Mr. Brijmohan K S vs State Of Karnataka
2021 Latest Caselaw 1915 Kant

                           1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 19th DAY OF APRIL, 2021

                        BEFORE

         THE HON'BLE MR. JUSTICE K. NATARAJAN

           CRIMINAL PETITION No.2489 of 2021

BETWEEN:

MR. BRIJMOHAN K.S.,
AGED ABOUT 48 YEARS
S/O K.L. SWAMY
RESIDING AT
M/s. KHODAY RCA INDUSTRIES
(KHODAY ESHWARSA AND SONS)
No.11, RACE COURSE ROAD
OPPOSITE TO RAILWAY
DIVISIONAL OFFICE
BENGALURU CITY - 560 009.
                                          ... PETITIONER

(BY SRI P.P. HEGDE, ADVOCATE)


AND:

1.     STATE OF KARNATAKA
       BY SHESHADRIPURAM P.S.,
       REPRESENTED BY
       STATE PUBLIC PROSECUTOR
       HIGH COURT OF KARNATAKA
       BENGALURU - 560 001.

2.     PADMANABHASA K.L.
       S/O LATE K. LAKSHMANASA
       AGED ABOUT 81 YEARS
                                2



     RESIDING AT No.9, SHESHADRI ROAD
     BENGALURU - 560 009.
                                             ... RESPONDENTS

(BY SRI RAVI B. NAIK, SENIOR COUNSEL ALONG WITH
SMT. VIJETHA R. NAIK, ADVOCATE FOR R-2;
SMT. RASHMI JADHAV, HCGP FOR R-1/STATE)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) READ WITH SECTION 482 OF THE CODE OF CRIMINAL
PROCEDURE, PRAYING TO SET ASIDE THE ORDER DATED
12.03.2021 PASSED BY THE LXVII ADDITIONAL CITY CIVIL AND
SESSIONS      JUDGE,     BENGALURU      (CCH-68)      IN
CRL.MISC.No.2192/2021 GRANTING ANTICIPATORY BAIL TO
RESPONDENT No.2 IS CONCERNED IN CONNECTION WITH FIR
IN CRIME No.8/2021 OF SESHADRIPURAM POLICE STATION
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120B, 406,
420, 465, 468, AND 471 READ WITH SECTION 34 OF THE
INDIAN PENAL CODE.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.04.2021 AND COMING ON FOR
PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:

                         ORDER

This petition is filed by the de facto complainant/first

informant under Section 439(2) read with 482 of Cr.P.C.

for cancellation of anticipatory bail granted to respondent

No.2 by the LXVII Additional City Civil Sessions Judge,

Bengaluru, (CCH-68) in Crl.Misc.2192/2001 dated

12.3.2021 for the offences punishable under Sections

120B, 406, 420, 465, 468, 471 read with 34 of IPC in

Crime No.8/2021 registered by Sheshadripuram Police

Station, Bengaluru.

2. Heard Sri P.P. Hegde, learned counsel for the

petitioner and Sri Ravi B. Naik, learned Senior Counsel

along with Smt. Vijetha R. Naik, learned counsel for

respondent No.2 as also Smt. Rashmi Jadhav, learned High

Court Government Pleader for respondent No.1-State.

3. The case of the petitioner is that he is the first

informant before the Police and he has filed a complaint to

the Sheshadripuram Police on 27.02.2021 alleging that the

first informant is one of the Partners of M/s. Khoday

Eshwarsa and Sons and RCA Industries. M/s. Khoday

Eshwarsa and Sons is a partnership firm engaged in the

manufacture and production of Indian made liquor and

carrying on business since 60 years. The office of the firm

is situated at No.9, Sheshadri road, Bengaluru. It is

alleged by the informant that respondent No.2 herein, who

is accused No.2, is one of the partners entrusted with the

responsibility of taking decisions in respect of payments to

be made for M/s. Khoday Eshwarsa and Sons and RCA

Industries, who approve or disapprove the same.

