THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY
Crl Petition Nos.8044, 8382, 8383 and 8386 of 2012
COMMON ORDER:
These four criminal petitions are filed by the State seeking cancellation of bail granted to Gopal Singh Shakawath- (hereinafter referred to as `the respondent’) in Crime No.154 of 2012 of Kandukur Town P.S, Crime No.60 of 2012 of Valetivaripalem P.S., Crime No.106 of 2012 of Kandukur Rural P.S and Crime No.220 of 2012 of Chirala I Town P.S, registered for the offence under Section 420 IPC, Sections 4, 5 and 6 of Act and Section 5 of Act granted by the Principal Sessions Judge, as per orders dated 6.11.2012 passed in Crl.M.P.Nos.1195 of 2012,1229 of 2012, 1228 of 2012 and 1227 of 2012.
2. The respondent is the Chairman and Managing Director of Nmart Retail private limited which has set up retail outlets in various parts of the country including the state of Andhra Pradesh. There are 275 stores set up Nmart Retail Private Limited across the country. Of them, 26 stores are in Andhra Pradesh and 12 of them in operation and rest of them are yet to be opened. Nmart Retail Company lured the public to take membership on the assurance of quick and easy money. An amount of Rs.5,500/- has been collected from each member and on receiving the membership, purchase vouchers numbering 48 worth of Rs.220/-, smartcard credit facility of Rs.1500/- have been given to each of the members. Attractive offers have been made at the time of launching the retail outlets in various parts of the country. Within few months of launching, depositors made hue and cry that benefits that have been promised are not being made available to them. Complaints came to be filed in various Police Stations. One such complaint is filed by Corporate Fraud Watch Society before the Station House Officer, Kandukur P.S., which formed basis for registering a case in Crime No.154 of 2012. During the course of investigation, the respondent came to be arrested on 28.8.2012 at Surat. The Investigating Officer produced the respondent before the Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai. The learned Additional Chief Metropolitan Magistrate granted transit bail to the respondent with a direction to appear before the concerned court on or before 01.9.2012 and seek regular bail and report compliance. The respondent did not appear before the concerned court in Ongole and thereby committed breach of his undertaking given before the Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai. Thereupon, the Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai forfeited the bonds and issued N.B.W on 01.9.2012. The respondent moved Crl.M.P.Nos.1195 of 2012 in Crime No.154 of 2012 of Kandukur Town P.S., 1229 of 2012 in Crime No.60 of 2012 of Valetivaripalem P.S., 1228 of 2012 in Crime No.106 of 2012 of Kandukur Rural P.S., 1227of 2012 in Crime No.220 of 2012 of Chirala I Town P.S., seeking anticipatory bail. The learned Principal Sessions Judge, Ongole considered the applications filed by the respondent under Section 438 Cr.P.C along with applications filed by other accused and granted anticipatory bail to the respondent by common order dated 06-11-2012. Hence the State filed these applications seeking cancellation of anticipatory bail to the respondent in Crime No.154 of 2012 of Kandukur Town P.S., 60 of 2012 of Valetivaripalem P.S., 106 of 2012 of Kandukur Rural P.S. and 220 of 2012 of Chirala I Town P.S.
3. Heard learned Public Prosecutor appearing for the petitioner-State and Sri S.Niranjan Reddy, learned counsel appearing for the respondent-accused.
4. Learned Public Prosecutor submits that the scheme flouted by Nmart (a retail store of New Look Retails Private Limited) appears to be attractive but on close scrutiny of it, the main object is to collect Rs.5,500/- from each member and appropriate major part of the said amount. As on this day, Nmart enrolled 4,25,522 members in Andhra Pradesh and 10,48,576 members all over the country and thereby, collected about 1400 crores and subsequently, closed most of the retail shops. The scheme ultimately is for the benefit of the company and members are the losers. Learned Public Prosecutor explained how the scheme ultimately ends in favour of the company. He would also submit that the respondent having secured transit bail on an undertaking to appear before the concerned court in Ongole and seek regular bail, flouted his undertaking and moved anticipatory bail before the learned Sessions Judge, Ongole. The very filing of the anticipatory bail application, in the given facts and circumstances is not maintainable and therefore, the order passed by the learned Sessions Judge, Ongole in granting anticipatory bail to the respondent is required to be cancelled.
