Cancellation of bail order is justified, if the order suffers from perverse finding: High Court of Karnataka

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19th DAY OF APRIL 2021 THE HON BLE MR. JUSTICE K. NATARAJAN CRIMINAL PETITION No.24821 BETWEEN: MR. BRIJMOHAN K.S. AGED ABOUT 48 YEARS S O K.L. SWAMY RESIDING AT M s. KHODAY RCA INDUSTRIES KHODAY ESHWARSA AND SONS) No.11 RACE COURSE ROAD OPPOSITE TO RAILWAY DIVISIONAL OFFICE BENGALURU CITY 560 009. BY SRI P.P. HEGDE ADVOCATE) STATE OF KARNATAKA BY SHESHADRIPURAM P.S. REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU 560 001. PADMANABHASA K.L. S O LATE K. LAKSHMANASA AGED ABOUT 81 YEARS … PETITIONER RESIDING AT No.9 SHESHADRI ROAD BENGALURU 560 009. ... RESPONDENTS BY SRI RAVI B. NAIK SENIOR COUNSEL ALONG WITH SMT. VIJETHA R. NAIK ADVOCATE FOR R 2 SMT. RASHMI JADHAV HCGP FOR R 1 STATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439(2) READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE ORDER DATED 12.03.2021 PASSED BY THE LXVII ADDITIONAL CITY CIVIL AND CRL.MISC.No.2192 2021 GRANTING ANTICIPATORY BAIL TO RESPONDENT No.2 IS CONCERNED IN CONNECTION WITH FIR IN CRIME No.8 2021 OF SESHADRIPURAM POLICE STATION FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120B 406 420 465 468 AND 471 READ WITH SECTION 34 OF THE INDIAN PENAL CODE. CCH 68) JUDGE THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 09.04.2021 AND COMING ON FOR PRONOUNCEMENT THIS DAY THE COURT PRONOUNCED THE This petition is filed by the de facto complainant first informant under Section 439(2) read with 482 of Cr.P.C. for cancellation of anticipatory bail granted to respondent No.2 by the LXVII Additional City Civil Sessions Judge Bengaluru CCH 68) in Crl.Misc.2192 2001 dated 12.3.2021 for the offences punishable under Sections 120B 406 420 465 468 471 read with 34 of IPC in Crime No.8 2021 registered by Sheshadripuram Police Station Bengaluru. Heard Sri P.P. Hegde learned counsel for the petitioner and Sri Ravi B. Naik learned Senior Counsel along with Smt. Vijetha R. Naik learned counsel for respondent No.2 as also Smt. Rashmi Jadhav learned High Court Government Pleader for respondent No.1 State. The case of the petitioner is that he is the first informant before the Police and he has filed a complaint to the Sheshadripuram Police on 27.02.2021 alleging that the first informant is one of the Partners of M s. Khoday Eshwarsa and Sons and RCA Industries. M s. Khoday Eshwarsa and Sons is a partnership firm engaged in the manufacture and production of Indian made liquor and carrying on business since 60 years. The office of the firm is situated at No.9 Sheshadri road Bengaluru. It is alleged by the informant that respondent No.2 herein who is accused No.2 is one of the partners entrusted with the responsibility of taking decisions in respect of payments to be made for M s. Khoday Eshwarsa and Sons and RCA Industries who approve or disapprove the same. Respondent No.2 accused No.2 is the authorised to release payments. It came to the knowledge of the complainant and other partners of the firm that an amount of Rs.17 73 00 000 was shown as expenditure towards the promotional activities of the Branches of the firm all over the State as per the invoices raised in the name of one Surabhi Enterprises and there was no signature of the accused persons on such invoices. The accused persons have committed irregularity in releasing the funds by forging the signatures by creating false documents and have cheated the firm by causing misappropriation of funds of the firm. It is revealed from the informant’s verification with the dealers that no such promotional activities took place. The said Surabhi Enterprises is a fake company. In fact the owner of the Surabhi Enterprises was the driver of the tanker who supplies the spirit for manufacture of liquors. The said Surabhi Enterprises has no office it is created for self. An amount of more than Rs.17 73 00 000 has been paid to Surabhi Enterprises which was in fact transferred to the mother’s account of a person who is a transporter of spirit. The said amount has been immediately withdrawn from his mother’s account. A false promotional agreement has been created by accused Nos.1 and 2. Accused No.3 is the Manager of the firm. All have colluded together and false documents the name of Surabhi Enterprises alleged to have been owned by accused No.5 thereby they caused loss of Rs.17 73 00 000 . They have not only mis appropriated the amount but also cheated other partners. Hence he has prayed for taking bail. After registering the case by the Police in Crime No.8 2021 against 5 accused persons accused Nos.1 and 2 approached the Sessions Judge for granting anticipatory bail which came to be allowed in part. The bail application of accused No.1 has been rejected but the bail application of accused No.2 has been allowed. Against granting of anticipatory bail the present petition is filed by the informant defacto complainant for cancellation of the Learned counsel for the petitioner has contended that the order passed by the Sessions Judge is erroneous based on extraneous consideration the case is an economic offence not only in the interest of individual but also in the interest of public at large. The offence committed by accused No.2 is heinous one and serious allegations are made against him