IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8531 OF 2016 BETWEEN:
Sri. S.P. Kulkarni, S/o. Late Prahalada Rao, Aged about 44 years, Senior Manager, Allahabad Bank, Mangalore Branch, Mangalore, Now serving as Chief Manager, Allahabad Bank, ARM Branch, T.Nagar, Chennai – 600 040. …Petitioner (By Sri. Nishit Kumar Shetty, Advocate) AND:
1. State of Karnataka, By Mangalore North Police Station, Represented by State Public Prosecutor, High Court Buildings, Bengaluru – 560 001.
2. Francis Cutinho, S/o. late Eugine Cutinho, Aged about 47 years, R/at Eden Hill, Ulaibettu Village, Mallur Post, Mangaluru – 575 029. ...Respondents (By Sri. I.S. Pramod Chandra, SPP-II for R1; Sri. Vijay Krishna Bhat M., Advocate for R2) This Criminal Petition is filed under Section 482 of Cr.P.C. praying to set aside the order dated 30.07.2013 made in C.C.No.2608/2013 by the JMFC-II Court, Mangaluru, D.K., and order dated 27.08.2016 made in Crl.R.P.No.243/2013 by the I Addl.District & Sessions Judge, D.K., Mangaluru.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Respondent No.2 herein purchased a property comprised in Sy.No.105/4B measuring 11 cents of Kinya Village in a public auction conducted under The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002. He was declared as the highest bidder. He deposited the entire bid amount. The sale was confirmed in his favour. Subsequent to the confirmation of the sale, he sought prosecution of the petitioner herein for the offences punishable under Sections 420 r/w 34 of Indian Penal Code.
2. In the private complaint it is alleged that while measuring the property to his utter shock and dismay, the building stated to be existing in the said property as per the representation of accused Nos.1 and 2 and as per the terms of the auction and the paper publication, could not be located and it was confirmed by the Surveyor that the building situated in the land abutting the said property was shown as the building situated in the schedule property. Thus, it is contended that it amounts to cheating within the meaning of Section 420 r/w 34 of Indian Penal Code.
3. In appreciating the above contention, it is relevant to note that there is nothing on record to show that the confirmation of the sale has been questioned or challenged by respondent No.2 till date. It is also not the case of the complainant that the bid was called contrary to the terms of the sale notice. There is no challenge to the terms of the sale notice either. Under the said circumstances, there is absolutely no basis for respondent No.2/complainant to contend that accused Nos.1 and 2 have made a representation contrary to the terms of the sale notice. Since the sale in question has taken place in accordance with the sale notice and the publication effected pursuant thereto, in my view, there is no cause of action for respondent No.2 to invoke the criminal process. That apart, the averments made in the complaint do not satisfy the essential ingredients of Sections 420 r/w 34 of Indian Penal Code. Except alleging that building said to have been existing in the schedule property could not be located at the time of survey, there are no averments whatsoever that the sale notice was issued with an intention to cheat and defraud respondent No.2. In the absence of such averments there is absolutely no material before the trial court to take cognizance of the alleged offences.
For the aforesaid reasons, the impugned order taking cognizance as well as the proceedings initiated against the petitioner in Crime No.52/2012 are liable to be quashed. Accordingly, petition is allowed. FIR in Crime No.52/2012 and proceedings arising therefrom are quashed only in so far as the petitioner is concerned.
Any observation made in this order shall not come in the way of respondent No.2 working out his remedies under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and the said observations shall not influence the trial Court while considering the case of the other accused.
Sd/- JUDGE SV