Mr.Venkatesh Murthy. T vs State Of Karnataka
2022 Latest Caselaw 3272 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                          BEFORE

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

              CRIMINAL PETITION NO.7920/2021

BETWEEN:

MR.VENKATESH MURTHY. T
S/O MURTHY
AGED ABOUT 49 YEARS
NO.42, "SAPTHAGIRI"
BUDDHA JYOTHI LAYOUT
NAGASANDRA
BENGALURU-560 073.                         ... PETITIONER

           (BY SRI ANISH JOSE ANTONY, ADVOCATE)
AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY ITS
       INVESTIGATION OFFICER
       CYBER CRIME POLICE STATION (CID)
       CID ANNEXE BUILDING
       BENGALURU-560 001.

2.     SHANTANU SINHA
       AGED ABOUT 33 YEARS
       S/O RAJIV RANJAN SINHA
       FLAT NO.203, ADITYA HOME
       WEST BORRING CANAL ROAD
       PATNA, BIHAR-800 001.              ... RESPONDENTS

       (BY SRI R.D.RENUKARADHYA, HCGP FOR R1/STATE;
              SRI RAKSHITH R, ADVOCATE FOR R2)
                                    2



      THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO SET ASIDE/QUASH THE BAIL
GRANTED TO RESPONDENT NO.2 BY THE I/C I ADDITIONAL
CIVIL JUDGE AND JMFC, NELAMANGALA IN CR.NO.459/2019
DATED 05.05.2021 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 66(C), 66(D) OF INFORMATION TECHNOLOGY ACT
AND   SECTION       419    AND    420    OF    IPC    REGISTERED       BY
MADANAYAKANAHALLY POLICE STATION, BENGALURU AND ETC.


      THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 18.02.2022, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:



                             ORDER

This petition is filed under Section 439(2) of Cr.P.C praying

this Court to cancel the bail granted in favour of respondent

No.2/accused No.1 by the I/c I Additional Civil Judge and JMFC,

Nelamangala in Cr.No.459/2019 dated 05.05.2021 for the

offences punishable under Section 66C and 66D of the

Information Technology Act, 2000 (for short 'IT Act') and under

Section 419 and 420 of IPC and sought for the arrest and

commit him to custody.

2. Heard the learned counsel appearing for the

petitioner, the learned High Court Government Pleader appearing

for respondent No.1-State and the learned counsel appearing for

respondent No.2.

3. The factual matrix of the case is that the

petitioner/complainant Sri Venkatesh Murthy in the complaint

made an allegation that he made the transaction with

respondent No.2 to purchase the Bitcoins. Respondent No.2

represented himself as a Stock Broker dealing with

Cryptocurrency, hence, the petitioner invested an amount of

Rs.75 lakh with respondent No.2 in two accounts and respondent

No.2 also started luring more people into Crypto Invest across

India and in foreign countries like Singapore, Malaysia by

offering big monthly returns and he launched Crypto Invest

application in the Play store in April 2018 through which the

transaction was carried on between the petitioner and

respondent No.2. When the matter was under investigation,

respondent No.2 was arrested and produced before the Trial

Court and the learned Magistrate, enlarged him on bail coming

to the conclusion that though the offence alleged against the

accused No.1 is non-bailable but not punishable with death or

life imprisonment and triable by the Court. The Investigating

Officer has taken custody of the accused No.1 and it shows that

he has completed almost of his investigation and also observed

that the High Court of Karnataka has granted anticipatory bail to

accused Nos.2 to 6 and it is also observed that respondent

No.2/accused No.1 is suffering from COVID-19 disease and

provided clause 437 of Cr.P.C and enlarged respondent No.2 on

bail and hence, the present petition is filed to cancel the bail

granted in favour of respondent No.2.

4. The learned counsel appearing for the petitioner

vehemently contend that more than 2500 people have invested

the money in the said business and fraud is more than 1,500

crore and accusation against respondent No.2 relates to

commission of economic offences which are considered to be

grave offences and the same to be viewed seriously. Such

offences affect the economy of the Country as a whole and it

involves deep rooted conspiracy and huge loss of public fund.

When such being the case, the Court ought to have considered

the larger interest of public and State and the Trial Court had

failed to consider the nature and seriousness of an economic

offence which impact on the society at large.

5. The learned counsel appearing for the petitioner in

support of his argument relied upon the decision of the Apex

Court in the case of Y.S.JAGAN MOHAN REDDY vs CBI

reported in (2013) 7 SCC 439 wherein the Apex Court held that

the economic offences constitute a class apart and need to be

visited with a different approach in the matter of bail and while

granting bail, the Court has to keep in mind the nature of

accusations, the nature of evidence in support thereof. Relying

upon the decision referred supra, the learned counsel submitted

that the Trial Court has committed an error in coming to the

conclusion that Investigating Officer has almost completed the

investigation and accused No.1 tested COVID-19 Positive and

the same cannot be the grounds in a serious economic offence

which comes to the tune of more than Rs.1,500 crore and there

is no recoveries made even after the lapse of almost three years

and Trial Court had failed to appreciate and consider the facts of

the case, nature of the accusation and gravity of the offences.

