Crl.Misc.No.2833/2024 KABC010079462024 Presented on : 20-03-2024 Registered on : 20-03-2024 Decided on : 02-04-2024 Duration : 0 years, 0 months, 13 days IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS JUDGE (CCH-65) AT BENGALURU) Dated this 2nd day of April 2024 -: P R E S E N T :- Smt. Kalpana M.S., B.Sc., LL.M.,PGD-CLCF., LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY. Crl.Misc.No. 2833/2024 PETITIONER : Dharmendra Babu, S/o. K.R. Mahavevaiah Aged about 22 years R/at No. 26. 5th Main Road 2nd Cross, Maruthinagara Nagarabavi Main Road Crl.Misc.No.2833/2024 Bangalore – 560 072 (Accused) ( By Sri. Narayana. G., Advocate) /Vs/ RESPONDENT : State of Karnataka by Subramanya Nagara Police, Bengaluru. (Rep. By Learned Public Prosecutor) ORDERS ON ANTICIPATORY BAIL APPLICATION U/S.438 OF CR.P.C. Petitioner/accused has filed this petition U/s.438 of Code Criminal Procedure (hereinafter referred as Cr.P.C.,)seeking anticipatory bail in Cr.No.0029/2024 for the offences punishable U/s.420 of Indian Penal Code (hereinafter referred as I.P.C.) pending on the file of XXXIX- ACMM., Bengaluru. Crl.Misc.No.2833/2024

2. Learned Public Prosecutor appearing for the

State has filed objection statement along with report of the Investigating Officer opposing the bail petition.

3. For the purpose of brevity, the facts stated in the

petition and objections will be stated at appropriate stage of the orders.

4. Heard arguments. Perused the materials on

record.

5. The points do arise for my consideration are;

1. Whether petitioner/accused is entitled for grant of anticipatory bail U/s.438 of Code of Criminal Procedure?

2. What Order?

6. For the reasons stated hereinafter, my findings on

the above points are as follows; Point No.1: In the Affirmative Point No.2: As per final order Crl.Misc.No.2833/2024 for the following:- R E A S O N S

7. POINT No.1:- Along with petition, petitioner has

produced certified copies of complaint and F.I.R in Cr.No.0029/2024, and Aadhaar Card. Perused the same.

8. The facts set out in the FIR and complaint in brief,

is as under; That complainant Sampath Kumar working in a KASA DESIGNER COMPANY, gave a construction contract to the accused for wild valley resort about 1 year ago under the agreement dated 09.05.2023 for total construction cost of Rs. 53 Lakhs. The accused received a sum of Rs. 24,50,000/- as an advance. But, the accused has finished only 15% construction work for Rs. 6,13,518/- and 85% work is still working. He has not completed the work as per the agreement and thereby cheated the complainant. Crl.Misc.No.2833/2024 On the basis of the complaint lodged by the complainant, the respondent police have registered a case against accused persons for the offence punishable U/s.420 of I.P.C and proceeded with investigation.

9. Learned counsel vehemently argued that,

petitioner is innocent of the alleged offences. He has not committed the said offences. The accused has completed 60% of the construction within 30 days and was promptly continuing the work. When the accused approached the complainant for payment for remaining work, the complainant abused him with un-parliamentary words and also tried to assault him. When the complainant refused to pay the balance amount, the accused stopped the construction work. Complainant has filed a false case without any cause. There is serious apprehension of arrest. The learned counsel submits that, the petitioner has made out prima facie case for grant of pre-arrest bail. Crl.Misc.No.2833/2024

10. At the out set, the alleged offences are triable by

Magistrate. The said offences are neither punishable with death penalty nor imprisonment for life. The commission of offences by the petitioner is required to be established during trial. The Hon'ble Supreme Court of India in the decision of State of Rajasthan, Jaipur V/s. Balachandh @ Baliay (AIR 1977 SC 2447) and in catena of decisions pleased to laid down the legal doctrine that "Bail is a rule and jail is an exception". This legal doctrine is laid down for safeguarding fundamental right under Article 21 of Constitution of India, granting the right to life and liberty.