Respondent No.2-accused No.2 is the authorised to release

payments. It came to the knowledge of the complainant

and other partners of the firm that an amount of

Rs.17,73,00,000/- (Rupees Seventeen Crore and Seventy

Three Lakh only) was shown as expenditure towards the

promotional activities of the Branches of the firm all over

the State as per the invoices raised in the name of one

Surabhi Enterprises (accused No.5) and there was no

signature of the accused persons on such invoices. The

accused persons have committed irregularity in releasing

the funds by forging the signatures by creating false

documents and have cheated the firm by causing

misappropriation of funds of the firm. It is revealed from

the informant's verification with the dealers that no such

promotional activities took place. The said Surabhi

Enterprises is a fake company. In fact, the owner of the

Surabhi Enterprises was the driver of the tanker who

supplies the spirit for manufacture of liquors. The said

Surabhi Enterprises has no office, it is created for self. An

amount of more than Rs.17,73,00,000/- has been paid to

Surabhi Enterprises which was in fact transferred to the

mother's account of a person who is a transporter of spirit.

The said amount has been immediately withdrawn from his

mother's account. A false promotional agreement has

been created by accused Nos.1 and 2. Accused No.3 is the

Manager of the firm. All have colluded together and

created false documents in the name of Surabhi

Enterprises alleged to have been owned by accused No.5

thereby, they caused loss of Rs.17,73,00,000/-. They

have not only mis-appropriated the amount, but also

cheated other partners. Hence, he has prayed for taking

action.

4. After registering the case by the Police in Crime

No.8/2021 against 5 accused persons, accused Nos.1 and

2 approached the Sessions Judge for granting anticipatory

bail, which came to be allowed in-part. The bail

application of accused No.1 has been rejected, but the bail

application of accused No.2 has been allowed. Against

granting of anticipatory bail, the present petition is filed by

the informant/defacto complainant for cancellation of the

bail.

5. Learned counsel for the petitioner has contended

that the order passed by the Sessions Judge is erroneous;

based on extraneous consideration; the case is an

economic offence not only in the interest of individual, but

also in the interest of public at large. The offence

committed by accused No.2 is heinous one and serious

allegations are made against him regarding breach of trust

and misappropriation of funds. The investigation is still

under progress. The Investigating Officer requires custody

of the respondent No.2-accused No.2 for interrogation.

The accused No.2 is the authority who was entrusted with

the financial operation of the firm. The Sessions Judge has

not assigned any reason for granting bail except stating

that the age of the accused is 81 years. The Hon'ble

Supreme Court rejected bail in the case of

P.Chidambaram vs. Directorate of Enforcement

[(2019) 9 SCC 24]. Learned counsel further contended

that accused No.2 is the main person who signed the

cheque. The approval is made by accused No.1. Both

accused Nos.1 and 2 colluding with other accused i.e., the

Manager, created documents in the name of Surabhi

Enterprises and released more than Rs.17,73,00,000/- to a

bogus company. In fact, they themselves received the

amount which is nothing but mis-appropriation of funds

and cheating the complainant. Even after ordering release

of the accused No.2 on anticipatory bail on 12.02.2021,

the accused No.2 did not surrender before the Police as

per the direction given by the Court. Almost more than 13

days is over from the date of the order, but he has not

chosen to surrender, which itself is the violation of the

order of the Court. The accused No.2 took time for

surrendering which helped him for destroying the evidence

and tampering the prosecution witnesses. Therefore,

prayed for setting aside the order granting bail and cancel

the bail.

6. Learned counsel further contended that the Sessions

Judge while rejecting bail of accused No.1 considered the

judgment of the Hon'ble Supreme Court, but has not

assigned any reason for granting bail to accused No.2

except stating that he is super-senior and the Sessions

Judge has wrongly held that he is not directly involved in

raising the bills or signing the bills so as to create fake

payments. Learned counsel contended that he is the

authority for signing the cheques and accused No.1 is the

son of accused No.2 who is in-charge of verifying the bills.

Therefore, it cannot be said that he has not participated in

the commission of crime. Therefore, the finding of

Sessions Judge is perverse, which requires to be set aside.

7. Learned counsel in support of his arguments has

relied upon various judgments, produced the photograph

of accused No.2 and also other documents for transferring

huge amount to the account of the accused No.1 who is

son of respondent No.2. Learned counsel also produced

the bail order of accused No.4 in which, the Sessions Judge

has rejected his bail. Hence, prayed for allowing the

petition and to cancel the bail granted to accused No.2.