6. The learned counsel for the petitioner also relied

upon the decision of the Apex Court in the case of GUDIKANTI

NARASIMHULU vs PUBLIC PROSECUTOR, HIGH COURT OF

A.P. reported in (1978) 1 SCC 240 wherein also it is observed

that deprivation of freedom by refusal of bail is not for punitive

purposes but for the bifocal interests of justice. The nature of

the charge is a vital factor and the nature of the evidence is also

pertinent. The counsel also relied upon the judgment of the

Apex Court in the case of STATE OF MAHARASHTRA vs

SITARAM POPAT VETAL reported in (2004) 7 SCC 521

wherein also it is observed that while granting bail, the Court

must considered the factors of nature of accusation and the

severity of punishment in case of conviction and the nature of

supporting evidence and reasonable apprehension of tampering

with the witness or apprehension of threat to the complainant

and also prima facie satisfaction of the Court in support of the

charge. It is further observed that any order dehors such

reasons suffers from non-application of mind. The counsel also

relied upon the order passed in Crl.A.No.883/2021 decided on

24.08.2021 between HARIJIT SINGH vs INDERPREET SINGH

followed the decision rendered in MAHIPAL vs RAJESH KUMAR

reported in (2020) 2 SCC 118 and RAMESH BHAVAN

RATHOD vs VISHANBHAI HIRABHAI MAKWANA

MAKWANA reported in 2021 SCC ONLINE SC 335 wherein

also the Apex Court observed that while granting the bail, the

Judge must consider the material on record and apply his

judicious mind. The counsel also relied upon the judgment of

the Apex Court in the case of PURAN vs RAMBILAS AND

ANOTHER reported in (2001) 6 SCC 338 wherein it is held that

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.

7. The learned counsel appearing for the petitioner

referring these judgments would vehemently contend that the

learned Magistrate failed to take note of the gravity of the

offences and seriousness of the allegations and particularly, it is

a case of disturb in the economy in the Country and more than

2500 investors have lost their money to the tune of Rs.1,500

crore and hence, it requires interference of this Court.

8. Per contra, the learned counsel appearing for

respondent No.2 would submit that statement of objections was

filed by the prosecution before passing the order and the Trial

Court while considering the bail application taken note of the fact

that the offences alleged against respondent No.2 are not

punishable with death or imprisonment of life and further

observed that though the investigation is almost completed and

the reasons also assigned in the order and hence, it does not

requires interference of this Court.

9. The learned counsel appearing for respondent No.2

in support of his arguments, relied upon the decision of the Apex

Court in the case of DOLAT RAM AND OTHERS vs STATE OF

HARYANA reported in (1995) 1 SCC 349 and brought to notice

of this Court the paragraph 4 of the judgment wherein the Apex

Court has observed that once, bail granted should not be

cancelled in a mechanical manner without considering whether

any supervening circumstances have rendered it no longer

conducive to a fair trial to allow the accused to retain his

freedom by enjoying the concession of bail during the trial. The

counsel also relied upon the judgment of the Apex Court in the

case of BHAGIRATHSING S/O MAHIPAT SINGH JUDEJA vs

STATEOF GUJARAT reported in (1984) 1 SCC 284 and

brought to notice of this Court the paragraph 7 wherein the Apex

Court comes to the conclusion that the Sessions Judge

appreciated the material available on record while granting bail

and the High Court completely overlooked the fact that it was

not for it to decide whether the bail should be granted but the

application before temporary injunction was for cancellation of

the bail. The only material considerations in such a situation are

whether the accused would be readily available for his trial and

whether he is likely to abuse the discretion granted in his favour

by tampering with evidence.

10. The learned counsel appearing for respondent No.2

also relied upon the decision of the Apex Court in the case of

DEVENDER KUMAR AND ANOTHER vs STATE OF HARYANA

AND OTHERS reported in (2010) 6 SCC 753 and brought to

notice of this Court that paragraph 14 wherein the Apex Court

also observed that the reason given by the High Court for

cancellation of the orders, granting bail and directing the arrest

of the appellants on the ground that disclosures have been made

by the appellants and that their police custody was necessary for

recovery of the same, is, in our view, not sufficient for the

purpose of cancellation of bail granted earlier. The counsel also

relied upon the order passed by this Court in Crl.P.No.4598/2020

and brought to the notice the paragraph 25 wherein this Court

made an observation that the question of canceling the bail does

not arise in the absence of any cogent material on record, the

liberty of any person as envisaged under Article 21 of the

Constitution of India cannot be curtailed on the mere ground of

number of cases being pending against him. The counsel also

relied upon the judgment reported in (2009) 8 SCC 325

between SAVITRI AGARWAL AND OTHERS vs STATE OF

MAHARASHTRA AND ANOTHER wherein the Apex Court

observed that very cogent and overwhelming circumstances are

necessary for an order directing cancellation of bail already

granted. The counsel also relied upon the judgment reported in

(2018) 16 SCC 511 between X vs STATE OF TELANGANA

AND ANOTEHR wherein the Apex Court observed regarding

when cancellation of bail warranted, bail once granted should not

be cancelled unless a cogent case, based on supervening events

has been made out.

