Basavaraj S/O Durgappa ... vs The State Of Karnataka
2021 Latest Caselaw 984 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

     DATED THIS THE 16TH DAY OF JANUARY, 2021
                        BEFORE
        THE HON'BLE MR.JUSTICE K. NATARAJAN

           CRIMINAL APPEAL NO.100283/2020

BETWEEN:

1.   BASAVARAJ S/O DURGAPPA BANDIVADDAR
     AGE 50 YEARS, OCC ENGINEER,
     R/O SRI RAGHAVENDRA NIVAS,
     MARISHANTIVEERNAGAR,
     HOSAPETE ROAD, TQ AND DIST KOPPAL 583 237.

2.   MS.RAKSHITA D/O BASAVARAJ BANDIVADDAR
     NOW MARRIED TO MR. SHANTKUMAR
     AGE: 26 YEARS, OCC HOUSEHOLD,
     R/O SRI RAGHAVENDRA NIVAS,
     MARISHANTIVEERNAGAR,
     HOSAPETE ROAD, TQ AND DIST KOPPAL 583 237.

3.   MS. AKSHATA D/O BASAVARAJ BANDIVADDAR
     AGE 13 YEARS, OCC STUDENT,
     SINCE MINOR R/BY NATURAL GUARDIAN
     BASAVARAJ S/O DURGAPPA BANDIVADDAR,
     AGE 50 YEARS, OCC ENGINEER,
     R/O SRI RAGHAVENDRA NIVAS,
     MARISHANTIVEERNAGAR,
     HOSAPETE ROAD,
     TQ AND DIST KOPPAL 583 237.
                                             ...APPELLANTS
(BY SRI. NEELENDRA D. GUNDE, ADVOCATE)
                                  2




AND:

THE STATE OF KARNATAKA
BY KOPPAL LOKAYUKTA POLICE,
REPRESENTED BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD 580 011.
                                                    ...RESPONDENT
(BY SRI. SANTOSH B. MALAGOUDAR, SPECIAL PP)
                           ---


      This appeal is filed under Section 11 of the Criminal Law
Amendment Ordinance 1944 R/w. Section 482 of Cr.P.C., praying to
allow this criminal appeal by setting aside the order dated
20.08.2020 passed in Special CC (PC) No.3/2016 by the learned
Principal District and Sessions Judge, Koppal, thereby rejecting the
application filed U/sec. 9 of Criminal Amendment Ordinance, 1944
R/w. Sec. 457 of Cr.P.C.

      This appeal coming on for further hearing through Physical
Hearing/Video Conferencing Hearing this day, the Court delivered
the following:

                              JUDGMENT

This appeal is filed by the legal heirs of Smt.Padmavathi

under Section 11 of the Criminal Law Amendment Ordinance, 1944

R/w. Section 482 Cr.P.C. for setting aside the order passed by the

Principal District and Sessions Judge, Koppal, in Special CC (P.C)

No.3/2016 dated 20.08.2020, rejecting the application filed by

them under Section 9 of the Criminal Amendment Ordinance, 1944

R/w. Section 457 of Cr.P.C.

2. I have heard the arguments of learned counsel for the

appellants Sri. Neelendra D. Gunde and learned Special PP for the

respondent - Lokayukta Sri. Santosh B. Malagoudar.

3. The sum and substance of the case of the appellants is

that, Lokayukta Police, Koppal registered a case against the first

appellant Basavaraj in Crime No.5/2013, for the offences

punishable under Sections 13(1)((e) R/w. Section 13(2) of the

Prevention of Corruption Act, 1988 (hereinafter referred to as 'the

PC Act', for brevity) and filed the charge sheet. By raiding the

house of the appellants, the Lokayukta Police seized the properties

belonging to the accused/1st appellant as well as the wife of

appellant No.1 namely, Smt. Padmavati Bandiwaddar. The

application filed by the Investigating Officer under Sections 3 and 4

of the Criminal Law (amendment) Ordinance, 1944 (hereinafter

referred to as 'the Ordinance', for brevity) for attachment of

properties is allowed by the Sessions Judge by his order dated

16.12.2014 and all the properties including the golden ornaments

which were pledged by Smt. Padmavati to the Pragathi Krishna

Gramin Bank for raising loan, was also attached by the said order.

Subsequently the wife of the appellant is said to have died on

13.03.2019. Further the case of the appellants is that, the

Karnataka Gramin Bank (Pragathi Krishna Gramin Bank) has issued

notice to the appellant No.1 and also sent a copy to the Special

Judge, Koppal, seeking permission to sell the gold ornaments in

order to recover the outstanding loan amount payable by the wife

of the accused amounting `6,17,000/-. Based upon the notice, the

appellants being the legal heirs of Padmavathi moved an

application before the Sessions Judge under Section 9 of the

Ordinance, which came to be dismissed by the impugned order

dated 20.08.2020. Being aggrieved by the said order, the

appellants are before this Court.

4. Learned counsel for the appellants strenuously

contended that the Sessions Court committed error in rejecting the

application without considering the fact that the wife of the 1st

appellant pledged the gold ornaments which is her own property.

In fact, she is also an income tax assessee and she has borrowed

the loan of `3,00,000/- for the purpose of construction and paid

`1,50,000/- towards the labour charges and kept `1,50,000/- in the

house, which was seized by the Lokayukta Police and after seizure

and attachment, the loan was not repaid to the bank. The loan was

raised for `3,00,000/-, and now with interest the outstanding loan

payable is accumulated to `6,17,000/-. If the application is not

allowed permitting the bankers to sell the gold ornaments of the

wife of the first appellant, it will cause more burden to the

appellant, as the amount of interest payable by him and apart from

that, for no fault of him, he has to pay interest to the bank for

`1,50,000/- which was seized by the police. The learned counsel

further contended the interim order of attachment would be in force

only for one year. The same is not considered by the Sessions

Judge and hence prayed allowing the appeal.