regarding breach of trust and misappropriation of funds. The investigation is still under progress. The Investigating Officer requires custody of the respondent No.2 accused No.2 for interrogation. The accused No.2 is the authority who was entrusted with the financial operation of the firm. The Sessions Judge has not assigned any reason for granting bail except stating that the age of the accused is 81 years. The Hon’ble Supreme Court rejected bail P.Chidambaram vs. Directorate of Enforcement 2019) 9 SCC 24]. Learned counsel further contended that accused No.2 is the main person who signed the cheque. The approval is made by accused No.1. Both accused Nos.1 and 2 colluding with other accused i.e. the Manager created documents in the name of Surabhi Enterprises and released more than Rs.17 73 00 000 to a bogus company. In fact they themselves received the amount which is nothing but mis appropriation of funds and cheating the complainant. Even after ordering release of the accused No.2 on anticipatory bail on 12.02.2021 the accused No.2 did not surrender before the Police as per the direction given by the Court. Almost more than 13 days is over from the date of the order but he has not chosen to surrender which itself is the violation of the order of the Court. The accused No.2 took time for surrendering which helped him for destroying the evidence and tampering the prosecution witnesses. Therefore prayed for setting aside the order granting bail and cancel the bail. Learned counsel further contended that the Sessions Judge while rejecting bail of accused No.1 considered the judgment of the Hon’ble Supreme Court but has not assigned any reason for granting bail to accused No.2 except stating that he is super senior and the Sessions Judge has wrongly held that he is not directly involved in raising the bills or signing the bills so as to create fake payments. Learned counsel contended that he is the authority for signing the cheques and accused No.1 is the son of accused No.2 who is in charge of verifying the bills. Therefore it cannot be said that he has not participated in the commission of crime. Therefore the finding of Sessions Judge is perverse which requires to be set aside. Learned counsel in support of his arguments has relied upon various judgments produced the photograph of accused No.2 and also other documents for transferring huge amount to the account of the accused No.1 who is son of respondent No.2. Learned counsel also produced the bail order of accused No.4 in which the Sessions Judge has rejected his bail. Hence prayed for allowing the petition and to cancel the bail granted to accused No.2. Learned counsel appearing for respondent No.2 accused No.2 filed objections statement and contended that the respondent No.2 has not violated any bail conditions as enumerated in the anticipatory bail. He is 81 years old and he has not tampered with the prosecution witnesses nor threatened any prosecution witness. The Hon’ble Supreme Court held that normally bail should not be interfered unless there is any blatant violation of any bail condition. M s. Khoday Eshwarsa and sons is having 9 partners who were all members of Khoday family. The petitioner and respondent No.2 are members of the partnership firm. Accused Nos.1 and 2 together have 25% of the share. The allegation is pertaining to expenditure. There are many civil disputes pending between the parties. A commercial arbitration application was also filed for appointment of an arbitrator. There were six civil suits pending between the parties. The FIR is also filed against father of the petitioner complainant in Crime No.171 2019. Charge sheet has been filed. Another case has also been filed by accused No.1. Accused No.2 questioning the complainant about the accounts that there were 1000 crores received by father of complainant but he has not accounted. In order to overcome the said complaint this complaint has been filed as a counterblast. The respondent No.2 accused No.2 is thyroid hypertension LVF Syndrome of Heart Failure). Due to Covid 19 pandemic and his old age it would not be advisable to send him to jail. The father of the complainant has mis used the dominion and entrustment. It is further contended that the period of offence is from 2017 to August 2020. Additional excise duty has been paid and there are documents pertaining to the same. There is no prima facie case shown to launch criminal prosecution. The entire allegation pertains to family run partnership firm. The Hon’ble Supreme Court has also held in the case in Ahmad Ali Quraishi and another vs. The State of Uttar Pradesh and another reported in13 SCC 435 that any criminal proceedings maliciously instituted with ulterior motive due to animosity arising out of partition of family properties and continuation of such criminal proceedings is nothing but abuse of process of Court which is liable to be quashed. Hence prayed for dismissal of the petition. Sri Ravi B. Naik learned Senior counsel appearing for respondent No.2 contended that the complaint itself is filed as a counterblast to the complaint filed by accused No.1 against the complainant’s There are documents maintained by the firm. The auditing is continuously done every year. The question of misappropriation does not arise. Absolutely there is no perversity in the order passed by the Sessions Judge while granting bail. Hence prayed for dismissing the petition. 