Karnataka High Court
Mr K P Ghanshyam vs The State Of Karnataka on 25 January, 2025
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.13878 OF 2024
BETWEEN:
1. MR. K. P. GHANSHYAM
S/O. K. L. A. PADMANABHASA,
AGED ABOUT 52 YEARS,
RESIDING AT NO.9 AND 9/1,
SHESHADRI ROAD, BENGALURU - 560 009.
2. MR. SAHASRARJUN
S/O. K. P. GHANSHYAM,
AGED ABOUT 30 YEARS,
RESIDING AT NO.9 AND 9/1,
SHESHADRI ROAD, BENGALURU - 560 009.
...PETITIONERS
(BY SRI. SANDESH CHOUTA, SENIOR COUNSEL FOR
SRI. PRAVEEN S., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT BUILDING, BANGALORE - 560 001.
2. SRI. BRIJMOHAN
S/O K.L.SWAMY,
AGED ABOUT 44 YEARS,
NO.9, SESHADRI ROAD,
GANDHINAGAR, BENGALURU - 560 009.
...RESPONDENTS
(BY SRI. P.P.HEGDE, SENIOR COUNSEL FOR
SMT. MONISHA N S., ADVOCATE FOR R-2;
SMT. N. ANITHA GIRISH, HCGP FOR R-1)
THIS CRL.P IS FILED U/S 438 OF CR.P.C. (FILED U/S 482
BNSS) PRAYING TO RELEASE THE PETITIONERS ON BAIL IN THE
EVENT OF THEIR ARREST BY THE RESPONDENT POLICE
SHESHADRIPURAM POLICE STATION IN CR.NO.8/2021 IN
C.C.NO.21893/2022 FOR THE OFFENCE P/U/S 120B, 406, 408, 465,
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468, 471, 420 R/W SEC.34, PENDING BEFORE THE 3RD ADDL. CJM
AT BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 15.01.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 15.01.2025
PRONOUNCED ON : 25.01.2025
CAV ORDER
This petition filed by the petitioners/accused Nos.1 and 6
under Section 438 of Cr.P.C. for granting anticipatory bail in Crime
No.8/2021 registered by the Seshadripuram police station, now
pending on the file of III Addl. Chief Judicial Magistrate Court,
Bengaluru, hereinafter referred to as trial court in
C.C.No.21893/2022 for having charge sheeted for the offences
punishable under Sections 120B, 406, 408, 465, 468, 471, 420,
read with 34 of IPC.
2. Heard the learned senior counsel appearing for the
petitioners and learned senior counsel appearing for the respondent
No.2 and learned HCGP for the respondent No.1/State.
3. The case of the prosecution is that on the complaint of
respondent No.2, FIR came to be registered by the police on
27.02.2021. It is alleged by the defacto complainant that the
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informant is one of the partners of M/s. Khoday Eshwarsa and Sons
(Firm) and M/s. Khoday RCA Industries. M/s. Khoday Eshwarsa and
his sons are partners, running the partnership firm engaged in
manufacturing and production of India Made liquor and carrying
business since 60 years. It is further alleged that the accused No.2
(since deceased) is one of the partners entrusted with the
responsibility of taking decisions in respect of payments to be made
for the firm and who approves and disapproves the same. The
accused No.2 is authroised to release the payments. The informant
came to know that the other partners of the firm said to have spent
Rs.17.73 crores as expenditure towards the promotional activities of
the branches of the firm all over the State, as per the invoice raised
in the name of accused No.5/ Sri. Surabhi Enterprises, and there is
no signature of the accused persons on the said invoices. They
have committed irregularities and releasing the funds by forging the
documents by creating false documents, thereby they have cheated
the firm by causing misappropriation of funds of the firm.
4. It is further alleged that on verification with the dealers he
came to know that there is no such promotional activities took place
and the said accused No.5/ Sri. Surabhi Enterprises is a fake
company. In fact the owners of the Sri. Surabhi Enterprises was the
driver of a tanker who supplies spirit for manufacture of liquors.
The said Sri. Surabhi Enterprises has no office and it is created for
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self. More than Rs.17.73 crores has been paid to the Sri. Surabhi
Enterprises, which was in fact transferred to the mothers account of
a person who is a transporters of the 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
and the accused No.3 is the Manager of the firm. All of them
colluded together involved in creation of false documents in the
name of fake company owner by accused No.5 and paid the
amount, thereby they caused loss of Rs.17.73 crores to the firm
and they misappropriated the amount and also cheated the
partners.
5. After registering the FIR, the accused No.2 approached the
Session Judge for anticipatory bail, which came to be allowed in
Crl.Misc.2192/2021. Later, the same was challenged by the defacto
complainant by filing Crl.P.No.2489/2021 under Section 439 (2) of
Cr.P.C. which came to be allowed . The anticipatory bail granted to
the accused No.2 has been cancelled. Subsequently, the police
were not able to arrest the accused Nos.1 and 2, hence they
approached the Session Judge for granting anticipatory bail.
