Sri Anup Kiran vs The State Of Karnataka
2022 Latest Caselaw 2411 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

            CRIMINAL PETITION NO.9601/2021

BETWEEN:

SRI ANUP KIRAN
S/O N.S.CHANNAVEERAPPA
AGED ABOUT 33 YEARS
NO.5, 3-B, RICH HOMES
BESIDES SONATA SOFTWARE
RICHMOND ROAD
BENGALURU-560 025.                          ... PETITIONER

           (BY SRI ARAVINDA BABU B.S., ADVOCATE)
AND:

1.     THE STATE OF KARNATAKA
       BY SHO, UDAYAGIRI POLICE STATION
       MYSURU-570 019.

2.     THE STATE OF KARNATAKA
       BY SHO, ASHOKNAGAR POLICE STATION
       BENGALURU-560 025
       REPRESENTED BY STATE PUBLIC PROSECUTOR
       HIGH COURT OF KARNATAKA
       BENGALURU-560 001.

3.     SRI SUHAIL AHMED
       S/O LATE BASHEER AHAMMED
       AGED ABOUT 40 YEARS
       R/AT NO.1462, 1ST FLOOR,
       2ND CROSS, 1ST STAGE
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     RAJIV NAGAR, MYSURU CITY,
     MANAGING DIRECTOR
     M/S. VEHICART INFOTECH PVT. LTD.,

     (AMENDED VIDE COURT
     ORDER DATED 10.01.2021)
                                              ... RESPONDENTS

       [BY SRI VINAYAKA V.S., HCGP FOR R1 AND R2;
   SRI HARSIT V. RAJ, ADVOCATE FOR R3 (THROUGH V.C.)]

     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.237/2021, DIRECT THE
INVESTIGATING OFFICER, UDAYAGIRI POLICE STATION,
MYSURU OR SHO ASHOK NAGAR POLICE STATION, BENGALURU,
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 419, 420
AND 406 OF IPC.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 09.02.2022 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                          ORDER

This petition is filed under Section 438 of Cr.P.C. praying

to enlarge the petitioner/accused on bail, in the event of his

arrest in respect of Crime No.237/2021 registered by Udayagiri

Police Station, Devaraja Sub-Division, Mysuru City, for the

offences punishable under Sections 419, 420 and 406 of IPC.

2. Heard the learned counsel for the petitioner, learned

High Court Government Pleader appearing for the respondent

Nos.1 and 2-State and learned counsel for respondent No.3.

Having heard the respective counsel, the matter is reserved for

orders.

3. The factual matrix of the case of the prosecution is

that the respondent No.3 herein has filed a private complaint

before the Trial Court in P.C.R.No.34/2021 and the Trial Court,

looking into the contents of the complaint, referred the matter

under Section 156(3) of Cr.P.C. for investigation. As a result, a

case is registered under Crime No.237/2021. The allegation

made in the complaint is that the complainant entered into an

agreement with the Government of State of Karnataka in the

year 2019 for computerization and for issuance of smart card

based licence to drivers and in this regard, for registration,

approached M/s.Rosmerta Technologies Ltd. ('M/s. RTL' for

short). In pursuance of the said agreement, the investors have

invested money with M/s.Calcue and complainant is one of the

investors and the said M/s. Calcue company appointed the

complainant as Service Provider on 09.08.2016 and in between

18.07.2016 to 03.05.2017, the complainant invested money of

Rs.1,12,78,000/-. That on 27.10.2017, the said company

entered into a fresh agreement with M/s. RTL and all powers and

responsibilities were given to the complainant-company. In this

regard, complainant-company, transacted with M/s. RTL

company and ultimately for Rs.10.5 Crores in total, there was an

agreement to pay the amount and in this connection, an

agreement of settlement was entered into on 11.09.2021. In

terms of the settlement, M/s. RTL company made the payment

of Rs.3,19,51,920/- in favour of M/s. Calcue and the said

amount was collected in terms of the agreement dated

27.10.2017 on behalf of the complainant-company and when the

demand was made by the complainant from M/s.Calcue, the

owner of the said M/s. Calcue, the present petitioner herein did

not repay the amount and committed an offence of fraud and

cheating.

4. Learned counsel for the petitioner would vehemently

contend before this Court that the petitioner is a Founder

Director of the company and has got lot of statutory obligations

and he is innocent and with a vindictive mind, private complaint

is filed. The petitioner has been falsely implicated in the case

with a view to blackmail him and extract money. The counsel

would submit that if the complainant has any grievance, he has

to get the same redressed by filing an appropriate civil suit for

alleged breach of term of the memorandum of settlement and

not to invoke criminal jurisdiction. It is also contended that the

petitioner would co-operate fully with the Investigating Officer

and hence, he may be enlarged on bail.

5. Learned counsel for the petitioner also vehemently

contend that the civil dispute is given criminal colour and there is

an arbitration clause if there is any violation and the same has to

be redressed in accordance with law and not by filing any private

complaint.

6. Per contra, learned counsel for the respondent No.3

has also filed statement of objections along with the documents

as Exs.R1 to R4 and brought to the notice of this Court the

contents of documents Exs.R1 to R4 and would vehemently

contend that there is a prima facie case against the petitioner

and petitioner is not entitled for anticipatory bail. The counsel

would contend that the material discloses that the petitioner has

received the money and played fraud on the complainant. The

counsel also brought to the notice of this Court the order passed

by the Trial Court rejecting the bail application.

