Ashwak Ahmed and Others vs State of Karnataka

A.V. Chandrashekara, J.—Heard Shri. Kiran Kumar, learned advocate appearing for the petitioner and Shri. B. Visweswaraiah, learned High Court Government Pleader appearing for the respondent-State and perused the records.

Since the petitioner in all these petitions is common, they are clubbed together and disposed of by this common order.

On the basis of the complaint lodged by several investors, a case has been registered against the petitioner for the offence punishable under section-420 of the Indian Penal Code and Section-192(A)(5) and 192(B) of the Karnataka Land Revenue Act, 1964. For ready reference, the details of case registered against the petitioner are as mentioned in the tabular given below:

It is the case of the prosecution that the accused-petitioner herein is the Managing Director of the first accused company namely, M/S. Granity Properties Pvt. Ltd., a company incorporated under the provisions of the Companies Act. The accused-petitioner had collected huge amount from several innocent persons (complainants) under the pretext that he would provide suitable residential sites to them. Neither he provided sites nor returned the amount so collected from them complainants) and therefore, the investors had filed separate complaints before the respondent police for breach of trust and cheating. Hence, the respondent police have registered cases against the petitioner for the above mentioned offences and further investigation is entrusted to the City Crime Branch police.

What is argued before this Court by the learned counsel for the petitioner is that if this Court grants interim bail to the accused-petitioner for a period of atleast four months, he would make an honest endeavor to sell the immovable property and return the money to all the persons and he would keep up the promise. Hence he prays for grant of bail to the accused. The contents of the affidavit sworn to by the accused-petitioner on 07.11.2015 reads thus:

"I, Sri. Ashfak Ahmed, aged about 44 years, S/o. Moulana Sab, Managing Director, M/S. Granity Properties Pvt. Ltd., House No. 74, Old Masjid Road, K.R. Puram Bangalore-64, presently in judicial custody, at Central prison, Parapanaagrahara, Bangalore, do hereby solemnly affirm and state on oath as follows:

I am the petitioner in the above stated as such I am well conversant with the facts of the case.

In the above stated case and other connected cases, I have been accused of having committed offence under Section-420 of the Indian Penal Code and 192(a) of Karnataka Land Revenue Act. The charge sheet is filed and investigation is completed.

I state that, in all around 120 cases have been registered against me. All the complaints have been lodged by my customers for collecting money from them towards allotment of site.

Unfortunately, I could not honor my commitment due to business loss and I had no intention of cheating my customers.

I state that approximately the amount due by me to my customers comes to around rupees seven crores. I do not know the exact figures because the CCB, which is investigating the matter, has seized my office and all the account books are in their custody.

Now I categorically undertake before this Hon''ble Court that if I am enlarged on bail, I will pay all the money collected by me, from the original complainants, within a period of six months from the date of my release from judicial custody.

I undertake to initially reimburse rupees five crores, to the customers within two months from the date of my release from judicial custody.

The balance 2 crores I will pay within the next four months.

I also undertake that if in case even after paying the afore mentioned amount any money is due to be paid by me, payable to my customers/original complainants. I will also pay the same within the aforementioned time of six months from the date of my release from judicial custody.

I state on oath that my father late Shri. Moulana Sab, S/o. Jahangir Sab, had acquired under registered sale deed dated 07.08.1958, property bearing No. 48 old No. 44, measuring 5 acres 20 guntas at K.R. Puram Holbi, Bangalore east taluk. My father expired intestate. Subsequently, all the legal heirs have executed a registered General Power of Attorney in my favour to sell the above stated property. I will generate funds as mentioned above, either by selling the above mentioned property or by entering into a joint development agreement/or any such agreement with prospective purchasers. I have enclosed herewith the copies of the sale deed, general power of attorney, sketch, encumbrances of the said property. (As per guidance value fixed by the Government of Karnataka, for agricultural property in the said area is Rs. five crores per acre). The actual market value of the said lands is Rs. 4,000/- per square feet, because the said property today comes within Bruhat Bengaluru Mahanagara Palike limits and is located in prime location.

I do solemnly affirm and state on oath that what is stated from paragraphs No. 1 to 10 above is true and correct to the best of my knowledge information and belief."

On the other hand, the learned High Court Government Pleader has vehemently opposed the bail application on the ground that on earlier occasion, the petitioner had indeed approached this Court by filing petitions under Section-482 of the Code of Criminal Procedure seeking to quash the FIRs registered against him, in Crl.P. No. 3871/2009 and other connected matters and they were dismissed by this Court. In the said petitions also, the accused-petitioner had given undertaking to the effect that he would pay the amount to the investors and hence he had been given four months time by this Court to comply with the undertaking given by him. He has argued that the accused-petitioner has not shown his bona fides by complying with the earlier undertaking given by him and now he is intentionally dragging on the matter on one pretext or the other.

It is the case of the prosecution that the petitioner has collected huge amount from the innocent person to the tune of Rs. 8,00,00,000/-. Since the accused-petitioner has failed to comply the undertaking given by him to this Court on earlier occasion, the undertaking given by him in these petitions cannot be believed and accepted. Violation of earlier undertaking given by him would disentitle him to get bail from this Court at this stage.

Accordingly, these bail petitions are rejected. However, liberty is granted to the petitioner to revive his request for bail, after depositing at least Rs. 8,00,00,000/-(Eight Crores), before the Registry of this Court, since the total amount would be more than 16 crores including the accrued interest.