In a notable judicial order passed on April 2, 2024, the LXI Additional City Civil and Sessions Judge, Bengaluru City (CCH-62), Smt. Nisharani A.C., B.A., LL.B., allowed the anticipatory bail application in Criminal Miscellaneous No. 2861/2024. The court granted pre-arrest bail protection to M. Shiva Kumar (Accused No. 1) and Kiran Kumar S. (Accused No. 2) in connection with Crime No. 583/2023 registered by the Hulimavu Police Station, Bengaluru. The petitioners were apprehending arrest for offences punishable under Sections 406 (criminal breach of trust), 417 (cheating), 420 (cheating and dishonestly inducing delivery of property), and 506 (criminal intimidation) read with Section 34 of the Indian Penal Code (IPC).

Factual Matrix and Prosecution Allegations

The criminal proceedings originated from a complaint lodged at the Hulimavu Police Station against the partners of M/s Sannidhi Builders and Developers.

According to the prosecution case:

• On December 29, 2020, the petitioners along with co-accused partners entered into a registered agreement of sale with the complainant for Flat No. 203 (2nd Floor, Nisarga Apartments, measuring 1,050 sq. ft., built on Survey No. 44/1, Arakere Village, Begur Hobli, Bengaluru).
• The complainant paid an advance consideration of ₹25,00,000/- (₹25 Lakhs) to the builders pursuant to the agreement.
• Subsequently, the complainant discovered that the petitioners and their co-partners had already sold and transferred the identical agreement-schedule apartment flat to a third party named Shetty Krishna Kishore.
• When the complainant confronted the builders demanding a refund or conveyance, the petitioners allegedly threatened the complainant with dire consequences and refused to return the funds, leading to charges under Sections 406, 417, 420, and 506 read with Section 34 IPC.

The details of the petitioners as per court records are:

• M. Shiva Kumar (Petitioner No. 1 / Accused No. 1): Aged 43 years, son of Manikyam, residing at No. 720/B, Garadi Mane Road, 2nd Division, Bommanakatte, Bhadravathi, Shivamogga – 577302 (also residing at PH-6, Prabhavathi Shadow Apartment, Arakere, Bengaluru – 560076).
• Kiran Kumar S. (Petitioner No. 2 / Accused No. 2): Aged 44 years, son of Surendra Reddy, residing at No. 103, 20th Cross, K.R. Layout, J.P. Nagar 6th Phase, Bengaluru South, Bengaluru – 560078.

Arguments Advanced on Behalf of the Petitioners

Appearing on behalf of the applicants, learned advocate Sri M. Gopal presented several grounds seeking pre-arrest protection under Section 438 Cr.P.C.:

• Civil Dispute Framework: The defence submitted that the controversy arose out of a commercial real estate development transaction and breach of a sale agreement, which is inherently civil in nature.
• Innocence and Absence of Criminal Motive: The petitioners maintained that they were innocent, running a legitimate partnership firm (‘Sannidhi Builders and Developers’), and had been falsely implicated without criminal intent.
• Non-Capital Offences and Local Roots: The offences alleged under Sections 406, 417, 420, and 506 IPC do not carry penalties of death or life imprisonment and are triable by a Magistrate. Both partners hold fixed residential abodes in Bengaluru with dependent elderly parents.
• Undertaking: The petitioners promised to abide by all conditions imposed by the court and furnish reliable sureties for their regular appearance before the Investigating Officer.

Objections Raised by the Prosecution

The Public Prosecutor strongly opposed the grant of anticipatory bail, filing a statement of objections alongside the Investigating Officer’s report:

• Prima Facie Real Estate Fraud: The prosecution submitted that sale agreement records and property registry logs established a clear case of double-selling built-up property and dishonest misappropriation of ₹25 Lakhs.
• Apprehension of Interference: The prosecution expressed concern that if enlarged on pre-arrest bail, the builders might abscond, threaten the complainant, destroy financial records, or tamper with prosecution witnesses.

Judicial Findings and Detailed Legal Reasoning

The Sessions Court evaluated the FIR, complaint, registered sale agreement details, and rival submissions to determine Point No. 1: whether the petitioners made out sufficient grounds for anticipatory bail.

1. Civil Character of Real Estate Contractual Disputes

Judge Nisharani A.C. observed that the core dispute centered around the non-performance of a registered agreement of sale for real estate.

Referring to established Supreme Court jurisprudence (2020 (1) KCCR SN 29 (SC)), the court highlighted that where a transaction is predominantly civil or contractual in nature, converting it into criminal proceedings constitutes an abuse of the judicial process.

2. Nature of Penalties and Jurisdiction

The court emphasized that the offences alleged under Sections 406, 417, 420, and 506 IPC are triable by a Magistrate and do not carry penalties of death or life imprisonment. Holding that full-fledged trial is the proper forum to establish criminal intent, the court found no need for custodial interrogation.

3. Protection Against Flight Risk

Examining the residential address proof and identification documents submitted by the petitioners, the court found that both partners were permanent residents of Bengaluru with established families. The court held that the prosecution’s concerns regarding trial attendance and witness protection could be effectively managed by imposing strict conditions rather than denying pre-arrest protection.

It remains a settled principle of criminal jurisprudence that an order deciding an anticipatory bail application is procedural in nature and does not constitute an expression on the ultimate guilt or innocence of the accused, which remains subject to trial.

Final Pre-Arrest Bail Order and Imposed Conditions

Answering Point No. 1 in the affirmative, LXI Additional City Civil & Sessions Judge Smt. Nisharani A.C. allowed the petition filed under Section 438 Cr.P.C. and passed the following order:

The anticipatory bail petition filed by the petitioners under Section 438 of Cr.P.C. is hereby allowed, subject to the following conditions:

1. In the event of arrest of the petitioners in Crime No. 583/2023 of Hulimavu Police Station, they shall be released on bail on executing a personal bond for a sum of ₹1,00,000/- (Rupees One Lakh only) each with one surety for each petitioner for the likesum amount.
2. The petitioners shall not hold any threat to the complainant and shall not tamper with any of the prosecution witnesses directly or indirectly.
3. The petitioners shall not leave the jurisdiction of the court without prior permission.
4. The petitioners shall furnish their residential address proof and that of their sureties.
5. The petitioners shall not indulge in similar types of offences in the future.
6. The petitioners shall appear before the trial court regularly without fail upon receipt of summons.
7. If the petitioners fail to obey any of the above-stated conditions, this bail order shall automatically stand canceled.