5. Per contra, learned Special PP for the Lokayukta

Sri. Santosh B. Malagoudar supported the impugned order passed

by the Session Judge and contended that the 1st appellant was

working as junior Engineer during the period between 18.10.2002

and 20.12.2013. His disproportionate asset is 99% more than the

known sources of income. His entire property has been seized and

attached by the learned Sessions Judge under Sections 3 and 4 of

the Ordinance. Such being the case, if the application filed by

appellants is allowed, it is nothing but modifying the order passed

by the learned Sessions Judge. He further contended that, still the

trial is pending and at this stage, the application shall not be

allowed and hence prayed for rejecting the same.

6. Upon hearing the arguments and perusing the records

including the documents of the prosecution in respect of seizure of

the both immovable properties as well as movable properties under

the panchanama, which was attached by the trial Court vide order

dated 16.12.2013 passed by the learned District Judge in view of

the application filed by the prosecutor under Sections 3 and 4 of the

Ordinance. It is not in dispute that the police filed the charge

sheet against the 1st appellant, but not against other persons.

These three appellants are the legal heirs of the deceased

Padmavathi, who is wife of the 1st appellant, who died on

13.03.2019. The investigation papers and the documents reveal

that Smt. Padmavathi, wife of the accused was in possession of the

articles i.e., golden ornaments mentioned at page No.11 of the

attachment order of the trial Court, where it shows there were four

golden ornaments weighing 245 grams and it's market value as on

the date was `5,58,000/-. Further it was mentioned at para 5 that

the golden ornaments were pledged to the Pragathi Krishna

Grameen Bank (Karnataka Gramin Bank) under loan account

No.70415301047413 and Garnishee notice was also issued to the

said bank not to release the articles either in favour of the

Padmavathi or assignee or any third party. In view of the order of

the trial Court attaching the said loan amount and the golden

ornaments, the said golden ornaments of the wife of the accused

are lying in Pragathi Krishna Grameen Bank. It is also not in

dispute that the said bank got issued the notice dated 04.05.2020

addressing to the Special Judge, Koppal, seeking permission to

auction the gold and adjust the outstanding loan of `6,17,000/-. It

is also mentioned that the approximate value of the gold ornaments

was `4,45,000/-, but the due payable by the deceased Padmavathi

was `6,17,000/- and therefore they requested sell off the

ornaments. Even though the letter was addressed to the Special

Judge, but there is no order passed by the trial Court based upon

the letter sent by the Karnataka Gramin Bank (Pragathi Krishna

Grameen Bank) seeking permission of the Court for auctioning the

golden ornaments. Further, the appellants being the legal heirs of

Padmavathi moved the application for permitting the banker to sell

the golden ornaments by auction in order to recover the

outstanding loan payable by the deceased Padmavathi.

7. Though the appellants taken various contentions in

respect of the attachment and validity of the Act, but looking to the

facts of this case, without considering all other grounds urged by

the appellants, it is clear from the records and the investigation

report that the deceased Padmavathi, wife of the accused raised

loan of `3,00,000/- by pledging her golden ornaments which was

attached by the Court by issuing Garnishee notice to the bank and

the seizure of the properties were on 19.12.2013 and the golden

ornaments said to be pledged by the deceased Padmavathi was on

05.12.2013 prior to raid by the Investigating Officer. Now with

interest an outstanding balance of `6,17,000/- is to be recovered by

the banker for having granted loan of `3,00,000/- to the deceased

Padmavathi. For almost seven years, the loan amount is

unnecessarily fetching the interest and now the outstanding amount

is almost more than double the amount of loan borrowed by the

wife of the accused. Even if the prosecution is able to prove the

case against the accused that the golden ornaments were

purchased by the accused through his wife, but by keeping the loan

amount with the banker without permitting the banker to sell the

golden ornaments through a public auction, will definitely burden

the accused/appellants of paying the interest unnecessarily. The

banker has already charged almost double the amount of loan

towards interest. The Court merely attached the property by

issuing the garnishee order, but it does not mentioned who has to

pay the interest of the loan.

8. Therefore, considering these aspects, if the application

of the appellants is not allowed by allowing the appeal, the

appellants being the legal heirs of Padmavathi will be further

burdened of paying the interest to the banker. That apart, the

documentary evidence is also seized by the police during the course

of investigation and raid. Though the trial Court held once the

property is attached, loan amount will not fetch interest is not

correct. Hence, I feel it is a fit case for granting permission to the

banker to sell the golden ornaments of deceased Padmavathi by

auction for recovery of the loan amount, otherwise petitioner would

be put to hardship and irreparable loss. The appellants have made

out sufficient ground for setting aside the order of the trial Court.

However, it is needless to say that, allowing this application of the

appellants permitting the banker to sell the golden ornaments of

deceased Padmavathi will in no way affect the merits of the case.

Hence, I pass the following:

ORDER

The appeal filed by the appellants under Section 11 of

Criminal Law Amendment Ordinance, 1944 R/w. Section 482 of

Cr.P.C. is allowed. Impugned order of the Sessions Jude dated

20.08.2020 rejecting the application filed by the appellants under

Section 9 of Criminal Amendment Ordinance 1994 R/w. Section 457

of Cr.P.C. is set aside.

The application filed by the appellants is allowed, permitting

the banker Karnataka Gramin Bank (Pragathi Krishna Grameen

Bank) for selling the golden ornaments required for the purpose of

recovery of the outstanding loan of `6,17,000/-, by auction sale as

per the present market value. The remaining gold shall have to be

deposited before the Court by the banker.

Sd/-

JUDGE gab