IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.148/2019 BETWEEN:
SMT NETHRAVATHI W/O MALLIKARJUNA AGED ABOUT 34 YEARS R/AT NO.28, PILLANNA LAYOUT NELAGADARANAHALLI NAGASANDRA POST BENGALURU - 560 073 ... PETITIONER (BY SRI H R SANJEEVE GOWDA, ADVOCATE) AND:
1. STATE BY VYALIKAVAL POLICE STATION BENGALURU ALSO REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT, BENGALURU 2. THE MANAGER (AMENDED V.C.O. THE FEDERAL BANK LTD. DATED 14.2.2019) SADASIVANAGAR BRANCH NO.88, 2ND MAIN PALACE GUTTAHALLI P.O.
BENGALURU ... RESPONDENTS (BY SRI S.RACHAIAH, HCGP FOR R-1;
SRI VIJAY KUMAR V., ADVOCATE FOR R-2) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 17.10.2018 PASSED ON I.A.
UNDER SECTION 457 OF THE CODE OF CRIMINAL PROCEDURE AND BE PLEASED TO ORDER FOR RELEASE OF THE SEIZED VEHICLE IN P.F.NO.46/2018 IN CRIME NO.109/2018 PENDING ON THE FILE OF VIII A.C.M.M. AT BENGALURU ETC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R 1. Petitioner has been arraigned as accused in Crime No.109/2018 which is registered by respondent no.1 for the offence punishable under Sections 420 & 465 of IPC is before this Court for quashing of said proceedings.
2. Senior Manager, Federal Bank, Sadashivanagar Branch, Bangalore, filed a complaint on 11.06.2018 alleging that accused had borrowed a loan of `6,62,000/- from the Bank for purchase of a Car, and accordingly, the said amount was sanctioned and petitioner purchased a Swift Car which was registered as No.KA-50-P9809 and she had not repaid loan by paying the EMIs. On enquiry, it was known that loan obtained by petitioner was on the basis of a Bank account statement furnished by her which related to Bank of India, Peenya Branch and said statement was fabricated. Hence, alleging that petitioner had committed an offence punishable under Sections 420 & 465 of IPC, jurisdictional police had registered FIR in Crime No.109/2018 for the said offence on the strength of complaint lodged by Bank.
3. An application under Section 457 of Cr.P.C came to be filed before the trial court for release of the said vehicle by petitioner which was rejected by order dated 17.10.2018 on the ground that if said vehicle is released in favour of accused, she would definitely sell the said Car and Bank would not be able to recover the said amount. Being aggrieved by the said order, petitioner filed a revision petition in Criminal Revision Petition No.782/2018 which has been dismissed by order dated 19.12.2018 by affirming the view expressed by learned trial Judge and it was also observed that the Bank has right to seek interim custody of the vehicle.
4. During the course of the present proceedings pending before this Court, petitioner has deposited a sum of `2,50,000/- to demonstrate her bona fides in repaying the loan.
5. Sri Vijay kumar V., learned counsel appearing for respondent no.2-Bank submitted that right of the Bank to proceed against petitioner being available under the agreement of loan and hypothecation agreement, it would be empowered to seize the vehicle from custody of petitioner if there has been default. Hence, he submits that application filed by petitioner for release of the vehicle has been rightly rejected. He would also submit that, if for any reason this Court would arrive at a conclusion that vehicle in question should be released, Bank may be granted liberty to proceed against petitioner/borrower to recover the loan amount in the manner known to law.
6. Sri S.Rachaiah, learned HCGP appearing for respondent no.1 submitted that vehicle in question which has been seized by the jurisdictional police is in custody of respondent no.1-Police as on date.
7. If the vehicle in question is allowed to be parked without being used, it would definitely lose its value and even after release, it may not fetch good market price like such vehicle which would have fetched if it was in working condition. In the said circumstances, it would be just and proper to release the vehicle in favour of petitioner by putting her on terms and also protecting the interest of complainant.
Hence, I proceed to pass the following:
ORDER i) Criminal Petition is allowed.
ii) Application filed under Section 457 of Cr.P.C. by petitioner-accused is hereby allowed and vehicle bearing registration No.KA-50-P9809 seized in PF No.46/2018 is ordered to be released by respondent no.1-Vyalikaval Police Station in favour of petitioner-accused on proper identification forthwith subject to following conditions:
a) Petitioner shall execute an indemnity bond for the value of Swift Car bearing registration No.KA-50-P9809 for a sum of `6,62,000/-.
b) An affidavit of undertaking shall be filed by the petitioner that during pendency of the proceedings, vehicle in question will not be sold or encumbered in any manner whatsoever.
c) Petitioner shall take out photographs of the said vehicle and append the same to the affidavit of undertaking.
d) Petitioner shall deposit a sum of `2,50,000/- with complainant namely, the Manager, Federal Bank Limited, Sadashivanagar Branch, within fifteen days from today without waiting for certified copy of this order.
e) Registry is directed to issue a Cheque in favour of petitioner refunding the amount which has been deposited by her forthwith on proper identification.
f) Petitioner shall produce the said vehicle before the IO or the trial court whenever called upon.
g) Petitioner shall file an affidavit of undertaking to abide by these conditions.
It is needless to state that respondent no.2-Bank as a creditor would be at liberty to proceed against accused/ debtor in accordance with law to recover the amount due to Bank.
SD/- JUDGE hkh.