Andhra Pradesh High Court – Amravati
Chimakurthi Naga Venkata Sai Kiran vs The State Of Andhra Pradesh on 27 March, 2025
1
APHC010122722025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
THURSDAY, THE TWENTY SEVENTH DAY OF MARCH
TWO THOUSAND AND TWENTY
TWENTY-FIVE
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL PETITION NO: 2641/2025
Between:
Chimakurthi Naga Venkata Sai Kiran ...PETITIONER/ACCUSED
AND
The State Of Andhra Pradesh and ...RESPONDENT/COMPLAINANT(S)
Others
Counsel for the Petitioner/accused:
1. UMESH CHANDRA P V G
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR
The Court made the following ORDER:
1. The Criminal Petition, under section
ection 482 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (for short, ‘BNSS’) is filed on behalf of the
Petitioner/A20 to grant anticipatory bail in connection with Crime No.23/2024
No.
of CID Police Station, A.P., Mangalagiri
Mangalagiri.
2. A case has been registered against the Petitioner herein and others for
the offence punishable under Sections 318(4), 316(5), 61(2) of Bharatiya
Nyaya
aya Sanhita, 2023 (for short, ‘BNS’)
‘BNS’).
3. The Prosecution’s case, in brief, is that, on 09.10.2024, at 16:30 hrs, the
CID Police Station in Mangalagiri received a complaint from Sri Sandeep
2Mehra, Zonal Head-Retail of ICICI Bank, Vijayawada. The complaint stated
that between October 3 and October 5, 2024, multiple ICICI Bank customers
reported several fraudulent activities, including: a) Overdraft (OD) facilities
taken on their Fixed Deposits (FDs) without their consent, b) Invalid FD
receipts issued, c) Cheques against OD limit reductions fraudulently credited
to third-party accounts, and d) Missing jewels from gold loans. After
conducting internal checks, it was found that ICICI Bank employees, including
the Branch Manager, Regional Head-Sales, and Gold Loan Counsellor, had
orchestrated a money transfer fraud using various schemes targeting existing
and new customeRs.The total fraudulent amount was approximately Rs.28.34
Crores. The accused employees built personal relationships with customers to
encourage them to invest in FDs and gold loans. They falsely promised zero
interest on gold loans, enrolled customers in fraudulent schemes, and
misused their deposits. The gold was transferred to other branches, and the
received amounts were redirected to third-party accounts. Fake receipts were
sent to customers to create a false sense of security. Additionally, they
manipulated FD accounts and loans, using fake receipts and OTPs to access
customer funds and divert money for personal gain. When an audit in 2024
identified discrepancies, the fraudulent accounts were transferred to other
private banks and financial institutions. Based on the investigation and
statements from Accused No.1, the Petitioner was added as Accused No. 20
in the case.
4. Learned counsel for the Petitioner/A.20 submits that the Petitioner,
arraigned as A.20, is alleged to have deposited Rs.1.5 Crores into his
account, which was subsequently withdrawn. However, the Petitioner is
neither a banker nor an authorized individual, and an examination of the fraud
reveals that he was a mere customer deceived into believing he would benefit,
similar to other victims. The Petitioner approached A.1 to open an account for
his friend Priya, with the amounts deposited into third-party accounts, which
were then transferred to the Petitioner’s account, creating the false impression
3of his involvement in the conspiracy. The Petitioner was unaware of the
fraudulent activity, having been misled by A.1, who had earned his trust.
Given that some co-accused, including A.3, have been granted bail,
continuing the Petitioner’s judicial custody serves no purpose, especially since
the crime was registered in October 2024. Custodial interrogation is no longer
necessary. The Petitioner has a permanent residence, is willing to cooperate
with the investigation, and has no prior criminal record. Therefore, it is prayed
that anticipatory bail be granted to the Petitioner, as continued detention
would violate his fundamental rights under Article 21 of the Constitution.
5. On the other hand, the learned Assistant Public Prosecutor, appearing
for the Respondent/State, opposes the grant of anticipatory bail on the ground
that the investigation is still pending.
6. I have heard both sides. Learned counsel on both sides reiterated their
submissions on par with the contentions presented in the Petition as well as in
the Report. Consequently, the contentions presented by the learned counsel
need not be reproduced.
7. In Mahipal V. Rajesh1, the Hon’ble Apex Court held that it is necessary
for the Court while considering a bail application, to assess whether, based on
the evidentiary record, there existed a prima facie or reasonable ground to
believe that the accused has committed the crime.
8. In Rakesh Baban Borhade Vs. State of Maharashtra and another 2,
the Hon’ble Apex Court observed that:
“Anticipatory bail not to be granted as a matter of rule but should be granted
only when a case is made out and the Court is convinced that the accused
would not misuse his liberty”.
9. In Shri Gurbaksh Singh Sibbia and others Vs. State of Punjab3, the
Hon’ble Apex Court held that “The question whether to grant bail or not
1
(2020) 2 SCC 118
2
2015 SAR (Criminal) 156
4
depends for its answers upon a variety of circumstances, the cumulative effect
of which must enter into the judicial verdict”.
10. In Siddharam Satrlingappa Mhetre V. State of Maharashtra and
others4, the Hon’ble Supreme Court held thus:
“Discretion vested in the court in all matters should be exercised with care
and circumspection depending upon the facts and circumstances justifying
its exercise. Similarly, the discretion vested with the court under Section
438 Cr.P.C. should also be exercised with caution and prudence.”
11. The learned counsel for the Petitioner submits that the ingredients of
Section 316(5) of the BNS are not applicable to the facts of the case, as the
property was not entrusted to the Petitioner, who is neither a public servant,
banker, merchant, nor agent. At most, the provisions of Sections 61(2) and
318(4) of BNS may be applicable, which are punishable with imprisonment for
up to seven years. Furthermore, the Petitioner is entitled to the benefit of
Section 35(3) of the BNSS.
12. The Prosecution, in this case, has primarily relied on documentary
evidence regarding the transactions in the bank account of the Petitioner to
establish his involvement in the commission of the offence. According to the
material placed, an amount of Rs.1.5 crores was withdrawn in cash by the
Petitioner/A.20, from his account. In addition to the Petitioner’s withdrawal, it is
noted that a middleman was also involved in withdrawing an additional Rs.1.5
crores in cash.
13. This Court, upon reviewing the circumstances, prima facie observes
that prior to withdrawing this substantial sum, the Petitioner must have had
knowledge that the amount in question did not belong to him. If this is indeed
the case, then when the Petitioner made the withdrawal, he would have been
duty-bound to notify the bank officials that an amount of Rs.1.5 crores, which
did not belong to him, had been credited to his account. However, the
3
(1980) 2 Supreme Court Cases 565
4
(2011) 1 Supreme Court Cases 694
5
Petitioner did not take any steps to inform the bank about this discrepancy,
nor did he raise any concerns. The absence of such a notification leads the
Court prima facie to infer that the Petitioner acted with a (dishonest) intention
in withdrawing the funds.
14. Furthermore, this Court notes that even after the registration of the
crime, the Petitioner has not provided any explanation regarding the
whereabouts of the withdrawn amount. He has neither returned the money nor
offered any account of what happened to it. In addition, the investigating
officer has not recovered the withdrawn sum. This omission raises serious
concerns regarding the Petitioner’s actions and the possibility that he may
have intentionally hidden or misappropriated the funds.
15. In light of these facts, this Court finds that custodial interrogation of the
Petitioner is necessary. The purpose of such an interrogation would be to
recover the amount that was withdrawn under questionable circumstances.
Given the gravity of the offence and the Petitioner’s failure to account for the
misappropriated funds, it is essential to ensure that further investigations are
carried out to determine the fate of the withdrawn money and to ascertain the
Petitioner’s role of involvement in the crime. Therefore, this Court holds that
custodial interrogation is justified in order to facilitate the recovery of the
amount and to fully uncover the details of the Petitioner’s role in the offence.
16. Upon perusal of the material on record, this Court prima facie finds that
even based on the uncontroverted allegations, there exists a doubt whether
the ingredients of section 316(5) of BNS align with the facts of the case. The
Petitioner’s counsel contends that section 316(5) of BNS was included merely
to deprive the Petitioner to have the benefit of notice under section 35(3) of
BNSS. However, such a possibility cannot be ruled out. Besides sections
316(5) of BNS, other sections mentioned in the First Information Report
(F.I.R.) may carry punishments of less than seven years, thereby warranting
the applicability of section 35(3) of BNS in the present scenario.
6
17. The learned Assistant Public Prosecutor asserts that the procedure
outlined in Section 35(3) of BNSS, cannot be mandated to be enforced. He
contends that it is within the purview of the police authorities to decide
whether to adhere to Section 35(3) or Section 35(1)(b) of the BNSS. He
further asserts that issuing a directive to follow a specific course of action is
unwarranted, as it would essentially amount to instructing the police on how to
conduct their investigation. He points out that the Court may refrain from
intervening in the investigative process, and discretion should be left to the
concerned police officers.
18. While considering the similar submissions in W.P.No.3848 of 2020, this
Court passed an order dated 28.04.2020, observing that even in the case of
Arnesh Kumar (3 supra), the Hon’ble Supreme Court of India has spelt out the
manner in which the power under Section 41 (1) (b) and 41-A of Cr.P.C. are to
be exercised. The Hon’ble Supreme Court of India, after considering Section
41 (1) Cr.P.C., noted that in all cases where the arrest of a person is not
actually required, the Police Officer should issue a notice directing the
accused to appear before him at a specified place and time. This Court
concurs with the submission of the learned Government Pleader that the
discretion to arrest or not to arrest a person and thereafter to follow Section
41-A of Cr.P.C. is solely vested in the Investigating Officer. This Court cannot
compel the police to act based on 41-A Cr.P.C. as a matter of right. In this
Court’s opinion, the discretion should be left to the officer concerned to arrest
or not to arrest.
19. In light of the preceding discussion and settled case law, simply
because the offences prima facie made out against the Petitioner/A.20 are
punishable with imprisonment of seven years or less than seven years, it
cannot be held that the Petitioner is entitled to the benefit of notice under
section 35(3) of BNSS. The discretion should be left to the investigating officer
concerned to arrest or not to arrest and, therefore, to follow under section
35(3) of BNSS, is solely vested in the investigating officer.
7
20. In a case containing severe allegations, the Investigating Officer
deserves a free hand to take the investigation to its logical conclusion. The
investigation officer who has been prevented from subjecting the Petitioner to
custodial interrogation can hardly be fruitful in finding prima facie substance in
the extremely serious allegations. The possibility of the investigation being
effected once the Petitioner is released on bail is very much foreseen.
Custodial interrogation can be one of the relevant aspects to be considered
along with other grounds while deciding an application seeking anticipatory
bail.
21. The Power under section 438 of Cr.P.C., is extraordinary and must be
exercised sparingly. The Power of the pre-arrest bail should be granted only in
exceptional cases. To some extent, the grant of anticipatory bail interferes in
the sphere of investigation of an offence, and the Court must be circumspect
while exercising such Power for the grant of anticipatory bail. The grant of
anticipatory at the investigation stage may frustrate the investigating agency in
interrogating the accused and collecting helpful information and the materials
which might have been concealed. Success in such interrogation will elude if
the suspected person knows that he is well protected and insulated by a pre-
arrest bail order when he is interrogated.
22. As previously noted, the Prosecution asserts that the custodial
interrogation of the Petitioner is imperative. The Petitioner withdrew the
amount of Rs.1.5 crore. Given these circumstances, the contention put forth
by the Petitioner’s counsel is challenging to endorse. The material on record
indicates that the investigation is at the initial stage. The Petitioner has to be
interrogated in the custody. The ordering of anticipatory bail to the Petitioner
may adversely affect the investigation process.
23. Considering all the attending facts and circumstances of the case as
well as the gravity of the offence, as also the settled principle of law that
power of grant of bail under Section 438 Cr.P.C., is to be sparingly exercised
8
in extraordinary circumstances and thus, no such circumstances being having
been made out in this case, this Court does not find it a proper case for
granting the relief of anticipatory bail to the Petitioner/A.20.
24. Nothing stated above shall be construed as a final expression of opinion
on the merits of the case and the observations made in the present case,
which are only for adjudicating the present bail application.
25. As a result, the Criminal Petition is dismissed.
Miscellaneous applications pending, if any, shall stand closed.
_______________________
T. MALLIKARJUNA RAO, J
Date: 27.03.2025
SAK
9
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
CRIMINAL PETITION NO: 2641/2025
Date: 27.03.2024
SAK
[ad_1]
Source link