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2022 DIGILAW 268 (KAR)

Venkatesh Murthy. T v. State of Karnataka

2022-02-25

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - This petition is filed under Section 439(2) of Cr.P.C praying this Court to cancel the bail granted in favour of respondent No.2/accused No.1 by the I/c I additional Civil Judge and JMFC, Nelamangala in Cr.No.459/2019 dated 05.05.2021 for the offences punishable under Section 66C and 66D of the Information Technology act, 2000 (for short 'IT act') and under Section 419 and 420 of IPC and sought for the arrest and commit him to custody. 2. Heard the learned counsel appearing for the petitioner, the learned High Court Government Pleader appearing for respondent No.1-State and the learned counsel appearing for respondent No.2. 3. The factual matrix of the case is that the petitioner/complainant Sri Venkatesh Murthy in the complaint made an allegation that he made the transaction with respondent No.2 to purchase the Bitcoins. Respondent No.2 represented himself as a Stock Broker dealing with Cryptocurrency, hence, the petitioner invested an amount of Rs.75 lakh with respondent No.2 in two accounts and respondent No.2 also started luring more people into Crypto Invest across India and in foreign countries like Singapore, Malaysia by offering big monthly returns and he launched Crypto Invest application in the Play store in april 2018 through which the transaction was carried on between the petitioner and respondent No.2. When the matter was under investigation, respondent No.2 was arrested and produced before the Trial Court and the learned Magistrate, enlarged him on bail coming to the conclusion that though the offence alleged against the accused No.1 is non-bailable but not punishable with death or life imprisonment and triable by the Court. The Investigating Officer has taken custody of the accused No.1 and it shows that he has completed almost of his investigation and also observed that the High Court of Karnataka has granted anticipatory bail to accused Nos.2 to 6 and it is also observed that respondent No.2/accused No.1 is suffering from COVID-19 disease and provided clause 437 of Cr.P.C and enlarged respondent No.2 on bail and hence, the present petition is filed to cancel the bail granted in favour of respondent No.2. 4. 4. The learned counsel appearing for the petitioner vehemently contend that more than 2500 people have invested the money in the said business and fraud is more than 1,500 crore and accusation against respondent No.2 relates to commission of economic offences which are considered to be grave offences and the same to be viewed seriously. Such offences affect the economy of the Country as a whole and it involves deep rooted conspiracy and huge loss of public fund. When such being the case, the Court ought to have considered the larger interest of public and State and the Trial Court had failed to consider the nature and seriousness of an economic offence which impact on the society at large. 5. The learned counsel appearing for the petitioner in support of his argument relied upon the decision of the apex Court in the case of Y.S.JaGaN MOHaN REDDY VS CBI reported in (2013) 7 SCC 439 wherein the apex Court held that the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail and while granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof. Relying upon the decision referred supra, the learned counsel submitted that the Trial Court has committed an error in coming to the conclusion that Investigating Officer has almost completed the investigation and accused No.1 tested COVID-19 Positive and the same cannot be the grounds in a serious economic offence which comes to the tune of more than Rs.1,500 crore and there is no recoveries made even after the lapse of almost three years and Trial Court had failed to appreciate and consider the facts of the case, nature of the accusation and gravity of the offences. 6. The learned counsel for the petitioner also relied upon the decision of the apex Court in the case of GUDIKaNTI NaRaSIMHULU VS PUBLIC PROSECUTOR, HIGH COURT OF a.P. reported in (1978) 1 SCC 240 wherein also it is observed that deprivation of freedom by refusal of bail is not for punitive purposes but for the bifocal interests of justice. The nature of the charge is a vital factor and the nature of the evidence is also pertinent. The nature of the charge is a vital factor and the nature of the evidence is also pertinent. The counsel also relied upon the judgment of the apex Court in the case of STaTE OF MaHaRaSHTRa VS SITaRaM POPaT VETaL reported in (2004) 7 SCC 521 wherein also it is observed that while granting bail, the Court must considered the factors of nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence and reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and also prima facie satisfaction of the Court in support of the charge. It is further observed that any order dehors such reasons suffers from non-application