Basanagouda vs The State Of Karnataka And Anr
2022 Latest Caselaw 928 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 20TH DAY OF JANUARY, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE V.SRISHANANDA

        CRIMINAL PETITION NO.200735/2020


BETWEEN:

1.   Basanagouda S/o Sharane Gouda,
     Age: 43 years, Occ: Business,
     MPL No.1-11-53/45, 46,
     R/o: Sriram Nagar Colony,
     Near Vidhyabharati School, Raichur,
     Dist: Raichur-584 101.

2.   Lakshmi W/o Basanagouda,
     Age: 34 years, Occ: Household
     MPL No.1-11-53/45, 46,
     R/o: Sriram Nagar Colony,
     Near Vidhyabharati School, Raichur,
     Dist: Raichur-584 101.

3.   Mallana Gouda S/o Sharane Gouda,
     Age: 41 years, Occ: Business,
     MPL No.1-11-53/45, 46,
     R/o: Sriram Nagar Colony,
     Near Vidhyabharati School, Raichur,
     Dist: Raichur-584 101.

                                           ... Petitioners
(By Sri Sanjay A.Patil, Advocate)
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AND:

1.     The State of Karnataka
       Through Police,
       C.E.N Crime Police Station,
       Raichur, Tq & Dist: Raichur,
       Represented by Addl. SPP.,
       High Court of Karnataka,
       at Kalaburagi Bench.

2.     KK Kotresh S/o AK Kolashantappa,
       Age: 55 years, Occ: Bank Employee,
       R/o: Karnataka Gramin Bank,
       Regional Office, Jawahar Nagar,
       Raichur, Dist: Raichur-584 101.
                                            ... Respondents

(Sri Sharanabasappa M.Patil, HCGP for R1;
 Sri B.K.Hiremath, Advocate for R2)


       This criminal petition is filed under Section 482 of
Cr.P.C praying to quash the FIR No.101/2020 (Crime
No.5/2020) registered against the petitioners by the C.E.N
Crime Police Station, Raichur/1st respondent Police, Tq &
Dist: Raichur, registered for the offences punishable under
Sections 406 and 420 R/w S. 34 of IPC (pending on the file
of 4th Addl. JMFC Court, Raichur and etc.

      This petition coming on for Admission this day, the
Court made the following hearing:

                        ORDER

Heard Sri Sanjay A.Patil learned counsel for the

petitioners and learned High Court Government Pleader for

respondent No.1/State and learned counsel Sri

B.K.Hiremath for respondent No.2.

2. The present petition is filed under Section 482

of Cr.P.C.

3. The brief facts of the case are as under :-

A complaint came to be lodged by the Chief

Manager, Karnataka Grameen Bank, Regional Office,

Raichur contending that M/s.Mallikarjun Industries has

borrowed money for the purposes of business as a

takeover loan and they failed to repay the amount. On

repeated demands for the repayment, the industry went

on postponing the payment stating that they have not yet

received the amount from their customers from Tamilnadu

and therefore, they sought some more time. In the

meantime, the accounts of M/s Mallikarjun Industries came

to be classified as nonperforming asset and necessary

action was initiated before the Debt Recovery Tribunal.

When the matter stood thus, on inspection, the

complainant came to know that the stock in trade was not

at all available in the industry and therefore lodged the

complaint. During such enquiry, complainant also came to

know that in fact money has been received by

M/s Mallikarjun Industries from the customers of

Tamilnadu and the said money was actually encashed by

M/s Mallikarjun Industries by opening separate accounts in

Canara Bank and Laxmi Vilas Bank and therefore they

have cheated the complainant and thus sought for taking

action against the petitioners herein.

4. Based on the said complaint, Raichur CEN

Police have registered a case in Crime No.5/2020 for the

offences punishable under Sections 420 and 406 read with

Section 34 of IPC and are investigating the matter.

5. In the petition, following grounds have been

raised :-

x Petitioners they have not innocent persons, are committed any offence much less as alleged in the Complaint, they are falsely involved in the case by the Complainant as the complainant has filed the case only so as to harass the petitioners and effect their image in the business. Petitioners are law abiding citizens.

x It is submitted on behalf of the petitioners that the 2nd respondent herein has filed the complaint for the first time on 24.02.2020 alleging the offence committed in the year 2017, there is inordinate delay in filing the complaint which itself indicates that, complainant with consultation of ill- wishers of the petitioners and to harass them has filed the said complaint.

x It is submitted on behalf of the petitioners that, the 2nd respondent bank has filed OA No.1484/2018 before the Debts Recovery Tribunal-II at Bengaluru against the petitioner company for recovery of Debt loan which is pending before the said tribunal, that being so, the 2nd respondent herein now with an ulterior motive has filed the present complaint which amounts to parallel proceedings, since the cause of the theory of double action is common. Hence, jeopardy comes in play.