10. Heard the arguments of learned counsel for the petitioner and learned Senior counsel for respondent No.2 accused No.2 as also learned HGCP for the respondent No.1 State as to whether the petitioner has made out a case for cancellation of the bail granted to respondent No.2 by the Sessions Judge and perused the impugned order passed by the Sessions Judge Bengaluru. 11. The case of the prosecution as per the complainant is that the complainant his father and the accused No.1 and 2 and others were partners of M s. Khoday Eshwarsa and sons and RCA Industries which is a partnership firm manufacturing and trading in Indian made liquor. The allegation against the accused No.1 to 5 in the FIR as per the complaint is that accused No.1 the son and accused No.2 the petitioner who is the father are responsible for the entire partnership business. Accused No.2 authorised to sign all the documents pertaining to the company and accused No.1 used to approve and disapprove the documents for making any payments in respect of firm’s business. It is further alleged that between 2017 and 2020 accused No.1 to 4 have shown accounts for making payment of Rs.17 73 00 000 to accused No.5 Surabhi Enterprises towards promotional advertisement activities of the braches of the firm all over the State. In fact accused No.5 do not have any office. It is a fictitious company which is said to have been run by the transporter who used to supply spirit. Nowhere the company products has been promoted or made any advertisement but all the bills were created in the name of fictitious Surabhi Enterprises. They forged the documents prepared fake bills and shown payments made to Surabhi Enterprises for Rs.17 73 00 000 . In fact no such promotional work has been executed. The Surabhi Enterprises is the house of the spirit transporter and the amounts were paid to the mother of the said person. The entire amount has been withdrawn immediately thereby firm of more Rs.17 73 00 000 and wrongfully gained by the accused persons and cheated the partners. Hence they committed the offence under Sections 420 120B 406 465 468 and 471 of IPC. 12. Admittedly accused Nos.1 and 2 approached Sessions Judge for anticipatory bail by filing petition under Section 438 of Cr.P.C. and the Sessions Judge rejected the bail petition of accused No.1 and allowed the bail petition of accused No.2. The Sessions Judge while rejecting the bail petition of accused No.1 followed the decision of the Hon’ble Supreme Court in the case of Varinder Kumar vs. State of Himachal Pradesh reported in The petitioner No.2 is ordered to be released on bail in the event of his arrest in Crime No.8 2021 of the respondent Station Bengaluru on executing his self bond for a sum of Rs.5 00 000 along with two sureties for the likesum 2) He shall appear before the Investigating Officer as and when required for the purpose of investigation 3) He shall appear before the trial court on all the dates of hearing 4) He shall not tamper with the prosecution 5) He shall not indulge in committing any witnesses offences 6) He shall not leave the jurisdiction without prior permission of the Court.” 13. On perusal of the findings of the Sessions Judge at paragraph 13 and the Conditions Nos.1 and 2 it appears that the Sessions Judge has not properly read the prosecution papers and the allegation made against accused No.2 has not been properly considered. First of all while granting bail by imposing conditions there was no direction for the accused No.2 to surrender before the Police within the prescribed period. Therefore in spite of granting bail on 12.03.2021 accused No.2 has not chosen to appear before the Investigating Officer for the purpose of any investigation till 25.03.2021 when this Court stayed the impugned order. Atleast the Sessions Judge ought to have imposed condition for voluntary surrendering before the Police within a short period but the blanket order of granting anticipatory bail is nothing but the order which is non est in the eye of law. 14. That apart coming to the paragraph 13 the finding of the Sessions Judge holding that accused No.2 is not directly involved in raising bills or signing bills for creating fake payments is also a perverse finding. Further the finding that the involvement of this accused No.2 has to be proved in the Court during full fledged trial is nothing but a perverse finding. As per the complaint averments accused Nos.1 and 2 have been entrusted with all the day to day affairs of the firm. Accused No.2 is the authority to sign and operate the accounts and accused No.1 was also managing the day to day operations of the firm. The payments made to Surabhi Enterprises to the tune of Rs.17 73 00 000 within three years is definitely within the knowledge of accused Nos. 1 and 2. While signing the cheques accused No.2 has not raised any objection. Accused No.1 who approved the bill has not raised any objection on the other hand it is alleged that all the documents were created by accused No.1 and 2 along with other accused in the name of accused No.5 and paid hefty amount on the ground of promotional activities but no promotional activities were undertaken by them. Therefore it is a clear case of misappropriation by creating fake documents which are produced as genuine document making payment in the name of accused No.5 and in turn it was taken by themselves. Therefore it cannot be said that accused No.2 is not directly or indirectly involved in the creation of fake documents and fake payments. 