IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRL.P.NO.1520/2017 C/w CRL.P.NOs.1521/2017 AND 1522/2017 IN CRIMINAL PETITION NO.1520/2017:
BETWEEN:
Kum.G.Saishivabhagya D/o Late G.N.Gowraiah Aged 56 years, Occ: Deputy Manager Veerashaiva Sahakari Bank Ltd Vijaynagar Branch-560040.
R/at No.71/1, Allamaprabhu Road Gavipuram, Hanumanthanagar Bangalore-560019. Petitioner (By Sri.Basavaraj.R Bannur, Advocate) AND:
1. The State Public Prosecutor, High Court of Karnataka, The Cottonpet Police, Bengaluru.
2. Veerashaiva Sahakari Bank Ltd., No.1732/32, M.C. Layout, Vijayanagar, Bengaluru-560040, By its General Manager ... Respondents (By Sri.K.Nageshwarappa, HCGP., for R1 Sri.S.Mohan, Advocate for R2) This Criminal Petition is filed under Section 482 Cr.P.C praying to quash the charge sheet dated 08.01.2011 by the respondent No.1 in C.C.No.11474/2016 before the IV ACMM, Bengaluru, Annexure-E to the petition in so far as petitioner is concerned and quash the criminal proceedings in C.C.No.11474/2016 pending on the file of the IV ACMM, Bengaluru vide Annexure-F to the petition in so far as petitioner is concerned.
IN CRIMINAL PETITION NO.1521/2017: BETWEEN:
Kum.G.Saishivabhagya D/o Late G.N.Gowraiah Age 56 years, Occ: Deputy Manager Veerashaiva Sahakari Bank Ltd Vijaynagar Branch-560040.
R/at No.71/1, Allamaprabhu Road Gavipuram, Hanumanthanagar Bangalore-560019. Petitioner (By Sri.Basavaraj.R Bannur, Advocate) AND:
1. The State Public Prosecutor, High Court Building - Bangalore, The Cottonpet Police Station, Bengaluru – 01.
2. Veerashaiva Sahakari Bank Ltd., No.1732/32, M.C. Layout, Vijayanagar, Bengaluru-560040, By its General Manager ... Respondents (By Sri.K.Nageshwarappa, HCGP., for R1 Sri.S.Mohan, Advocate for R2) This Criminal Petition is filed under Section 482 Cr.P.C praying to quash the charge sheet dated 08.01.2011 by the respondent No.1 in C.C.No.11475/2016 before the IV ACMM, Bengaluru against the petitioner vide Annexure-E to the petition in so far as petitioner is concerned and quash the criminal proceedings in C.C.No.11475/2016 pending on the file of the IV ACMM, Bengaluru vide Annexure-F to the petition in so far as petitioner is concerned.
IN CRIMINAL PETITION NO.1522/2017: BETWEEN:
Kum.G.Saishivabhagya D/o Late G.N.Gowraiah Age 56 years, Occ: Deputy Manager Veerashaiva Sahakari Bank Ltd Vijaynagar Branch-560040.
R/at No.71/1, Allamaprabhu Road Gavipuram, Hanumanthanagar Bangalore-560019. Petitioner (By Sri.Basavaraj.R Bannur, Advocate) AND:
1. The State Public Prosecutor, High Court Building - Bangalore, The Cottonpet Police Station, Bengaluru – 01.
2. Veerashaiva Sahakari Bank Ltd., No.1732/32, M.C. Layout, Vijayanagar, Bengaluru-560040, By its General Manager ... Respondents (By Sri.K.Nageshwarappa, HCGP., for R1 Sri.S.Mohan, Advocate for R2) This Criminal Petition is filed under Section 482 Cr.P.C praying to quash the charge sheet dated 08.01.2011 by the respondent No.1 in C.C.No.11476/2016 before the IV ACMM, Bengaluru against the petitioner vide Annexure-E to the petition in so far as petitioner is concerned and quash the criminal proceedings in C.C.No.11476/2016 pending on the file of the IV ACMM, Bengaluru vide Annexure-F to the petition in so far as petitioner is concerned.
