Dismissed

M N Subramanya Swamy v. State of Karnataka

Karnataka HC9 Feb 2024CRL.P/2612/2021

Case brief

AI extract

What is this about?

Accused sought quashing of criminal proceedings for offences including obstruction of bank officials during SARFAESI possession of a mortgaged property he claimed as ancestral joint family property. The partition suit finding that the property was not joint family property, and prima facie charge sheet materials, led to dismissal of the petition.

What the court decided

AI extract

M N Subramanya Swamy Vs State of Karnataka — Banking and Recovery | Karnataka HC (2024)

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NC: 2024:KHC:5607 CRL.P No. 2612 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM CRIMINAL PETITION NO. 2612 OF 2021

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BETWEEN:

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M.N. SUBRAMANYA SWAMY, S/O LATE M. NAGALINGA SWAMY, AGED ABOUT 50 YEARS, R/AT NO.1520, 7^TH CROSS, THYAGARAJA ROAD, MYSURU - 571 311.

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…PETITIONER

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(BY SRI. SACHIN B.S., ADVOCATE)

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AND:

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STATE OF KARNATAKA, KRISHNARAJA POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE - 01.

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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K.N. NATRAJ, S/O LATE NAGARAJ K., GENERAL MANAGER, M/S. SRI KANYAKAPARAMESHWARI, CO-OPERATIVE BANK LTD., SERVICE ROAD, K.R. CIRCLE, MYSURU CITY, KARNATAKA - 571 108.

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…RESPONDENTS

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(BY SRI. M.R. PATIL, HCGP FOR R1; SRI. B.S. MAHENDRA, ADVOCATE FOR R2)

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THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN QUASHING OF ENTIRE PROCEEDINGS IN C.C.NO.1021/2020 ON THE FILE OF IV J.M.F.C., MYSURU FOR THE

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2 - NC: 2024:KHC:5607 CRL.P No. 2612 of 2021

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OFFENCE P/U/S 341,448,454,504,506 OF IPC AS PER DOCUMENT NO.1. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned petition is filed by the accused seeking quashing of the proceedings pending in C.C.No.1021/2020 on the file of the IV JMFC Court, Mysuru for the offences punishable under Sections 341, 448, 454, 504 & 506 of IPC.

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The case of the prosecution is that second respondent - defacto complainant being a General Manager of the Bank has sanctioned housing loan of Rs.60,00,000/- to one Murthy for purchasing residential house from the vendor called Harish. The second respondent has further alleged that the said Murthy committed default in paying EMI amount and therefore, his account was classified as 'N.P.A' and recovery proceedings were initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'SARFAESI Act, 2002'). The second respondent has further alleged that the Bank, while proceeding under Section 14 of the SARFAESI Act, 2002 has secured physical possession of the mortgaged property. The present crime is registered

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3 - NC: 2024:KHC:5607 CRL.P No. 2612 of 2021

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alleging that when the Bank Officials and its Authorities went to the spot for preparing panchanama report and to seal property, pursuant to the order passed by the Jurisdictional Magistrate ordering to obtain physical possession of the property by the secured creditor/Bank, the petitioner abused the Officials of the Bank by using filthy language and has obstructed Officials of the Bank from implementing the order. Hence, the crime is registered. The Investigating Officer after investigation has laid charge sheet.

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Learned counsel for the petitioner, reiterating the grounds urged in the petition, has vehemently argued and contended that suit schedule property is joint family ancestral property of the petitioner and his brother Shanmugha Swamy. He would further contend that his brother misusing the khatha which stood in his name gifted residential house in favour of his wife, which is an ancestral property and his wife, in turn, has alienated the property. He would also point out that thereafter, there were various sale transactions and property has changed the hands. He would vehemently argue and contend that mortgaged property is a joint family ancestral property and he is in possession and even if entire allegations made in the

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NC: 2024:KHC:5607 CRL.P No. 2612 of 2021

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complaint and charge sheet is accepted, no case is made out as he is entitled to be in possession of residential house as he has a pre-existing right.

