IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.5829/2017 BETWEEN:
M/S. CORPORATION BANK VENGIKKAL BRANCH NO.180/1B, VELLORE TRUNK ROAD, VENGIKKAL TIRUVANNAMALAI - 606 604 TAMIL NADU REPRESENTED BY ITS SENIOR MANAGER SRI. S. RAJA SEKARAN ... PETITIONER (BY SRI. V.B. RAVISHANKAR, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY INTERNATIONAL AIRPORT POLICE STATION BENGALURU.
2. SRI. KARTHIK NARAYAN S/O. SRI. NARAYANAN RAMASAMY AGED ABOUT 33 YEARS DIRECTOR AYON GLOBAL EDUCATION SERVICES PVT. LTD.
NO.147/A, JANATHA TVS PREMISES CHENGAM ROAD TIRUVANNAMALAI – 606 603 TAMIL NADU.
3. SRI. V. SANJAY S/O. SRI. VIJAYAN AGED ABOUT 41 YEARS DIRECTOR AYON GLOBAL EDUCATION SERVICES PVT. LTD.
NO.147/A, JANATHA TVS PREMISES CHENGAM ROAD TIRUVANNAMALAI – 606 603 TAMIL NADU. ... RESPONDENTS (BY SRI. S. RACHAIAH, HCGP FOR R1; SRI. AVINASH M. MASUTHI FOR R3;
NOTICE TO R2 IS DISPENSED WITH V/O DT.31.01.2019) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO QUASH THE ORDER DATED 02.05.2017 PASSSED BY THE C.J.M. AND J.M.F.C., DEVANAHALLI, BENGALURU IN CRIME NO.132/2016 (VIDE ANNEXURE-A) AND PERMIT THE PETITIONER TO SELL THE VEHICLE AND ADJUST THE SALE PROCEEDS TO THE LOAN ACCOUNT OF THE ACCUSED HEREIN.
THIS CRIMINAL PETITION COMING FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner - Bank, filed an application under Section 457 and 458 of Cr.P.C. for release of the vehicle AUDI Q7 35 TDI Quattro Pack contending inter alia that accused No.1 (Respondent No.2 herein) had availed a hypothecation in a sum of Rs.74,00,000/- on 18.01.2016 for purchase of said vehicle bearing Registration No.KA 51 MJ 8118 and he had executed a term loan agreement and other documents in favour of applicant Bank agreeing thereunder to repay the loan in 84 equated monthly installments of Rs.1,25,542/- each with interest @ 10.70% per annum. Hence, contended that said vehicle be released. The application came to be considered favourably by the learned Magistrate and vehicle came to be released.
2. Subsequently, one more application was filed under Section 457 and 458 at Annexure-J for permission to sell the said hypothecated vehicle and to adjust the sale proceeds to loan amount. However, said application was opposed by the learned Additional Public Prosecutor by filing objections and learned trial judge, by impugned order dated 02.05.2017, dismissed the same on the ground that applicant Bank will not be able to produce the vehicle whenever directed by Investigating Officer and by the Court. Hence, this petition.
3. Having heard the learned Advocate appearing for the parties namely, the applicant Bank represented by Sri.V.B.Ravishankar and Sri. Varun Gowda, learned Advocate appearing on behalf of respondent No.3 and learned High Court Government Pleader Sri. S. Rachaiah appearing on behalf of respondent No.1 and on perusal of records, this Court is of the considered view that application filed by petitioner deserves to be allowed for the reasons set out herein below:
4. At this juncture it would be appropriate to note the submission made by Sri. Varun Gowda that he has no objection to allow the application on the ground that accused No.3 being the complainant as guarantor for loan borrowed by accused No.2, has been forced to pay the installments to the Bank and as such, it would be in interest of all persons, the vehicle is to be sold. His submission is placed on record.
5. FIR in Crime No.132/2016 registered by Bengaluru International Airport Police Station is at the instance of respondent No.3 herein, whereunder he has specifically alleged that respondent No.2 had induced the complainant to part with more than 4 crores assuring of business contract and as such, he had parted with the money and had been cheated by respondent No.2 in connivance with other accused persons. Hence, he has set the criminal law into motion by filing a complaint on 28.09.2016 and based on said complaint, Crime No.132/2016 came to be registered against respondent No.2 and three others. The Investigating Officer had seized the AUDI car bearing Registration No. KA 51 MJ 8118 during the course of investigation from the custody of respondent No.2. It is neither the case of complainant nor the case of prosecution that said vehicle has any bearing whatsoever in the alleged crime to which the accused persons have been charged. Merely because the Investigating Officer has seized the vehicle from accused No.2 would not by itself be a ground on which the vehicle cannot be handed over to the custody of the Bank. It is because of this precise reason bank has been given custody of the Car by trial Court itself. In the instant case, the registered owner who undisputedly is respondent No.2 herein, has made an application for release of vehicle. That apart, Corporation Bank which has lent the amount to respondent No.2 herein for purchase of vehicle has obtained hypothecation deed and as such, sought for release of said vehicle in its favour, which came to be granted by learned Magistrate. Infact, application in question, which came to be filed by Bank was also not opposed by respondent No.2. It is also stated by learned HCGP that the presence of respondent No.2 is yet to be secured before the jurisdictional Court and despite NBW having been issued, his presence is not yet secured. It is in this factual scenario, Bank has made an application for release of the vehicle and has already obtained custody of the said vehicle in question.
5. If the said vehicle is allowed to be continued to be kept without being used, it would definitely deteriorate and value of the vehicle would drastically come down. It would not be in feasible in the interest. If all parties to allow said vehicle to be stationed/parked without being put into use. Infact, the value of said vehicle would definitely come down day by day and drastically so if it is not put to use. As such, this Court is of the considered view that vehicle in question which has been hypothecated by respondent No.2 to the petitioner-Bank and their being default in payment of loan amount to Bank, it has every right to sell the said vehicle and appropriate the sale proceeds towards the loan amount. In the absence of registered owner, objecting to it that vehicle would be sold for a lessor price and consequently, the guarantor who is none other than defacto-complainant i.e., respondent No.3 herein would have to bare the brunt by repaying the loan would not be, in the interest of applicant Bank, borrower as well as defacto-complainant, who is guarantor for the loan borrowed by respondent No.2. Hence, it would be just appropriate to permit the applicant Bank to sell the vehicle in association with the defacto-complainant i.e., respondent No.3 herein so that best price can be secured for selling the vehicle and apprehension of 3rd respondent that vehicle may be clandestinely sold for a lower price by the bank would also get alloyed. Third respondent would also at liberty to secure a suitable customers for purchasing the vehicle in question and applicant Bank selling the vehicle in question shall take into account said aspect which would be in its interest also.
Hence, following:
ORDER 1. Criminal petition is allowed.
2. Order dated 02.05.2017 passed by the Chief Judicial Magistrate and JMFC, Devanahalli in Crime No.132/2016 at Annexure – A is hereby set aside and application at Annexure-J filed by the applicant Bank i.e., petitioner herein, under Section 457 and 458 of Cr.P.C. is hereby allowed subject to condition that applicant Bank would be at liberty to sell the vehicle bearing Registration No.KA 51 MJ 8118 in association with respondent No.3 i.e., defacto- complainant in Crime No.132/2016.
3. Applicant Bank shall obtain photograph of the said vehicle from all angles and also obtain a video and same be stored in a Compact Dist and be furnished to jurisdictional Court. Said photographs should also contain the engine and chassis number of the vehicle in question.
SD/- JUDGE KA/-