Chinka Veera Swamy, vs The State Of Andhra Pradesh
2022 Latest Caselaw 7107 AP

                                    1




  THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

          CRIMINAL PETITION NO.7166 OF 2022

ORDER:-

     The Criminal Petition, under Section 438 of the Code

of Criminal Procedure, 1973, is filed on behalf of the

petitioners/A.1     to   A.3   to       grant    anticipatory   bail    in

connection with Crime No.466 of 2022 of Station House

Officer, Pedda Kakani Police Station, Guntur District.

     2)     A   case     has    been          registered   against     the

petitioners for the offences punishable under Sections 409,

420, 120B IPC.

     3)     Brief    facts     of       the     case   are   that      the

1st petitioner was working as Supervisor in SS Life Gases

and Sovereign Oxygen Gas Firm in Guntur Auto Nagar for

about 18 years.      The said firm has a total 1200 oxygen

cylinders to supply oxygen to various hospitals. A total of 9

employees have been working in the said firm. Salary of

the 1st petitioner was given as Rs.20,000/- per month.

They supply oxygen-filled cylinders to hospitals, bring
                               2




empty cylinders from hospitals and get them registered in

the inward register, register the oxygen-filled cylinders in

the outward register while taking them out and collect the

cash given by the hospitals. The said firm has two vehicles

in supplying oxygen cylinders, three drivers and two people

of loading.    It is alleged that after COVID-19, as per the

company calculations, the firm should have 1200 oxygen

cylinders. On questioning 1st petitioner, he did not answer

to the questions of the defacto-complainant and he was

skipping on one pretext or the other.       On 25.07.2022,

when the defacto-complainant insisted 1st petitioner should

calculate the number of cylinders, it is submitted that 1st

petitioner without giving the calculations on 30.07.2022,

saying that he can no longer do this work. On suspicion,

the defacto-complainant enquired about the cylinder count

of their company to 40 hospitals in Guntur city where they

are sending oxygen cylinders to which their clients. There

was 500 cylinders were counted and thereby a complaint

has been filed by the defacto-complainant against the

petitioners.
                                  3




     4)    The     petitioners       submitted   that    the   said

complaint has been filed after lapse of 1½ year by the

defacto-complainant.     Learned counsel submitted that the

1st petitioner is only a Supervisor in the said company. On

29.07.2022 the son of 1st petitioner started the business in

the name of Sai Teja Gas Agencies, which happened to be

the competitive firm to the firm of the defacto-complainant.

On   coming   to   know of the          said fact, the    defacto-

complainant has resorted in filing the present complaint as

against the 1st petitioner with a malafide intention.

     5) The contention of the 2nd respondent is that

simultaneously the petitioners filed an application under

Section 482 of Cr.P.C. in which the prayer of the petitioners

is that to stay all further proceedings including the arrest of

the petitioners in the said crime number. Along with the

Criminal Petition filed under Section 482 of Cr.P.C., the

petitioners herein have resorted in filing the present

anticipatory bail application.

5) Learned counsel for the 2nd respondent submits

that A.1 is the main person, who was handling the cylinders

and he is the person, who looks after sending the oxygen

cylinders to the hospitals. He is the person responsible for

all the acts in the firm.

6) Learned counsel for the 2nd respondent also

relied upon a decision in Sudhir vs. State of

Maharashtra and another1 wherein the Hon'ble Supreme

Court held at para No.10 as extracted hereunder:

10. In Siddharam Stlingappa Mhetre v. State of

Maharashtra2, in sub-para (viii) of para 112, this Court has held

as under: (SCC p.736)

"112. (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;"

7) Learned counsel for the respondent relied upon

a decision in State rep. by the C.B.I. v. Anil Sharma3

(2016) 1 Supreme Court Cases 146

(2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514

(1997) 7 Supreme Court Cases 187

wherein the Hon'ble Supreme Court held at para No.6 as

extracted hereunder:

6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is well ensconded with a favorable order under Section 438 of the Code. In a case like this effective interrogation of suspected reason is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Succession such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.

8) By relying the above said judgments, the learned

counsel for the 2nd respondent submits that in a case of

misappropriation, it is essential that there should be a

custodial interrogation so as to ascertain further

information of the crime.

     9)     Heard. Perused the record.





     10)     Admittedly, the 1st petitioner is the agent of the

defacto-complainant firm and he is the person, who will be

taking care of the aspects with regard to supply of oxygen

cylinders to the hospitals. In the COVID-19 pandemic

situation, he was only taking care of the supply of oxygen

cylinders to the hospitals and bringing back the same and

re-filling the oxygen in the cylinders and sending the same

to the hospitals through A2 and A3. After 1 ½ year of the

said transaction, the defacto-complainant has resorted in

filing the present complaint on coming to know that there is

some variations in the stock. He comes to a conclusion on

enquiry that there is variation of 700 cylinders. The

defacto-complainant, being the owner of the firm, when

such misappropriation has taken place, he would have been

alerted at an earliest point of time. Having kept quiet for a

period of 1½ year, he resorted in giving the present

complaint by saying that there is misappropriation of 700

cylinders. There is no reason why he kept quiet for a

period of 1 ½ year in filing the present complaint, if really

such a situation has arisen.

11) On perusal of the FIR goes to show that hardly

there are 9 employees working in the firm of the defacto-

complainant. Son of the 1st petitioner established a firm,

which is competitive to the firm of the defacto-complainant

on the second day of the establishment of the said firm by

son of the petitioner, the present complaint came to be

filed. The present complaint goes to show that there seems

to be some doubt about the whole transaction. At this

stage, it is premature for this Court to come to a conclusion

that the incident said to have been taken place as

suggested by the prosecution.

12) The judgments on which the learned Public

Prosecutor relied upon are with regard to the

misappropriation of funds. Here is the case where the

cylinders have been supplied to the hospitals and some of

the cylinders have been misappropriated by 1st petitioner or

not still has to be established. The police has to conduct

investigation to that extent.

13) In view of the aforesaid finding, I feel the

judgments relied upon by the learned Public Prosecutor is

not applicable at this stage.

14) It is submitted that as far as proceedings under

Section 482 Cr.P.C. is concerned, it is only with regard to

quashing of proceedings. Pending such proceedings, there

is no bar in initiating proceedings under Section 438 Cr.P.C.

and that two proceedings are parallel to each other.

15) In view of the facts and circumstances of the

case, this Court feels that the petitioners are entitled for

anticipatory bail.

15) Accordingly, in the event of their arrest in the

above crime, the petitioners are directed to be released on

bail on each of them executing personal bonds for a sum of

Rs.10,000/- (Rupees ten thousand only), with two sureties

each for the like sum to the satisfaction of the arresting

police officials and also on condition that they shall make

themselves available for investigation as and when required

and that they shall not cause any threat, inducement or

promise to the prosecution witnesses.

16) Accordingly, the criminal petition is allowed.

Consequently, miscellaneous applications pending, if

any, shall stand closed.

________________________ JUSTICE K. SREENIVASA REDDY Dt.16.09.2022.

PGR

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

CRL.P.NO.7166 of 2022

Date: 16.09.2022

PGR