1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.5796/2021
BETWEEN:
SYED NIZAM ALI
S/O. SYED TAHIR ALI
AGED ABOUT 64 YEARS
R/AT NO.999, 18TH CROSS
NEAR SAINT DANIEL SCHOOL
RAJIVNAGAR
MYSURU-570 019.
...PETITIONER
(BY SRI.VIVEK S REDDY, SENIOR ADV
FOR SRI.SUBBA REDDY K.N. ADVOCATE)
AND:
STATE BY NAZARABAD POLICE STATION
KASTURBA ROAD
BENGALURU-560 001
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. MAHESH SHETTY, HCGP)
2
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 438 OF CR.P.C. BY THE ADVOCATE FOR THE
PETITIONER PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO ENLARGE THE PETITIONER ON BAIL IN
THE EVENT OF HIS ARREST IN C.C.NO.126/2020 IN
CR.NO.32/2019 NAZARBAD P.S., MYSURU CITY FOR
THE OFFENCE P/U/S 120(B), 420 R/W SEC.34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by petitioner-accused No.1 under Section 438 of Cr.P.C. for granting him anticipatory bail in Crime No.32/2019 registered by Nazarbad Police Station, Mysore (now pending on the file of III Additional Senior Civil Judge and C.J.M, Mysuru in C.C.No.126/2020) for the offences punishable under Sections 121B, 420, 460 read with Section 34 of Indian Penal Code.
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
3
3. The case of the prosecution is that on the complaint of one Chandre Gowda S, who is said to be the President of the Ashritha House Building Co-operative Society, Mysore (for short 'Society') filed a private complaint before the Magistrate and in turn, the same was referred to the Police. The police have registered a case in Crime No.32/2019 for the aforesaid offences and after investigation, the charge sheet has been filed. It is the further case of the petitioner that the petitioner and the Society had entered into an agreement for developing the lands and formation of sites as agreed upon by them. Subsequently, due to some civil disputes arose between them, the Society has filed a suit against the petitioner in O.S.No.22/2014 and later, the said suit was ended in compromise before the Court by filing compromise petition under Order 23 Rule 3 of CPC and as per the compromise agreed upon by the parties, the suit was 4 decreed. Subsequently, quarrel has been occurred between the petitioner and the Society and again, the Society had approached the Court by filing Execution Petition in E.P.No.279/2018 for executing the decree. During the pendency of the execution proceedings, the Society has also filed a private complaint against the present petitioner, who is the Judgment Debtor in the execution proceeding. Now, the matter is pending before the trial Court for adjudication.
4. Sri.Vivek S Reddy, learned Senior counsel submits that when the Decree Holder has already filed E.P.No.279/2018 for executing the decree, the question of filing the private complaint against this petitioner does not arise. The complainant has already approached the Civil Court by filing civil case in O.S.No.22/2014, which was ended in compromise and subsequently, the decree has been passed. The Execution case is also pending for adjudication. Such 5 being the case, registering the criminal case against this petitioner is unwarranted. He has already released 19 sites to the Society and due to escalation of price, they have been demanding extra money from the Society, which was not paid and therefore, the litigation is pending. Learned counsel for the petitioner submits that he is ready to abide by the conditions that would be imposed by this Court and is also trying to settle the issues between the parties. The alleged offences are not punishable with death or imprisonment for life. Hence, prayed for grant of anticipatory bail.
5. Per contra, the learned HCGP seriously objected the bail petition. The investigation is still pending. He is required for custodial interrogation. Hence, prayed for dismissal of bail petition.
6. Upon hearing the arguments of learned counsel for the petitioner and the learned HCGP and on 6 perusal of the records, it is admitted fact that a private complaint came to be filed by the Society on the background of the civil dispute between them. It is not in dispute that agreement entered into between the petitioner and the society for developing the lands and formation of sites and the petitioner is agreed to receive Rs.14 crores from the Society and to allot sites. Subsequent to the settlement, it was agreed that the petitioner is required to give sites to the Society by receiving money. But, after compromise decree, the petitioner has not given sites as agreed before the Court in the compromise decree.
7. Learned Senior Counsel submits that due to getting approval from MUDA, there was a delay in allotting the sites and due to escalation of price, he has demanded some more money from the Society, which was not paid. Still the society is required to pay some money to the petitioner. There is no hurdle for the 7 petitioner to give sites to the Society. Learned counsel for the petitioner submits that the petitioner has already given sites to the Members of the Society by executing the sale deeds. The sale deed copies are also furnished. The learned counsel for the petitioner submits that still some more sites are required to be given by receiving money. Looking to the facts and circumstances of the case and the civil suit was ended in compromise and the execution petition is still pending before the trial Court and the offence is not punishable with death or imprisonment for life, therefore, without expressing any opinion on the merits of the case and by imposing stringent conditions, if petitioner/accused No.1 is granted anticipatory bail, no prejudice would be caused to the case of the prosecution. Hence, I pass the following:
ORDER The criminal petition is allowed.
8
The respondent-police is directed to release petitioner/accused No.1 on bail in the event of his arrest in Crime No.32/2019 registered by Nazarbad Police Station, Mysore (now pending on the file of III Additional Senior Civil Judge and C.J.M, Mysuru in C.C.No.126/2020) for the offences punishable under Sections 121B, 420, 460 read with Section 34 of Indian Penal Code, subject to the following conditions:-
i) The petitioner shall execute personal bond in a sum of Rs.1,00,000/- (Rupees One Lakh only) with a surety for likesum to the satisfaction of the Magistrate/Investigating Officer;
ii) He shall surrender before the Investigating Officer within 15 days from the date of receipt of certified copy of this order;
iii) He shall not indulge in similar offences;
iv) He shall not tamper the prosecution witnesses directly or indirectly;
9
v) He shall be deemed to be in custody for the purpose of recovery under Section 27 of the Indian Evidence Act; and
vi) He shall appear before the Investigating Officer as and when called for the purpose of investigation; and If any of the conditions are violated, the prosecution is at liberty to file an application for cancellation of bail.
Sd/-
JUDGE NBM