Allowed

Mrs Mohini Shenoy v. the State of Karnataka

Karnataka HC17 Jun 2021CRL.P/2741/2017

Case brief

AI extract

What is this about?

High Court quashed criminal proceedings for forgery and cheating against borrowers and a bank manager. Court found no criminal intent or prima facie case, ruling that continuation would be an abuse of process under Bhajan Lal guidelines.

What did the court decide?

Order dated 24.01.2015 taking cognizance and consequent proceedings in C.C.No.20/2015 against petitioners are hereby quashed.

Mrs Mohini Shenoy Vs the State of Karnataka — Civil Procedure and Limitation | Karnataka HC (2021)

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL PETITION No.2741/2017 C/w CRIMINAL PETITION No.1793/2017

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Crl.P.No.2741/2017:

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BETWEEN :

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MRS.MOHINI SHENOY W/O. RAJESH PRABHU AGED ABOUT 39 YEARS R/AT NO.23-1-01/61 TUMBE RESIDENCY MARGANS GATE, JEPPU MANGALORE- 575 002

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MRS.JAYALAXMI N.PRABHU W/O. NARAYANA PRABHU AGED ABOUT 73 YEARS R/AT NO.23-01-01/61 TUMBE RESIDENCY MARGANS GATE, JEPPU MANGALORE- 575 002 …PETITIONERS

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(BY SRI DHARMAPAL, ADVOCATE)

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AND :

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THE STATE OF KARNATAKA BY SUB-INSPECTOR OF POLICE (L & O) NORTH POLICE STATION BANDAR MANGALORE CITY- 565 001

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THE CHIEF MANAGER CORPORATION BANK NO.129, POONJA ARCADE

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1^ST FLOOR, POONJA ARCADE BUILDING

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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K.S.RAO ROAD, HAMPANAKATTE MANGALORE- 575 001 …RESPONDENTS

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(BY SRI K.S.ABHIJITH, HCGP FOR R1; SRI V.B.RAVI SHANKAR, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 24.01.2015 TAKING COGNIZANCE, TO QUASH THE ENTIRE CHARGE SHEET AGAINST THE PETITIONERS FILED BY RESPONDENT NO.1 IN C.C.NO.20/2015 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 465, 468, 471, 420 READ WITH SECTION 34 OF IPC PASSED BY II ADDITIONAL CIVIL JUDGE (SENIOR DIVISION) & CHIEF JUDICIAL MAGISTRATE, MANGALORE AND TO SET ASIDE THE ORDER DATED 26.08.2016 PASSED BY III ADDITIONAL DISTRICT & SESSIONS JUDGE, DAKSHINA KANNADA, MANGALORE IN CRL.R.P.NO.159/2015.

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Crl.P.No.1793/2017:

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BETWEEN :

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VITTALDAS KAMATH S/O. LATE VASUDEVA KAMATH AGED ABOUT 57 YEARS R/AT NO.102, ANANTHA KRIPA APARTMENT BHARATHI NAGAR, BEJAI MANGALURU- 575 001 PRESENTLY R/AT EG-103, INDERPURI NEW DELHI- 110 012 …PETITIONER

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(BY SRI DINESH KUMAR K.RAO, ADVOCATE)

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AND :

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THE STATE OF KARNATAKA BY MANGALURU NORTH POLICE DAKSHINA KANNADA- 575 001 REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU- 560 001

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SUBODH SHETTY.V. CHIEF MANAGER

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CORPORATION BANK

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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1^ST FLOOR, POONJA ARCADE BUILDING K.S.RAO ROAD HAMPANAKATTE MANGALORE- 575 001 …RESPONDENTS

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(BY SRI K.S.ABHIJITH, HCGP FOR R1; SRI V.B.RAVI SHANKAR, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 29.09.2016 PASSED BY III ADDITIONAL DISTRICT & SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU IN CRL.R.P.NO.228/2015 AND THE ORDER DATED ORDER DATED 24.01.2015 PASSED BY II ADDITIONAL CIVIL JUDGE (SENIOR DIVISION) & CHIEF JUDICIAL MAGISTRATE, MANGALORE IN C.C.NO.20/2015.

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THESE CRIMINAL PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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“Whether the proceedings in C.C.No.20/2015 on the

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file of the II Additional Civil Judge (Senior Division) and C.J.M., Mangaluru against the petitioners amount to abuse of the process of the Court?” is the question involved in this case.

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Petitioners in Crl.P.No.2741/2017 are accused Nos.1 and 2 and petitioner in Crl.P.No.1793/2017 is accused No.4 in C.C.No.20/2015. One Rajesh Prabhu is accused No.3 in the said case.

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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For the purpose of convenience, the petitioners will be referred to henceforth according to their ranks before the trial Court.

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Accused No.1 is the wife and accused No.2 is

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the mother of accused No.3. Accused Nos.1 and 2 constituted partnership firm called Vaishnavi Travels. Accused No.4 at the relevant time was the Chief Manager of Corporation Bank. On the application of accused Nos.1 and 2, the said Bank sanctioned loan of Rs.70,00,000/under C Mobile 70014 on 10.07.2007. The firm had availed another loan of Rs.42,00,000/- for purchase of vehicle by furnishing all due records. The loan of Rs.42,00,000/- was lent on the guarantee of CWs.2 to 4.

