IN THE COURT OF DISTRICT AND SESSION JUDGE AT BANGALORE
Crl. Mis. No.______________/2018
BETWEEN:
Sri. ABC
S/o. XYZ
Aged about 39 Years
R/o Villa No 76-B, Shobha Malachite,
Jakkur Plantation, Yelahanka
Bengaluru 560 064 ......PETITIONER
AND:
State of Karnataka,
Cubbon Park Police
Represented by Public Prosecutor
High Court of Karnataka ......RESPONDENT
MEMORANDUM OF CRIMINAL PETITION UNDER SECTION 438 OF THE CODE OF CRIMONAL PROCEDURE
- The address of the Petitioner for the purpose of issue of notices, summons etc., from this Hon’ble Court is that of his counsel Mr. CED, No.00/8/2, Ramanamaharishi Main Road, Upper Palace Orchards, Sadashivanagar, Bangalore -560 080.
- The address of the Respondent for the said purpose is that of its counsel, the State Public Prosecutor, High Court Building, Bangalore.
- It is submitted that, one DEC -Complainant on 11/02/2017 approached the respondent and gave a written complaint alleging that, he is a licence holder of the Aviation and that he had applied for Trainee First Officer on 24th Feb 2015 in the ABC Aviation & Training Services Pvt.Ltd.; that, he was issued with selection letter by the Company and he was demanded 37 Lakhs complete counselling session and accordingly he transferred the said amount through R.T.G.S.on 3/2/2015 and 4/5/2015 to the said Company; but, however counselling session was not started and he requested for return of the money. That, the company towards refund of the Money issued 3 Cheques and out of which one was honoured and others got bounced; though the same was brought to the notice of the Director as well the Chairman of the Company they have ignored the same. That, in the circumstances the Managaing Director CEF (Petitioner herein) and the Chairman Mr. PQR have cheated him. With the above allegations complainant requested the respondent Police to take legal action against the above mentioned persons.
- That, the respondent Police based on the above complaint have registered Crime No.00/2017 against the petitioner and one PQR for the offences Punishable under section 420 of the Indian Penal Code. Certified Copy of the complaint along with the FIR is produced as Document No.1
- It is submitted that for commission of an offence under section 420 of the IPC, the main ingredient is the prior intention on the part of the person alleged to have cheated another. A bare reading of the complaint makes it absolutely clear that the petitioner has not cheated anyone leave alone the complainant herein.
- That, this Hon’ble Court vide its order dated 28/10.20 passed in Crl.Misc.Pet. No.00/2017 was pleased to grant the relief of Anticipatory Bail to the similarly placed person (Accused No.2) that, of the petitioner herein in Crime No.00/2017; and against whom also the very allegations are made. Copy of the same is produced as Document No.2
- It is submitted that, now on the basis of this false complaint the respondent police are making hectic effort to apprehend the petitioners. Being apprehensive of his imminent arrest for a non bailable offence, the petitioner is approaching this Hon’ble court for a relief of pre- arrest protection.
- That the petitioner has not approached this court on earlier occasion on the same cause of action.
GROUNDS
- The petitioner is innocent of the alleged offence and petitioner has got good and valid legal defense in support of his innocence.
- Even if the allegations in the complaint are taken as true, at the most the allegations may give rise to civil consequences but will not constitute any offence much less the alleged ones.
- It is submitted that for commission of an offence under section 420 of the IPC, the main ingredient is the prior intention to cheat on the part of the person alleged to have cheated another. There is no allegation in the complaint that at the inception itself there was any intent on the part of the petitioner to cheat, that in the absence of the basic ingredient no case under section 420 of IPC has been made out.
- A bare reading of the complaint would make it absolutely clear that there was never any intention/mens rea on the part of the petitioner to cheat the Complainant or anyone else. A bare reading of the averments made in the complaint makes it amply clear that by no stretch of imagination the alleged offence under section 420 of IPC is attracted against the Petitioner.