11. The learned counsel appearing for respondent No.2

also brought to notice of this Court that the Trial Court while

granting bail made an observation that accused Nos.2 to 6 have

been granted bail by this Court and hence, discretion may be

exercised in favour of respondent No.2 and no grounds are made

out to invoke Section 439(2) of Cr.P.C.

12. The learned counsel for respondent No.2 in the

statement of objection has contended that the learned counsel

for the petitioner has relied upon the order passed by the

Sessions Court at Gujarat, but after filing of the charge-sheet,

respondent No.2 has been enlarged on bail. The learned counsel

in the statement of objection has contended that the Trial Judge

invoked the jurisdiction under Section 437 of Cr.P.C. after his

arrest and also extracted the provision of Sections 419, 66(c)

and 66(d) of IT Act and contended that the Court exercised the

discretion having perused the material on record. Hence, prayed

for dismissal of the petition.

13. Having considered the grounds urged in the petition

as well as the statement of objection and also the principles laid

down in the judgments referred by both the counsel, it is settled

law that the Court has to look into the nature and seriousness of

the allegations made in the complaint. Having considered the

contents of the complaint, the complainant/petitioner has

contended that he had invested an amount of Rs.75 lakhs in

between December 2017 to June 2018, but the amount was not

returned. It is also an allegation that the accused persons

belong to same family and they have cheated. Admittedly, this

Court entertained the bail petition of accused Nos.2 to 6,

wherein an observation is made that the allegation is against

accused No.1 and this Court exercised the discretion under

Section 438 of Cr.P.C. The learned Magistrate while exercising

the discretion under Section 437 of Cr.P.C. taken note of

granting of the anticipatory bail in respect of accused Nos.2 to 6

and in the order mentioned that accused No.1 is suffering from

Covid-19 and the offences are also non-bailable, but not

punishable with death or imprisonment for life and triable by the

same Court. It is also an allegation in the complaint that the

petitioner herein had invested an amount of Rs.75 lakhs, but the

very contention of the learned counsel for the petitioner is that

respondent No.2 had cheated more than 2500 persons

amounting to Rs.1,500 Crores.

14. In the complaint, the petitioner has categorically

stated that he had invested an amount of Rs.75 lakhs and case

is registered based on the complaint of the petitioner herein and

hence the gravity of the offence is with regard to he had

invested Rs.75 lakhs. The learned Trial Judge exercised the

jurisdiction under Section 437 of Cr.P.C. and the offence is also

traible by the Magistrate and not exercised the discretion

invoking Section 438 of Cr.P.C. and the fact that respondent

No.2 has been arrested and produced before the Court is also

not in dispute. When such being the factual aspects of the case,

this Court granted bail in favour of accused Nos.2 to 6 invoking

Section 438 of Cr.P.C. and the Trial Judge invoked Section 437

of Cr.P.C. after the arrest of respondent No.2 and the Trial Judge

while granting bail, imposed the conditions that respondent No.2

shall not indulge in similar kind of offences and shall not leave

the jurisdiction without prior permission and shall also co-

operate with the Investigating Officer during the investigation

and apart from that, ordered to mark his appearance before the

SHO 15th day of calendar month till 60 days or filing of the

charge-sheet, whichever is earlier and taken care of the

apprehension of the prosecution by imposing conditions. When

such being the order, I do not find any force in the contention of

the learned counsel for the petitioner that the Trial Court has not

taken note of the ingredients of the offences and the offence are

triable by the Magistrate and also exercised the powers under

Section 437 of Cr.P.C. The gravity of the allegation is that the

petitioner had invested an amount of Rs.75 lakhs for higher

returns and the amount is not paid. The learned counsel also

placed on record the order passed by the Sessions Judge at

Gujarat and not disputes the fact that after filing of the charge-

sheet, the Gujarat High Court granted bail in favour of the

petitioner and no doubt, other cases are also registered against

respondent No.2, but this Court has to consider the allegations

made against respondent No.2 in the present complaint. When

such being the case, it is not a case for exercising the powers

under Section 439(2) of Cr.P.C. to cancel the bail. No doubt, the

principles laid down by the judgments referred by the respective

counsel are exercising the powers under Section 439(2) of

Cr.P.C. and the Court can invoke Section 439(2) Cr.P.C sparingly

when the order is passed without considering the material on

record and if any perverse order is passed. Hence, I do not find

any such circumstances in the case on hand to invoke Section

439(2) of Cr.P.C. to cancel the bail granted in favour of

respondent No.2.

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

following:

ORDER

The petition is rejected.

Sd/-

JUDGE

SN/MD