9911796707
TMI Blog2013 (3) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners in C.C. No. 6907/2012 on the file of the I-Additional C.M.M., Bangalore, and C.C. Nos. 6414/2012, 6415/2012, 6416/2012 and 6417/2012 on the file of IV-Additional C.M.M., Bangalore City, whereas Criminal Petition Nos.4453/2012, 4258/2012, 4260/2012, 4261/2012, 4262/2012 are filed under Section 438 of Cr.P.C. seeking the relief of anticipatory bail, apprehending arrest in connection with the aforesaid criminal cases. 2) The 1st petitioner in all these petitions namely C.P. Yogeshwar is the common accused (A-1) in all the aforesaid criminal cases. His wife Manjukumari is Accused No.2 in C.C. No.6907/2012 and C.C. No.6417/2012. One Arun Charanthimath and his wife Sujatha Charanthimath are Accused Nos. 3 & 4 in C.C. No.6907/2012. C.P. Gangadhareshwar, brother of Accused No.1, is Accused No.2 in C.C. Nos. 6414/2012, 6416/2012 and Accused No.3 in C.C.No.6417/2012. P.Mahadevaiah and H.R.Ramesh are arraigned as accused Nos.3 & 4 in C.C.No.6907/2012 and Accused Nos.4 & 5 in C.C.No.6417/2012. One Sambashiv Rao is Accused No.6 in C.C. No.6417/2012. In each of these cases, the accused persons are alleged to have committed various offences under Indian Penal Code. The details of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors of the company. 6) In the year 1994-95, the MDBL launched a Residential Township Scheme called Vajragiri Township on Bangalore-Mysore Road, about to 20 to 25 Kms. from Bangalore City. At the time of launching the said project, MDBL published broachers/pamphlets highlighting the projects and all the four Promoters/Directors of the Company had signed the broachers/pamphlets of Vajragiri Township project. Two schemes were introduced and as per the schemes, members were given option to take 60 month or 66 month installments for the plot in Vajragiri Township. Pursuant to the wide publicity given by MDBL about Vajragiri Township project through brochures, pamphlets, etc., inviting the interested persons to enroll themselves as members to any one of the schemes, several hundreds of persons enrolled themselves as members and paid the initial deposits and also continued to pay the monthly installments. In that regard, the company between 31.03.1995 to 31.03.2003 received amount to the tune of ₹ 59,11,30,194/- as shown in the balance sheet of the company during that period. 7) Accused No.1- C.P. Yogeshwar through his affidavit confirmed about the company collecting approximately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation into the affairs of MDBL. 9) During investigation, the investigators examined the various records pertaining to MDBL in relation to its functioning and also in relation to the Vajragiri Township project and found violations of various provisions of the Companies Act, Income-tax Act and also the offences punishable under the provisions of Indian Penal Code regarding forgery, misappropriation, cheating, etc. The investigation revealed that several agreements of sale said to have been entered into between the purported land owners and the functionaries of the company are all forged and there was siphoning of huge money to an extent of 37 and add crores. The investigators also found that Sambashiv Rao (Accused No.6) in C.C. No.6417/2012, who had been posted as Statutory Auditor during the period 1996-97 to 2003-2004, and who had been regularly signed the balance sheet and other documents, never objected to the mal-practices being adopted by the Directors. The investigators found that all the accused, as functionaries of MDBL and the Statutory Auditor, hatched a conspiracy and in furtherance of the said conspiracy, have committed various offences. 10) After completing investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 15) Let me first deal with the cases filed under Section 482 of Cr.P.C. seeking to quash the prosecutions launched. Though several grounds and contentions have been raised in support of the prayer for quashing the prosecutions, during the course of the argument, learned senior counsel did not press any one of them. He only submitted that having regard to the fact that the prosecution launched on the basis of the five complaints lodged by the respondent relate to one and the same project launched by MDBL and the facts alleged in all these cases are inter-linked, and though for the convenience of the prosecution, five different complaints have been filed by categorizing the offences, the prosecutions relate to the alleged acts relating to the project launched, therefore, it is just and necessary that all the cases should be tried by the same Presiding Officer, as such, the cases which are now pending before the IV-ACMM be transferred to Court of the I-ACMM, where one of the complaints filed by the respondent in C.C. No.6907/12 and the charge sheet filed by the COD, Bangalore, in C.C. No.10389/2010 are pending, so that all the cases could be tried and disposed of by the said Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. According to Sub-section (3), if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of the Code. 20) As noticed supra, the subject matter of the investigation in Crime No.255/2006 of Sampangiramanagara Police, which was investigated by COD, Bangalore, and the subject matter of the complaints lodged by the respondent based on the investigation conducted pursuant to the direction of Ministry of Corporate Affairs, Government of India, is one and the same. Some persons accused of such offences in both the investigations are one and the same. However, by the time the complaints by the respondent herein came to be presented, the investigation by COD, Bangalore, in Crime No.255/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners to directly approach this Court under Section 438 of Cr.P.C. as both this court and the sessions court have concurrent jurisdiction under Section 438 Cr.P.C.. Therefore, the petitions cannot be termed as not maintainable. 24) This Court consistently has taken a view that it would be a sound exercise of judicial discretion not to entertain each and every bail application directly by the High Court bye-passing the court of sessions. In K.C.Iyya- Vs-State of Karnataka [1985 Crl.L.J.214], this court has held thus in para.7:- "7. Since both the courts-Court of Session and this Court-have concurrent powers in the matter, it appears desirable for more than one reason, that Court should be approached first in the matter." 25) After referring to some of the decisions it was concluded thus in Para 19:- "19. After carefully considering all aspects of the matter, I am of the view that normally a person seeking anticipatory bail under Section 438 of the Code should approach the Court of Session in the first instance. This would serve the ends of justice, public interest and also the administration of justice. There may be cases with special reasons or involving spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as to whether a person apprehending arrest on an accusation of committing non-bailable offence could approach the High Court directly under Section 438 of Cr.P.C., did not arise for consideration. On the other hand, one of the questions that arose for consideration was whether a petition under Section 438 of Cr.P.C., is not maintainable before the High Court if a similar application has been made and rejected by the Court of Sessions. In this background, consistent view held by this court that a party generally should first approach the sessions court under Section 438 of Cr.P.C. and after exhausting the said remedy, if necessary, he should approach the High Court stands to reasoning. As held in Savitri Samson's case referred to supra, the sessions court is nearer and easily accessible to the accused and in such case, the High Court will also have the benefits of the reasons given by the Sessions Court. Therefore, I respectfully concur with the view expressed in the aforesaid decisions. 29) In the cases on hand, the petitioners have not pleaded any special circumstances or reasons for directly approaching this Court. I do not find any special or adequate reasons for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