- There is not one specific averment/s in the entire complaint about an act by the petitioner which would attract the commission of an offence under section 420 of the Indian Penal code.
- A purely Civil in nature dispute is sought to be given the colour of a criminal activity/s; the entire complaint allegation/s is about Complainant having deposited certain amount with ABC Aviation and Trading Service Pvt. Ltd. wherein the Petitioner herein is also one of the office bearers along with others; for undergoing Trainee First Officers counselling session and, that neither counselling was conducted nor money was refunded . That, mere fact of he being the Director of the said Company would not by itself lead to the presumption of petitioner has indulged/wanting to cheat the complainant as falsely alleged in the complaint.
- There is not one specific averment/s in the entire complaint about an act by the petitioner which would attract the commission of an offence under section 420 of the Indian Penal code.
- The complaint dated 11.02.2017 is an afterthought and all the while and also previous to the filing of the complaint; the, Complainant was in the know-how of the things/efforts being made by the petitioner to start the operations which would have benefited the Complainant. Hence, a mere non-keeping of a promise in starting the operations for Trainee First Officers would not by any stretch of imagination fall within the ambit of commission of an offence under Section 420 of the Indian Penal Code.
- That, this Hon’ble Court vide its order dated 28/10.20 passed in Crl.Misc.Pet. No.00/2017 was pleased to grant the relief of Anticipatory Bail to the similarly placed person (Accused No.2) that, of the petitioner herein in Crime No.00/2017; and against whom very allegations are made.
- The Petitioner apprehends that he will be arrested by the Respondent police on the allegation of having committed the said offence which is non-bailable in nature. The Petitioner submits that he has not committed the alleged offence as made out in the complaint. He is innocent and is being falsely implicated in the matter. The Petitioner is a man of means owning immovable property/s in Bangalore.
- Even if the allegations are taken as true, at the most the allegations may give rise to civil consequences which remedy lies elsewhere and not in filing a complainant before the respondent Police. Therefore the present complaint is abuse of process of Law
- The Petitioner is a Law abiding citizen of India and is having great respect and honour in the society and is residing in Bangalore for the last more than ...... years and currently residing at the address shown in the cause title above.
- The alleged offence is not exclusively punishable with death or imprisonment for life. He is prepared to offer bail and undertakes to abide by any reasonable condition/s that this Hon’ble Court may be pleased to impose for the grant of the reliefs prayed for in this Petition. There are no special reasons for refusing the reliefs sought for. There is no necessity or requirement for custodial interrogation.
- That the Petitioner is ready and willing to abide by the conditions that may be imposed by this Hon’ble Court and he is further ready to provide adequate and acceptable surety to ensure his sincere co-operation to the investigation agency and further he will hamper investigation or tamper the prosecution witnesses.
- Viewed from any angle, the present case is a fit case to be considered for granting equitable order by this Hon’ble Court.
PRAYER
WHEREFORE, it is prayed that this Hon’ble Court be pleased to direct the Respondent Police to enlarge the Petitioner on bail in the event of his arrest in Crime No.00/2017 registered for the offences under section 420 of IPC, in the interest of Justice.
Bangalore
Dated: ADVOCATE FOR PETITIONER
IN THE COURT OF DISTRICT AND SESSION JUDGE AT BANGALORE
Crl. Mis. No.______________/2018
BETWEEN:
Sri. ABC ......PETITIONER
AND:
State of Karnataka, ......RESPONDENT
APPLICATION UNDER SECTION 438(2) OF THE CODE OF CRIMINAL PROCEDURE
- The above Petition is filed seeking the relief of Anticipatory Bail at the hands of this Hon’ble court in Crime No 00/2017 registered by the Respondent Police for the offence punishable under section 420 of the Indian Penal code.
- It is submitted that, the Petitioner has been arrayed as Accused No.1 in the above referred Crime No.00/2017 registered for the offence under section 420 of the Indian Penal Code.