11. The offence alleged against the petitioner is

punishable under 420 of I.P.C. and other allied offences. It is settled law that, in a case of this nature, custodial interrogation is not warranted. In the decision reported in AIR 2023 Supreme Court 1570: AIR Online 2023 SC 198 Crl.Misc.No.2833/2024 in a case of Mahdoom Bava V/s.Central Bureau of Investigation, the Hon'ble Court pleased to observe that; Criminal P.C. (2 of 1974) S.438 – Anticipatory bail – Entitlement – Offences U/Ss. 420, 467, 468, 471 R/w.Sec.120B of I.P.C. and S.13(3) R/w.Sec. 13(1)(d) of the Prevention of Corruption Act – When case was primarily based on documentary evidence, arrest of accused persons was not warrantedEleven cases were registered against prime accused but those cases were not relevant for adjudicating the present matter. Accused persons apprehended that they may be remanded to custody by trial courtAnticipatory bail granted. The ratio laid down in the cited decision is squarely applicable to the facts and circumstances of this case.

12. Admittedly, agreement entered between the

complainant and the accused for construction work. Thus, the dispute is civil in nature. If at all there is violation of conditions of the agreement, it is open for the complainant to approach before proper forum. The complainant is giving color of criminal case to the civil dispute. There is no report Crl.Misc.No.2833/2024 of criminal antecedent. The apprehension of the prosecution could be met by imposing stringent conditions to secure the petitioner during trial. It is submitted that, the petitioner has permanent place of abode in Bengaluru. There is remote chances of flee from justice. The apprehension of the prosecution could be met by imposing stringent conditions to secure the petitioner during trial. Under these changed facts and circumstances and having regard to the nature of offences alleged and punishment prescribed and in view of the law laid down by Hon'ble Supreme Court of India in the case of Satender Kumar Antil V/s.Central Bureau of Investigation reported in 2022 Live Law (SC) 577 , I am of the opinion that, it is proper to enlarge the petitioner on bail by imposing appropriate terms and conditions, in the interest of trial. Accordingly, point No.1 is answered in the Affirmative. Crl.Misc.No.2833/2024

13. POINT NO.2: In view of the aforesaid discussion,

this court proceed to pass the following : O R D E R Anticipatory bail petition U/s.438 of Cr.P.C., filed by the petitioner/accused is allowed. Respondent police is directed to release the petitioner/accused on bail in the event of his arrest in Cr.No.0029/2024 of Subramanya Nagara police station, Bengaluru for the offences punishable U/s. 420 of I.P.C., pending on the file of 39th-Addl. Chief Metropolitan Magistrate Court, Bengaluru by taking personal bonds for Rs.50,000/- (Fifty Thousand) with two sureties for like sum under following conditions;

1. Petitioner/accused shall appear before Investigating Officer and co-operate with

investigation within 15 days from the date of this order and make himself available for Crl.Misc.No.2833/2024 investigation as and when called by the Investigating Officer.

2. He shall furnish documents regarding his

address proof and the address proof of his sureties at the time of furnishing sureties.

3. He shall mark his attendance at respondent police station on 1st and 3rd Sunday of every

month between 10.00 a.m. and 2.00 p.m., till conclusion of investigation or for a period of 3 months, whichever is earlier.

4. He shall not directly or indirectly make any

inducement threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts either to the Investigation Officer or to the trial court.

5. He shall not leave the jurisdiction of India

without prior permission of the trial court.

6. He shall not involve in any criminal activities. Crl.Misc.No.2833/2024

7. In the event any change in the residential

address, petitioner and his sureties shall intimate the same to the trial court immediately without fail. Violation of any of these conditions would entitle cancellation of bail. (Dictated to the Judgment Writer directly on computer, typed by her, then corrected, signed and pronounced by me in open court on this 2nd day of April 2024). (KALPANA M.S.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY.