Smt. Kusuma Vs the State of Karnataka

THE STATE OF KARNATAKA, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD, THROUGH GANGAVATHI TOWN POLICE STATION, PIN-580 011.

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Digitally signed by RAKESH S RAKESH HARIHAR SHARIHAR Location:HIGHCOURT OF KARNATAKA DHARWAD BENCH

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SRI. CHANNAPPA S/O GAVISIDDAPPA JAVALI, AGE. 57 YEARS, OCC. CHIEF MANAGER, SRI. CHANNABASAVASWAMY SOUHARDHA PATTANA SAHAKARI BANK NIYAMITA, GANGAVATI, R/O. SIDDAPUR BASANNA EXTENSION, GANGAVATHI, DIST. KOPPAL-580 011.

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… RESPONDENTS

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(BY SRI. GIRIJA S. HIREMATH, HCGP FOR R1; SRI. K.L. PATIL, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYS THAT QUASH THE IMPUGNED ORDERS DATED 27/10/2020 PASSED BY THE I^ST ADDL. DISTRICT AND SESSIONS JUDGE, KOPPAL IN CR.REV. PETITION NO.18/2016 THEREBY CONFIRMING THE JUDGMENT AND ORDER PASSED BY THE LEARNED PRL. CIVIL JUDGE AND J.M.F.C., GANGAVATHI IN C.C. NO.377/2013 REGISTERED FOR THE OFFENCES UNDER SECTIONS 409, 420 OF IPC R/W 34 REGISTERED BY THE GANGAVATHI POLICE STATION IN SO FAR AS PETITIONER IS CONCERNED, IN THE INTEREST OF JUSTICE AND EQUITY.

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HC-KAR

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THIS PETITION, COMING ON FOR ADMISSION THIS DAY, ORDER IS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)

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Petitioner is before this Court under Section 482 of Cr.P.C. with a prayer to quash the order dated 23.02.2016 passed in CC No. 377 of 2013 by the Court of Principal Civil Judge and JMFC, Gangavathi, which is confirmed in Criminal Revision Petition No.18 of 2016 by the Court of First Additional District and Sessions Judge, Koppal.

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Heard the learned counsel for the parties.

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Petitioner herein is arraigned as accused No.2 in CC No.377 of 2013 pending before the Court of Principal Civil Judge and JMFC, Gangavathi, arising out of Crime No.116 of 2012 registered by Gangavathi Town Police Station for offences punishable under Sections 409, 420 read with 34 of IPC. In the said proceedings, the petitioner had filed an application under Section 239 of Cr.P.C. before the trial Court seeking discharge. The said application was

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HC-KAR

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dismissed by the trial Court vide order impugned which was challenged by the petitioner before the jurisdictional Sessions Court in Criminal Revision Petition No.18 of 2016 which was dismissed on 27.08.2020. Therefore, the petitioner is before this Court.

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Learned counsel for the petitioner, having reiterated the grounds urged in the petition submits that petitioner was not even arraigned as accused in the FIR and no allegations were made against the petitioner in the first information which was submitted by the respondent. Accused no.1 who is the husband of the petitioner, was the employee of the respondent no.2 bank. Allegation against him is that during the course of discharge of his duty for the period from 26.03.2004 to 08.05.2009, he had totally misappropriated a sum of ₹35,26,034/- and out of the aforesaid amount a sum of ₹5,50,000/- was transferred to the account of the partnership firm known as Sri. Siddharameshwara Industries of which the petitioner is also a partner along with her husband. Only for the said

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4 -

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reason, petitioner is also arraigned as accused No.2 in the impugned criminal proceedings. He submits that the petitioner had no role in the management of the aforesaid partnership firm, nor she was aware of the money that was transferred to the account of the partnership firm by her husband, who was the employee of respondent no.2-bank and also the partner of the aforesaid partnership firm.

