Karnataka High Court
Sri K.Satish Kumar Krishnappa vs State Of Karnataka on 14 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.P No. 469 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL PETITION NO. 469 OF 2024
BETWEEN:
1. SRI K. SATISH KUMAR KRISHNAPPA
S/O SRI KRISHNAPPA
AGED ABOUT 68 YEARS
R/A NO.164, 1ST BLOCK
NEAR ASHWATHNAGAR
RMV 2ND STAGE
BENGALURU-560094
...PETITIONER
(BY SRI R.B.SADASIVAPPA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY VARTHUR POLICE STATION
Digitally signed REP. BY THE STATE PUBLIC PROSECUTOR
by SHARANYA T HIGH COURT OF KARNATAKA
Location: HIGH BENGALURU-560001
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI K.NAGESHWARAPPA, HCGP)
THIS CRL.P IS FILED U/S 438 OF CR.PC PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS
ARREST IN CR.NO.39/2022 OF VARTHUR P.S., BENGALURU
CITY FOR THE OFFENCES P/U/S.506, 504, 120b, 406, 420 OF
IPC ON THE FILE OF THE A.C.M.M BENGALURU RURAL
DISTRICT BENGALURU.
THIS PETITION, COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.P No. 469 of 2024
ORDER
1. This is a successive bail petition filed under
Section 438 of Cr.P.C seeking anticipatory bail of the
petitioner/accused in Crime No.39/2022 of Varthur Police
Station, Bengaluru City for the offence punishable under
Section 506, 504, 120B, 406 and 420 of IPC.
2. Heard the learned counsel for the petitioner and
the learned High Court Government Pleader appearing for
the respondent-State.
3. This petitioner earlier approached this Court by
filing Crl.P.No.3138/2022, the same has been dismissed
by this Court recording that the said petition become
infructuous in view of the petitioner has approached this
Court by filing petition under Section 482 of Cr.P.C in
Crl.P.No.2664/2022 wherein stay has been granted. Now
the stay granted by this Court is vacated by passing an
order by this Court in Crl.P.No.2664/2022 vide order dated
9th day of January -2024. This petition is filed subsequent
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to the dismissal of petition filed under Section 482 of
Cr.P.C.
4. The main contention of the counsel appearing
for the petitioner that The Sessions Judge while rejecting
the petition under Section 438 of Cr.P.C fails to take note
of the fact that there is a contract between the petitioner
and the complainant by name Prabhu Kumar.V.
5. The counsel also would submits that when there
is a sale agreement between the petitioner herein and also
on other part by four persons. Only complaint is filed by
the one party and the other three have not filed any
complaint. The counsel also would submits that, the said
complaint is highly belated and the said complaint is filed
after 7 years. The counsel also brought to notice of this
Court that in terms of the sale agreement there is a clause
in the agreement clause No.10 that consequences of
breach i.e., in the event of either one of party not being
able to fulfill the obligations as stated in this agreement,
the other party would be entitled to demand specific
performance as per the terms mentioned in the agreement
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and also sub-clause 10(2) says that in the event the
breach being on the part of the vendor, then without
prejudice to seek for specific performance, the purchaser
shall claim and receive the entire amount paid by him.
Apart from that to receive the sum of Rs.2,50,000/- per
month as liquidated damages.
6. The allegation made in the complaint and FIR is
that this petitioner being a Managing Director entered into
a sale agreement and with an intention to cheat the
complaint, entered into a sale agreement and the intention
to cheat is at the inception of entering into the sale
agreement. When he has not complied the terms he
abused him with a filthy language and also made an
attempt to take away his life by giving supari by making
threat against the complainant. Hence, detailed complaint
has been given and registered under Section 506, 504,
120B, 406 and 420 of IPC.
7. The counsel in support of his argument he
vehemently contend that there is a civil transaction
between the parties. The police do not have entertained
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the criminal case against the petitioner. If the petitioner is
not granted anticipatory bail, there is a chances of
harassment. The counsel in support of his argument relied
upon the judgment of the Supreme Court reported in AIR
2023 SUPREME COURT 1570 in case of Mahdoom
Bava V/s Central Bureau of Investigation and the
Apex Court considering the factual aspects their case was
primarily based on documentary evidence, arrest of
accused persons was not warranted, eleven cases were
registered against prime accused but those cases were not
relevant for adjudicating the present matter, accused
persons apprehended that they may be remanded to
custody by Trial Court and hence anticipatory bail is
granted. The counsel also brought to notice of this Court
paragraph Nos.9, 10 and 11 wherein the Apex Court
discussed the same.
