Karnataka High Court
Avinash H G vs The State Of Karnataka on 24 February, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.386/2022
BETWEEN:
AVINASH H.G.
AGED ABOUT 49 YEARS,
S/O. HUCHARAYAPPA,
R/AT. JAIMARUTHI NAGAR,
HOUSING BOARD COLONY
JYOTHI NAGAR POST
CHIKKAMAGALURU. ... PETITIONER
(BY SRI P.P.HEGDE, SENIOR COUNSEL, FOR
SRI VENKATESH SOMAREDDI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH CHIKKAMAGALURU TOWN POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001. ... RESPONDENT
(BY SRI VINAYAKA V.S., HCGP)
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.242/2021 OF
CHIKKAMAGALURU TOWN POLICE STATION, CHIKKAMAGALURU
DISTRICT, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
409 AND 420 OF IPC.
2
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 438 of Cr.P.C., praying
to enlarge the petitioner/accused No.2 on bail in the event of his
arrest in respect of Crime No.242/2021 registered by
Chickmagalur Town Police Station, Bengaluru District, for the
offences punishable under Sections 409 and 420 of IPC.
2. Heard the learned counsel appearing for the
petitioner and the learned High Court Government Pleader
appearing for the respondent/State.
3. The factual matrix of the case of the prosecution is
that accused No.2 was working as Clerk on temporary basis and
accused No.1 is the former CEO and accused No.3 is also an
employee of the very same department. In between the period
2012-13 and 2014-15, an amount of Rs.43,88,175/- and in
between the period from 2015-16 to 2018-19, an amount of
Rs.24 lakhs, in all amounting to Rs.69,23,117/- was
misappropriated by this petitioner along with other accused
persons. Hence, a complaint is given and the case has been
registered. In the complaint, it is alleged that accused No.1 was
misappropriated the amount more than Rs.43 Lakhs and accused
No.3 also more than Rs.6 Lakhs. In this regard, an enquiry is
conducted and found that they have misappropriated the
amount. After the enquiry, a complaint is lodged and the case is
under investigation.
4. The learned counsel appearing for the petitioner
would submit that he was appointed as Temporary Clerk and
relieved in the year 2016 itself. An enquiry is conducted and
proved the charges leveled against him. The property is also
attached. Hence, there is no need of custodial interrogation.
When the property is attached, the misappropriated amount can
be recovered and this petitioner would ready to assist the
Investigating Officer for further investigation in the matter.
Hence, he may be enlarged on bail.
5. Per contra, the learned High Court Government
Pleader appearing for the respondent/State would submit that
against this petitioner total misappropriation of fund is
Rs.69,23,117/-, the same is a huge amount. He was working as
a Temporary Clerk. During the period from 2012-13 to 2018-19,
this amount was misappropriated. Apart from that, other
accused Nos.1 and 3 have also faced the charges and an enquiry
is also concluded and found this petitioner as well as the other
accused persons are also found guilty. Thereafter, the criminal
prosecution is initiated against the petitioner. Hence, it is not a
fit case to exercise the powers under Section 438 of Cr.P.C.
6. The learned High Court Government Pleader
appearing for the respondent-State would submit that in view of
the recent amendment to Section 409 of IPC, the punishment is
provided even for life also. Hence, it is a serious offence and
that too misappropriation of funds belongs to the Society.
Hence, no grounds are made out to invoke Section 438 of
Cr.P.C.
7. Having heard the respective counsel and on perusal
of the material available on record, it is not in dispute that this
petitioner was working as Temporary Clerk. It is also an
allegation against the former CEO as well as the other accused,
who has been arraigned as accused No.3. All of them have
indulged in misappropriation of the amount belongs to the
Society. The specific allegation against this petitioner is that in
total an amount of Rs.69,23,117/- was misappropriated. The
material also discloses that an enquiry is conducted. After
conclusion of the enquiry only criminal prosecution is initiated
and the report was given in the month of February 2021 and a
complaint is registered in the month of December 2021. Having
taken note of the material available on record and also taking
into note of the judgment of the Apex Court in the case of
Supreme Bhiwandi Wada Manor Infrastructure Private
Limited v. State of Maharashtra and another reported in
(2021) 8 SCC 753, the Apex Court while dealing with the
anticipatory bail petition under Section 438 of Cr.P.C., that too
when the private complaint was referred under Section 156(3) of
Cr.P.C., held that while invoking Section 438 of Cr.P.C., the
Court has to take note of the fact that there are serious
allegations against the respondent-accused, the fraudulent
misappropriation of amounts intended to be paid to the
Company to the farmers affected by the work of road widening
being undertaken by the complainant. The FIR sets out the
details of the alleged misappropriation of funds, as explained
earlier.
8. Having regard to the seriousness of the allegations,
no case for anticipatory bail was made out. In the case on hand,
a specific allegation made against this petitioner is that when he
was working as Temporary Clerk, he indulged in committing the
fraud and misappropriation of the funds belongs to the Society
i.e., Rs.69,23,117/-. Even a departmental enquiry is conducted
and the prima facie charges have been proved against him and
the property is also attached. Mere attaching of the property is
not a ground to grant the bail as contended by the learned
counsel for the petitioner and the Court has to take note of the
misappropriation of huge amount that too belongs to the
Society. When such being the factual aspects of the case and in
view of the principles laid down by the Apex Court in Supreme
Bhiwandi Wada Manor Infrastructure Private Limited's
case (supra), it is not a fit case to exercise the discretion under
Section 438 of Cr.P.C., to enlarge the petitioner on bail.
9. In view of the discussions made above, I pass the
following:
ORDER
(i) The bail petition is rejected.
(ii) The observation made in the order shall not
influence the trial Judge on merits while
considering the regular bail petition.
Sd/-
JUDGE
cp*