Meanwhile, the accused No.2 died and hence the accused No.1 and
accused No.6 approached the Sessions Judge for granting
anticipatory bail, which came to be rejected. Hence, they are
before this court by filing Crl.P.2493/2021 under Section 438 of
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Cr.P.C., which came to be dismissed by this court dated 12.7.2021.
Accordingly, once again the accused No.1 along with accused No.6,
are before this court for granting anticipatory bail by way of
successive bail application.
6. The learned senior counsel appearing for the petitioner has
contended that the previous application came to be rejected during
the crime stage, now charge sheet has been filed. Therefore, they
are entitled for the bail. Further contended that the petitioner
appeared before the Investigating Officer on issuance of summons
and he has been interrogated by the Investigating Officer and
therefore his presence may not be required for any custodial
interrogation. Even though the petitioner appeared before the police
but the names of the petitioner shown as absconding in the charge
sheet. It is further contended that the offence is punishable with
less than 7 years, the Magistrate could have issued the summons
but not the warrant. But the trial court issued the non bailable
order which was challenged in the writ petition before the High
Court in W.P.No.16691/2022, where the NBW has been stayed. The
police have issued the notice under section 41(A) of Cr.P.C., where
the petitioner appeared before the Investigating Officer. The alleged
offence is though non bailable, but not punishable with death or
imprisonment of life. Hence, prayed for granting anticipatory bail.
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7. Per contra learned senior counsel appearing for the
respondent No.2/defacto complainant has seriously objected the
bail petition contending that the petitioners by manipulating
documents and creating the fake bills and caused loss of more than
Rs.17.73 crores. The petitioners have never appeared before the
police and not co-operated with the investigation. Even though this
court cancelled the anticipatory bail of the accused No.2 (since
deceased), anticipatory bail application of the accused No.1 has
been rejected by this court holding that he is required for custodial
interrogation for recovery of the instrument for creating fake bills
and seals but they have not co-operated. The Investigating Officer
has categorically stated in the charge sheet that the
accused Nos.1 and 6 are yet to be arrested and required to seize
the material from them and reserved the liberty for filing additional
charge sheet under Section 173(8) of Cr.P.C. and another accused
also remained absconding. Therefore, it cannot be said that this is a
changed circumstances of filing charge sheet, the accused never
appeared and was interrogated by the police. Hence, question of
granting anticipatory bail in the successive bail application is not
maintainable. Hence, prayed for dismissing the petition. In support
of his arguments learned senior counsel relied upon judgment of
Hon'ble Supreme Court.
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8. The learned senior counsel for the respondents also
contended that the police have purposely left provision of Section
467 of IPC and also 409 of IPC, which were punishable with life in
order to help the accused to grant the bail. Hence, prayed for
dismissing the application.
9. The learned HCGP has submitted that the notice issued by
the Investigating Officer to the accused No.1, he has appeared
before the Investigating Officer which was available in the order
sheet of the writ petition and Investigating Officer appeared before
the High Court and made submission.
10. Having heard the arguments and perused the records.
11. On perusal of the same, it reveals that the respondent
No.2 and the petitioners are the partners of the manufacturing
Liquor business. The gist of the complaint is that the petitioners
said to have shown the expenditure of Rs.17.73 crores towards the
advertisement and given to the agent i.e., accused Nos.3 and 4 and
also said to be obtained exemption from the income tax. On
verification it was revealed that the alleged agent is 'Surabhi
Enterprises', it is a bogus company, which was created by the
accused persons for the purpose of making payment and in turn the
said amount was received by the accused/petitioner themselves,
which amounts to misappropriation, they also said to be created
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fake bills and sent money to the accused Nos.3 and 4, in turn they
themselves received back. Accordingly, after registering the FIR,
the petitioner No.1 along with the accused No.2 moved anticipatory
bail, which came to be rejected by this court on the earlier occasion.
Now the successive bail petition filed by the petitioner contending
that the investigation already completed and charge sheet has been
filed and in spite of issuing summons by the Investigating Officer,
he has appeared before the court but they filed the charge sheet by
showing as absconding. The petitioner No.2/accused No.6 who has
moved the first bail petition, he has not moved any earlier bail
petition for granting anticipatory bail.
12. Learned senior counsel appearing for the respondent has
brought to the notice that, though the police have filed the charge
sheet, but it was against other accused persons and these
petitioners are not arrested. Therefore, they shown the accused as
absconding and yet to recover some documents from the
petitioners.