8. Per Contra, the counsel appearing for the
respondent-State would submits that this petitioner is a
habitual offender and similar offences are invoked against
the petitioner in Crime No.166/2016, the same is also
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taken note of by the Trial Court wherein also offences
under Section 419, 420, 465, 468, 471 R/w 34 of IPC are
registered against him. The Trial Court while rejecting the
anticipatory bail taken note of the said fact that the
presence of the petitioner is required for investigation. The
custodial interrogation is necessary and discretion cannot
be exercised.
9. The counsel appearing for the State also
brought to notice of this Court that earlier an application
was filed under Section 438 and when the stay was
granted in Crl.P.No.2664/2022, this Court dismissed the
same. When this Court comes to the conclusion that
matter requires investigation and dismissed the petition
filed under Section 482 of Cr.P.C, the question of granting
anticipatory bail does not arise.
10. Having heard the petitioner's counsel and also
the counsel appearing for respondent-State and taking
into the contents of the complaint averments, a specific
allegation is made against this petitioner that he had
agreed to sell the property on 22.05.2014 for an amount
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of Rs.38,00,00,000 (Rupees Thirty Eight Crores only) and
received an amount of Rs.5,00,00,000 (Rupees Five
Crores only). He did not execute the sale deed by
receiving the balance amount and also made specific
allegation that the petitioner did not pay the income tax.
Hence, in respect of an amount of Rs.4,88,26,296/-
(Rupees Four Crores Eighty Eight Lakhs Twenty Six
Thousand Two Hundred and Ninety Six only) property was
attached by the income tax department and also executed
a document if sale transaction is not possible he will
refund the amount of Rs.15,00,00,000/- (Rupees Fifteen
Crores only) and executed a document with an intention to
cheat him, he entered into a sale agreement and also he
gave three cheques for return of Rs.15,00,00,000/-
(Rupees Fifteen Crores only) and also requested him not
to present the cheque and requested for one month time.
The detailed allegations are made stating that he has
given the complaint and one more case is registered in
Cr.No.180/2015 in Sheshadripuram Police Station. The
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specific allegations are made that he had cheated from the
date of entering into an agreement.
11. The counsel appearing for the petitioner would
vehemently contend that when agreement is very clear
with regard to the non execution of the sale deed, there is
a clause particularly in clause No.10 for consequences of
breach. When the other allegation is also made in the
complaint from the date of agreement to sell and specific
allegations are made that other crimes have been
registered against him. This Court also while rejecting the
petition filed under Section 482 of Cr.P.C in paragraph
No.9 taken note of that the documents produced by the
respondent's counsel reveals that on the date of entering
into the agreement of sale between the petitioner and
respondent No.2, he was not having title since property
already attached and the case O.S.No.4024/2015 was filed
against the petitioner was pending and temporary
injunction was operating against the petitioner as per the
order dated 18.09.2015. This agreement entered into
between the parties on 22.07.2014 was much prior to
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passing of the order of temporary injunction and this Court
also taken note of the fact that the agreement entered into
between the petitioner and one Suresh was on
26.12.2006, the sale consideration of Rs.1,15,00,000/-
(Rupees One Crore Fifteen lakhs only) i.e., subsequent to
the suit filed in O.S.No.4287/2000 before the civil Court
which reveals that there was an agreement of sale of land
entered into between the petitioner and one Suresh. The
suit in O.S.No.4024/2015 was filed and temporary
injunction was granted on 18.09.2015. Inspite of that, the
petitioner once again received the further amount of
Rs.6,00,00,000/- (Rupees Six Crores only). That apart, the
income tax authorities have already attached the sale of
property in the year 2004 itself. The document produced
by the respondent's counsel reveals that the very
petitioner given consent letter to the income tax
authorities to sell or attach the property. In the recovery
proceedings initiated by the income tax authorities, he has
given consent for alienate the property for the purpose of
recovery of income tax arrears. The income tax
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proceedings was initiated in the year 2008 for the
assessment year 2007-08. Such being the case, the
petitioner was aware of the fact that the schedule property
was already attached by the income tax authorities and he
also entered into an agreement with the complainant
mentioning that the property was clear from the title and
no litigation was pending and received an amount of
Rs.5,00,00,000/- (Rupees Five Crores only) on
22.07.2014. Having taken note of all these factors into
consideration, exercised the power under Section 482 of
Cr.P.C. No doubt the principles laid down in the judgment
of the Supreme Court is clear with regard to if it is only a
sale transaction, if any breach, the anticipatory bail has to
be granted.