8. Learned counsel appearing for respondent No.2-

accused No.2 filed objections statement and contended

that the respondent No.2 has not violated any bail

conditions as enumerated in the anticipatory bail. He is 81

years old and he has not tampered with the prosecution

witnesses nor threatened any prosecution witness. The

Hon'ble Supreme Court held that normally bail should not

be interfered unless there is any blatant violation of any

bail condition. M/s. Khoday Eshwarsa and sons is having 9

partners who were all members of Khoday family. The

petitioner and respondent No.2 are members of the

partnership firm. Accused Nos.1 and 2 together have 25%

of the share. The allegation is pertaining to expenditure.

There are many civil disputes pending between the parties.

A commercial arbitration application was also filed for

appointment of an arbitrator. There were six civil suits

pending between the parties. The FIR is also filed against

the father of the petitioner/complainant in Crime

No.171/2019. Charge sheet has been filed. Another case

has also been filed by accused No.1. Accused No.2

questioning the complainant about the accounts that there

were 1000 crores received by the father of the

complainant, but he has not accounted. In order to

overcome the said complaint, this complaint has been filed

as a counterblast. The respondent No.2-accused No.2 is

suffering from thyroid, hypertension, LVF (Clinical

Syndrome of Heart Failure). Due to Covid-19 pandemic

and his old age, it would not be advisable to send him to

jail. The father of the complainant has mis-used the

dominion and entrustment. It is further contended that

the period of offence is from 2017 to August 2020.

Additional excise duty has been paid and there are

documents pertaining to the same. There is no prima facie

case shown to launch criminal prosecution. The entire

allegation pertains to family run partnership firm. The

Hon'ble Supreme Court has also held in the case in

Ahmad Ali Quraishi and another vs. The State of

Uttar Pradesh and another reported in (2020) 13 SCC

435, that any criminal proceedings maliciously instituted

with ulterior motive due to animosity arising out of

partition of family properties and continuation of such

criminal proceedings is nothing but abuse of process of

Court which is liable to be quashed. Hence, prayed for

dismissal of the petition.

9. Sri Ravi B. Naik, learned Senior counsel appearing

for respondent No.2 contended that the complaint itself is

filed as a counterblast to the complaint filed by accused

No.1 against the complainant's father. There are

documents maintained by the firm. The auditing is

continuously done every year. The question of

misappropriation does not arise. Absolutely there is no

perversity in the order passed by the Sessions Judge, while

granting bail. Hence, prayed for dismissing the petition.

10. Heard the arguments of learned counsel for the

petitioner and learned Senior counsel for respondent No.2-

accused No.2 as also learned HGCP for the respondent

No.1-State as to whether the petitioner has made out a

case for cancellation of the bail granted to respondent No.2

by the Sessions Judge and perused the impugned order

passed by the Sessions Judge, Bengaluru.

11. The case of the prosecution as per the complainant is

that the complainant, his father and the accused No.1 and

2 and others were partners of M/s. Khoday Eshwarsa and

sons and RCA Industries which is a partnership firm

manufacturing and trading in Indian made liquor. The

allegation against the accused No.1 to 5 in the FIR as per

the complaint is that accused No.1, the son and accused

No.2, the petitioner who is the father are responsible for

the entire partnership business. Accused No.2 is

authorised to sign all the documents pertaining to the

company and accused No.1 used to approve and

disapprove the documents for making any payments in

respect of firm's business. It is further alleged that

between 2017 and 2020, accused No.1 to 4 have shown

accounts for making payment of Rs.17,73,00,000/- to

accused No.5-Surabhi Enterprises towards promotional

advertisement activities of the braches of the firm all over

the State. In fact, accused No.5 do not have any office. It

is a fictitious company which is said to have been run by

the transporter who used to supply spirit. Nowhere, the

company products has been promoted or made any

advertisement, but all the bills were created in the name of

fictitious Surabhi Enterprises. They forged the documents,

prepared fake bills and shown payments made to Surabhi

Enterprises for Rs.17,73,00,000/-. In fact, no such

promotional work has been executed. The Surabhi

Enterprises is the house of the spirit transporter and the

amounts were paid to the mother of the said person. The

entire amount has been withdrawn immediately, thereby,

they caused loss to the firm of more than

Rs.17,73,00,000/- and wrongfully gained by the accused

persons and cheated the partners. Hence, they committed

the offence under Sections 420, 120B, 406, 465, 468 and

471 of IPC.

12. Admittedly, accused Nos.1 and 2 approached

Sessions Judge for anticipatory bail by filing petition under

Section 438 of Cr.P.C. and the Sessions Judge rejected

the bail petition of accused No.1 and allowed the bail

petition of accused No.2. The Sessions Judge while

rejecting the bail petition of accused No.1 followed the

decision of the Hon'ble Supreme Court in the case of

Varinder Kumar vs. State of Himachal Pradesh

reported in (2020)3 SCC 321 wherein, it has been held

as under page No.15.

" Individual right of the accused are undoubtedly important. But equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society-be it the law-abiding citizen or the potential offender. "Human rights" are not only of the accused, but extent apart also of the victum-the symbolic member of the society as the potential victim and the society as a whole."

He also relied upon another judgment in Crl.A.1175/2018

and also judgment in the case of CBI., Hyderabad vs.

Ramaraj reported in AIR 2010 SCW 6697 wherein, it

has been held as under;

" The accused persons were involved in one of the greatest corporate scam of the commercial world. It has cause financial storm through out country and world over. The lakhs of share holders and

others were duped and the corporate credibility of the national received serious set back. The bail order was cancelled."

Following the said judgments, the bail petition of accused

No.1 was rejected, but while granting bail to accused No.2,

the Sessions Judge has held paragraph 13 as follows;

"13. So far as the petitioner No.2 is concerned, the learned counsel for petitioner No.2 has contended that the petitioner No.2 is aged about 81 years and super senior citizen and he is not directly involved in raising bills or signing the bills so as to create fake payments. Therefore, his involvement and participation in the crime are to be proved in full-fledged trial. That apart, during this pandemic COVID-19 situation, it is not desirable to detain this petitioner No.2 in any custody. Hence, he is entitled for anticipatory bail. Accordingly, I answer point No.1 partly in the affirmative."

And granted bail by imposing the following conditions;

" Order

The bail petition filed by the petitioner No.1 under Section 438 of Cr.P.C. is hereby dismissed.

So far as, the bail petition filed by the petitioner No.2 under Section 438 of Cr.P.C. s hereby allowed, subject to the following conditions;

(1) The petitioner No.2 is ordered to be released on bail in the event of his arrest in Crime No.8/2021 of the respondent-

Sheshadripuram Police Station, Bengaluru, on executing his self bond for a sum of Rs.5,00,000/- along with two sureties for the likesum;

(2) He shall appear before the Investigating Officer as and when required for the purpose of investigation;

(3) He shall appear before the trial court on all the dates of hearing;

(4) He shall not tamper with the prosecution witnesses;

(5) He shall not indulge in committing any offences;

(6) He shall not leave the jurisdiction without prior permission of the Court."

13. On perusal of the findings of the Sessions Judge at

paragraph 13 and the Conditions Nos.1 and 2, it appears

that the Sessions Judge has not properly read the

prosecution papers and the allegation made against

accused No.2 has not been properly considered. First of

all, while granting bail by imposing conditions, there was

no direction for the accused No.2 to surrender before the

Police within the prescribed period. Therefore, in spite of

granting bail on 12.03.2021, accused No.2 has not chosen

to appear before the Investigating Officer for the purpose

of any investigation till 25.03.2021 when this Court stayed

the impugned order. Atleast the Sessions Judge ought to

have imposed condition for voluntary surrendering before

the Police within a short period, but the blanket order of

granting anticipatory bail is nothing but the order which is

non-est in the eye of law.