5. Sri S.Niranjan Reddy, learned counsel appearing for the respondent/accused contends that the membership fee collected by Nmart, a retail store of New Look Retails Private Limited is not a deposit since a member is allowed to purchase goods worth of Rs.5,500/- apart from securing various benefits such as forty eight purchaser vouchers worth of Rs.220/- each spreading over 48 months. In a way, his contention is that the business activity of Nmart does not come within the purview of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. Learned counsel would further contend that specified goods have been made available to the customers at cheaper rate since the company procures the same from the manufacturer directly and whatever profit the company derives is being disseminated to the customers by way of extending various benefits. A further contention has been advanced by the learned counsel that the petitioner hails from a respectable family with good antecedents and he is recipient of the Best Chief Managing Director award for the year 2011, Bharat Ratna Dr.B.R.Ambedkar Award, Honorary Chairman, International Human Rights Association (Asia Region), Member of Task Force(Ministry of Consumer for food and Public Distribution), Government of India. According to the learned counsel, anticipatory bail moved by the respondent before the Sessions Judge, Ongole under Section 438 Cr.P.C is maintainable in the given facts and circumstances. In support of his contention, reliance has been placed on a judgment of this Court in Sheik Khasim Bi v. The State[1], wherein it has been held that an application under Section 438 Cr.P.C is maintainable even if the concerned court taken cognizance of the case and issued process viz., the warrant of arrest of a person.
6. Coming to the facts of the case the point that calls for adjudication is :
Whether the petitioner-State made out a valid ground for cancellation of bail granted to the respondent in Crime No.154 of 2012 of Kandukur Town P.S, Crime No.60 of 2012 of Valetivaripalem P.S., Crime No.106 of 2012 of Kandukur Rural P.S and Crime No.220 of 2012 of Chirala I Town P.S.
7. The Supreme Court in Prakash Kadam v. Ramprasad Vishwanath Gupta while making a distinction between cancellation of bail and consideration for grant of bail observed as hereunder:-
"18 In considering whether to cancel the bail the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc., If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appealed against before an appellate/Revisional Court.
19. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is llikelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail".
8. Two important factors are required to be noted. Firstly; the respondent obtained transit bail from the court of Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai on specific undertaking that he would appear before the concerned court in Ongole on or before 01.9.2012. His application seeking extension of time ended in dismissal by the Additional Chief Metropolitan Magistrate, Borivali, Mumbail. The respondent instead of appearing before the concerned court before the specified date resorted to move an application under Section 438 Cr.P.C seeking anticipatory bail in various crimes. Since he had been arrested in Crime No.154 of 2012 and released on transit bail, he was to appear before the concerned court in Ongole and seek regular bail. Therefore, the question of filing an application under Section 438 Cr.P.C in Crime No.154 of 2012 does not arise. The respondent is the Chairman-cum-Managing Director of New Look Retails Private Limited. He being the Chairman and Managing Director of the company is responsible for the day-to-day affairs of the company and it’s activities. It is the grievance of the depositors that most of the retail outlets have been closed and there is no response from the management of the outlets. Such is the accusation levelled against the management of Nmart retail outlets, the respondent being at the helm of affairs of the company does not deserve for grant of anticipatory bail. The learned Sessions Judge has not appreciated the material brought on record in a right perspective and thereby, committed serious error in granting anticipatory bail to the respondent. In view of above discussion, I find that the respondent does not deserve for grant of anticipatory bail.
9. Accordingly, all the criminal petitions are allowed. Consequently, bail granted to the respondent in Crime No.154 of 2012 of Kandukur Town P.S, Crime No.60 of 2012 of Valetivaripalem P.S., Crime No.106 of 2012 of Kandukur Rural P.S and Crime No.220 of 2012 of Chirala I Town P.S is hereby cancelled.
B.SESHASAYANA REDDY
Dt.05-01-2013
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