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Per contra, learned HCGP and learned counsel for respondent no.2 have opposed the petition. They submit that Courts below have concurrently held against the petitioner and therefore there is no scope for interference in the present case. They submit that the prima facie case is found against the petitioner for the charge-sheeted offences and therefore the Courts below are justified in rejecting her prayer for discharge. Accordingly, pray to dismiss the petition.

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In the typed first information that is filed by respondent No.2 on 17.09.2012, it is alleged that accused

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HC-KAR

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no.1 Mahabalesh Patil was serving as an accountant in the respondent bank for the period from 30.07.1995 to 01.07.2004. Thereafter, he was serving as Chief Manager in the said bank.

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It is alleged in the first information that during the period from 2004 to 2009, accused No.1 had indulged in committing various misappropriations in the bank and totally he had caused loss to the tune of ₹.35,26,034/- to the bank. Out of the aforesaid amount of ₹.35,26,034/-, an amount of ₹.5,50,000/- was transferred to the bank account of the partnership firm known as Shri Siddarameshwar Industries, in which the aforesaid Mahabalesh Patil and his wife, who is the petitioner herein are partners. In the first information, it is alleged that by transferring the aforesaid amount of ₹.5,50,000/- to the aforesaid partnership firm, accused No.1 had misappropriated the said amount and there is no allegation against the petitioner. In the charge sheet which is now filed, it is alleged that after the aforesaid amount of

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HC-KAR

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₹.5,50,000/- was transferred to the account of the aforesaid partnership firm, accused No.1 had obtained signature of the petitioner herein on the cheque leaf of the aforesaid partnership firm and thereafter had misappropriated the said amount. There is no such allegation even in the charge sheet against the petitioner, which would attract the alleged offences against her.

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Undisputedly, the petitioner is not an employee of respondent No.2 – Bank and therefore the offence punishable under Section 409 of the IPC cannot be invoked against her. So far as the Offence punishable under Section 420 of the IPC is concerned, the allegation of fraudulently transferring the amount to the bank account of the partnership firm and thereafter, misappropriating the same by taking the signature of the petitioner is found in the charge sheet only as against accused No.1. The role of the petitioner in the alleged offence is not at all mentioned in the charge sheet. Undisputedly, there is no allegation

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HC-KAR

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against the petitioner in the first information which was submitted by respondent No.2 – Bank.

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The material on record would go to show that the prosecution has not even collected any material to show that the petitioner was a partner of the aforesaid partnership firm and she had an active role in the management of the said firm. Under the circumstances, merely on the allegation that she had signed the cheque of the partnership firm based on which accused No.1 had withdrawn the amount transferred by him to the bank account of the firm in the capacity as the Chief Manager of respondent No.2 - Bank, the petitioner cannot be prosecuted for the alleged offences. Learned Magistrate as well as the revisional Court have failed to appreciate this aspect of the matter and have erred in rejecting the discharge application filed by the petitioner. The Court while considering the discharge application filed by the accused is required to examine that whether a prima facie case for the alleged offence is made out against the accused in the

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HC-KAR

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charge sheet and in the absence of prima facie material, if the accused is asked to stand trial for the alleged offences, then the application filed by such accused seeking discharge needs to be allowed. Accordingly, the following:

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ORDER

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(i) The Criminal Petition is allowed.

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(ii) The order dated 23.02.2016 passed in C.C. No.377 of 2013 by the Court of Principal Civil Judge and JMFC, Gangavathi, which is confirmed in Criminal Revision Petition No.18 of 2016 by the Court of First Additional District and Sessions Judge, Koppalare set aside and consiquently the prayer made by the petitioner in her application filed under Section 239 of the Cr.P.C. before the trial Court seeking discharge is allowed.

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Sd/(S.VISHWAJITH SHETTY) JUDGE

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VMB para No.1 to 6 VNP para No. 7 to end CT: BCK LIST NO.: 1 SL NO.: 58

Smt. Kusuma v. the State of Karnataka

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Smt. Kusuma v. the State of Karnataka

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