13. During the course of the arguments, the learned senior
counsel appearing for the petitioners also produced some medical
records to show first petitioner suffering from heart ailment, he was
admitted in the Fortis Hospital and Angioplasty has been done, he
was taking treatment. Admittedly petitioners moved application
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before this court for cancelling the NBW, which came to be
dismissed by the co-ordinate bench with a direction to seek
anticipatory bail. The alleged offences are punishable under the
provisions of 406, 408, 465, 468, 471, 420, 120B read with 34 of
IPC. All the offences shown in the charge sheet are punishable with
below seven years.
14. Learned senior counsel appearing for the petitioners
relied upon the judgment of the Hon'ble Apex Court in the case of
Arnesh Kumar Vs State of Bihar in 2014 AIR SCW 3930,
wherein Hon'ble Apex Court has held that for the offences
punishable less than seven years, bail shall be granted and accused
not to be arrested.
15. The learned counsel for the respondent has contended
that the alleged offences are punishable under Sections 409 and
467 of IPC, but the police purposely have not included the said
provisions in the charge sheet. It is also stated by the learned
counsel for the respondent that the Investigating Officer is not
properly conducted the investigation. Therefore, the writ petition is
filed for changing Investigating Officer and the co-ordinate bench
has already directed the Commissioner of Police for entrusting the
investigation with the higher police officer and take action against
the Investigating Officer who had filed the charge sheet.
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16. On perusal of the records, there is allegation against the
petitioners that being agent or the merchant they created the
documents and misappropriated the amounts which attracts
criminal breach of trust by the merchant/agent etc. The offences
under Section 409 of IPC., may attract, however section 467 of
IPC., will not attract for the facts and circumstances of the case.
17. The only contention of the respondent is that the
successive bail petition for the anticipatory bail is not maintainable,
once the bail has been rejected by this court.
18. Learned senior counsel appearing for the respondent
relied upon the judgment of the Hon'ble Apex Court reported in
(2021) 16 SCC 725 in case of G.R.Ananda Babu Vs State of
Tamil Nadu and Another, wherein the Hon'ble Supreme Court has
held that once the anticipatory bail is dismissed on merits by a
speaking order, the accused cannot invoke successive anticipatory
bail, before the same judge.
19. In view of the judgment of the Hon'ble Supreme Court
here in this case, the first petitioner was already approached this
court and his anticipatory bail came to be rejected by this court on
the earlier occasion on merits. The detailed order passed by this
court in Crl.P.No.2493/2021 dated 12.07.2021, this court has
categorically held the petitioner is required for custodial
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interrogation for recovering of properties as well as cash, the
documents are required to be recovered at the instance of this
petitioner. Such being the case, without going for the investigation
and himself tendering for the interrogation, the question of once
again granting anticipatory bail on the successive bail petition is not
maintainable. Once this court already dismissed the application, on
the same ground, once again this court cannot grant anticipatory
bail, merely as he is said to be suffering from some heart ailment.
20. That apart, when the accused is in custody and for the
purpose of treatment, he may required bail for the purpose of
taking treatment. Where the accused is not at all arrested and he is
outside by absconding, and taking treatment in the various
hospitals. Such being the case, on the medical ground anticipatory
bail cannot be granted as like in the regular bail.
21. That apart, the police intentionally not inserted Section
409 of IPC., for facilitating the accused to come out on bail by
showing the offence which is punishable below 7 years, which is not
correct, as rightly contended by the learned senior counsel
appearing for the respondent.
22. The additional grounds pleaded by the petitioner counsel
is that now the charge sheet is filed, they are not required for
investigation but that is not correct. As per the charge sheet the
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police have reserved the liberty for filing additional charge sheet,
under Section 173(8) of Cr.P.C. by arresting these petitioners and
collecting incriminating evidence from them. Such being the case,
the investigation as against this petitioner is not completed. Such
being the case the question of granting anticipatory bail in the
successive bail petition does not arises. The petitioners are required
for custodial interrogations and recovery of the incriminating
materials for having created the documents like seal, bills and other
instruments etc.,
23. That apart the petitioners are most influential persons,
the police are not trying to arrest them, inspite of NBW pending
against them. Even the petitioners approached the this court for
cancelling the NBW, which came to be rejected. Such being the
case, when the offence punishable under Section 409 of Cr.P.C.,
which is punishable with life. Therefore, it is not a matter of right
for granting bail to the petitioners as contended by the learned
senior counsel for the petitioners, as the offences are punishable
below 7 years which is not correct. Therefore, I am of the view
considering all aspects, the petitioners have not made out good
ground for granting anticipatory bail in the successive bail petition
as well as on bail petition. Accordingly, I proceed to pass the
following;
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ORDER
The petition filed by the petitioners/ accused
Nos.1 and 6 under Section 438 of Cr.P.C., is hereby
dismissed.
Sd/-
(K.NATARAJAN)
JUDGE
AKV/SRK
CT:SK
