IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.49/2019 BETWEEN:
1. Sri Shivakumar R Age 63 years Residing at No.25, 9th Cross Kumara Park West, Bengaluru 560 020.
2. Smt. S. Ranjitha D/o R. Shivakumar Age 33 years Residing at No.25, 9th Cross, Kumara Park West, Bengaluru-560 020. ...Petitioners (By Sri. Ravi B Naik, Senior counsel for Sri. P. Chandrashekar, Advocate) AND:
State of Karnataka Through High Grounds Police, Bengaluru.
Represented by the State Public Prosecutor, High Court of Karnataka, Bengaluru-560 001.
(By Sri. K.P.Yoganna, HCGP) ...Respondent This Criminal Petition is filed under Section 438 of the Code of the Criminal Procedure Code praying to enlarge the petitioners on bail in the event of their arrest in CR.No.167/2018 registered by High Grounds Police Station, Bengaluru for the offence punishable under Sections 406,420,504 and 506 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/accused Nos.1 and 2 under Section 438 of Cr.P.C. praying this Court to release them on anticipatory bail in the event of their arrest in Crime No.167/2018 of High Grounds Police Station for the offences punishable under Sections 406, 420, 504 and 506 read with Section 34 of IPC.
2. I have heard Sri. Ravi B Naik, learned Senior counsel for petitioners and Sri. K.P. Yoganna, learned High Court Government Pleader for respondent-State.
3. Gist of the complaint is that in the month of September 2007, the petitioner/accused Nos.1 and 2 came to the house of complainant and by giving some documents told that they have applied for mining licence to excavate iron ore at Sandur Ramgarh, Bellary District and had promised the complainant to sell the leasehold rights to the complainant. It is further alleged in the complaint that accused Nos.1 and 2 insisted the complainant to purchase their leasehold rights in mining area to which the licence is yet to be granted and have entered into an agreement by receiving an amount of Rs.5.55 Crores through cheque dated 30.09.2007, Rs.3 Crores through pay order dated 04.06.2008, another sum of Rs.3 Crores through cheque dated 06.03.2009 and Rs.1 Crore by cheque dated 01.12.2010. In total, an amount of Rs.15.55 Crores has been paid by the complainant. It is further submitted that accused persons went on postponing the delivery of mining area on the pretext of mining licence not being granted. On coming to know that there is delay in delivery of possession of the mining area, the complainant sought for return of the amounts and inspite of the demand, the said amount has not been returned by the accused persons. It is further alleged that when accused No.1 met the complainant alone at Golfs Club, he abused the complainant for having visited his office and he inflicted threat to the life of the complainant. The said matter was discussed in between the well wishers and advisers ultimately, though there is delay, he filed the complaint.
4. It is the submission of the learned Senior Counsel that the alleged contract has been entered in the year 2007 and the complaint came to be lodged on 30.11.2018, there is 11 years gap in filing the complaint. It is further submitted that for having entered into an agreement, the complainant has issued three cheques and when they were presented, the same has been bounced, in this behalf a case has been initiated under Section 138 of the Negotiable Instruments Act, 1881. Further it is submitted that the alleged incident is purely civil in nature and only in order to overcome the limitation, the present complaint has been filed. Further it is submitted that if dispute between the parties were purely a civil in nature, under such circumstance the petitioners/accused No.1 and 2 are entitled to be released on bail. In order to substantiate the said contention, he relied upon the decision in the case of RASHMI JAIN Vs. STATE OF UTTAR PRADESH AND ANOTHER reported in (2014) 13 Supreme Court Cases 553. It is further submitted that the accused persons have entered into a contract of leasing the mining area but it is all depending upon the grant of Government. Because of the grant has not been given in favour of the accused petitioners, the said contract has not yet been executed in this behalf. If at all any rights have been violated, they can adjudicate the same before the civil Court. Further it is submitted that already the petition has been filed under Section 482 of Cr.P.C., to quash the entire proceedings and the same is still pending before this Court. Further it is submitted that the petitioners/accused Nos.1 and 2 are permanent residents of Bengaluru and are having permanent avocation, there is no question of they flying away from justice, they are available for the purpose of investigation and interrogation and they are ready to abide by any conditions that may be imposed on them by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioners/accused Nos.1 and 2 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the accused petitioners are involved in illegal mining and the investigation has to be made in this behalf by the Investigating Officer. It is further submitted that if the petitioners/accused Nos.1 and 2 are released on anticipatory bail, they may tamper with the investigation and there is a threat to the life of the complainant. It is further submitted that the instructions given by the Investigation Officer discloses the fact that the accused petitioners have approached one Ravi Poojari, who is considered to be a Don, against him the case has been registered. The investigation is still pending and there is ample material to show that the petitioners/accused Nos.1 and 2 have cheated the complainant that too, a huge amount has been absorbed by them. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
7. It is not in dispute that the said agreement was entered between the complainant and the accused persons, in the month of September 2007. It is also not in dispute that some payments have also been made by issuance of cheques and pay orders and a case is also pending under Section 138 of the Negotiable Instruments Act, 1881. The only allegation which has been made against the accused is that the accused petitioners have taken huge amount and they have not complied the agreement and when he met the complainant in Golfs Club, abused the complainant for having visited his office and given a life threat except that no other serious allegations are made in this behalf.