15. That apart the Sessions Judge held that because accused No.2 is aged 81 years he is super senior citizen. In this regard learned counsel for the petitioner submitted the photograph which reveals that accused No.2 is hale and healthy. That apart some documents were produced which shows that previously accused No.1 got transferred Rs.18 99 81 058 to his personal account from the company’s account and subsequent to the objection raised by this complainant the said amount was re credited to the current account of the firm. Those documents clearly reveal that nearly Rs.19 00 00 000 has been transferred to the personal account of accused No.1 from the firm’s current account. The bail petition of accused No.1 has been rejected by the Sessions Judge and also the bail petition of accused No.4 was rejected by the same Sessions Judge on the ground that the matter requires free investigation and the Investigating Officer to investigate the matter smoothly as the allegation is huge stake is involved. Such being the case granting bail to accused No.2 only on the ground that his age is 81 years is also a perverse finding. 16. Learned Senior counsel for the respondent No.2 has stated in the objection statement that there are several civil cases pending between the parties in the civil court and also the matter went up to Hon’ble Supreme Court and there is no dispute in this regard. Learned Senior counsel also submitted that accused No.1 filed a complaint against the father of the complainant namely. K.L. Swamy. Also against the informant complainant petitioner a case was registered in Crime No.26 2021 in Upparpet Police Station on 05.02.2021 for the offences under Sections 341 448 323 511 506 504 read with 34 of IPC therefore as a counterblast this complaint came to be filed against the accused persons. I have perused the FIR produced by the respondent’s counsel where accused No.1 filed a complaint to the Police on 05.02.2021 alleging that when the complainant went to the house of the accused persons on 02.02.2021 at that time the informant and his family members assaulted with hands and made criminal intimidation. Looking to the said complaint there was a dispute between them in respect of forming layout and flats but the allegation is simple. Here in this case the allegation against accused No.2 and other accused is cheating an amount of Rs.17 73 00 000 . Therefore it cannot be said that this complaint came to be filed as a counterblast to the complaint filed by the respondent accused. Therefore the contention of learned Senior counsel for respondent No.2 not acceptable. 18. Learned counsel for the petitioner relied upon the the Hon’ble P.Chidambaram’s case wherein The Hon’ble Supreme Court rejected the anticipatory bail in the case of an economic offence. In the case of Sudhir vs. State of Maharashtra and another reported in as one which can be made against all accused person all cases. The apprehension was quite reasonable the high position which respondent held and in the nature of accusation relating to a period during which he held such After bestowing our anxious consideration including a perusal of the Case Diary file we definitely feel that the High Court has mis directed itself in exercising the discretionary power under Section 438 of the Code by granting a pre arrest bail order to the respondent. We therefore upset the impugned order. The appeal is allowed In the case of Puran vs. Rambilas and another reported in 6 SCC 338 the Hon’ble Supreme Court cancelled the bail granted to the accused in a case under Sections 498A and 304B of IPC and has held that granting bail by ignoring material and evidence on record and without giving reasons would be perverse and contrary to the principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. Here in this case the Sessions Judge has held that accused No.2 is not involved in the offence not created the documents not made any payment is the finding against the documentary evidence on record which is nothing but a perverse finding. Another reason for granting bail is that accused No.2 is aged about 81 years. In this regard the Punjab and Haryana High Court in CRM M 25799 2020 dated 08.03.2021 has rejected the anticipatory bail petition for the offences under Section 438 of Cr.P.C. where the age of the accused was 95 years. I am in respectful agreement with the decision of the Punjab and Haryana High Court that age is not a ground for granting bail in a case like forgery cheating and misappropriation. If at all the accused is having ill health and suffering from various diseases he could not have managed the Company and could not have involved in day to day affairs of the Company and the certificate produced by the learned Senior counsel for respondent No.2 has been obtained on 24.3.2021 but no documents pertaining to treatment taken were produced to show that he was under treatment prior to registration of the case and in fact he was the main person for running the partnership firm of the reputed firm. Therefore the medical certificate obtained on 24.3.2021 on the day on which the petition was filed for cancellation of bail cannot be acceptable. 