x It is submitted on behalf of the petitioners that, the 2nd respondent bank has already approached the Debt Recovery Tribunal U/Sec.19 of the Recovery of Debts due to Banks and Financial Institution Act 1993 and sub clause 17 to Sec.19 contemplates and empowers case of in tribunal to detain any person the disobediency of its order to civil prison. That being so when the bank has set law in motion for its recovery of debts against the petitioner industry it is not proper for the 2nd respondent/Manager to lodge a criminal case against the petitioners.

x It is submitted on behalf of the petitioners that, admittedly the entire transaction is a loan transaction which is civil in

nature and only to pressurize the petitioners the present complaint is filed and hence if the complaint indicates that the allegations are civil in nature under those circumstances such a complaint deserves to be quashed.

x Viewed at any angle the registration of criminal case against the petitioners and its further investigation is nothing but abuse of process of law and hence the same may be quashed.

x Petitioners have not filed any other petition before any 14. court of law for the same cause of action and that petitioners have not earlier approached this Hon'ble court for the similar relief, except filing the present petition.

6. Reiterating the above grounds, learned counsel

for the petitioners Sri Sanjay A.Patil contended that the

matter is of a civil nature and therefore parallel criminal

proceedings initiated by the complainant is nothing but

abuse of process of law and thus sought for allowing the

petition.

7. In support of his arguments, he has relied on

the judgment of the Hon'ble Apex court in the case of

Kolla Veera Raghav Rao vs Gorantla Venkateswara

Rao And another reported in AIR 2011 SC 641 and

contended that whenever a contractual obligation, which is

the subject matter of civil litigation is pending, parallel

criminal proceedings is nothing but abuse of process of law

and sought for allowing the bail petition.

8. He also submits that criminal action initiated

by a party and police registering a case, in such

circumstances would be violative of Article 20 of the

Constitution of India and thus sought for allowing the

petition.

9. Per contra, learned High Court Government

Pleader for respondent No.1/State and Sri B.K.Hiremath

learned counsel for respondent No.2 opposes the petition

relief contending that it is not a mere case of civil liability

but it is a case of suppression of material facts and

deceiving the complainant inasmuch as the stock in trade

which has been sold by the petitioners has not been

properly accounted and suppressing the loan taken by the

petitioners with the complainant bank, the accused/

petitioners have opened another two more accounts in two

different banks and encashed the amounts and therefore,

there are prima facie materials to attract the offence

punishable under Sections 420 and 406 of IPC and this

court at the stage of considering the petition under Section

482 of Cr.P.C cannot hold a mini trial to find out the

evidentiary aspects and sought for dismissal of the

petition.

10. In the light of the rival contentions of the

parties, this court perused the materials on record.

Admittedly, there is a loan transaction between the

petitioners and the complainant. The loan is to the tune of

`300 lakhs at the inception and subsequently it has been

enhanced to `400 lakhs.

11. Admittedly, the materials on record also show

that the stock in trade was hypothecated to the

complainant bank. It is found from the materials on record

that as and when the money is recovered by the

petitioners from their customers, keeping portion of the

money for the day to day aspects, the money is to be

repaid towards loan account. Instead of doing the same,

the petitioners have opened two more accounts in two

different banks and they have encashed the cheques given

by his customers in two those accounts and whereby the

amount payable to the complainant bank remained unpaid

and therefore, the account of the petitioners have been

classified as nonperforming asset.

12. Further, for recovery of the money, the

complainant has no doubt initiated an action before the

Debt Recovery Tribunal by filing original application. Mere

filing of the original application for recovery of the amount

would not efface the criminal act that is attributable to the

petitioners in the case on hand in suppressing the loan and

the account maintained by the petitioners with the

complainant bank and opening two more accounts in two

different banks and encashed the money from the

customers of the petitioners. These are all the matters of

the trial and intention of the petitioners prima facie reveal

that they have cheated the complainant's bank whereby

the criminal action cannot be countenanced and needs to

continue.

13. Further, as is rightly contended by the

respondent, this court at the stage of considering the

petition under Section 482 of Cr.P.C cannot be held a mini

trial and also look into the evidentiary aspect of the matter

accordingly the same can be done only after full-fledged

investigation/trial.

14. Accordingly, this is not a case where this court

can exercise its power vested under Section 482 of Cr.P.C

in quashing the further proceedings in pursuance of the

Crime No.5/2020 registered by the Raichur CEN Crime

Police. Hence the petition is meritless and is hereby

dismissed.

Sd/-

JUDGE

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