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Per contra , learned counsel appearing for respondent No.2 while countering petitioner's claim has placed on record the judgment rendered in partition suit in O.S.No.443/2012. He has also brought to the notice of this Court that respondent No.2 - bank had secured physical possession by having recourse to provisions of the SARFAESI Act, 2002. Referring to charge sheet materials, he pointed out that there are enough materials against petitioner. Therefore, it is not a fit case to grant any relief by exercising inherent jurisdiction under Section 482 of Cr.P.C.,

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Having heard learned counsel for the petitioner, learned counsel for respondent no.2, learned High Court Government Pleader and having perused the charge sheet materials, I deem it fit to cull out brief narration of charge sheet materials, which reads as under:

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"F zÉÆÃµÁgÉÆÃ¥ÀuÁ ¥ÀnÖ PÁ®A: 14 gÀ°è PÀAqÀ ¸ÁQëzÁgÀgÀÄ 2016 £ÉÃ ¸Á°£À°è ªÉÄÊ¸ÀÆgÀÄ £ÀUÀgÀzÀ, PÉ.Dgï ªÀÈvÀÛzÀ°ègÀÄªÀ PÀ£ÀåPÁ ¥ÀgÀªÉÄÃ±Àéj PÉÆÃ C¥ÀgÉÃnªï ¨ÁåAPÀß°. ªÉÄÊ¸ÀÆgÀÄ £ÀUÀgÀzÀ PÉ.Dgï oÁuÁ ¸ÀgÀºÀ¢Ý£À vÁåUÀgÁd

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5 - NC: 2024:KHC:5607 CRL.P No. 2612 of 2021

