Rajesh Kumar and Others vs State of Karnataka

H. Billappa, J.—The petitioners who are accused Nos. 1 to 3 in Cr. No. 109/2014 of Hebbal Police Station have filed this petition under section 438 of Cr.P.C., praying for grant of anticipatory bail.

It is stated in the petition that the petitioner No. 1 is the husband of petitioner No. 2. The petitioners 1 to 3 are the Directors of a Company by name M/s. Construction Solutions Private Limited. The Company is carrying on its business in the field of construction and development in and around Bengaluru. The complainant and his three brothers executed a Joint Development Agreement with a company in the name and style of M/s. Anriya Project Management Services Private Limited to develop the land bearing Nos. 24/3B and 25/3 measuring in all 2 acres and 30 guntas situated at Vishwanatha Nagenhalli Village, Kasaba Hobli, Bengaluru North Taluk. The complainant and his brothers under the Joint Development Agreement had received a sum of Rs. 2,50,00,000/- from the Company. The complainant and his brothers forced M/s. Anriya Project Management Services Private Limited to construct additional floors beyond what was sanctioned. On refusal of the Company to accede to the illegal demands of the complainant and his brothers, the lands could not be developed. M/s. Anriya Project Management Services Private Limited had obtained all necessary permits and sanctions for putting up construction of a residential building. As the complainant, his brothers and M/s. Anriya Project Management Services Private Limited could not reach an understanding, it was decided by the complainant and his two brothers to sell their share in the above mentioned property to M/s. Construction Solutions Private Limited. The third brother of the complainant decided not to sell his share in the above mentioned property in favour of M/s. Construction Solutions Private Limited. On 10.11.2010, the complainant and his two brothers including all their family members executed three different sale deeds in favour of M/s. Construction Solutions Private Limited represented by the first petitioner. As per the terms of the sale-deeds executed on 10.11.2010, the complainant, his two brothers and their family members sold 81,000 sq.ft., in the above mentioned property in favour of M/s. Construction Solutions Private Limited for a total sale consideration of Rs. 8,91,00,000/-. On the date of execution and registration of the three sale-deeds, M/s. Construction Solutions Private Limited paid to the complainant, his two brothers and their family members a total sale consideration of Rs. 30,00,000/-. It was agreed that the remaining sale consideration would be paid by the petitioners to the complainant, his two brothers and family members vide post dated cheques which are mentioned in the sale-deeds.

After the execution of the sale-deed, on 10.12.2010, the petitioners mortgaged the property with M/s. Karnataka Co-Operative Apex Bank Limited to raise loans for the purpose of development of the property. Then the petitioners were informed by certain well wishers that the above mentioned properties were notified by the BDA for acquisition. The petitioners realized the fraud played on them by the complainant and his brothers. They instructed the Bank to stop payment of cheques issued by them. Thereafter, the petitioners called upon the complainant and his brothers to get the above property de-notified and thereafter, the remaining sale consideration would be paid. Thereafter, the complainant and his brothers approached the petitioners and informed that the land was de-notified by the BDA. They produced an endorsement also. The petitioners not believing the complainant, filed an application to the BDA. On 2.2.2011, the petitioners were informed that the BDA has issued preliminary and final notifications in respect of the above mentioned lands and they have not been de-notified. Subsequently, the BDA has issued clarifications on 27.4.2011 and 27.06.2011.

It is stated, the complainant and his two brothers have instituted arbitration proceedings against M/s. Anriya Project Management Services Private Limited in A.C. No. 1/2013 seeking for a relief of cancellation of the above mentioned three sale-deeds executed in favour of M/s. Constructions Solutions Private Limited. The petitioners representing M/s. Anriya Project Management Services Private Limited have appeared in the said proceedings. They have filed their statement of objections and counter claim. The matter is pending.

Thereafter, it is stated, the complainant has lodged a complaint with the Hebbal Police Station on 12.4.2014. It is alleged that the complainant and his brothers D. Ganesh, D. Muniraju and D. Venkatesh are the owners of the land measuring 2 acres 10 guntas in Sy. No. 25/3 and 20 guntas in 24/3B situated at Vishwanatha Nagenahalli, Kasaba Hobli, Bengaluru. They have entered into Joint Development Agreement with M/s. Anriya Project Management Services Private Limited. The builder failed to proceed with the work and caused pecuniary loss and damage. Thereafter, legal notice dated 1.5.2010 was issued to commence the work and to pay Rs. 2.5 crores towards loss of income and damages. Thereafter, MOU dated 10.11.2010 was entered into and three separate sale deeds have been executed in favour of M/s. Construction Solutions (Bengaluru) Pvt. Ltd. Cheques were issued towards sale consideration amount as specified in the sale deed and they were bounced when presented for encashment. It is alleged, Managing Director Sri. Rajesh Kumar and other directions of M/s. Construction Solutions (Bengaluru) Pvt. Ltd., with fraudulent intention have executed registered mortgage deed by deposit of title deeds on 10.12.2010 with Karnataka State Apex Co-Operative Bank for raising loan. The Bank in collusion with M/s. Construction Solutions (Bengaluru) Pvt. Ltd., has sanctioned loan. It is stated, the owners have filed a petition for appointment of an Arbitrator before the High Court of Karnataka. Based on the complaint of Sri. D. Jayaramaiah, a case in Cr. No. 109/2014 of Hebbal Police Station has been registered against the petitioners and accused No. 4 for the offences punishable under sections 406, 420 read with section 34 of IPC.

