Mr K P Ghanshyam Vs the State of Karnataka

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN

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CRIMINAL PETITION NO.13878 OF 2024

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BETWEEN:

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1 . MR. K. P. GHANSHYAM

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S/O. K. L. A. PADMANABHASA, AGED ABOUT 52 YEARS, RESIDING AT NO.9 AND 9/1, SHESHADRI ROAD, BENGALURU - 560 009.

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2 . MR. SAHASRARJUN

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S/O. K. P. GHANSHYAM, AGED ABOUT 30 YEARS, RESIDING AT NO.9 AND 9/1, SHESHADRI ROAD, BENGALURU - 560 009.

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...PETITIONERS

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(BY SRI. SANDESH CHOUTA, SENIOR COUNSEL FOR SRI. PRAVEEN S., ADVOCATE)

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AND:

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1 . THE STATE OF KARNATAKA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE - 560 001.

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2 . SRI. BRIJMOHAN S/O K.L.SWAMY, AGED ABOUT 44 YEARS, NO.9, SESHADRI ROAD, GANDHINAGAR, BENGALURU - 560 009.

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…RESPONDENTS

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(BY SRI. P.P.HEGDE, SENIOR COUNSEL FOR SMT. MONISHA N S., ADVOCATE FOR R-2; SMT. N. ANITHA GIRISH, HCGP FOR R-1)

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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.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 15.01.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE K.NATARAJAN

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RESERVED FOR ORDERS ON: 15.01.2025 PRONOUNCED ON : 25.01.2025

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CAV ORDER

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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.

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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.

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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.

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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.

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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.

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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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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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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.

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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.

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Having heard the arguments and perused the records.

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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.

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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.

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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.

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Learned senior counsel appearing for the petitioners relied upon the judgment of the Hon'ble Apex Court in the case of

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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.

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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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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.

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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.

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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.

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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.

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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.

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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.

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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.,

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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

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The petition filed by the petitioners/ accused Nos.1 and 6 under Section 438 of Cr.P.C., is hereby

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dismissed.

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Sd/(K.NATARAJAN)

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JUDGE