IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO.47730/2018 (GM-RES) Between:
Smt. K Shobha Aged 58 years, W/o Dr. Raghuthaman Aged 58 years, R/at ‘Prashanthi’ Patrao Lane, Karangalapady, P. O. Kodialabail, Mangaluru – 575003. ... Petitioner (By Sri. Praveen Kumar K N, Advocate) And:
1. The State of Karnataka Represented by Principle Secretary Revenue Department, Vidhan Soudha, Dr. Ambedkar Veedhi, Bengaluru – 560001.
2. The Deputy Commissioner Dakshina Kannada District Mangaluru-D.K. – 575001.
3. The Tahsildar Mangaluru, Taluk Office, Mangaluru Taluk, D.K.District – 574201.
4. K. Krishnadas Aged about 73 Years, S/o Late K.Achuthan R/at Bharath Novas Karangalapady Mangaluru – 575003.
(Now Reportedly absconding Since 24-4-2015) 5. The Sub-Inspector of Police Mangaluru North Police Mangaluru-575001. ...Respondents (By Sri. S.T.Naik, HCGP for R1 to R3 & R5) This Writ Petition is filed under Articles 226 and 227 of Constitution of India read with Section 482 of Cr.P.C., praying to a) pass an order in the nature of certiorari quashing the impugned order passed by the 3rd respondent having No. MAG[2] CR/751/2017-18 dated 11/06/2018 produced at Annexure-A, and consequently do all the needful in pursuance of auction conducted dated 14/03/2018, as sought for in representation made to him dated 11/09/2018 produced at Annexure-K and etc., This Writ Petition coming for Preliminary Hearing, this day, the Court made the following:
O R D E R Heard Sri. K.N.Praveen Kumar, learned counsel appearing for petitioner and learned High Court Government Pleader appearing for respondent Nos.1 to 3 & 5. Notice to respondent No.4 stands dispensed with.
2. Petitioner has sought for quashing of communication dated 11/06/2018, Annexure-A issued by 3rd respondent whereunder cheque submitted/furnished by the petitioner to 3rd respondent in the auction proceedings for a sum of Rs.6,00,000/- has been ordered to be refunded. On the basis of a complaint lodged by the petitioner against the accused (respondent No.4) an FIR in Crime No.38/2002 came to be registered for the offences punishable under Sections 447, 504, 326 and 506 of IPC. After investigation, charge-sheet came to be filed in C.C.No.48/2002 for the said offences and after trial, accused came to be acquitted by judgment dated 18/07/2008. Being aggrieved by the same, petitioner herein filed CRL.RP.No.1214/2008 before this Court and by order dated 13/04/2010, revision petition was allowed and matter came to be remanded back to the trial Court for adjudication afresh.
3. On such order of remand being passed, accused is said to have remained continuously absent and inspite of Non Bailable Warrant (NBW) issued on 24/04/2015, accused did not appear and hence, warrant of attachment of the property of accused came to be issued through Tahsildar, Mangalore. Subsequently, on 15/11/2017 a show cause notice was issued to the jurisdictional Tahsildar for failure of attaching the property and not obeying the order of attachment and jurisdictional Tahsildar was called upon to show cause as to why his salary should not be attached to the extent of Rs.10,000/- and jurisdictional Assistant Commissioner and Deputy Commissioner were also intimated to take suitable steps in that regard. Accordingly, show cause notice came to be issued to 3rd respondent-Tahsildar on 22/11/2017, Annexure-E. It is thereafter, auction is said to have been conducted on 14/03/2018 by 3rd respondent in which petitioner is said to have participated and offered her highest bid for Rs.6,00,000/- and remitted the entire bid amount in full by furnishing cheque bearing No.431042 dated 16/04/2018 drawn on State Bank of India and said cheque is said to have been encashed by the office of Tahsildar on 31/05/2018.
4. It is the contention of Sri. K.N.Praveen Kumar, learned counsel appearing for petitioner that auction proceedings have been concluded and 3rd respondent committed a serious error in returning the cheque and particularly when the right of petitioner has got crystallized by way of having participated in auction proceedings and had submitted her highest bid and as such, he prays for impugned communication to be quashed and seeks for a direction to conclude the auction proceedings in favour of petitioner which was conducted by 3rd respondent on 14/03/2018.
5. Per contra, learned High Court Government Pleader would support the impugned order.
6. Having heard learned Advocates appearing for parties and on perusal of the records, it requires to be noticed at the out set that there was no order of proclamation issued against the accused as required under Section 83 of Cr.P.C. In fact, on such attachment being made, objections had to be called for including the claims, if any as required under Section 84 of Cr.P.C and subsequently, on considering such objections, if any under Section 85 of Cr.P.C., property could have been sold or restored as the case may be on such satisfaction. In fact, in the instant case, said procedure has not at all been followed or complied with by the trial Court. Even otherwise also, there is no sale proclamation issued either calling for objections or otherwise. On this short ground itself, petition is liable to be rejected. That apart, it can be seen from the case papers that auction proceedings for sale of property belonging to accused came to be conducted by the jurisdictional Tahsildar on 14/03/2018 immediately on receipt of show cause notice issued by the jurisdictional Court, whereunder Tahsildar had been called upon to show cause as to why he had not obeyed the order of attachment? and, why he had not executed the order of attachment? and, thereby, why his (Tahsildar’s) salary should not be attached? Instead of appearing before the learned Magistrate and giving explanation to the show cause notice he has proceeded to conduct auction of the property of accused in disregard to Sections 82, 83, 84 and 85 of Cr.P.C., and it is because of this precise reason, learned trial Judge on 02/07/2018 has accepted the explanation offered by the then Tahsildar and an order came to be passed by the trial Judge on 02/07/2018 to the following effect:
“case called out Tahsildar S T Guru Prasad Present and submits he will take appropriate steps to cancel the sale proceedings as there is no order passed by this court in that regard. He submits due to rush work due to assembly elections because of clerical error or inadvertence instead of creating encumbrance of Rs.10,000/- in the property of accused the sale proceedings of property of accused has been conducted. Therefore he submits he will take encumbrance of Rs.10,000/- on the property of the accused in the name of court. He also submits he will take necessary steps to cancel the sale proceedings in respect of property of accused which conducted by in advertence of ministerial staff and will return the sale amount to concerned. For compliance, 3-08-2018.”
In this background, learned trial Judge has taken recourse to Section 299 of Cr.P.C. and posted the matter for trial. In other words, learned trial Judge has proceeded to post the matter for examining the witnesses if any, on behalf of prosecution.
7. In light of the afore stated facts, the contention of the petitioner cannot be accepted and as such, impugned order cannot be held as suffering from any infirmity either in law or on facts. In fact, there being no order for sale of attached property for conducting the auction proceedings by the Tahsildar-3rd respondent was illegal and as such the petitioner would not get any right. Even otherwise, the right of the petitioner has not got crystallized by way of confirmation of sale. Hence, prayer for quashing of the impugned order, whereby cheque deposited by the petitioner in a sum of Rs.6,00,000/- having been ordered to be repaid to him by 3rd respondent cannot be found fault with.
No grounds. Writ Petition stands rejected.
SD/- JUDGE SMJ