IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1190 OF 2015 C/W CRIMINAL PETITION NO.1197 OF 2015 IN CRIMINAL PETITION NO.1190 OF 2015 BETWEEN:
SRI.SANDEEP.H.G.
S/O LATE GOVINDA RAJA SETTY, AGED ABOUT 35 YEARS, DEPUTY BRANCH MANAGER OF M/S ICICI BANK, HASSAN BRANCH, NO.208, ANNAPURNA COMPLEX SANTHEPET, B.M.ROAD, HASSAN TOWN-573201. …PETITIONER (BY SMT: K.B.SRIDEVI, ADVOCATE FOR SRI: JAI .M. PATIL, ADVOCATE) AND:
1. THE STATE BY HASSAN CITY POLICE STATION, HASSAN CITY CIRCLE, HASSAN DISTRICT-573201.
2. MR. UMESH. S.R., SON OF SHRI. RAMEGOWDA AGED ABOUT 36 YEARS UMESH JEWELLERY, CHIKKABASDI ROAD HASSAN DISTRICT-573201. …RESPONDENTS (SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; R2-SERVED AND UNREPRESENED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR IN CRIME NO.36/2015 WHICH IS PENDING ON THE FILE OF PRL. CIVIL JUDGE AND JMFC COURT, HASSAN.
IN CRIMINAL PETITION NO.1197 OF 2015 BETWEEN:
RAMA NAIK S/O LATE ANANTH NAIK AGED ABOUT 40 YEARS MANAGER, SHRIRAM AUTOMALL INDIA LTD B M ROAD, HASSAN TOWN HASSAN-573201 ... PETITIONER (BY SRI: M J ALVA, ADVOCATE) AND 1. STATE OF KARNATAKA REPRESENTED BY HASSAN CITY POLICE HASSAN-573201 2. S R UMESH S/O RAME GOWDA AGED ABOUT 36 YEARS NO. 7, SANKALAPURA HASSAN TOWN HASSAN-573201 ... RESPONDENTS (SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; R2-SERVED AND UNREPRESENED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR IN C.C.NO.36/2015 REGISTERED BY THE HASSAN CITY POLICE, HASSAN CITY CIRCLE, HASSAN DIST/ RESPONDENT NO.1, WHICH IS PRODUCED AT ANNEXURE- A, FOR OFFENCES P/U/Ss 406, 420 R/W 34 OF IPC, AGAINST THE PETITIONER AND GRANT COST OF THIS PETITION.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner in Crl.P.No.1190/2015 is the Deputy Branch Manager of M/s.ICICI Bank, Hassan branch and Petitioner in Crl.P.No.1197/2015 is the Manager of Shriram Auto Mall India Ltd., Hassan.
2. An FIR came to be registered against the petitioners herein based on the complaint lodged by respondent No.2 under Sections 406, 420 r/w Section 34 of Indian Penal Code.
3. According to the complainant, pursuant to the E- Auction conducted by Shriram Auto Mall India Ltd., on behalf of ICICI Bank, to recover the dues to ICICI Bank, respondent No.2 was declared a successful bidder in respect of 11 packets of gold ornaments of the total value of Rs.11,36,925/-. In terms of the auction notice, complainant deposited EMD of Rs.25,000/-, later when he sought for release of gold, he was informed that out of 11 packets, 2 packets have been returned to the borrowers and only 9 packets of gold was available. Contending that by retaining 2 packets of gold, petitioners herein have misappropriated the gold ornaments and have cheated the complainant, he lodged a complaint against the petitioners seeking their prosecution for the offences under Sections 406, 420 r/w 34 of Indian Penal Code.
4. Learned counsels appearing for the respective petitioners submit that the auction was conducted in accordance with the terms and conditions published in the notice dated 8.11.2014. As per the said notice, the ICICI bank had the authority to remove any of the accounts from the auction without prior intimation. Insofar as acceptance of successful bid is concerned, the bank had reserved the final right to accept the payment and release the gold ornaments to winning bidder at any given point of time. That apart, there are no allegations that 2 packets of gold were misappropriated by the petitioners. On the other hand, case of the complainant is that the said 2 packets were returned to the borrowers of the loan. As such, the complaint does not disclose the commission of any offence by the petitioners herein and hence, the prosecution of the petitioners is wholly illegal and an abuse of process of law.
5. Learned Additional State Public Prosecutor appearing for respondent No.1 while refuting the submission urged on behalf of the petitioners, however, would submit that the bid of the complainant having been accepted, the petitioners were not entitled to change the terms and conditions of the bid. 11 boxes of gold having been auctioned in terms of the E-Auction and the complainant having been declared as the highest bidder, non-release of 2 packets of gold to the highest bidder amounts to clear case of cheating and misappropriation and further he submits that the matter being under investigation, there is no case for quashing of the complaint.
6. Considered the submissions and perused the records.
7. There is no dispute with regard to the fact that complainant herein participated in the E-Auction conducted by the bank. It is also not in dispute that in the E-Auction 11 packets of gold were auctioned and the complainant was declared as the highest bidder and consequent to the said bid, he made the requisite EMD. But reading of the approval accorded to the complainant clearly indicates that the bank had reserved the final right to accept the payment and release gold ornaments to the winning bidder at any point of time. The said condition is to be understood in the context of the bid conducted by the bank. The reading of terms of E-Auction notice as well as the terms and conditions appended to the approval accorded to the complainant clearly indicate that a right was reserved in favour of the borrowers to redeem the pledge until the gold was released to the bidders. The very fact that this condition had been incorporated in the approval accorded to the bidder would go to show that the gold ornaments could be released to the borrowers at any given time, even after acceptance of successful bid. In view of the said clause, in my view, complainant had no cause of action to raise any grievance against the petitioners. Even otherwise, it is not the case of the complainant that the gold ornaments auctioned by the bank were either dishonestly used or disposed of by the bank or the petitioners. On the other hand, complainant himself has admitted that he was told by the bank authorities that the said ornaments were returned to the borrowers, which is in accordance with clause No.2 of the approval accorded to the complainant. As such, this transaction does not disclose any element of cheating or criminal breach of trust within the meaning of Section 420 or 405 of Indian Penal Code. In that view of the matter, complaint lodged against the petitioners, in my view, for the alleged offences being legally not tenable and an abuse of process of Court, cannot be sustained. Consequently, petitions deserve to be allowed.
8. Accordingly, petitions are allowed in terms of the above order. FIR in Crime No.36/2015 on the file of Principal Civil Judge and JMFC Court, Hassan and consequent investigation thereon, are hereby quashed.
In view of dismissal of main matters, I.A.No.1/2016 and I.A.No.1/2018 filed for vacating stay do not survive for consideration. Accordingly, they are dismissed.
Sd/- JUDGE bkp