- A bare reading of the complaint averments would make it absolutely clear about the same being Civil in nature and as such, the present complaint in the present form is an deliberate tactic to convert the Civil liability if at all, into one of Criminal.
- It is submitted that, on the strength of the false case lodged by the informant, the Respondent police are making hectic efforts to apprehend the Petitioner.
WHEREFORE, for the reasons stated in the accompanying Affidavit this Hon’ble Court be pleased to grant Ad-Interim Anticipatory Bail and direct the respondent Police to release the Petitioner on Bail in the event of his arrest in CRIME No.00/2017 registered for the offence under section 420 of the Indian Penal Code pending disposal of the main matter in the interest of justice and equity.
Date:
Place: Bengaluru Advocate for Petitioner
IN THE COURT OF DISTRICT AND SESSION JUDGE AT BANGALORE
Crl. Mis. No.______________/2018
BETWEEN:
Sri. ABC ......PETITIONER
AND:
State of Karnataka, ......RESPONDENT
A F F I D A V I T
- I, ABC S/o XYZ, Aged about 39 Years R/o. Villa No.76-B, Shobha Malachite, Jakkur Plantation, Yelahanka, Bengaluru 56 064 do hereby satte on oath as follows;
- I, state that, I am the petitioner in the above petition and I, know the facts of this case.
- I, have preferred the present I.A. for the relief of Interim Anticipatory Bail in Crime No.00/2017 registered by the respondent Police for the offence U/s 420 of the Indian Penal Code. That, to avoid repetition the averments made in the main petition may be read as part and parcel of this Application.
- I, state that for commission of an offence under section 420 of the IPC, the main ingredient is the prior intention to cheat on the part of the person alleged to have cheated another. There is no allegation in the complaint that at the inception itself there was any intent on the part of the petitioner to cheat, that in the absence of the basic ingredient no case under section 420 of IPC has been made out.
- I, state that, a bare reading of the complaint averments would make it absolutely clear about the same being Civil in nature and as such, the present complaint in the present form is an deliberate tactic to convert the Civil liability if at all, into one of Criminal.
- I, state that, other Accused No 2 has already been granted the relief of Anticipatory Bail by this Hon’ble Court in Crimnial Misc. Petition No. 00/2017 .
- I, state that, I am a Business man having good reputation in the locality and society at large; that, on the strength of the false case lodged by the informant, the Respondent police are making hectic efforts to apprehend the Petitioner. Hence, it is just and necessary to grant the relief of Ad-Interim Anticipatory Bail in favour of the petitioner.
- The averments at para 1 to of the accompanying application are true and correct.
- What is stated herein above is true and correct
WHEREFORE, for the reasons stated herein above, this Hon’ble Court be pleased to allow the accompanying Application in the interest of justice and equity.
Date:
Place: Bengaluru DEPONENT
Identified by me
Advocate
No.of Corrections
IN THE COURT OF DISTRICT AND SESSION JUDGE AT BANGALORE
Crl.Misc. No. 00/2018
BETWEEN:
Sri. ABC ......PETITIONER
AND:
State of Karnataka, ......RESPONDENT
APPLICATION UNDER SECTION 438 READ WITH SECTION 309 OF THE CODE OF CRIMINAL PEOCEDRUE
The above Crl.Misc Petition was filed by the petitioner under section 438 of the Code of Criminal Procedure for the relief of anticipatory Bail in Crime No.00/2017 registered by the respondent Police for the offences U/s 420 of the Indian Penal Code came to be allowed by this Hon’ble Court vide its order dated 5/6/2018 by imposing certain conditions; that one of the conditions granted as per Condiiton No.vi is that petitioner shall appear before the Jurisdictional Magistrate within 30 days from the date of the order dated 5/6/2018.
It is now submitted that, petitioner has today filed a separate application for modification/extension of the said condition No.vi. Hence, this Hon’ble Court be pleased to direct the registry to put up records of Crl.Misc. No.00/2018 before this Hon’ble in the interest of justice and equity.
Date:02/07/2018 Advocate for Petitioner
