Crl.Misc.No.2812/2024 IN THE COURT OF THE LXIX ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH 70) Dated this the 22nd day of March, 2024 PRESENT Sri. Santhosh Gajanan Bhat, B.A.Law,LL.B, LXXXI Addl. City Civil and Sessions Judge (CCH 82) (Special Court exclusively to deal with criminal cases related to elected former and sitting MPs/MLAs in the State of Karnataka) I/c of LXIX Addl. City Civil and Sessions Judge, Bengaluru City. ­ CCH 70 Crl.Misc.No. 2812/2024 Petitioner: 1.Talib Hassan Darvesh, C/o Shanaaz Hameed, aged about 43 years, r/at No.51/1, Promenade Road, Santhosh Hospital, Fraser Town, Bengaluru 560005,

2. Abdul Rasheed, S/o Hameed Ulla, aged about 48 years, r/at No.1331, 10th Cross, R.K. Hegde near Main Road, Bengaluru North, Dr. Shivarama Karanth Nagar, Bengaluru 560077,

3. Syed Firous Inayath, S/o Syed Inayath, Crl.Misc.No.2812/2024

aged about 49 years, r/at No.42/1, 12th Cross, Pillanna Garden, 3rd Stage, Near Manahill school Sagayapuram, Bangalore North, Arabic College, Bengaluru 560045,

4. Affan Khan, S/o Mujeeb Khan, aged about 32 years, r/at No.9/1, 3rd Cross, L B F Road, Dodda Mavalli, Bengaluru South, Basavanagudi, Bengaluru 560004,

(By Sri Nitin Ramesh, Advocate ) ­V/S­ Respondent : State of Karnataka by Ashoknagar P.S, B`lore (Represented by Public Prosecutor) ORDER ON BAIL PETITION FILED U/SEC. 438 OF CR.P.C. This bail application has been filed under Sec. 438 of the Code of Criminal Procedure (Cr.P.C.) wherein the petitioners who have been arraigned as accused No. 1 to 4 in Cr. No. Crl.Misc.No.2812/2024 71/2024 for the offences punishable u/sec. 423, 506, 34, 406 and 420 of Indian Panel Code on the file of III ACMM.

2. It is the case of the prosecution that the criminal law

was set into motion on the basis of the written information filed by the informant Mr Anikethan HVU on behalf of M/s Tusker Workspace Pvt. Ltd on 16.2.2024, it has been narrated in detail in the written information that the informant had obtained registered Sub Lease Agreement with M/s Godolphine India Pvt. (hereinafter referred as GIP) on 21.4.2023 wherein it was agreed that the schedule property which was a commercial in nature measuring to an extent of 30,350 square feet was to be sub leased in favor of the informant and they were requested to pay interest free refundable security deposit of Rs. 2,52,46,500/­. It is further narrated that they had paid a sum of Rs. 2,01,97,200/­ through bank transaction on various dates. It is also been narrated that they had issued cheque for remaining amount. However it was noticed by them that the real lessor of the property M/s U.M.Projector LLP (hereinafter referred as UMP) had leased the premises which was having certain Crl.Misc.No.2812/2024 issues pending with GIP and inspite of the same with an intention to cheat the existing right of the informant they had obtained security deposit and also they had utilized the aforesaid amount of Rs. 2,01,97,200/­. It is further narrated that M/s GIP had intentionally misappropriated their funds , it is narrated that several volley of cases were pending against them. As such they had requested to take necessary action against the aforesaid persons. On the filing of the said written information the FIR came to be registered.

3. Being aggrieved by the same and on apprehension of

arrest the present bail petition has been filed by the petitioners. It is argued by the learned counsel for petitioners at length that no primafacie case has been made out against them and false allegation has been leveled against them. The learned counsel for petitioners has taken this court in detail with respect to the volley of litigations which are pending between the parties. He has brought to the notice of the court that already a arbitration case is pending for adjudication between the GIP and also another round of litigation was Crl.Misc.No.2812/2024 pending between GIP and also the original lessor UMP, that apart it is submitted that several commercial disputes were also prevailing between the parties and as such the complaint has been filed only to harass and ill treat the petitioners herein in a manner to twist the arm of the petitioners so as to ensure of obtaining advantage by filing a criminal case. Lastly it has been submitted that they are ready and willing to abide by any of the conditions that may be imposed by this court. Hence he has sought for admitting him to bail. The learned counsel for petitioners has also filed memo alongwith proceeding of the case which was pending before the Hon`ble Apex Court as well as the Hon`ble High Court of Karnataka .

4. Learned Public Prosecutor on request has put his

appearance and has filed detailed statement of objection inter alia denying all the averments made in the bail petition. It has been argued by the learned PP that the alleged offences would clearly indicate of misappropriation of funds and also cheating and defrauding the informant. In order to buttress his contention he has also filed the report of the IO and hence has Crl.Misc.No.2812/2024 sought for rejection of the bail application.