14. That apart, coming to the paragraph 13, the finding

of the Sessions Judge holding that accused No.2 is not

directly involved in raising bills or signing bills for creating

fake payments is also a perverse finding. Further, the

finding that the involvement of this accused No.2 has to be

proved in the Court during full-fledged trial is nothing but a

perverse finding. As per the complaint averments,

accused Nos.1 and 2 have been entrusted with all the day-

to-day affairs of the firm. Accused No.2 is the authority to

sign and operate the accounts and accused No.1 was also

managing the day-to-day operations of the firm. The

payments made to Surabhi Enterprises to the tune of

Rs.17,73,00,000/- within three years is definitely within

the knowledge of accused Nos. 1 and 2. While signing the

cheques, accused No.2 has not raised any objection.

Accused No.1 who approved the bill has not raised any

objection on the other hand, it is alleged that all the

documents were created by accused No.1 and 2 along with

other accused in the name of accused No.5 and paid hefty

amount on the ground of promotional activities, but no

promotional activities were undertaken by them.

Therefore, it is a clear case of misappropriation by creating

fake documents which are produced as genuine document,

making payment in the name of accused No.5 and in turn,

it was taken by themselves. Therefore, it cannot be said

that accused No.2 is not directly or indirectly involved in

the creation of fake documents and fake payments.

15. That apart, the Sessions Judge held that because

accused No.2 is aged 81 years, he is super-senior citizen.

In this regard, learned counsel for the petitioner submitted

the photograph which reveals that accused No.2 is hale

and healthy. That apart, some documents were produced

which shows that previously accused No.1 got transferred

Rs.18,99,81,058/- to his personal account from the

company's account and subsequent to the objection raised

by this complainant, the said amount was re-credited to

the current account of the firm. Those documents clearly

reveal that nearly Rs.19,00,00,000/- has been transferred

to the personal account of accused No.1 from the firm's

current account. The bail petition of accused No.1 has

been rejected by the Sessions Judge and also the bail

petition of accused No.4 was rejected by the same

Sessions Judge on the ground that the matter requires free

investigation and the Investigating Officer to investigate

the matter smoothly as the allegation is, huge stake is

involved. Such being the case, granting bail to accused

No.2 only on the ground that his age is 81 years is also a

perverse finding.

16. Learned Senior counsel for the respondent No.2 has

stated in the objection statement that there are several

civil cases pending between the parties in the civil court

and also the matter went up to Hon'ble Supreme Court and

there is no dispute in this regard. Learned Senior counsel

also submitted that accused No.1 filed a complaint against

the father of the complainant namely., K.L. Swamy. Also,

against the informant/complainant/petitioner, a case was

registered in Crime No.26/2021 in Upparpet Police Station

on 05.02.2021 for the offences under Sections 341, 448,

323, 511, 506, 504 read with 34 of IPC, therefore, as a

counterblast this complaint came to be filed against the

accused persons.

17. I have perused the FIR produced by the respondent's

counsel where accused No.1 filed a complaint to the Police

on 05.02.2021 alleging that when the complainant went to

the house of the accused persons on 02.02.2021, at that

time, the informant and his family members assaulted with

hands and made criminal intimidation. Looking to the said

complaint, there was a dispute between them in respect of

forming layout and flats, but the allegation is simple. Here

in this case, the allegation against accused No.2 and other

accused is cheating an amount of Rs.17,73,00,000/-.

Therefore, it cannot be said that this complaint came to be

filed as a counterblast to the complaint filed by the

respondent-accused. Therefore, the contention of learned

Senior counsel for respondent No.2 not acceptable.

18. Learned counsel for the petitioner relied upon the

judgment of the Hon'ble Supreme Court in

P.Chidambaram's case (supra) wherein, The Hon'ble

Supreme Court rejected the anticipatory bail in the case of

an economic offence. In the case of Sudhir vs. State of

Maharashtra and another reported in (2016)1 SCC

146, the Hon'ble Supreme Court has held that where there

is misappropriation of public funds and corruption, the

custodial interrogation is required and the investigation

cannot progress without custodial interrogation and

cancellation of anticipatory bail has been affirmed by the

Hon'ble Supreme Court. In the case Maruthi Nivrutti vs.

