In a significant judicial order passed on April 19, 2024, the LXVII Additional City Civil and Sessions Judge, Bengaluru City (CCH.No.68), Sri Kashim Churikhan, B.A., LL.M., allowed the anticipatory bail application in Criminal Miscellaneous No. 3095/2024. The court granted pre-arrest bail protection to A.S. Ramesh Kumar (Accused No. 1) and J.V. Rajesh (Accused No. 2) in connection with Crime No. 494/2023 registered by the Bellanduru Police Station for an offence punishable under Section 420 (cheating) of the Indian Penal Code (IPC), pending on the file of the 41st Additional Chief Metropolitan Magistrate (A.C.M.M.), Bengaluru.
Factual Background and Allegations
The criminal proceedings were set into motion following a report lodged by the informant at the Bellanduru Police Station. According to the prosecution case, the informant had purchased Flat No. 103 from Accused No. 1 in the name of his son, and a formal sale deed was executed between the parties on October 27, 2021.
Subsequent to the purchase, the informant discovered a notice posted at the premises regarding an outstanding loan availed on Flat No. 103 by the accused. The informant alleged that the accused had intentionally concealed and screened the existence of the prior encumbrance/loan on the property at the time of executing the sale deed with the dishonest intention of cheating the purchaser.
The details of the petitioners/accused as per court records are:
- A.S. Ramesh Kumar (Accused No. 1): Aged 52 years, son of A.N. Sudarshan Kumar, residing at Ram Nagar, Musheerabad, Hyderabad.
- J.V. Rajesh (Accused No. 2): Aged 52 years, son of J.S. Sarma, residing at Spectra Cypress Apartment, Kundalahalli Gate, Varthur Main Road, Bengaluru.
Arguments on Behalf of the Petitioners
Appearing on behalf of the petitioners, learned advocate Sri S.M.N. submitted the following grounds seeking pre-arrest protection under Section 438 Cr.P.C.:
- Innocence and False Implication: The petitioners asserted that they were entirely innocent of the allegations and that a false criminal case had been registered against them.
- Prior Disclosure and Civil Nature: The defence submitted that the purchaser was made fully aware of the pending loan prior to the execution of the sale deed. Furthermore, the transaction was purely commercial/contractual in nature, rendering the dispute civil.
- Locus Standi: Counsel argued that the informant was not the actual purchaser named in the sale deed and was technically a third party to the transaction executed between the petitioners and the vendee (the informant’s son).
- Roots in Society and Non-Capital Offence: The petitioners emphasized that they are permanent residents owning movable and immovable properties, and that Section 420 IPC does not carry penalties of death or life imprisonment.
- Cooperation: The petitioners undertook to abide by all conditions imposed by the court and furnish reliable sureties for their appearance.
Prosecution Objections
The Public Prosecutor strongly opposed the grant of pre-arrest bail, contending that:
- Ongoing Investigation and Prima Facie Material: The investigation was incomplete, and there were prima facie materials demonstrating commission of cheating.
- Commercial Dispute Argument: The prosecution submitted that there is no bar to filing a criminal case even if the underlying dispute has civil elements, provided the intention to cheat is present.
- Apprehension of Absconding and Interference: The prosecution argued that the petitioners had been absconding and that if enlarged on pre-arrest bail, they might threaten witnesses, destroy evidence, or flee from justice.
Judicial Findings and Legal Reasoning
The Sessions Court examined the complaint, rival submissions, and case records to determine Point No. 1: whether the petitioners had made out sufficient grounds for anticipatory bail.
1. Evaluation of Allegations and Trial Criteria
Judge Kashim Churikhan observed that the central allegation—whether the accused suppressed the loan details with fraudulent intent—is a matter to be established during a full-fledged trial through authenticated evidence. The court noted that the primary criteria for considering bail are securing the presence of the accused for investigation and trial, rather than pre-trial punishment.
2. Nature of Offence and Reasonable Apprehension
The court highlighted that the offence alleged under Section 420 IPC is neither punishable with death nor with life imprisonment. Given that police action was initiated on the complaint, the court found the petitioners’ apprehension of imminent arrest well-founded.
3. Balancing Investigation Needs with Personal Liberty
Holding that the concerns of the prosecution regarding potential non-cooperation or witness tampering could be effectively managed by imposing stringent conditions, the court held that the petitioners were entitled to anticipatory bail.
It remains a settled principle of law that an order granting bail at the pre-trial stage is purely a procedural protection and does not amount to an expression on the merits of the case, which remains subject to trial.
Final Pre-Arrest Bail Order and Conditions
Answering Point No. 1 in the affirmative, LXVII Additional City Civil & Sessions Judge Sri Kashim Churikhan allowed the petition filed under Section 438 Cr.P.C. and issued the following order:
The bail petition filed by the petitioners under Section 438 of Cr.P.C. is allowed, subject to the following conditions:
- The petitioners are ordered to be released on bail in the event of their arrest in Crime No. 494/2023 of Bellanduru Police Station, Bengaluru, on executing a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh only) each along with one surety for the like sum.
- The petitioners shall appear before the Investigating Officer within 15 days from the date of this order and assist him in investigation as and when required.
- The petitioners shall appear before the trial court on all hearing dates.
- The petitioners shall not tamper with prosecution witnesses.
- The petitioners shall not indulge in committing any offences.