8. As could be seen from the records, it indicates that the said issue is civil nature between the parties and the allegations which are there, purely appears to be civil in nature. As observed by the Hon’ble Apex court in the case of RASHMI JAIN’s case (Supra) at paragraph Nos.2, 6 and 12 reads as under:
“2. By the impugned order, the High Court has declined to quash the proceedings initiated against the appellant on the ground that all the submissions relate to disputed questions of fact which cannot be adjudicated upon by the Court under Section 482 CrPC. It is further observed that, at this stage, only prima facie case is to be seen in the light of the law laid down by the Supreme Court in a number of judgments, namely, R.P. Kapur v. State of Punjab2, State of Haryana v. Bhajan Lal3, State of Bihar v. P.P. Sharma4 and Zandu Pharmaceutical Works Ltd.
V. Mohd. Saraful Haq5. Relying upon the aforesaid judgments, but without culling out the ratio of any of the aforesaid judgments, it has been observed by the High Court that the defence of the accused cannot be considered at this stage. It has further been observed that “the applicants have got right of discharge under Sections 239, 245(2) or 227/228 CrPC, as the case may be through a proper application for the said purpose and the accused persons are free to take all the submissions in the said discharge application before the trial court.”
6. To take the complaint out of the realm of a purely civil dispute, it is maliciously alleged in the complaint that when Respondent 2 approached the appellant for payment, the appellant stated as follows:
“ On 22-3-2009, the applicant met the accused in the market of Bazarganj Saraitareen and asked for his balance amount, but the accused in the presence of two other persons flatly refused to pay the same and threatened the applicant that if he ever asked for the payment again he will be killed and stated that you don’t know me. I have not paid to the high and mighty people, who are you. I had to usurp your money and I had done so. Thereafter she went in a car.”
In our opinion, the aforesaid averment has been made only to foist criminal liability on the appellant by converting a purely civil dispute into criminal act, alleged to have been committed by the appellant. The allegations are absurd and outlandish on the face of it; firstly, the appellant is a lady, a widow, who was not accompanied by anybody else at the time of the alleged occurrence; secondly, she, though being a resident of Delhi, misbehaved with number of high and mighty parties with whom she had earlier transacted business at Moradabad. In our opinion, these are allegations whish on the face of it, cannot be taken seriously by any reasonable person. The High Court, in our opinion, has committed jurisdictional error in dismissing the criminal petition filed by the appellant on the ground that it involves disputed questions of fact, which can only be gone into by the trial Court.
12. In view of the above, we are unable to uphold the order passed by the High Court, the same is hereby set aside. The appeal is allowed. The petition filed by the appellant under Section 482 is allowed and the proceedings initiated based on the complaint are hereby quashed. The bail bonds of the petitioner are discharged. Although this is a fit case where heavy costs should be imposed on Respondent 2, we refrain from doing so.”
9. On going through the said proposition of law, if the said matters are civil in nature, under such circumstance, I feel that by imposing some stringent conditions, if the petitioners/accused Nos.1 and 2 are ordered to be released on anticipatory bail, it is going to meet the ends of justice.
10. In that light, petition is allowed and the petitioners/accused Nos.1 and 2 are enlarged on anticipatory bail in Crime No.167/2018 of High Grounds Police Station for the offences punishable under Sections 406, 420, 504 and 506 read with Section 34 of IPC subject to the following conditions:
1. In the event of their arrest, the Investigating Agency is directed to enlarge them on bail on being executing a personal bond for a sum of Rs.5,00,000/-(Rupees Five Lakhs Only) each with two sureties each for the likesum to the satisfaction of the Investigating Officer.
2. They shall surrender before the Investigation Agency within 15 days from today.
3. They shall not tamper with the prosecution evidence in any manner.
4. They shall mark their attendance once in 15 days between 10.00 a.m., and 5.00 p.m., in the event, if the petition filed under Section 482 of Cr.P.C., in Crl. P. No.95/2019 is dismissed.
5. They shall appear before the Investigating Officer as and when they are required to do so.
6. They shall not leave the jurisdiction of the Court without prior permission.
Sd/- JUDGE VBS