5. Heard and perused the record. The point that would

arise for my determination is:

1. Whether the petitioners have made out grounds for admitting him to bail u/sec. 438 of Cr.P.C.?

2. What order?

6. My answer is in the Affirmative for the following;

REASONS

7. POINT NO.1; Before adumbrating to the factual

grounds urged by the petitioners the facts in narrow compass is that the original owner UMP has leased the schedule property to GIP who in turn had entered into Sale Deed with informant M/s Tusker Workspace Pvt. Ltd and it was also agreed between them that interest free security deposit of Rs. 2,52,46,500/­ was to be paid by the informant herein. It is also admitted fact that a sum of Rs.2,01,97,200/­ was paid by the informant to M/s GIP, at this juncture it seems that a civil dispute had arose between the parties wherein the dispute was filed between the original owner UMP and GIP. Even the records which has been Crl.Misc.No.2812/2024 furnished by the learned counsel for petitioners would indicate that another round of litigation was prevailing between the informant and M/s GIP for which the petitioners are Directors and employees. In order to appreciate the said aspect it would be worthwhile to rely upon the orders of Hon`ble Apex Court. Further the learned counsel for the petitioners in SLP (Civil ) No. 3587/2024 dated 16.2.2024 wherein it was directed by Hon`ble Apex Court to list the case in Commercial Appeal No. 19/2024 before the roster bench of Hon`ble High Court of Karnataka and to dispose off in accordance with law. That apart it is also relevant to note at this juncture that another order was passed in CMP 471/2023 between the informant and also the GIP wherein the GIP had invoked the arbitration clause mentioned in Sub Lease Agreement before the Hon`ble High Court of Karnataka for appointing a Sole Arbitrator for adjudication of the dispute. In the said CMP No. 471/2023 dated 7.2.2024 the Hon`ble High Court of Karnataka by its order had appointed Sole Arbitrator to adjudicate the dispute between the parties. When such being the case it clearly Crl.Misc.No.2812/2024 indicates that several litigations are pending between the parties.

8. I have also bestowed my anxious reading to the

submission made by the learned counsel for the petitioners wherein he has argued at length with respect to invoking the provision of Section 420 of IPC. It is settled law that prosecution is required to establish the entertainment of malafide intention right from its inception in order to invoke Section 420 of IPC. It is submitted by the learned counsel that when the parties had entered into the registered Lease Agreement between themselves and also when the majority portion of the amount has been deposited and subsequently if any dispute arises in a nature of civil dispute, then the same cannot be construed as entertaining of malafide intention. The said submission is plausible and also on the basis of the records at this juncture does not indicate of entertaining any malafide intention of the parties. Time and again it has been laid down by the Hon`ble Apex Court that a civil dispute should not be converted into a criminal case so as to twist the arms of the Crl.Misc.No.2812/2024 parties for entering into a compromise or to derive advantage. The factual aspect of the case clearly indicates volley of civil litigations prevailing between the parties. Last but not the least the invocation of Section 34 of IPC is the matter which is required to be considered at the time of trial. At the time of considering the bail application the court can only look into the specific overtact which is leveled against the parties. When the said postulate is applied to the case on hand it does not indicate of specific overtact against the petitioners herein. Even otherwise the allegations which has been leveled against the petitioners herein are not heinous in nature and not punishable with life imprisonment and death. Hence the apprehension of the prosecution can be taken care by imposing stringent conditions. Accordingly the Point No.1 is answered in the affirmative.

9. Point No.2: By considering the above over all reasons

this court proceed to pass the following;

ORDER

The bail application filed u/sec. 438 of Cr.P.C. is hereby allowed and the respondent police are hereby Crl.Misc.No.2812/2024 directed to enlarge the petitioners on bail in the event of their arrest in Cr. No. 71/2024 for the offence punishable u/sec. 423, 506, 34, 406 and 420 of IPC, on executing personal bond for Rs.1,00,000/­ each with one surety for the likesum subject to the following conditions.

1. The petitioners shall not threaten or tamper the Prosecution witnesses.

2. The petitioners shall cooperate with the I.O and appear before him as and when called for the purpose of investigation.

3. The petitioners shall not indulge in any similar offence.

4. The petitioners shall appear before the IO within 15 days from the date of this order.

5. The petitioners shall appear before the court regularly on all dates of hearing.

(Dictated to the Stenographer Grade – I in open court, transcript thereof is corrected, signed and then pronounced by me in open court on this the 22nd day of March, 2024) (Santhosh Gajanan Bhat) LXXXI Addl. City Civil and Sessions Judge and I/c 69th Addl. City Civil and Sessions Judge,Bangalore Crl.Misc.No.2812/2024