. On the basis of the said advertisement, the complainant and the said Balasubramanya Bhat went and met accused No.4, who telephoned to the complainant’s friend and asked him to come to meet him in Coimbatore. Accordingly, the complainant and his friend went to Coimbatore on 04.02.2018 where they met accused No.4 who took them to his office and introduced them to accused No.3. Accused No.2 was also present and he wanted to inspect the business premises of the complainant and accordingly, accused Nos.4 and 5 came from Chennai and visited the industrial site of the complainant on 11.02.2018.
4. On 25.02.2018, the complainant was again called to the Hotel Lalit Ashok, Bengaluru at 7.00 p.m., and accused No.4, accused No.2 and another person were present at that time. Representation was made to the complainant that they will arrange loan of Rs.50 Crores for the complainant but they had to pay advance of Rs.50 lakhs towards other processing charges, out of which Rs.25 lakhs should be paid through bank account and Rs.25 lakhs by way of cash.
5. Accordingly, on 07.03.2018 the complainant had transferred Rs.25 lakhs from his bank account to the account of accused No.5, who is the employee of accused No.2. On 08.03.2018 at 11.00 a.m., the complainant and his two friends went to J.P. Fortune Hotel, Mysuru. Accused Nos.2 and 4 were present and they received cash of Rs.25 lakhs from the complainant and also took his signature to various loan applications and handed over a Bag saying that, it contains Rs.50 lakhs and to open it only after getting the phone call from them, thereafter they went away by taking cash of Rs.25 Lakhs from the complainant. Since the accused persons did not get the phone call from the complainant and opened the said bag, they found it contained only 5 notes of Rs.2,000/- each and remaining blank papers tied together to resemble currency bundles. On the basis of the said complaint, a case has been registered.
6. It is the submission of the learned counsel for the petitioner/accused No.3 that there is absolutely no allegation as against petitioner/accused No.3. He further submitted that other accused persons have already released on bail on the grounds of parity, the petitioner/accused No.3 is also entitled to be released on bail. He further submitted that no recovery has been made at the instance of the accused and no overt acts are there. Investigation is already completed and charge sheet has been filed. He has produced the Identity Card to show that he is a permanent resident of Chennai. He has further submitted that he is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds, he prayed to allow the petition and release the petitioner/accused No.3 on bail.
7. Per contra, the learned High Court Government Pleader vehemently argued and submitted that petitioner/accused No.3 has also approached this Court in Crl.P.No.639/2019 and this Court by order dated 20.03.2019 has dismissed the petition, there are no changed circumstances so as to reconsider the bail application. He has further submitted that the grounds of parity cannot be made applicable to this case since all other accused persons have surrendered before the Court below and they have been enlarged on regular bail. He further submitted that petitioner/accused No.3 has not cooperated with the investigation and absconding charge sheet has been filed as against petitioner/accused No.3. He has further submitted that petitioner/accused No.3 is from Chennai and if he is enlarged on bail, he may abscond and may not be available for the trial and some other accused persons are also absconding. On these grounds, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
9. A perusal of the records would clearly indicates that this Court earlier by considering the merits of the case has dismissed the petition filed by the petitioner/accused No.3 on 20.03.2019. Though several contentions have been raised by the learned counsel for the petitioner, this Court while passing the order has come to a conclusion that there are serious allegations as against petitioner/accused No.3. Under such facts and circumstances, it is not a fit case to exercise the discretionary power under Section 438 of Cr.P.C. On that grounds petition came to be dismissed. When once already this Court has come to the conclusion that the power under Section 438 of Cr.P.C. cannot be exercised since there is a prima-facie material as against the petitioner/accused No.3, without there being any changed circumstances, I feel that it is not a fit case to reconsider the bail application.
In that light, the bail petition is dismissed. However, if he surrenders before the Court below and apply for the regular bail, under such circumstances, the above observations will not come in the way.
Sd/-
JUDGE GJM