12. Having taken note of the fact that when the
allegation is specific in the complaint that the very
intention of cheating is at the inception of transaction,
when the property was attached prior to the agreement,
once taken the amount from the complaint to the tune of
Rs.5,00,00,000/- (Rupees Five Crores only). When such all
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allegations are made against the petitioner, the presence
of the petitioner is required for the custodial interrogation
as observed by the Trial Court. Hence, having taken all
these factors into consideration, I am of the opinion that
the petitioner is not entitled for anticipatory bail.
13. The counsel for petitioner while dictating the
orders relied upon the judgment reported in 2021(1)
KAR.L.J. 705 and brought to notice of this Court head
note wherein a discussion is made with regard to the
exercising the power under Section 438 of Cr.P.C wherein
an observation is made that until and unless, accused has
been tried and convicted for the alleged offence, he cannot
be held as habitual offender, no such presumption can be
drawn about his guilt, while considering bail, the Court
cannot hold a mini trial, merely because he is allegedly
absconding, no interference can be drawn about his guilt,
he might have done so far fear of ill-treatment and
harassment by the police. Taking into note of the said fact
into consideration to the Section 438 of Cr.P.C, the Court
has to take each facts and circumstances of each case and
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in the case on hand, inspite of the property is attached
long back by the income tax department, very same
property is subjected for sale in favour of the complainant
and received an amount of Rs.5,00,00,000/- and when the
specific allegation is made that on the date of entering into
a transaction of sale and at the inception of the
transaction with an intention to cheat the complainant, he
entered into an agreement and hence the facts and
circumstances of the case on hand, the judgment quoted
by the petitioner's counsel is not applicable.
14. The counsel for petitioner has also relied upon
the judgment of other judgment reported in 2021(1)
KAR.L.J 299 wherein also while granting the anticipatory
bail, taken note of the fact that earlier the petitioner had
appeared before the police and cooperated for
investigation. In the case on hand, that is not the situation
when the bail petition was filed before this Court and at
the same time, the petition filed under Section 482 of
Cr.P.C and the stay has been granted, the petitioner came
before this Court and filed memo stating that the stay has
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been granted. Hence, this Court at that juncture,
permitted to withdraw the petition with liberty to approach
this Court if need arises to come before this Court.
15. Having taken note of all these facts and
circumstances of the case and the judgment which have
been relied upon by the counsel appearing for the
petitioner is not applicable to the facts of the case on
hand. The specific allegation is made in the complaint that
at the inception of the entering into an agreement of sale
itself shows that he was having an intention to cheat the
complainant and also specific allegation is made that
already property was attached to the tune of
Rs.4,88,26,296/- and attachment was also in the year
2008 itself. The agreement of sale was entered in the year
2014 and when such allegation is made and already there
was an order of injunction also and inspite of it, an
agreement is entered between the complainant and also
the petitioner. Apart from that given consent to sell the
property to the income tax department. All these factors
reveals that with an intention to cheat the complaint, an
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agreement of sale is entered into and the complainant
parted with an amount of Rs.5,00,00,000/- at the time of
entering into the agreement and all these allegations are
made and though the complaint was filed belatedly and
transactions were taken place in the year 2014 itself,
when the complaint came to know about all these facts,
subsequently, he had lodged the complaint. The very
complaint averment is clear with regard to the intentions
of cheating at the inception of transactions. The very delay
in lodging of complaint cannot be a ground to invoke
Section 438 of Cr.P.C. Hence, I do not find any merit in
the petition to invoke Section 438 of Cr.P.C.
16. In view of the discussions made above, I pass
the following:
ORDER
The Criminal Petition is dismissed.
Sd/-
JUDGE
RHS