of mind. The counsel also relied upon the order passed in CRL.a.NO.883/2021 decided on 24.08.2021 between HaRIJIT SINGH VS INDERPREET SINGH followed the decision rendered in MaHIPaL VS RaJESH KUMaR reported in (2020) 2 SCC 118 and RaMESH BHaVaN RaTHOD VS VISHaNBHaI HIRaBHaI MaKWaNa MaKWaNa reported in 2021 SCC ONLINE SC 335 wherein also the apex Court observed that while granting the bail, the Judge must consider the material on record and apply his judicious mind. The counsel also relied upon the judgment of the apex Court in the case of PURaN VS RaMBILaS aND aNOTHER reported in (2001) 6 SCC 338 wherein it is held that the hon'ble Supreme Court cancelled the bail granted to the accused in a case under Sections 498a and 304B of IPC and has held that granting bail by ignoring material and evidence on record and without giving reasons would be perverse and contrary to the principles of law. 7. The learned counsel appearing for the petitioner referring these judgments would vehemently contend that the learned Magistrate failed to take note of the gravity of the offences and seriousness of the allegations and particularly, it is a case of disturb in the economy in the Country and more than 2500 investors have lost their money to the tune of Rs.1,500 crore and hence, it requires interference of this Court. 8. 8. Per contra, the learned counsel appearing for respondent No.2 would submit that statement of objections was filed by the prosecution before passing the order and the Trial Court while considering the bail application taken note of the fact that the offences alleged against respondent No.2 are not punishable with death or imprisonment of life and further observed that though the investigation is almost completed and the reasons also assigned in the order and hence, it does not requires interference of this Court. 9. The learned counsel appearing for respondent No.2 in support of his arguments, relied upon the decision of the apex Court in the case of DOLaT RaM aND OTHERS VS STaTE OF HaRYaNa reported in (1995) 1 SCC 349 and brought to notice of this Court the paragraph 4 of the judgment wherein the apex Court has observed that once, bail granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. The counsel also relied upon the judgment of the apex Court in the case of BHaGIRaTHSING S/O MaHIPaT SINGH JUDEJa VS STaTEOF GUJaRaT reported in (1984) 1 SCC 284 and brought to notice of this Court the paragraph 7 wherein the apex Court comes to the conclusion that the Sessions Judge appreciated the material available on record while granting bail and the High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before temporary injunction was for cancellation of the bail. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. 10. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. 10. The learned counsel appearing for respondent No.2 also relied upon the decision of the apex Court in the case of DEVENDER KUMaR aND aNOTHER VS STaTE OF HaRYaNa aND OTHERS reported in (2010) 6 SCC 753 and brought to notice of this Court that paragraph 14 wherein the apex Court also observed that the reason given by the High Court for cancellation of the orders, granting bail and directing the arrest of the appellants on the ground that disclosures have been made by the appellants and that their police custody was necessary for recovery of the same, is, in our view, not sufficient for the purpose of cancellation of bail granted earlier. The counsel also relied upon the order passed by this Court in Crl.P.No.4598/2020 and brought to the notice the paragraph 25 wherein this Court made an observation that the question of canceling the bail does not arise in the absence of any cogent material on record, the liberty of any person as envisaged under article 21 of the Constitution of India cannot be curtailed on the mere ground of number of cases being pending against him. The counsel also relied upon the judgment reported in (2009) 8 SCC 325 between SaVITRI aGaRWaL aND OTHERS VS STaTE OF MaHaRaSHTRa aND aNOTHER wherein the apex Court observed that very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted. The counsel also relied upon the judgment reported in (2018) 16 SCC 511 between X VS STaTE OF TELaNGaNa aND aNOTEHR wherein the apex Court observed regarding when cancellation of bail warranted, bail once granted should not be cancelled unless a cogent case, based on supervening events has been made out. 11. The learned counsel appearing for respondent No.2 also brought to notice of this Court that the Trial Court while granting bail made an observation that accused Nos.2 to 6 have been granted bail by this Court and hence, discretion may be exercised in favour of respondent No.2 and no grounds are made out to invoke Section 439(2) of Cr.P.C. 12. The learned counsel appearing for respondent No.2 also brought to notice of this Court that the Trial Court while granting bail made an observation that accused Nos.2 to 6 have been granted bail by this Court and