State of Maharastra and another reported in (2012)9

SCC 235, the Hon'ble Supreme Court upheld the rejection

of anticipatory bail. In the case of Ranjit Singh vs. State

of Madhya Pradesh and others reported in (2013)16

SCC 797, the Hon'ble Supreme Court has held that the

parameters for granting bail under Section 439 of Cr.P.C.

not been considered and bail has been cancelled. In State

Rep. by the CBI vs. Anil Sharma reported in (1997)7

SCC 187, the Hon'ble Supreme Court has set aside the

order granting bail and has held custodial interrogation is

required and anticipatory bail should not be granted. In

the said case, the High Court of Himachal Pradesh has

granted anticipatory bail to a former Minister which was

set aside by the Hon'ble Supreme Court and held at

paragraphs 7, 8 and 9 as under:

"The High Court has approached the issue as through it was considering a prayer for granting regular bail after arrest. The learned Single Judge of the High Court reminded himself of the principle that "it is well-settled that bail and not jail is a normal Rule" and then observed thus:

"Unless exceptional circumstances are brought to the notice of the Court which may defeat the proper investigation and fair trial, the Court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. In the present case, no such exceptional circumstances have been brought to the

notice of this Court which may defeat proper investigation to decline bail to the applicant.

8. The above observations are more germane while considering an application for post-arrest bail. The consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. At any rate learned Single Judge ought not to have side-stepped the apprehension expressed by the CBI (that respondent would influence the witnesses) as one which can be made against all accused person all cases. The apprehension was quite reasonable when considering the high position which respondent held and in the nature of accusation relating to a period during which he held such office.

9. After bestowing our anxious consideration, including a perusal of the Case-Diary file, we definitely feel that the High Court has mis-directed itself in exercising the discretionary power under Section 438 of the Code by granting a pre-arrest bail order to the respondent. We, therefore, upset the impugned order. The appeal is allowed accordingly."

19. In the case of Puran vs. Rambilas and another

reported in (2001) 6 SCC 338, the Hon'ble Supreme

Court cancelled the bail granted to the accused in a case

under Sections 498A and 304B of IPC and has held that

granting bail by ignoring material and evidence on record

and without giving reasons would be perverse and contrary

to the principles of law. Such an order would itself provide

a ground for moving an application for cancellation of bail.

Here in this case, the Sessions Judge has held that

accused No.2 is not involved in the offence; not created

the documents; not made any payment is the finding

against the documentary evidence on record, which is

nothing but a perverse finding. Another reason for

granting bail is that accused No.2 is aged about 81 years.

In this regard, the Punjab and Haryana High Court in CRM-

M-25799/2020 (O & M), dated 08.03.2021 has rejected

the anticipatory bail petition for the offences under Section

438 of Cr.P.C., where the age of the accused was 95

years. I am in respectful agreement with the decision of

the Punjab and Haryana High Court that age is not a

ground for granting bail in a case like forgery, cheating

and misappropriation. If at all the accused is having ill-

health and suffering from various diseases, he could not

have managed the Company and could not have involved

in day-to-day affairs of the Company and the certificate

produced by the learned Senior counsel for respondent

No.2 has been obtained on 24.3.2021, but no documents

pertaining to treatment taken were produced to show that

he was under treatment prior to registration of the case

and in fact, he was the main person for running the

partnership firm of the reputed firm. Therefore, the

medical certificate obtained on 24.3.2021 on the day on

which the petition was filed for cancellation of bail cannot

be acceptable.

20. Learned Senior counsel for respondent No.2

contended that there is no violation of conditions of bail in

order to cancel the bail etc. In view of my findings above,

the offence is serious one and crores of rupees alleged to

have been knocked off by this accused No.2 along with

accused No.1 and caused loss to the firm and wrongful

gain to himself. If Rs.17,73,00,000/- payment was made,

there must be 18% TDS towards GST, but no such

document is produced by learned counsel for respondent

No.2 for collecting such taxes and depositing the same to

the concerned authorities. Mere production of some

receipts towards tax paid to the Excise Department is in

respect of the business transaction for selling the liquors is

not enough, but no document is produced towards the

transfer of Rs.17,73,00,000/- to Surabhi Enterprises and

its TDS. Therefore, the question of violating any condition

does not arise. Even otherwise, 13 days after granting of

bail by Sessions Judge, the accused No.2 did not chose to

appear before the Police and make himself available for

investigation. Such being the case, there is every

possibility of accused destroying the evidence and

tampering the documents is not ruled out since they are

the custodian of the said documents. Therefore, the

argument addressed by learned Senior Counsel for

respondent No.2 is not acceptable and there is no violation

of conditions of bail and cancellation of bail does not arise.

