IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.7041 OF 2013 BETWEEN:
M/s. Kotak Mahindra Bank Ltd., Formerly known as M/s. Kotak Mahindra Finance Ltd., Having its registered office at No.36-38A, Nariman Bhavan, 227, Nariman Point, Mumbai – 400 021.
and having its branch office at No.501-3, Raheja Towers, 26/27, M.G. Road, Bengaluru – 560 001.
Represented by its Deputy Manager Sri. Mano Sunder Vadivel. …Petitioner (By Sri. H. Mujtaba, Advocate for Sri. K.R. Parashuram – Advocate) AND:
Mr. Paramesh N.U, Son of Sri. Huriyappa, Aged about 49 years, Residing at No. 83, II Main Road, Subbanna Garden, Vijayanagar, Bengaluru – 560 040. ...Respondent (By Sri. Ranganath R., Advocate for Sri. Jagadeesh Goud Patil, Advocate) This Criminal Petition is filed u/s 482 of Cr.P.C., praying to quash the entire proceedings in C.C.No.2452/2008 pending on the file of the IV Additional Chief Metropolitan Magistrate, Bengaluru, for the alleged offences under Sections 153, 406, 408, 409, 420 r/w 34 of IPC, in so far as the petitioner is concerned.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for the petitioner and proxy counsel appearing on behalf of the respondent. Perused the record.
2. The respondent herein availed loan of Rs.2,00,000/- from the petitioner-M/s. Kotak Mahindra Bank Ltd. The respondent having defaulted in repayment of the said amount, an arbitration proceeding was initiated against the respondent and an award came to be passed for a sum of Rs.2,42,393/-. When the said award was put into execution, a warrant was issued by the Executing Court. The respondent issued two post-dated cheques for Rs.2,00,000/- and Rs.50,000/- bearing numbers 753694 dated 25.08.2007 and 753692 dated 26.07.2007, respectively. One of the said cheque for Rs.2,00,000/- having been dishonoured for insufficient funds, the petitioner herein instituted proceedings under Section 138 of N.I.Act in C.C.No.19069/2017 before the Chief Metropolitan Magistrate, Calcutta. That being the case, the respondent herein filed a private complaint under Section 200 Cr.P.C. seeking action against the petitioner for the offences punishable under Section 153, 406, 408, 409, 420 r/w 34 of IPC alleging that the petitioner herein in furtherance of criminal conspiracy and criminal breach of trust obtained the aforesaid two cheques by force and coercion in collusion with accused No.3, a recovery agent of the accused No.1-company and made use of the said cheques to foist a false case against the petitioner.
3. The learned counsel for the petitioner has produced copy of the order passed by this Court in W.P.No.13058/2007 dated 20.08.2008 which discloses that the respondent herein filed the above writ petition challenging the order dated 03.08.2007 passed in Execution Case No.172/2007 whereby the Executing Court had issued warrant for attachment of immovable properties of the respondent. In the said petition, the counsel for the respondent herein made a submission to the effect that the matter is settled out of Court and the respondent herein has paid in all a sum of Rs.60,000/- by way of two Demand Drafts, which was duly encashed by the petitioner-bank. Acknowledging the said amount, the petitioner herein submitted before the Court that in view of the said payment they would withdraw all the legal proceedings initiated against the respondent herein in the competent Court, arbitration tribunals and certify that KMBL will have no rights, claim title or interest against the respondent herein in respect of the agreement.
4. In view of the undertaking given by the petitioner/bank that they would withdraw the Execution case, the writ petition was disposed of in terms of the above agreement.
5. The above order falsifies the contention of the respondent herein that the cheques in question were obtained by the petitioner under force and duress. On the other hand, the facts depicted in the order passed by this Court in W.P.No.13058/2007 clearly indicates that as on the date of the said order, the respondent herein was required to satisfy the award passed by the Tribunal arising out of the loan liability of the respondent. Therefore, the allegations made against the petitioner, on the face of it, are proved to be false and unsustainable. Even otherwise, the parties having compromised the dispute inter-se subsequent to the issuance of the aforesaid two cheques and in terms of the said agreement, the petitioner having withdrawn all the proceedings initiated against the respondent herein, continuation of the impugned proceedings against the present petitioner would be nothing but abuse of the process of Court.
Accordingly, the petition is allowed. Proceedings initiated against the petitioner in C.C.No.2452/2008 on the file of the IV Additional Chief Metropolitan Magistrate, Bengaluru, for the alleged offences punishable under Sections 153, 406, 408, 409, 420 r/w 34 of IPC, is hereby quashed.
Sd/- JUDGE SV