Karnataka High Court
Sri Manjunatha B S vs State Of Karnataka on 28 February, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2024:KHC:8253
CRL.A No. 427 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 427 OF 2023
BETWEEN:
SRI. MANJUNATHA B.S.,
S/O M. SOMAPPA,
AGED ABOUT 44 YEARS,
R/AT NO. 3-467
3rd BLOCK, NETHAJI LAYOUT,
KUSHALNAGARA,
KODAGU - 571 234.
...APPELLANT
(BY SRI. MANJUNATHA B.V., ADVOCATE)
AND:
STATE OF KARNATAKA
Digitally
THROUGH STATION HOUSE OFFICE,
signed by
LAKSHMI T KUSHALNAGARA POLICE STATION,
KUSHALNAGARA SUB-DIVISION,
Location: KUSHALNAGARA,
High Court
KODAGU DISTRICT,
of Karnataka
REP. BY SPP,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HCGP)
THIS CRL.A IS FILED U/S.16 OF KARNATAKA
PROTECTION OF INTEREST OF DEPOSITORS IN FINANCIAL
ESTABLISHMENT ACT PRAYING TO SET ASIDE THE ORDER
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CRL.A No. 427 of 2023
DATED 25.01.2023 PASSED BY THE PRINCIPAL SESSIONS
JUDGE, KODAGU AT MADIKERI IN CRL.MISC.NO.18/2023 IN
C.C.NO.701/2021 OF CR.NO.42/2020 FILED BY
KUSHALANAGAR POLICE FOR THE ALLEGED OFFENCE P/U/S
417, 420, 34 OF IPC AND SEC. 9 OF KPIDE ACT AND TO
ENLARGE THE APPELLANT ON ANTICIPATORY BAIL IN THE
EVENT OF HIS ARREST BY THE RESPONDENT POLICE IN
C.C.NO.701/2021 AS CONVERTED C.C.NO.1742/2022 OF
CR.NO.42/2020 FILED BY KUSHALNAGAR POLICE FOR THE
ALLEGED OFFENCE P/U/S 417, 420, 34 OF IPC AND SEC. 9 OF
KPIDE ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 16 of the Karnataka
Protection of Interest of Depositors in Financial
Establishment Act, 2004 (KPIDFE Act for short) has been
preferred against the order dated 25.01.2023 passed by
the learned Principal Sessions Judge, Kodagu at Madikeri
in Criminal Miscellaneous No.18/2023, whereby the
petition under Section 438 of Cr.P.C. seeking anticipatory
bail has been dismissed.
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2. Heard both the sides and perused the material on
record.
3. The complainant by name Shankar B.A
S/o Jayaram filed a private complaint on the file of the
Court of Hon'ble Civil Judge and Judicial Magistrate First
Class Court, Kushalnagar, against the appellant herein and
another alleging an offence punishable under Section 420
of IPC. The said complaint was referred to the
Jurisdictional Police for investigation under Section 156(3)
of Cr.P.C. The police on completion of investigation, filed
charge sheet against accused Nos.1 and 2 for the offence
punishable under Section 420, 417 r/w Section 34 of IPC
and under Section 9 of the KPIDFE Act.
4. It is alleged in the complaint that the complainant
and accused are known to each other. Accused No.1 is
running one 'Ray Finance and Chit Funds'. Accused No.2 is
working as manager. In the month of December 2018 they
contacted the complainant and claimed to have a valid
license to run the Chit Fund etc., and insisted the
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complainant to become a member. Believing their words,
the complainant became a member of one of the Chit Fund
transaction and paid the amount. However, without
repaying the said amount the accused cheated him to the
tune of Rs. 4,20,000/- etc.,
5. In the charge sheet, it is alleged that the accused
were running a Chit Fund business without any license and
they received a total sum of Rs.2,55,000/- from the
complainant and cheated him without repaying the said
amount.
6. It is the contention of the learned counsel for the
appellant that in fact the appellant himself has provided
hand loan to the complainant to the tune of Rs.7,00,000/-
and though he promised that the said amount will be
repaid in installments, the complainant failed to repay the
said amount borrowed from the appellant and with an
intention to avoid the payment of the loan amount, he has
come up with a false complaint.
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7. It is further submitted by the learned counsel that
the appellant is the owner of one BSM Motors, Yamaha
Bike Showroom situated at B.M.Road, Kushalnagara and
now he has transferred the said Showroom in the name of
his wife. He further submits that "Ray Group" is a shop
dealing with sports items, started by the appellant and his
friends. He contended that the provision of KPIDFE Act is
not applicable.
8. The learned Sessions Judge has rejected the
application filed under Section 438 of Cr.P.C on the ground
that the police have already filed the charge sheet and
case has been numbered as C.C No.701/2021 further, the
said charge sheet is filed in the year 2021 and for a period
of more than 1 year 7 months, the appellant has been
successful in avoiding his arrest etc.,
9. The learned High Court Government Pleader has
contended that in spite of issuance of summons and NBW
against the appellant, he was not secured and the Court
below has issued proclamation under Section 82 and
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ordered for issuance of attachment warrant of movable
and immovable properties belonging to the appellant
under Section 83 of Cr.P.C. He has therefore, sought to
dismiss the appeal.
10. Initially, a case was registered for the offence
punishable under Section 420 r/w Section 34 of IPC.
Charge sheet is filed for the offence punishable under
Section 420 and 417 r/w Section 34 of IPC and Section 9
of the KPIDFE Act, 2004.
11. The charge sheet allegations are that the accused
have been running a Chit Fund without any license and
cheated the complainant to the tune of Rs.2,55,000/-.
12. According to the prosecution, the accused
induced the complainant to become a member in the Chit
Fund and received the deposit and thereafter, cheated him
without repaying the amount. One of the contention raised
by the learned counsel for the appellant is that the
'deposit' as defined under Section 2(2) of the Act does not
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include any amount received by way of subscriptions in
respect of a Chit and therefore, Section 9 of the KPIDFE
Act is not applicable.
13. The appellant is said to be a permanent resident
of Kushalanagara in Kodagu District. In the address
furnished before the learned Magistrate while filing the
complaint, he is shown as the owner of BSM Motors,
B.M.Road, Kushalanagara. It is difficult to accept the
submission of the learned High Court Government Pleader
that the police were unable to execute the warrant and
secure the presence of the petitioner. It only shows their
incompetence.
14. According to the complainant, he was very much
residing in the address furnished and no summons were
received by him. Be that as it may, proceedings have been
initiated against the appellant under Section 82 and 83 of
Cr.P.C. Considering the facts and circumstances, the
appellant/accused No.1 is directed to appear before the
Jurisdictional Court and file necessary applications for
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recalling of the NBW and bail. If any such applications are
filed within a period of 15 days, the learned Magistrate is
directed to enlarge him on bail by imposing necessary
conditions.
With the above direction, the appeal is disposed of.
Sd/-
JUDGE
VS
CT:SNN