20. Learned Senior counsel respondent No.2 contended that there is no violation of conditions of bail in order to cancel the bail etc. In view of my findings above the offence is serious one and crores of rupees alleged to have been knocked off by this accused No.2 along with accused No.1 and caused loss to the firm and wrongful gain to himself. If Rs.17 73 00 000 payment was made there must be 18% TDS towards GST but no such document is produced by learned counsel for respondent No.2 for collecting such taxes and depositing the same to the concerned authorities. Mere production of some receipts towards tax paid to the Excise Department is in respect of the business transaction for selling the liquors is not enough but no document is produced towards the transfer of Rs.17 73 00 000 to Surabhi Enterprises and its TDS. Therefore the question of violating any condition does not arise. Even otherwise 13 days after granting of bail by Sessions Judge the accused No.2 did not chose to appear before the Police and make himself available for investigation. Such being the case there is every possibility of accused destroying the evidence and tampering the documents is not ruled out since they are the custodian of the said documents. Therefore the argument addressed by learned Senior Counsel respondent No.2 is not acceptable and there is no violation of conditions of bail and cancellation of bail does not arise. In the aforesaid judgments the Hon’ble Supreme Court has laid down the principles for granting anticipatory bail and for cancellation of bail. 21. Learned Senior Counsel for respondent No.2 relied upon the judgment of the Hon’ble Supreme Court in the case of Dolat Ram and others vs. State of Haryana reported in1 SCC 349 in respect of dowry death case. In another unreported case between Myakala Dharmarajam and others etc. and The State of Telangana and another passed in Crl.A. Nos.1974 1975 2019 the Hon’ble Supreme Court has held that cancellation of bail can be done in case where the order of granting bail suffers from serious infirmities resulting in miscarriage of justice. In the case of Simranjit Singh Mann vs. State of Bihar reported inof Cr.P.C. In another case in State vs. Sanjay Gandhi reported in 13 SCC 435 the Hon’ble Supreme Court had dealt with in respect of quashing the criminal proceedings under Section 482 of Cr.P.C. In the case of Sanjay Chandra vs. CBI reported in 1 SCC 40 in respect of consideration of bail under Sections 437 and 439 of Cr.P.C. the Hon’ble Supreme Court granted bail to the accused persons in 2G Spectrum case. In Siddaram Satlingappa Mhetre vs. State of Maharashtra and others 2011)1SCC 694 wherein the Hon’ble Supreme Court has held that Section 438 Cr.P.C. is not extraordinary in the sense that it should be invoked only in exceptional or rare cases and should ordinarily be continued till end of the trial. If the liberty is granted by the Court is misused then Court can cancel or modify the conditions. 22. Learned Senior counsel for respondent No.2 also relied upon the judgment in the case of Shri Gurubaksh Singh Sibbia and others vs. State of Punjab reported in has categorically held that the issue of cancellation of bail can only arise in criminal cases but it does not mean that every identical matter in a criminal case must be proved beyond reasonable doubt like the guilt of the accused. The prosecution therefore can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. If there is reasonable apprehension that he will interfere with the course of justice is all that necessary for the prosecution to do in order to succeed in an application for cancellation of bail. Keeping the guidelines of the Hon’ble Supreme Court and looking to the case on hand the allegations are against the accused who is none other than the authorised signatory having power to conduct the day to day business and the custodian of the documents and is the person authorised to release the cheques and payments made to various persons. In spite of granting anticipatory bail by the Sessions Judge he has not chosen to appear before Police for almost 13 days and the Police has also not chosen to arrest him in this case which goes to show that he is so much influenced person and there are chances of tampering the documents in the office and destroying the evidence is not ruled out. Once there is an allegation of misappropriation and cheating by creating false documents and making payment to a fictitious firm and when a prima facie case is made out the position of accused Nos.1 and 2 being the son and the father respectively the Sessions Judge though rightly rejected the bail application of accused No.1 but committed error in granting anticipatory bail to accused No.2 without assigning proper reasons for granting bail. As already held above age is not a criterion in the case of cheating and misappropriation. The Hon’ble Supreme Court in a recent judgment relied upon by learned Senior counsel for respondent No.2 in Myakala Dharmarajam’s case at paragraph 6 has held that while granting bail the Court is required to consider the gravity of the crime the character of the evidence position and status of the accused with reference to the victim and witnesses repeating the offence the possibility of his tampering with the evidences and witnesses and obstructing the course of justice etc. The Hon’ble Supreme Court has also relied upon the judgment in the case of Raghubir Singh’s case supra) wherein it is held that it is trite law that cancellation of bail can be done in cases where the order of granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores the relevant material indicating prima facie involvement of the accused or takes into account irrelevant material which has no relevance to the question of granting bail to the accused. In such cases the High Court or Sessions Court would be justified in canceling the bail as held by the Hon’ble Supreme Court in the case of Kanwar Singh Meena vs. State of Rajasthan and another reported in 2012)12 SCC 180. 