IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3981 OF 2013 BETWEEN:
V.P.RAJEEV, S/O PUSHPARAJ, AGED 34 YEARS, THE BUSINESS HEAD MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD., BANGALORE REGIONAL OFFICE, RESIDING AT NO.169, 72ND CROSS, KUMARASWAMY LAYOUT, BANGALORE – 78. ... PETITIONER (BY SRI.K.S.N.KARANTH, ADVOCATE) AND:
1. THE STATE OF KARNATAKA, BY SUB-INSPECTOR OF POLICE, BAGALUR POLICE STATION, BANGALORE.
REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE – 560 001.
2. L.MUNIRAJU, S/O LAKSHMAIAH, AGED 34 YEARS, NO.163, KADUSONAPPANAHALLI VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK – 562 149. ... RESPONDENTS (BY SRI:I.S.PRAMOD CHANDRA, SPP –II FOR R1; SRI:H.P.LEELADHAR, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.865/2013 ON THE FILE OF THE C.J., AND JMFC, DEVANAHALLI, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 149, 420, 467, 468, 473 R/W 34 OF IPC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner was the Branch Manager of Mahindra & Mahindra Financial Services Limited. A charge sheet has been filed against the petitioner and three other accused persons under Sections 419,420, 467, 468, 473 r/w.34 of IPC. The substance of the accusations is that in the year 2007, a vehicle loan was granted to accused No.4 on the guarantee of respondent No.2-Muniraju. The main borrower defaulted in repayment of the loan and a notice was issued to accused No.4 as well as respondent No.2 contemplating recovery proceedings. On receipt of this notice, respondent No.2 (complainant) issued a reply contending that he did not stand as guarantor to the loan availed by accused No.4; further, he contended that he had approached accused No.2 to purchase a scooter and at that time as he had delivered his identity card and relevant documents to accused No.2 and the same have been misused by accused No.1 to 3 to fasten liability on him as guarantor to the loan availed by accused No.4. The petitioner is shown as accused No.3.
On receipt of this reply, petitioner/accused No.3 issued a rejoinder putting forth a plea that in the year 2008 itself, loan borrowed by accused No.4 was assigned to one Smt.K.Manjula and as a result, respondent No.2 has been discharged of his alleged liabilities and therefore, action contemplated against respondent No.2 has been given up.
2. Learned counsel for the petitioner submits that in view of the aforesaid facts, there was no basis for respondent No.2 to initiate criminal action against the petitioner and other accused. The averments made in the complaint do not disclose any element of cheating or fraud or forgery by the petitioner or any other accused persons. Respondent No.2 having been discharged of the alleged liability, no loss or damage has been caused to the complainant on account of the assignment of the loan. The allegations made in the complaint do not make out the ingredients of the offences under Sections 420, 467, 468, 473 of IPC insofar as the present petitioner is concerned and that there are no allegations whatsoever that the petitioner has committed any act of cheating or fraud or forgery and hence the prosecution of the petitioner is illegal and is an abuse of process of law/court and is liable to be quashed at the hands of this Court.
3. Refuting this submission, learned counsel appearing for the contesting respondent No.2, however would submit that the very fact that the petitioner herein has issued a rejoinder putting forth the plea of alleged assignment supports the allegations made against him that on the basis of false and fabricated documents, respondent No.2 was shown as guarantor to the loan. Therefore, the allegations made in the charge sheet and the material produced in support thereof, prima facie make out the offences charged against the petitioner and hence, there is no reason to quash the impugned proceedings.
4. Learned SPP-2 appearing for respondent No.1 has argued in support of the impugned charges.
5. Considered the submissions and perused the material on record.
6. The basic facts are not in dispute. The exchange of notice between the petitioner and respondent No.2/complainant indicate that respondent No.2 was sought to be proceeded against recovery of the amount alleged to have been due by him as guarantor for the loan availed by respondent No.4. But the rejoinder issued by the petitioner herein indicate that much before the date of issuance of notice, the alleged loan availed by respondent No.4 was assigned in favour of one Manjula. This itself is sufficient to show that second respondent did not offer surety to respondent No.4 and did not stand as guarantor to the loan availed by respondent No.4, and that without his knowledge, the loan documents were fabricated showing him as guarantor and without his concurrence the said loan was assigned in favour of the third parties. All these events clearly indicate that the name of respondent No.2 has been drawn into the alleged transaction without the knowledge and concurrence of respondent No.2.
Now, the question for consideration is, “whether in the wake of the above documents, the petitioner herein is liable for prosecution for the alleged offences punishable under Sections 420, 468, 473 of Indian Penal Code?”.
7. In order to constitute an offence of cheating, dishonest or fraudulent intention should be existing at the time when the transaction is entered into i.e., at the time when the offence is committed. In the instant case, the offence is committed when the loan documents were got up in the name of 2nd respondent. No-doubt by virtue of subsequent rejoinder, threatened recovery was dropped, nonetheless the fact remains that without his knowledge and consent, loan documents were got up in the name of the second respondent and when the alleged act was exposed, the petitioner immediately took steps to assign the loan to a third party. These allegations, in my view, prima-facie attract the offences alleged against the petitioner.
8. Thus, having regard to the overall facts and circumstances of the case and in the light of the above discussion, I am of the view that this is not a fit case to quash the proceedings initiated against the petitioner.
Consequently, the petition is dismissed. However, liberty is reserved to the petitioner to seek his discharge on such grounds available under law. In such event, the trial court shall consider the prayer made by the petitioner, if any, without being influenced by the observations made in this order.
Sd/- JUDGE Rs/mn/-