In the aforesaid judgments, the Hon'ble Supreme Court

has laid down the principles for granting anticipatory bail

and for cancellation of bail.

21. Learned Senior Counsel for respondent No.2 relied

upon the judgment of the Hon'ble Supreme Court in the

case of Dolat Ram and others vs. State of Haryana

reported in (1995) 1 SCC 349 in respect of dowry death

case. In another unreported case between Myakala

Dharmarajam and others etc. and The State of

Telangana and another passed in Crl.A. Nos.1974-

1975/2019, the Hon'ble Supreme Court has held that

cancellation of bail can be done in case where the order of

granting bail suffers from serious infirmities resulting in

miscarriage of justice. In the case of Simranjit Singh

Mann vs. State of Bihar reported in (1986)4 SCC 481,

the Hon'ble Supreme Court has dealt with in respect of bail

granted under Section 167(2) of Cr.P.C. In another case

in State (Delhi Administration) vs. Sanjay Gandhi

reported in (1978)2 SCC 411, the Hon'ble Supreme

Court has laid down that the issue of cancellation of bail

can only arise in criminal cases, but that does not mean

that every incidental matter in a criminal case must be

proved beyond reasonable doubt and while canceling the

bail, the Court has to exercise power with care and

circumspection. Though the power is of an extraordinary

nature, it is meant to be exercised in appropriate cases.

The Hon'ble Supreme Court has laid down principles for

granting bail and cancellation of bail. In another case in

Ahmad Ali Quraishi and another vs. state of Uttar

Pradesh and another reported in (2020) 13 SCC 435

the Hon'ble Supreme Court had dealt with in respect of

quashing the criminal proceedings under Section 482 of

Cr.P.C. In the case of Sanjay Chandra vs. CBI reported

in (2012) 1 SCC 40, in respect of consideration of bail

under Sections 437 and 439 of Cr.P.C., the Hon'ble

Supreme Court granted bail to the accused persons in 2G

Spectrum case. In Siddaram Satlingappa Mhetre vs.

State of Maharashtra and others reported in

(2011)1SCC 694, wherein the Hon'ble Supreme Court

has held that Section 438 Cr.P.C. is not extraordinary in

the sense that it should be invoked only in exceptional or

rare cases and should ordinarily be continued till end of the

trial. If the liberty is granted by the Court is misused then

Court can cancel or modify the conditions.

22. Learned Senior counsel for respondent No.2 also

relied upon the judgment in the case of Shri Gurubaksh

Singh Sibbia and others vs. State of Punjab reported

in (1980)2 SCC 565 regarding the principles for

considering the anticipatory bail applications.

23. On perusal of the judgments relied upon by learned

counsel on both sides and looking to the facts and

circumstances of the case, the judgments relied upon by

learned Senior counsel for respondent No.2 pertaining to

the regular bail granted by the Sessions Judge under

Section 439 of Cr.P.C. after the accused was arrested and

kept in the jail and in some of the cases, anticipatory bail

has been granted. On the other hand, most of the cases

relied upon by the learned counsel for the

petitioner/defacto complainant are all pertaining to

granting of anticipatory bail and cancellation of the bail

granted by the trial Court, by the High Court as well as by

the Hon'ble Supreme Court.