The investigation is going on.

The respondent State has filed objections contending that the petitioners are required for custodial interrogation. The petitioners are involved in a serious crime which involves crores of rupees. If anticipatory bail is granted, it is likely that the petitioners will destroy oral and documentary evidence. The petitioners are politically and financially influential and they will destroy the prosecution evidence. Therefore, the respondent has prayed for dismissal of the criminal petition.

The learned counsel for the petitioners contended that the petitioners are innocent of the offences alleged against them and they have been falsely implicated in the case. The petitioners, the complainant and his brothers have entered into Joint Development Agreement dated 31.5.2006 in respect of lands in Sy. No. 24/3B and 25/3 measuring in all 2 acres 30 guntas situated at Vishwanatha Nagenhalli village, Kasaba Hobli, Bengaluru North Taluk. A sum of Rs. 2,50,00,000/- has been paid to the complainant and his brothers. Thereafter, the complainant and his brothers have executed three different sale deeds selling the property in favour of M/s. Construction Solutions Pvt. Ltd. A sum of Rs. 30,00,000/- has been paid and the balance amount has been paid through post dated cheques. Thereafter, the petitioners have mortgaged the property with M/s. Karnataka Co-Operative Apex Bank Limited to raise loan for the purpose of development. In the meanwhile, the petitioners came to know that the land in question has been acquired by the BDA. The petitioners informed the complainant and his brothers to get the land de-notified. The complainant and his brothers told the petitioners that the land has been de-notified. On verification, the petitioners came to know that the land infact was not de-notified. Thereafter, the complainant and his two brothers have initiated arbitration proceedings and it is pending in A.C. No. 1/2013. When the proceedings are pending, the complainant has lodged the complaint making allegations that the petitioners have cheated the complainant and his brothers by mortgating the land with M/s. Karnataka Co-Operative Apex Bank Limited. The dispute is of civil nature. The arbitration proceedings are pending. After the lapse of more than one year, the complainant has been lodged. The petitioners apprehend that they may be arrested. The petitioners are ready to join investigation and abide by any conditions that may be imposed by this Court. Therefore, the petitioners can be granted anticipatory bail.

As against this, the learned Government Pleader submitted that the petitioners have cheated the complainant and his brothers by mortgaging the land with the Bank. There are serious allegations of cheating. The petitioners are required for custodial interrogation. Apart from this, the petitioners are influential persons. If anticipatory bail is granted, it is likely that the petitioners will tamper with the witnesses or they will not co-operate with the investigation. Therefore, the petition may be dismissed.

I have carefully considered the submissions made by the learned counsel for the parties.

It is relevant to note, it is alleged, that the complainant Sri. D. Jayaramaiah and his brothers D. Ganesh, D. Muniraju and D. Venkatesh are the owners of the land measuring 2 acres 10 guntas in Sy. No. 25/3 and 20 guntas in Sy. No. 24/3B situated at Vishwanatha Nagenahalli, Kasaba Hobli, Bengaluru. They have entered into Joint Development Agreement with M/s. Anriya Project Management Services Private Limited. The builder failed to proceed with the work. Thereafter, legal notice dated 1.5.2010 was issued. Subsequently, MOU dated 10.11.2010 was entered into and three separate deeds have been executed in favour of M/s. Construction Solutions (Bengaluru) Pvt. Ltd. It is stated cheques were issued towards sale consideration amount and they were bounced when presented for encashment. It is alleged, the petitioners in collusion with Karnataka State Apex Co-Operative Bank has raised loan by executing mortgage deed.

It is clear from the allegations made in the complaint that there was a Joint Development Agreement between the petitioners, complainant and his brothers. Thereafter, three sale-deeds have been executed on 10.11.2010. After the sale-deeds are executed, it is stated, that the property has been mortgaged with M/s. Karnataka Co-Operative Apex Bank Limited to raise loan for the development of the property.

It is stated, the complainant and his brothers have initiated arbitration proceedings. The claim petition has been filed before the Arbitrator on 18.9.2013. The petitioners have filed objections on 11.10.2013. When the arbitration proceedings are pending, the complainant has been lodged on 12.4.2014 alleging cheating by the petitioners. Keeping in view, the transactions that have taken place between the parties and arbitration proceedings are pending, the petitioners can be granted anticipatory bail subject to certain conditions.

Accordingly, the criminal petition is allowed and the petitioners are granted anticipatory bail in Cr. No. 109/2014 of Hebbal Police Station subject to the following conditions:--

"(i) In the event of their arrest in Cr. No. 109/2014 of Hebbal Police Station, the petitioners shall be released on bail on their executing a bond for a sum of Rs. 2,00,000/- each with two sureties for the likesum to the satisfaction of the Investigating Officer.

(ii) The petitioners shall not tamper with the witnesses or evidence.

(iii) The petitioners shall appear before the IO within three days from today and co-operate with the investigation, as and when required.

(iv) The petitioners shall furnish all details required for investigation.

(v) If charge sheet is filed against the petitioners, the petitioners shall appear before the Court regularly without fail."

If any condition is violated, the State can move for cancellation of the bail.

Furnish Operative Portion of the order.