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So far as loan of Rs.70,00,000/- it was alleged that accused No.3 collected the guarantor’s application form from the Bank Manager and resubmitted them with the purported signatures of CW.2 and on that basis loan was granted. When the loan account became non performing account, the bank initiated recovery proceedings against borrowers and guarantors before the

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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Debt Recovery Tribunal. CW.2 claimed that he had not signed the guarantor form in respect of loan of Rs.70,00,000/- and his signature on the same was forged. Therefore respondent No.2 on 21.11.2011 filed complaint before respondent No.1 police against borrowers.

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Respondent No.1 on the basis of the said complaint registered first information report in Crime No.211/2011 of Mangalore North Police station against accused Nos.1 to 4 for the offences punishable under Sections 465, 468, 471, 420 read with Section 34 of IPC. On investigation, respondent No.1 charge sheeted the petitioners and Rajesh Prabhu for the offences punishable under Sections 465, 471, 468, 420 read with Section 34 of IPC.

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Even as per the charge sheet Column No.17 it was accused No.3 who collected guarantor form from accused No.4, got signatures of the alleged guarantor on the same and resubmitted them to accused No.4. The allegations in the charge sheet is that it was accused No.3 who got forged signatures on the guarantor form.

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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However, it is alleged that accused Nos.1, 2 and 4 have cooperated with accused No.3 in commission of forgery and cheating.

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On the basis of such charge sheet, on 24.01.2015 the trial Court took cognizance of the offences, registered the case in C.C.No.20/2015 and summoned the petitioners to face trial.

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Accused Nos.1 and 2 challenged the order taking cognizance before this Court in Crl.P.No.2725/2015. This Court vide order dated 09.07.2015 disposed of the said petition with the observation that the petitioners have remedy of revision under Section 397 of Cr.P.C and they can approach the Sessions Court.

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Therefore, accused Nos.1 and 2 filed Crl.R.P.No.159/2015 before III Additional District & Sessions Judge, Dakshina Kannada, Mangalore for quashing of the order taking cognizance and consequent proceedings. Accused No.4 also filed Crl.R.P.No.228/2015 before III Additional District & Sessions Judge, Dakshina

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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Kannada, Mangalore challenging the order taking cognizance and for quashing the proceedings.

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The Sessions Court dismissed the petition of accused Nos.1 and 2 on the ground that they were borrowers and there is prima facie case against them. So far as accused No.4, the Sessions Court dismissed the petition on the ground of delay. Therefore accused Nos.1, 2 and 4 have preferred the above petitions for quashing the impugned orders and proceedings.

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Learned Counsel for the petitioners submit that in the entire charge sheet absolutely there is no material imputing any criminal intention to accused Nos.1, 2 and 4 in the alleged forgery. They further submit that even as per the charge sheet records, it was accused No.3 who was responsible for forgery.

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So far as accused No.4 it is contended that only imputation against him is that he was negligent in accepting the guarantor form and sanctioning of loan. Therefore it is contended that no criminal intention is made out against accused Nos.1, 2 and 4. In support of

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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their contentions, they rely upon the judgment of the Hon'ble Supreme Court in State of Haryana and others vs. Bhajan Lal and others¹

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Learned HCGP submits that accused Nos.1 and 2 were borrowers, therefore they are also responsible for the alleged forgery. Learned Counsel for respondent No.2/complainant submits that in the departmental enquiry held against accused No.4 for dereliction of duties, he was exonerated and promoted to the next higher post.

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In Bhajan Lal’s case referred to supra the Hon'ble Supreme Court has laid down guidelines regarding which category of cases, the High Court can quash the proceedings invoking power under Section 482 of Cr.P.C. For the purpose of this case, paras 108(1) and 108(3) of the judgment are relevant which read as follows:

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“108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power

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1 AIR 1992 SC 604

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should exercised.

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Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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Where the uncontroverted allegations

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made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused ;”

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(Emphasis supplied)

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In the light of the above observations, this

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Court has to see whether the charge sheet records contain the material constituting the offences alleged against accused Nos.1, 2 and 4. In the charge sheet a general omnibus allegation is made to the effect that accused

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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Nos.1, 2 and 4 shared common intention with accused No.3 in getting signature of CW.2 forged.

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In the complaint no allegations were made against accused No.4 and his name did not figure as accused. In the charge sheet it is alleged that he committed dereliction of duties. Dereliction of duties does not amount to criminal intention. Admittedly for the said charge, he was dealt with in the departmental enquiry, exonerated and was given further promotion.

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So far as accused Nos.1 and 2 they are implicated in the case only because they were principal borrowers and the partners of the firm for whose benefit loan was lent. The statements of the witnesses clearly show that when accused No.3 collected guarantor form from the Bank and delivered that back to the Bank, they were not present. The statements of the witnesses do not even show that accused Nos.1, 2 and 4 had knowledge that accused No.3 has forged the signature of CW.2.

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Therefore this case is fully covered by the category of cases enumerated in paras 108(1) and 108(3)

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Crl.P.No.2741/2017 C/w Crl.P.No.1793/2017

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of Bhajan Lal’s case referred to supra . Under the circumstances, even if the proceedings are continued against the petitioners, chances of their conviction are remote. Such proceedings against the petitioners amount to abuse of the process of the Court. Therefore the petitions are allowed.

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The order dated 24.01.2015 passed by the trial Court taking cognizance of the offences against the petitioners and consequently all the proceedings in C.C.No.20/2015 before the trial Court against the petitioners are hereby quashed.

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Sd/JUDGE

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KSR

Mrs Mohini Shenoy v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mrs Mohini Shenoy v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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