24. As regards the guidelines and principles for granting

bail, it has been elaborately dealt with by the Hon'ble

Supreme Court in catena of decisions and the Hon'ble

Supreme Court in the landmark judgment of Sanjay

Gandhi's case (supra) has categorically held that the

issue of cancellation of bail can only arise in criminal cases

but it does not mean that every identical matter in a

criminal case must be proved beyond reasonable doubt

like the guilt of the accused. The prosecution therefore

can establish its case in an application for cancellation of

bail by showing on a preponderance of probabilities that

the accused has attempted to tamper or has tampered

with its witnesses. If there is reasonable apprehension

that he will interfere with the course of justice, is all that

necessary for the prosecution to do in order to succeed in

an application for cancellation of bail. Keeping the

guidelines of the Hon'ble Supreme Court and looking to the

case on hand, the allegations are against the accused who

is none other than the authorised signatory having power

to conduct the day-to-day business and the custodian of

the documents and is the person authorised to release the

cheques and payments made to various persons. In spite

of granting anticipatory bail by the Sessions Judge, he has

not chosen to appear before Police for almost 13 days and

the Police has also not chosen to arrest him in this case

which goes to show that he is so much influenced person

and there are chances of tampering the documents in the

office and destroying the evidence is not ruled out. Once

there is an allegation of misappropriation and cheating by

creating false documents and making payment to a

fictitious firm and when a prima facie case is made out, the

position of accused Nos.1 and 2 being the son and the

father respectively, the Sessions Judge though rightly

rejected the bail application of accused No.1, but

committed error in granting anticipatory bail to accused

No.2 without assigning proper reasons for granting bail.

As already held above, age is not a criterion in the case of

cheating and misappropriation. The Hon'ble Supreme

Court in a recent judgment relied upon by learned Senior

counsel for respondent No.2 in Myakala Dharmarajam's

case (supra), at paragraph 6 has held that while granting

bail, the Court is required to consider the gravity of the

crime, the character of the evidence, position and status of

the accused with reference to the victim and witnesses,

repeating the offence, the possibility of his tampering with

the evidences and witnesses and obstructing the course of

justice etc. The Hon'ble Supreme Court has also relied

upon the judgment in the case of Raghubir Singh's case

(supra) wherein, it is held that, it is trite law that

cancellation of bail can be done in cases where the order of

granting bail suffers from serious infirmities resulting in

miscarriage of justice. If the court granting bail ignores

the relevant material indicating prima facie involvement of

the accused or takes into account irrelevant material,

which has no relevance to the question of granting bail to

the accused. In such cases, the High Court or Sessions

Court would be justified in canceling the bail as held by the

Hon'ble Supreme Court in the case of Kanwar Singh

Meena vs. State of Rajasthan and another reported in

(2012)12 SCC 180.

25. As already held above, the Sessions Judge while

granting bail at para-13 has not properly considered the

material on record, but wrongly held that this accused

No.2 is not responsible for creating documents which is

nothing but a perverse finding and against the material

placed on record. As held by the Hon'ble Supreme Court

in the case Anil Sharma (supra), if the accused is

continued to be on anticipatory bail, he will tamper the

prosecution witness and cause obstruction to the

investigation, tampering the witnesses and threatening the

witnesses are not ruled out. Therefore, the presence of

respondent No.2 is required for custodial interrogation in

order to collect all the documents, payments made in the

name of Surabhi Enterprises and other bills under the

guise of promotional payments, advertisement payment

etc., which are to be investigated by the Police. All the

accused persons are absconding and none of them were

arrested including the owner of the Surabhi Enterprises.

Such being the case, granting anticipatory bail to accused

No.2 will be a hurdle to the investigation and he may

influence the witnesses and cause obstruction to the

Investigating Officer in conducting clear investigation.

Therefore, as argued by learned counsel for the petitioner,

it is not a fit case for granting anticipatory bail by the

Sessions Judge. Therefore, the bail granted by the

Sessions Judge under Section 438 of Cr.P.C. requires to be

set aside. The petitioner has made out sufficient ground

for cancellation of bail granted by the Sessions Judge.

Accordingly, I pass the following:

Order

Criminal Petition filed under Section 439(2) of

Cr.P.C. for cancellation of bail is allowed.

The order passed by the LXVII Additional City Civil

Sessions Judge, Bengaluru, (CCH-68) in

Crl.Misc.2192/2001 dated 12.3.2021 for the offence

offences punishable under Sections 120B, 406, 420, 465,

468, 471 read with 34 of IPC in Crime No.8/2021

registered by Sheshadripuram Police Station, Bengaluru,

granting anticipatory bail to respondent No.2/accused No.2

is hereby set aside/cancelled.

Sd/-

JUDGE

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