7. The learned counsel for the respondent No.3, in

support of the argument also brought to notice of this Court the

judgment of the Apex Court in the case of SUPREME

BHIWANDI WADA MANOR INFRASTRUCTURE PRIVATE

LIMITED VS. STATE OF MAHARASHTRA AND ANOTHER

reported in 2021 (8) SCC 753, wherein the Apex Court has

observed that relevant considerations for grant of anticipatory

bail had not been considered by the High Court, particularly the

serious nature of alleged offences. Hence, set aside the order of

granting anticipatory bail in favour of the respondent in the

particular case. It is further observed that, High Court has to

consider the nature of offence, role of the person, likelihood of

his influencing the course of investigation or tampering with

evidence, likelihood of fleeing justice such as leaving the Country

8. The counsel also relied upon the judgment of the

Apex Court in the case of CENTRAL BUREAU OF

INVESTIGATION VS. V.VIJAY SAI REDDY reported in

(2013) 7 SCC 452, wherein also the Apex Court discussed the

scope of Section 439 and also 437 and if there is specific

allegation of criminal conspiracy, Courts should not grant bail.

Apart from that, the Apex Court also observed that, taking note

of nature of accusation and evidence, severity of punishment

which conviction will entail, character and circumstances which

are peculiar to accused, reasonable possibility of securing

presence of accused at trial, reasonable apprehension of

witnesses being tampered with and larger interests of

public/State and other similar considerations.

9. The counsel also relied upon the judgment of Apex

Court in the case of P. CHIDAMBARAM VS. DIRECTORATE OF

ENFORCEMENT reported in (2019) 9 SCC 24, wherein the

Apex Court observed with regard to the relevant considerations

while exercising that power, particularly in cases of economic

offences and refusal to grant anticipatory bail, does not amount

to denial of rights conferred upon applicant under Article 21 of

the Constitution.

10. The counsel referring these judgments would

vehemently contend that the principles laid down in the

judgments referred (supra) are applicable to the facts of the

case on hand and contend that, in the case on hand also, the

petitioner has received the amount and not paid the same in

favour of the complainant.

11. Having heard the learned counsel for the petitioner,

learned counsel for the respondent No.3 and also looking into

the contents of the private complaint filed against this petitioner

in P.C.R.No.34/2021, the Trial Judge referred the matter under

Section 156(3) for investigation. On looking into the contents of

the complaint, particularly, paragraph Nos.13, 15 and 16, there

was an settlement agreement between the parties dated

11.09.2021 with regard to the total settlement amount of

Rs.10.5 Crores, a sum of Rs.3,19,51,920/- was to be paid to

M/s. Calcue and M/s. Calcue has received a sum of Rs.1.65

Crores in accordance with the terms of the settlement. The

company has expropriated the entire amount to itself and a

select few of its investors, and has not returned even a single

rupee from the sum of Rs.1,12,78,000/- invested by the

complainant into M/s. Calcue prior to the assignment agreement

dated 27.10.2017, and has not given the complainant or M/s.

Vehicart any account of how it has disbursed the settlement

amount received by it on behalf of M/s. Vehicart. When an

attempt was made to contact the petitioner, he gave evasive

response and not properly responded. Hence, the complaint is

given.

12. Having considered the material on record,

particularly, the averments of the complaint, it is very clear that

the petitioner has received the amount on behalf of the

complainant and not disbursed the same and the amounts are

also in Crores. The document of memorandum of settlement

dated 11.09.2021 is also clear that the petitioner is also a party

to the said agreement as second party and complainant is also a

party. In terms of the settlement arrived between the parties, it

is specifically mentioned regarding indemnification and liabilities

and so also mode and methodology of payment and declarations

are also made. When such being the factual aspects of the case,

the Apex Court also in the judgment referred (supra) i.e., in

Supreme Bhiwandi's case, while exercising the powers under

Sections 438 of Cr.P.C., held that the Court has to consider the

nature of offence, role of the person, likelihood of his influencing

the course of investigation or tampering with evidence, likelihood

of fleeing justice.

13. When such aspects are considered by the Apex Court

and set aside the anticipatory bail granted by High Court, in this

case also, the Court has taken note of the nature of offence and

in terms of the memorandum of settlement, amount is received

by the petitioner and the same has not been disbursed in favour

of the complainant and the complainant was forced to file a

private complaint and the matter is under investigation. When

such being the factual aspects, I am of the opinion that it is not

a fit case to grant anticipatory bail, taking note of the nature of

offence and allegations made in the complaint as well as

seriousness of allegation made against the petitioner. The

allegation is also specific that this petitioner cheated the

investors of the company. When such being the factual aspects

found on record, the very ingredients of the offence under

Sections 419, 420 and 406 of Cr.P.C. prima facie attracts.

Hence, it is not a fit case to exercise the discretion invoking

Section 438 of Cr.P.C in favour of the petitioner for the relied of

anticipatory bail.

14. In view of the discussions made above, I pass the

following:

ORDER

The Criminal Petition is rejected.

Sd/-

JUDGE

ST