Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1110 (KAR)

Gundam Satish v. State Of Karnataka

2020-06-17

ASHOK G.NIJAGANNAVAR

body2020
JUDGMENT Ashok G Nijagannavar, J. - This petition is under section 438 of Cr.P.C. , by accused No.1 and 2, for release on bail in the event of their arrest in Crime No.64/2019 of Gandhi Nagar P.S. , Bal lari , registered for the of fence punishable under sections 408, 420, 34 of IPC. 2. The facts brief ly stated are that, on the complaint f iled by Sri Nithin H. , S/o. Maharudrappa H. , the pol ice have registered a case at P.S.Crime No.64/2019 for the offences punishable under sections 408, 429, 34 of IPC. The al legations are that the accused/petitioner No.1 was working as a salesman in the complainant's firm and he had col lected Rs.20,73,498/- from the outlets where the f irm had supplied the goods. The petitioner No.1 was entrusted with the responsibi lity of collecting the outstanding dues. Thus the said petitioner No.1 by taking undue advantage, faith and trust reposed in him collected the outstanding dues, but fai led to remit the same to the bank account of the f irm, thereby he has misappropriated the funds in collusion with petitioner No.2. Thereafter the petitioner No.1 has executed a promissory note and has issued a cheque for payment of the said amount. Despite execution of the said documents, he has not fulf il led his obl igation and thereby he has committed the acts of cheating and breach of trust. On registering the case, the police of f icials are making attempts to arrest the petitioners. 3. Heard the learned counsel for the petitioners and the learned HCGP for the respondent State. Perused the prosecution papers available at this stage. 4. The learned counsel submits that the petitioner No.1 was not entrusted with the specif ic function of col lecting the outstanding dues from the retail outlets. As such he had not collected any amount. The complainant has taken the cheques from petitioner No.1 at the time of appointment and he has made use of the said cheque to harass the petitioners. The police of f icials are making attempts to arrest the petitioners. In the event of arrest and detention, the petitioners wil l be put to great hardship. 5. Per contra, the learned HCGP submitted that the petitioner No.1 having col lected the outstanding dues has failed to remit the said amount to the complainant f irm. The police of f icials are making attempts to arrest the petitioners. In the event of arrest and detention, the petitioners wil l be put to great hardship. 5. Per contra, the learned HCGP submitted that the petitioner No.1 having col lected the outstanding dues has failed to remit the said amount to the complainant f irm. The petitioner No.2 has colluded with him. Both of them have committed the offences. The investigation is not yet completed. The presence of the petitioners is required for interrogation. In the event of granting bai l, they are likely to abscond. 6. The averments made in the complaint clearly indicate that there is some dispute regarding the amount collected by petitioner No.1 and the amount remitted to the account of the complainant's firm. It is also stated that the petitioner No.1 has executed a promissory note and has issued a cheque towards payment of the amount. Thus there are two versions according to the complainant. At this stage it is needless to make an elaborate discussion or to give any speci fic finding as the same is not permissible whi le considering the bail appl ication. 7. In view of the decision of the Hon'ble Apex Court in the case of Siddharam Satl ingappa Mhetre V/s State of Maharashtra and others, (2011) 1 SCC 694 one of the parameters that can be taken into consideration while dealing with the anticipatory bai l is frivolity in prosecution and the element of genuineness. In the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bai l . Whi le considering the prayer for grant of anticipatory bail , a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and ful l investigation and there should be prevention of harassment, humil iation and unjustif ied detention of the accused. 8. In view of the ratio laid down by the Hon'ble Supreme Court, the arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is an imperative in the facts and circumstances of those cases. 8. In view of the ratio laid down by the Hon'ble Supreme Court, the arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is an imperative in the facts and circumstances of those cases. The personal liberty of a person is a fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. As could be seen from the complaint averments, the petitioner has approached the complainant's f irm on several occasions and has tried to convince about the accounts and the amount payable. Admittedly according to the complaint averments, the petitioner has failed to deposit the amount collected by him during the month of December 2018, but whereas the complaint is fi led after seven months. The facts and circumstances of the case and the submission of the counsel goes to prove the apprehension of the petitioners regarding their arrest and detention. 9. The main objection of the prosecution is that in the event of granting bai l, petitioners/ accused are l ikely to abscond and interfere with the with the investigation. The said objection may be set right by imposing stringent conditions. 10. For the foregoing discussions, there are valid grounds for granting anticipatory bai l subject to certain terms and conditions. Accordingly, I proceed to pass the following: ORDER The petition fi led under section 438 of Cr.P.C. is allowed. The petitioners/accused shall be released on bai l in the event of their arrest in Crime No.64/2019 of Gandhinagar P.S. , on their executing personal bond for a sum of Rs.1,00,000/- (one lakh rupees only) each with two sureties for the l ike sum to the satisfaction of the concerned Investigating Of f icer. The petitioners shall appear before the concerned Investigating Of ficer/Court within a period of 15 days from the date of receipt of this order and shal l seek for regular bai l . The petitioners shall not indulge in tampering the prosecution witnesses. The petitioner No.1 shal l mark his attendance in the concerned pol ice station on every Sunday between 10.00 a.m. to 5.00 p.m. , til l fi ling of the charge sheet. The petitioners shall not leave the jurisdiction of the trial Court without prior permission, til l the disposal of the case. The petitioner No.1 shal l mark his attendance in the concerned pol ice station on every Sunday between 10.00 a.m. to 5.00 p.m. , til l fi ling of the charge sheet. The petitioners shall not leave the jurisdiction of the trial Court without prior permission, til l the disposal of the case. If the petitioners violate any of the conditions, the bai l order automatical ly stands cancel led.