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gÀ¸ÉÛ, 7 £ÉÃ PÁæ¸ï, ªÀÄ£É £ÀA§gï 1520 PÉ 2 C£ÀÄß RjÃ¢¸À®Ä ªÀÄ£É ¸Á®ªÀ£ÀÄß vÉUÉzÀÄPÉÆArzÀÄÝ ¸ÀzÀj ¨ÁåAPÉÌ ¸Àé®à ºÀt PÀnÖ G½PÉ ºÀtªÀ£ÀÄß PÀlÖzÉ EzÀÄÝzÀÝjAzÀ ªÉÄÃ®ÌAqÀ PÀ£ÀåPÁ ¥ÀgÀªÉÄÃ±Àéj PÉÆÃ C¥ÀgÉÃnªï ¨ÁåAPï£À 1 £ÉÃ ¸ÁQëzÁgÀgÀÄ ªÉÄÊ¸ÀÆgÀÄ f>Áè¢üPÁjAiÀÄªÀgÀ ªÀÄÆ®PÀ ªÉÄÊ¸ÀÆgÀÄ vÁ®ÆPÀÄ vÀºÀ²Ã>ÁÝgï gÀªÀgÀÄ ¸ÀzÀj ªÀÄ£ÉAiÀÄ£ÀÄß ªÀ±ÀPÉÌ ¥ÀqÉAiÀÄ®Ä DzÉÃ±À ¤Ãr ¸ÀzÀj ªÀÄ£ÉAiÀÄ£ÀÄß ªÀ±ÀPÉÌ ¥ÀqÉzÀÄ ¸ÁQë- 1 gÀªÀjUÉ ¤ÃqÀ®Ä ¸ÁQë- 10 gÀªÀgÀ£ÀÄß £ÉÃªÀÄPÀ ªÀiÁrzÀÄÝ ¢£ÁAPÀ: 1712-2018 gÀAzÀÄ ¸ÁQë 1 gÀªÀgÀÄ ¸ÁQë- 3 jAzÀ 10 gÀªÀgÀ eÉÆvÉ ªÉÄÊ¸ÀÆgÀÄ £ÀUÀgÀzÀ vÁåUÀgÁd gÀ¸ÉÛAiÀÄ°ègÀÄªÀ 7 £ÉÃ PÁæ¸ï, ªÀÄ£É £ÀA 1520 PÉ 2 §½ §AzÁUÀ ¸ÀzÀj ªÀÄ£ÉAiÀÄ°. DgÉÆÃ¦AiÀÄÄ ªÁ¸ÀªÁVzÀÄÝ DgÉÆÃ¦UÉ £ÁåAiÀiÁ®AiÀÄzÀ DzÉÃ±ÀªÀ£ÀÄß w½¹zÀgÀÆ ¸ÀºÀ DgÉÆÃ¦AiÀÄÄ ¸ÀzÀj DzÉÃ±ÀªÀ£ÀÄß wgÀ¸ÀÌj¹ ¥Àæw¨sÀn¹ ¸ÁQë- 3 jAzÀ 9 gÀªÀgÀ eÉÆvÉ £ÀÆPÁl vÀ¼Áîl ªÀiÁr CPÀæªÀÄ vÀqÉ GAlÄªÀiÁr £ÀAvÀgÀ DgÉÆÃ¦AiÀÄ£ÀÄß ¥ÉÆ°Ã¸ÀgÀ ¸ÀºÁAiÀÄ¢AzÀ ªÀÄ£É¬ÄAzÀ ºÉÆgÀUÀqÉ PÀ¼ÀÄ»¹ ¸ÀzÀj ªÀÄ£ÉAiÀÄ¨ÁV°UÉ ©ÃUÀªÀ£ÀÄß ºÁQ ©ÃUÀPÉÌ ¸ÁQë- 10 gÀªÀgÀÄ ¹Ã®ÄºÁQ ªÀÄºÀdgï PÀæªÀÄ dgÀÄV¹ £ÀAvÀgÀ ¸ÀzÀj ªÀÄ£É £ÉÆÃrPÉÆ¼Àî®Ä ¸ÁQë- 9 ªÀÄvÀÄÛ ªÀÄvÉÆÛ§âgÀ£ÀÄß £ÉÃªÀÄPÀ ªÀiÁrzÀÄÝ DzÉÃ ¢£À DgÉÆÃ¦AiÀÄÄ ªÀÄzsÁåºÀß ¸ÀÄªÀiÁgÀÄ 4.00 UÀAmÉ ¸ÀªÀÄAiÀÄPÀÌ ¸ÀzÀj ªÀÄ£ÉAiÀÄ §½ §AzÀÄ ¸ÁQë 10 gÀªÀgÀÄ ©ÃUÀPÉÌ ºÁQzÀ ²Ã®Äß, QvÀÄÛ ºÁQ ©ÃUÀªÀ£ÀÄß ªÀÄÄjzÀÄ ªÀÄ£ÉAiÀÄ M¼ÀUÀqÉ CPÀæªÀÄ ¥ÀæªÉÃ±À ªÀiÁrzÀÄÝ, £ÀAvÀgÀ ¸ÁQë 9 gÀªÀgÀÄ ¸ÁQë 1 gÀªÀjUÉ «ZÁgÀ w½¹zÁUÀ ¸ÀÜ¼ÀPÉ, ¸ÁQë 1 ªÀÄvÀÄÛ 4 gÀªÀgÀÄ §AzÀÄ DgÉÆÃ¦AiÀÄ£ÀÄß PÉÃ½zÀPÉÌ DgÉÆÃ¦AiÀÄÄ ¸ÀzÀjAiÀÄªÀgÀ£ÀÄß CªÁZÀå ±À§ÝUÀ½AzÀ ¨ÉÊAiÀÄÄÝ PÉÆ>É ¨ÉzÀjPÉ ºÁQgÀÄªÀÅzÀÄ vÀ¤SÉ¬ÄAzÀ zsÀÈqsÀ¥ÀnÖgÀÄvÀÛzÉ."

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On examining culled out portion of charge sheet materials, this Court would find out that respondent no.2 - bank having sanctioned loan has proceeded against the mortgaged property by having recourse to the provisions of SARFAESI Act, 2002. On reading of charge sheet materials, it clearly indicates that respondent No.2/Bank being a secured creditor has asserted its physical possession. I have also taken cognizance of the judgment rendered in partition suit. The

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NC: 2024:KHC:5607 CRL.P No. 2612 of 2021

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partition suit filed by the petitioner is dismissed by recording findings that suit property is not a joint family property. If the above said facts and circumstances are taken into consideration, then I am of the view that this is not a fit case to exercise inherent jurisdiction of this Court under Section 482 of Cr.P.C.,. The prima-facie materials, which are indicated in the charge sheet, have to be taken into consideration at this juncture. The petitioner is bound to face trial. No case is made out.

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Accordingly, I proceed to pass the following;

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ORDER

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(i) The writ petition is dismissed.

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(ii) Pending applications, if any, are also dismissed.

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Sd/- JUDGE

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NMS

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List No.: 1 Sl No.: 10 CT:SNN

M N Subramanya Swamy v. State of Karnataka

Case brief

What is this about?

What the court decided

M N Subramanya Swamy v. State of Karnataka

Case brief

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