hence, discretion may be exercised in favour of respondent No.2 and no grounds are made out to invoke Section 439(2) of Cr.P.C. 12. The learned counsel for respondent No.2 in the statement of objection has contended that the learned counsel for the petitioner has relied upon the order passed by the Sessions Court at Gujarat, but after filing of the charge-sheet, respondent No.2 has been enlarged on bail. The learned counsel in the statement of objection has contended that the Trial Judge invoked the jurisdiction under Section 437 of Cr.P.C. after his arrest and also extracted the provision of Sections 419, 66(c) and 66(d) of IT act and contended that the Court exercised the discretion having perused the material on record. Hence, prayed for dismissal of the petition. 13. Having considered the grounds urged in the petition as well as the statement of objection and also the principles laid down in the judgments referred by both the counsel, it is settled law that the Court has to look into the nature and seriousness of the allegations made in the complaint. Having considered the contents of the complaint, the complainant/petitioner has contended that he had invested an amount of Rs.75 lakhs in between December 2017 to June 2018, but the amount was not returned. It is also an allegation that the accused persons belong to same family and they have cheated. admittedly, this Court entertained the bail petition of accused Nos.2 to 6, wherein an observation is made that the allegation is against accused No.1 and this Court exercised the discretion under Section 438 of Cr.P.C. The learned Magistrate while exercising the discretion under Section 437 of Cr.P.C. taken note of granting of the anticipatory bail in respect of accused Nos.2 to 6 and in the order mentioned that accused No.1 is suffering from Covid-19 and the offences are also non-bailable, but not punishable with death or imprisonment for life and triable by the same Court. It is also an allegation in the complaint that the petitioner herein had invested an amount of Rs.75 lakhs, but the very contention of the learned counsel for the petitioner is that respondent No.2 had cheated more than 2500 persons amounting to Rs.1,500 Crores. 14. In the complaint, the petitioner has categorically stated that he had invested an amount of Rs.75 lakhs and case is registered based on the complaint of the petitioner herein and hence the gravity of the offence is with regard to he had invested Rs.75 lakhs. The learned Trial Judge exercised the jurisdiction under Section 437 of Cr.P.C. and the offence is also traible by the Magistrate and not exercised the discretion invoking Section 438 of Cr.P.C. and the fact that respondent No.2 has been arrested and produced before the Court is also not in dispute. When such being the factual aspects of the case, this Court granted bail in favour of accused Nos.2 to 6 invoking Section 438 of Cr.P.C. and the Trial Judge invoked Section 437 of Cr.P.C. after the arrest of respondent No.2 and the Trial Judge while granting bail, imposed the conditions that respondent No.2 shall not indulge in similar kind of offences and shall not leave the jurisdiction without prior permission and shall also co-operate with the Investigating Officer during the investigation and apart from that, ordered to mark his appearance before the SHO 15th day of calendar month till 60 days or filing of the charge-sheet, whichever is earlier and taken care of the apprehension of the prosecution by imposing conditions. When such being the order, I do not find any force in the contention of the learned counsel for the petitioner that the Trial Court has not taken note of the ingredients of the offences and the offence are triable by the Magistrate and also exercised the powers under Section 437 of Cr.P.C. The gravity of the allegation is that the petitioner had invested an amount of Rs.75 lakhs for higher returns and the amount is not paid. The learned counsel also placed on record the order passed by the Sessions Judge at Gujarat and not disputes the fact that after filing of the charge-sheet, the Gujarat High Court granted bail in favour of the petitioner and no doubt, other cases are also registered against respondent No.2, but this Court has to consider the allegations made against respondent No.2 in the present complaint. When such being the case, it is not a case for exercising the powers under Section 439(2) of Cr.P.C. to cancel the bail. No doubt, the principles laid down by the judgments referred by the respective counsel are exercising the powers under Section 439(2) of Cr.P.C. and the Court can invoke Section 439(2) Cr.P.C sparingly when the order is passed without considering the material on record and if any perverse order is passed. Hence, I do not find any such circumstances in the case on hand to invoke Section 439(2) of Cr.P.C. to cancel the bail granted in favour of respondent No.2. 15. In view of the discussions made above, I pass the following: ORDER The petition is rejected.