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2019 DIGILAW 1678 (KAR)

Vishwanath v. State Of Karnataka

2019-07-12

ASHOK G.NIJAGANNAVAR

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JUDGMENT : Ashok G Nijagannavar, J. 1. This petition is filed under Section 438 of Cr.PC for grant of anticipatory bail to the petitioners in the event of their arrest in Crime No.29/2019, for the offence punishable under Sections 46, 420, 504, 506 R/w 34 IPC and 3(1) (p) (s) SC/ST P.A. Amendment Act 2015. 2. The averments made in the bail petition are that on the complaint filed by one Appalal S/o Shankar Rathod on 03.05.2019. The criminal case was registered. The complaint allegations are that the complainant had borrowed loan from HDB Financial Services Ltd., Branch Vijayapura for purchasing Hitachi machine. The complaint had repaid the some installments. But on 28.12.2018, HDB Financial Services Ltd. seized the Hitachi machine belonging to the complainant and the same was seized on the reason that the complainant had committed default in payment of loan installments. When the complainant and his friends had gone to the HDB Financial Services office, the complainant told them that he has already to paid some installments and further requested to release the Hitachi vehicle. The accused No.2 Krishnarao Kulkarni told accused No.4 Sameer Jakati that despite advised given by him two days back they have once again come to the office, some persons told that the loan should not have been given to Lamani people by saying so the accused / petitioner have abused the complainant by taking caste name and have also committed the acts of cheating. 3. On registering the complaint, the police have taken up the investigation. 4. Heard the learned counsel for the petitioners and learned High Court Government Pleader. 5. The learned counsel for the petitioners submitted that the allegations made in the complaint are false and baseless, since the complainant had not repaid the loan installments, the vehicle belonging to him which was hypothecated to Financial Services Ltd. was seized and it was sold for recovery of the loan amount. Therefore, the false complaint is filed against the petitioners with an intention to harass them. In the event of arrest, the petitioners would be put to hardship. They are ready and willing to abide by the condition which may be imposed for granting bail. 6. Therefore, the false complaint is filed against the petitioners with an intention to harass them. In the event of arrest, the petitioners would be put to hardship. They are ready and willing to abide by the condition which may be imposed for granting bail. 6. Per contra, the learned High Court Government Pleader submitted that there are specific allegations that the petitioners being officials of HDB Financial Services have committed fraud and act of cheating in addition to that they have abused the complainant by taking caste name. In view of the bar under Section 18(A) of SC/ST P.A. Act. The petitioner is not entitled for bail. 7. According to the complainant, he had borrowed the loan from HDB Financial Services for loan installments, the Hitachi machine belong to him was seized, as such when he had gone to the Financial Services office, he was abused by taking the caste name. It is pertinent to note that there was a loan transaction between HDB Financial Services Ltd. and the complaint. The vehicle was seized because of violation of the terms and conditions of the loan. In that connection, it appears that the complainant had gone to the office for enquiry and thereafter he has filed a complaint. During the course of arguments, the learned counsel for the petitioners submitted that it is only with vindictive motive these petitioners are falsely implicated in this case and of because of the seizure of his vehicle. They are likely to be arrested by the police officials on false allegations made in the complaint. 8. One of the main objection in the prosecution is that in view of Section 18(A). In a decision in the case of Dr.Subhash Kashinath Mahajan vs. State of Maharashtra and Another, (2018) 6 SCC 454 the Hon'ble Supreme Court observed as under: "B. SCs, STs, OBCs. and Minorities Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 S. 18- Issue of exclusion of anticipatory bail in case of Atrocities Act in view of S.18 Reference to larger Bench not necessary, as position can be clarified on basis of law already laid down Held, no absolute bar against grant of anticipatory bail in cases under Atrocities Act if no prima facie case is made out or where on judicial scrutiny complaint is found to be prima facie mala fide. S.18 of Act excluding application of S.438 Cr.P.C. reiterated, valid and can be justified to protect victims of perpetrators of crime and does not violate Arts. 21 and 14 of the Constitution However, S.18 cannot be read as being applicable to cases where individuals are falsely implicated for extraneous reasons Access to justice being a fundamental right, grain has to be separated from chaff Liberty of one citizen cannot be place at whim of another Law has to protect innocent and punish guilty Thus, exclusion of S.438 Cr.P.C. in S.8 of Act can be applied to genuine cases and not to false one This will help achieve object of law Judicial notice of abuse of Act in last three decades Inherent powers of court cannot be taken away by legislature Court has inherent power to grant interim bail even if there is no provision for anticipatory bail Legislation could not have intended to exclude judicial function of going into correctness of criminal allegations Criminal Procedure Code, 1973 Ss.482, 348, 41 and 41-A Constitution of India Arts.21 and 14." 9. In view of the aforesaid decision, whenever there are circumstances which goes to show that on account of strained relationship frivolous allegations are made, the courts shall have to consider the grounds stated and exercise the discretion in granting bail. As could be seen from the complaint averments, there are no specific allegations which make out a case that the petitioners have abused the complainant by taking the caste name in public view. As such the ingredients of Section 18(A) of SC /ST P.A. Act are not clearly attracted. As far as the allegations regarding commission of offences under IPC are concerned, the allegations are that despite the repayment of installments as per the terms and conditions of the loan. The officials of the Financial Services Ltd. have deliberately seized the Hitachi machine with a fraudulent intention. Thereby they have committed the offences. At this stage, it is needless to elaborate discussion regarding the complaint or give finding as the same is not permissible while considering the bail application. 10. The submission made by the counsel and the documents produced along with the bail application goes to prove the apprehension of the petitioners regarding arrest and detention. As such this petition deserves to be allowed. Hence, I pass the following ORDER Criminal Petition No.200710/2019 is hereby allowed. 10. The submission made by the counsel and the documents produced along with the bail application goes to prove the apprehension of the petitioners regarding arrest and detention. As such this petition deserves to be allowed. Hence, I pass the following ORDER Criminal Petition No.200710/2019 is hereby allowed. Petitioners are directed to appear before the Investigating Officer within 10 days from the date of receipt of a certified copy of this order. On their appearance, Investigating Officer shall interrogate the petitioners and shall enlarge them on bail subject to following: 1. The petitioners shall execute a personal bond in a sum of Rs.1,00,000/- (Rupees One Lakh) each with two sureties for the like sum to the satisfaction of the Investigating Officer; 2. The petitioners shall appear before the Investigating Officer as and when required; 3. The petitioners shall co-operate in the investigation; 4. The petitioners shall not threaten or allure the prosecution witnesses; 5. In the event of registration of any other criminal case in respect of commission of similar offence, the present bail order shall stand cancelled; 6. If the petitioners are found to have violated any of the bail conditions, the present bail order shall stand automatically cancelled; If any of the bail conditions are violated, the State is at liberty to move an application for cancellation of the bail before the trial Court itself.