25. As already held above the Sessions Judge while granting bail at para 13 has not properly considered the material on record but wrongly held that this accused No.2 is not responsible for creating documents which is nothing but a perverse finding and against the material placed on record. As held by the Hon’ble Supreme Court in the case Anil Sharma if the accused is continued to be on anticipatory bail he will tamper the prosecution witness and cause obstruction investigation tampering the witnesses and threatening the witnesses are not ruled out. Therefore the presence of respondent No.2 is required for custodial interrogation in order to collect all the documents payments made in the name of Surabhi Enterprises and other bills under the guise of promotional payments advertisement payment etc. which are to be investigated by the Police. All the accused persons are absconding and none of them were arrested including the owner of the Surabhi Enterprises. Such being the case granting anticipatory bail to accused No.2 will be a hurdle to the investigation and he may influence the witnesses and cause obstruction to the Investigating Officer in conducting clear investigation. Therefore as argued by learned counsel for the petitioner it is not a fit case for granting anticipatory bail by the Sessions Judge. Therefore the bail granted by the Sessions Judge under Section 438 of Cr.P.C. requires to be set aside. The petitioner has made out sufficient ground for cancellation of bail granted by the Sessions Judge. Accordingly I pass the following: Criminal Petition filed under Section 439(2) of Cr.P.C. for cancellation of bail is allowed. The order passed by the LXVII Additional City Civil Judge Bengaluru CCH 68) Crl.Misc.2192 2001 dated 12.3.2021 for the offence offences punishable under Sections 120B 406 420 465 468 471 read with 34 of IPC in Crime No.8 2021 registered by Sheshadripuram Police Station Bengaluru granting anticipatory bail to respondent No.2 accused No.2 is hereby set aside cancelled. Sd JUDGE 

Summary: The cancellation of bail order can be done in cases where the order of granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores the relevant material indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of granting bail to the accused. this was held in MR. BRIJ MOHAN K.S v. STATE OF KARNATAKA and Ors [CRIMINAL PETITION No.2489 of 2021] in the High Court of Karnataka by the single bench consisting of MR. JUSTICE K. NATARAJAN. Facts are petitioner is a partner of a firm, the accused persons had committed misappropriation of funds of the firm against which complaint was registered. Two of the accused persons had approached the Sessions Judge who granted anticipatory bail to one of the accused. The present petition is filed by the complainant for cancellation of the bail order. The counsel for the petitioner has contended that the order passed by the Sessions Judge is erroneous; based on extraneous consideration; the case is an economic offence and is in the interest of the public at large. The investigation is still under progress. The accused is the authority who was entrusted with the financial operation of the firm. He relied on P.Chidambaram vs. Directorate of Enforcement.  The counsel appearing for the respondent contended that the respondent has not violated any bail conditions as enumerated in the anticipatory bail. The father of the complainant has misused the dominion and entrustment. Due to the Covid-19 pandemic and his old age, it would not be advisable to send him to jail. He relied on the judgement of Ahmad Ali Quraishi and another vs. The State of Uttar Pradesh and another. The Court also made reference to the judgement of Apex court in State (Delhi Administration) vs. Sanjay Gandhi, and made the following observation,“The issue of cancellation of bail can only arise in criminal cases but it does not mean that every identical matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. The prosecution therefore can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. If there is reasonable apprehension that he will interfere with the course of justice, is all that necessary for the prosecution to do in order to succeed in an application for cancellation of bail.” The Court also made reference to the judgement of Apex court in Myakala Dharmarajam and others etc, wherein it was held that “while granting bail, the Court is required to consider the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, repeating the offence, the possibility of his tampering with the evidences and witnesses and obstructing the course of justice etc.”