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2022 DIGILAW 1117 (KAR)

Balasubramani v. State of Karnataka

2022-08-26

K.NATARAJAN

body2022
JUDGMENT 1. This petition is filed by 8the petitioner/accused Nos.1 and 2 under Section 439 of Cr.P.C. seeking for granting regular bail in Crime No.147/202 registered by Ashok Nagar Police Station for the offences punishable under Sections 418, 406, 420, 120 of IPC pending on the file of IV Additional Chief Metropolitan Magistrate, Bengaluru. 2. Heard the arguments of learned Senior Counsel for the petitioners and learned High Court Government Pleader for the respondent-State and counsel who assisted the prosecution. 3. The case of the prosecution is that on the complaint of one Diana Mathew the Director of Smart Owner Services India Pvt. Ltd., filed the first information to the respondent police on 26.05.2022 alleging that the petitioner No.1/accused No.1 said to be working as a Business Head Sales and petitioner No.2/accused No.2 is working as Regional Manager of Sales of his Company as full time employees. They are responsible for selling apartments, villas and investment opportunities to prospective buyers through direct sales as well as through companies channel partners (brokers). It is alleged that while discharging their duties, they made unlawful gain and wrongfully caused loss to the Company by the accused No.1 in collusion with the accused no.2 and created fake channel partners account in the name of accused No.3 to 5 family members of accused No.1 and they said to have misappropriated fund of Rs.41,40,370/- where they stated they said to be paid as brokerage to the channel partners but in fact they opened a fake Company in the name of his family members and even though there was direct sales but they created the documents and obtained 2% brokerage in the name of the company created in the names of accused Nos.3 to 5 and also the accused No.1 was trying to sell two plots bearing No.707 and 708 in the name of his own wife through one Ramya Pradeep. Thereby he has caused loss of Rs.80 lakhs. Hence, prayed for taking action. said to be granted anticipatory bail and this petitioner said to be arrested by the police on 16.6.2022 and they are remanded to judicial custody. The investigation is completed and charge sheet has been filed. They are ready to abide by any conditions. The case is based on the documentary evidence and there was an assignment agreement executed by the complainant company to the accused No.3 through the assignor-Ramya Pradeep. The investigation is completed and charge sheet has been filed. They are ready to abide by any conditions. The case is based on the documentary evidence and there was an assignment agreement executed by the complainant company to the accused No.3 through the assignor-Ramya Pradeep. Apart from that the complainant company filed a suit and obtained the injunction not to disburse an amount of Rs.2.63 crores. Therefore, there is no offence committed by the petitioner as alleged. Even otherwise, the offence is punishable with 7 years and is triable by the Magistrate. Hence prayed for granting bail. 5. Per contra, learned High Court Government Pleader seriously objected for the bail petition and contended that the petitioner/accused No.1 created a fake Company channel partners and transferred more than Rs.48 lakhs as per the charge sheet. In fact the entire money has been misappropriated by the petitioner/accused Nos.1 and 2. It was given to the family members of the accused No.1 who are accused Nos.3 to 5. The accused No.2 also transferred some amount more than Rs.5 lakhs to CW6/Mohan Kumar and later got it transferred to his account. The statement of the witnesses under Section 164 Cr.P.C reveals the amount has been transferred and received by the accused persons. Though the charge sheet is filed, further investigation is still under progress there is no recovery of single rupee from the accused persons. There are so many fake transactions made by the petitioners and trying to transfer the flats in the name of the accused No.3 wife of the accused No.1. That apart, the accused No.3 who was granted bail by the Sessions Judge, now she has made threat to the one of the prosecution witnesses and lodged complaint to the police. The NCR is registered by the police, if the petitioner granted bail, they may threaten the witnesses and tamper with the prosecution witnesses, the police are still making further investigation and until completion of the further investigation, the petitioners are not entitled for bail. Hence, prayed for dismissing the bail petition. 6. Having heard the arguments and perusal of the records and written statement of informant, admittedly the petitioner Nos.1 and 2 are the employees of the First Informant Company, they are in-charge of sales of the apartments and villas through direct sales and also through companies channel partners. Hence, prayed for dismissing the bail petition. 6. Having heard the arguments and perusal of the records and written statement of informant, admittedly the petitioner Nos.1 and 2 are the employees of the First Informant Company, they are in-charge of sales of the apartments and villas through direct sales and also through companies channel partners. The allegation is even though, there were sale of the flats through direct sales, but the accused shown the sales of flats through channel partners and they deducted more than Rs.48 lakhs from the companies account under the guise of payments made to the various channel partners of the company. But infact those channel partners are none other than the very Company owned by the accused No.1 through his family members who are none other than his wife, brother and mother. That apart there was an allegation that he has entered into agreement for selling two flats to one Ramya Pradeep and subsequently within a month an assignment agreement was prepared and given to the accused No.3 Poornima, the wife of the accused No.1 These facts came to light to the complainant company and filed this complaint. Though the first information report revealed they have misappropriated and cheated only Rs.41 lakhs and Rs.80 lakhs but in the first charge sheet, police have shown Rs.48 lakhs, which has been siphoned by the accused and they have collected voluminous document and filed a provisional charge sheet against the accused persons. The Investigation Officer also stated still they require some more time for filing additional charge sheet, they are making further investigation in this matter, which reveals there is a prima facie case made out against accused for having involved in misappropriating and cheating the first informant company. Even though they were employees of the company, that apart there were so many transactions made by them and paid brokerages to the fake company channel partners and matter requires further detailed investigation. The accused No.2 got the money transferred to the CW6/Mohan Kumar for more than Rs.5 lakhs and he has got it transferred to his name on the same day. The statement under 164 Cr.P.C of one Mohan Kumar reveals that on 15.02.2022, the accused No.2 transferred the amount Rs.5,11,854/- and immediately got it transferred. The statement of Nitin and Nagaraj also reveals that they have given statement against the petitioners. The statement under 164 Cr.P.C of one Mohan Kumar reveals that on 15.02.2022, the accused No.2 transferred the amount Rs.5,11,854/- and immediately got it transferred. The statement of Nitin and Nagaraj also reveals that they have given statement against the petitioners. The said Nagaraj B.R. also filed a complaint on 16.6.2022 against accused No.3 where she has threatened the witness not to give any statement to the police. There are voluminous document produced by police which reveals the involvement of the petitioners in cheating their own company and misappropriating the amounts by manipulating the documents. The matter requires further investigation by the police and the police have not seized single rupee out of Rs.48 lakhs which was misappropriated by the accused persons. Therefore, I am of the view that though the offence is not punishable either with death or imprisonment of life and they are triable by the Magistrate, but the matter requires further investigation and recovery of misappropriation of money by the Investigating Officer. Until then, the petitioners are not entitled for bail at this stage. 7. Accordingly, the petition filed by accused Nos. 1 and 2, is hereby dismissed.