These criminal petitions coming on for Admission this day, the Court made the following:
O R D E R Petitioner in Crl.P.Nos.1520/2017, 1521/2017, 1522/2017, is accused No.5 in C.C.Nos.11474/2016, 11475/2016 & 11476/2016 respectively and is seeking for quashing of the proceedings. 2nd respondent herein lodged a complaint before Cottonpet Police Station, Cottonpet on 08.02.2005 against petitioner and four other employees of its Bank alleging that a sum of Rs.6,95,000/- of 2nd respondent bank – Akkipete Branch, has been misappropriated between 03.10.1997 to 31.03.2000 from 46 Savings Bank Accounts a sum of Rs.5,55,000/- during the period of 03.10.1997 to 04.10.1998 (C.C.No.11474/2016) a sum of Rs.55,000/-
during the period 05.10.1998 to 06.10.1999 (C.C.No.11475/2016) and, a sum of Rs.90,000/- during the period 07.10.1999 to 31.03.2000 (C.C.No.11476/2016). Said complaint came to be registered in Crime No.36/2005 against petitioner and four other employees for the offence punishable under Section 420 of I.P.C.
2. On conclusion of investigation, charge sheets came to be filed against petitioner and four other accused persons for the offence punishable under Sections 408, 420 read with Section 34 of I.P.C. in C.C.Nos.11474/2016, 11475/2016 and 11476/2016, which proceedings are pending before IV Additional Chief Metropolitan Magistrate Court, Bengaluru.
3. In the meanwhile, Joint Registrar of Co-operative Societies ordered for an enquiry against 2nd respondent- Bank under Section 64 of Karnataka Co-operative Societies Act and Enquiry Officer on conducting such enquiry submitted a report on 20.11.2004 holding that petitioner and four other employees are jointly and severally liable to pay a sum of Rs.6,95,000/- with interest @ 18% per annum to 2nd respondent-bank.
4. Being aggrieved by this report and findings recorded by enquiry officer, fixing liability on the petitioner, 2nd respondent-bank raised a dispute by filing a petition under Section 69 of Co-operative Societies Act for recovery of the amounts from petitioner and 40 other employees which resulted in an order being passed on 09.03.2010 and order being passed allowing the petition and directing the respondents including the petitioner herein to pay the amounts with interest as ordered by Enquiry Officer. Being aggrieved by this order, petitioner herein filed an appeal under Section 105 of The Karnataka Co-operative Societies Act before Appellate Tribunal and by order dated 31.10.2014 passed in Appeal No.304/2010, Appellate Tribunal Authority has set aside the order dated 09.03.2010 by allowing the appeal.
5. On account of chargesheets having been filed and proceedings being continued, petitioner is before this Court in these petitions seeking quashing of the same contending inter-alia that 2nd respondent-bank itself has submitted a letter dated 13.07.2010 to the jurisdictional police before whom complaint was initially lodged, intimating thereunder that Shriyuths B.V.Nagaraj, B.Kumar and Kumari Saishivabhagya (petitioner in the petition) are innocent and there was no role played by them in misappropriation which took place for the period 1997-98 to 1999-2000 for a sum of Rs.6,95,000/- and as such, they intend to withdraw the complaint lodged against them. On this ground, petitioner has contended that withdrawal of the complaint itself is sufficient for this Court to quash the proceedings as petitioners are seeking for quashing of the proceedings. He would also submit that on account of civil liability fixed under enquiry conducted under Section 64 of Co-operative Societies Act which culminated in an appeal before Karnataka Appellate Tribunal had resulted in order passed for recovery of amount being set aside by Karnataka Appellate Tribunal and as such there was nothing further to be examined as to criminal liability on the part of petitioner and hence learned counsel seeks for quashing of the petition.
6. Per contra, learned HCGP Sri.Rachaiah would contend that petitioner along with other accused persons had conniving with each other and had hatched conspiracy to defraud the bank and in furtherance of this object they had withdrawn amounts from 46 savings bank account holders and thereby cheated the bank and as such, the act of the petitioner cannot be read in isolation with that of the acts of the other accused persons. Hence, he prays for rejection of these petitions.
7. Having heard the arguments of learned HCGP and learned counsel appearing for petitioner and on perusal of records, it would disclose that 2nd respondent-bank had initially lodged a complaint on 08.02.2005 alleging that petitioner and four other employees have misappropriated a sum of Rs.6,95,000/- from Akkipete Branch where they were working by withdrawing amounts from savings bank account holders (46 members) by using withdrawal slips. Said complaint on being registered, ended in filing of the chargesheet against petitioner and other accused persons. An enquiry was also ordered by the Registrar of Co- operative Society as contemplated under Section 64 of The Karnataka Co-operative Societies Act. Said enquiry report which is available on record when perused would disclose that a finding came to be recorded by the Enquiry Officer that there was no act of misappropriation committed by petitioner and act of petitioner can be construed as one of negligence in the words of Enquiry Officer it reads as under:
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EªÀÀÀÀgÀÀÀÀÄUÀÀÀÀ¼ÀÀÀÀÄ ±Á«ÄïÁUÀÀÀÀ¢zÀÀÀÀÝÝÝÝgÀÀÀÀÆ ¸ÀÀÀÀºÀÀÀÀ PÀÀÀÀvÀÀÀÀðªÀÀÀÀå ªÀÀÀÀÄvÀÀÀÀÄÛÛÛÛ ddddªªªªÁÁÁÁ¨¨¨¨ÁÁÁÁÝÝÝÝjjjj¬ÄÄÄÄAAAAzzzzÀÀÀÀ zzzzÀÀÀÀÆÆÆÆggggÀÀÀÀ ¸¸¸¸ÀÀÀÀjjjjAAAAiiiiÀÀÀÀÄÄÄį¯¯¯ÁÁÁÁUUUUÀÀÀÀÄÄÄĪªªªÀÀÀÀÅÅÅÅ¢¢¢¢®®®®èè..èè..’’’’’’’’ (Emphasis supplied) 8. In conclusion, Enquiry Officer opined that financial loss which has been caused to the bank has to be recovered from erring officials, which include petitioner. On account of such a finding recorded by the Enquiry Officer, Surcharge proceedings under Section 69 of Co- operative Societies Act came to be initiated by 2nd respondent-bank before Jurisdictional Joint Registrar, Co- operative Societies, for recovering amount with interest at 18% per annum, which had been determined under Section 64 of the Co-operative Societies Act. An order came to be passed on 09.03.2010 holding petitioner and other 4 respondents therein are jointly and severally liable to pay a sum of Rs.6,95,000/- with interest @ 18% p.a. The said order of 09.03.2010 came to be challenged by the petitioner by filing an appeal under Section 105 of the Act before The Karnataka Appellate Tribunal. After considering the rival contentions, Appellate Tribunal by its judgment dated 31.10.2014, allowed the appeal, set aside the order dated 09.03.2010 by opining that there was no cogent and convincing evidence to prove the role played by the petitioner in alleged misappropriation of the amount, since signature appearing was not proved in any of the withdrawal slips. On these amongst other grounds, appeal came to be allowed and order passed by Joint Registrar, Co-operative Societies for recovery of amounts from petitioner came to be set aside. This order is stated to have reached finality.
9. In the meanwhile, the 2nd respondent-bank namely the complainant obviously after looking into the report (report submitted after conducting enquiry under Section 64 of Co-operative Societies Act) which had been submitted on 20.11.2004 was fully satisfied that there was no role played by the petitioner in so far as misappropriation of the amounts is concerned and as such, submitted a letter to the jurisdictional police who had investigated the matter for withdrawal of the complaint as per communication dated 13.07.2010 at Annexure-D. Yet, the Investigating Officer has proceeded to file chargesheet against the petitioner.
10. As already noticed herein above, Authorities who had conducted enquiry had opined that there was no role played by the petitioner in so far as misappropriation is concerned but had been negligent and the fact that complainant bank itself being satisfied that there was no role played by the petitioner and two other officials in alleged misappropriation of bank funds had urged its wisdom to withdraw the complaint. Hence, this Court is of the view that continuation of the criminal proceedings against petitioner would be an abuse of process of law and as such, this Court is of the considered view that it is liable to be quashed.
For the reasons aforestated, I proceed to pass the following:
ORDER (i) Crl.P.No.1520/2017 C/w Crl.P.Nos.1521/2017 & 1522/2017 are hereby allowed.
(ii) Proceedings in C.C.Nos.11474/2016, 11475/2016 & 11476/2016 pending on the file of IV ACMM, Bengaluru is hereby quashed in so far as petitioner is concerned.
All pending applications stands rejected.
MR/NC Sd/- JUDGE