Smt Asha Manjunath Vs State of Karnataka

SRI. KAMALESH KUMAR S/O SRI. SHANKARLAL AGED ABOUT 52 YEARS PROPRIETOR OF PARASKAL JEWELLERS NO. 351, 6TH MAIN ROD, BANASHANKARI I STAGE BANGALORE-560 050

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…RESPONDENTS

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(BY SRI.VINAY SHETTY.B, ADVOCATE)

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO a) SET ASIDE THE ORDER PASSED BY THE HONOURABLE I ADDL.C.M.M., BENGALURU IN C.C.NO.353/2018 DATED 25.10.2022 VIDE ANNEXURE-A AND ETC.,

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IN CRL.P NO. 5342/2022

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BETWEEN:

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SRI. KAMALESH KUMAR S/O SRI SHANKARLAL AGED ABOUT 48 YEARS, PROPRIETOR OF PHARASKAL JEWELLERS NO.351, 6TH MAIN ROAD BANASHANKARI I STAGE BANGALORE-560 050

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...PETITIONER

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(BY SRI.GOPAL SINGH, ADVOCATE)

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AND:

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STATE BY C.C.B POLICE REPRESENTED BY SPP

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HIGH COURT, BENGALURU-560001

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SMT ASHA MANJUNATH W/O SRI B S MANJUNATH AGED ABOUT 55 YEARS, R/AT NO.786, 14TH MAIN 7TH CROSS, SRINIVASA NAGAR 2ND PHASE BSK 3RD PHASE BANGALORE-560 050

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...RESPONDENTS

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(BY SMT.N.ANITHA GIRISH, HCGP FOR R1 & R2;

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SRI.B.VIJAY SHETTY, ADVOCATE FOR R1)

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO A. SET ASIDE THE IMPUGNED ORDER DATED 30.11.2019 PASSED BY THE HONBLE I ACMM, BANGALORE IN C.C.NO.353/2018 AS PER ANNEXURE-A BY ALLOWING THE ABOVE PETITION AND ETC.,

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THESE PETITIONS, COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE J.M.KHAZI

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COMMON ORDER

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These petitions are filed under Section 482 of the

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Code of Criminal Procedure.

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Crl.P.No.11924/2022 is filed by complainant

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Asha Manjunath, challenging the order dated 25.10.2022 rejecting her application filed with a prayer to issue Show Cause Notice to the Investigating Officer, as to why order dated 22.07.2022 is not complied with.

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Crl.P.No.5342/2022 is filed by Objector i.e., CW11 Kamalesh Kumar, challenging the order dated 30.11.2019 in C.C.No.353/2018 on the file of I ACMM, Bengaluru.

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For the sake of convenience, the petitioner in Crl.P.No.11924/2022 is referred to as complainant Asha Manjunath and petitioner in Crl.P.No.5342/2022 is referred to as Objector/CW-11 Kamalesh Kumar.

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Vide the order dated 30.11.2019, the trial Court has allowed the application filed by complainant Asha Manjunath under Section 451 and 457 Cr.P.C and permitted the release of gold and diamond ornaments in

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her favour on executing indemnity bond. It has over ruled the objections raised by Objector/CW-11 Kamalesh Kumar. When Objector/ CW-11 Kamalesh Kumar failed to produce the gold and diamond ornaments, complainant Asha Manjunath filed application under Section 451 r/w 457 Cr.P.C to issue Show Cause Notice to investigating officer and direct him to comply with order dated 22.07.2022. However, the trial Court vide order dated 25.10.2022 rejected the said application, leading to the filing of these petitions.

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Since these two petitions are arising out of the same proceedings and petitioners are making rival claims against each other and involves common discussion, they are clubbed together and disposed off by a common order.

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Complainant Asha Manjunath filed a complaint under Section 200 Cr.P.C against accused No.1 Smt.Malini Swaroop for the offences punishable under Sections 420,

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506B and 406 IPC. She has alleged that accused is no

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other than the daughter-in-law of complainant's sister-inlaw. Complainant had purchased diamond jewelleries from Sri.Sai Gold Studded Jewellers. At the time of her marriage, she was also given gold and diamond jewelleries by her parents as well as her parents-in-laws.

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7.1 During February 2014, accused No.1 borrowed a pair of diamond bangles weighing 18.3 carat, one diamond necklace weighing 18.5 carat, 1 diamond bracelet weighing 4.5 carat, a pair of zarpan ear rings, one pearl gold necklace with ear rings, one kasimala weighing 120 gms, one anklet weighing 60 gms and 4 pairs of gold bangles weighing 250 gms, one emerald khada, 3 rows beeds chain, one 2 rows gold chain and one pair of jumki from the complainant for wearing the same in the marriage of uncle's son.

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7.2 After the marriage, when complainant

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requested accused to return the same, she went on delaying on one or the other pretext and ultimately gave

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evasive replies. However, on enquiry complainant came to know that accused has pledged these gold jewelleries weighing 373 gms with Rishab Jewellers, Hanumanthanagar, Bengaluru on 11.03.2014 for a sum of Rs.6,75,000/-, gold jewelleries weighing 177 gms under two receipts on 16.05.2014. Similarly, accused has pledged diamond jewelleries i.e., 1 diamond necklace for Rs.4 lakhs and diamond bangles for Rs.7 lakhs with Paraskala Jewellers, Hanumanthanagar, Bengaluru for Rs.11 lakhs under two receipts.

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7.3 When complainant repeatedly requested accused

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to return the said jewelleries, accused gave threat of filing a false complailnt against complainant and her family members and also to go to media to spoil the reputation of her family and their business. In fact she filed a false complaint with Basavanagudi Police against the complainant for the offences punishable under Section 341, 323, 504, 506, 509 and 383 r/w Section 34 IPC. Later she withdrew the same. She filed one more complaint against

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complainant and others for offences punishable under Sections 498A and 307 IPC with Byatarayanapura Police in Cr.No.38/2015.

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7.4 In order to save her family reputation, on 23.07.2015 complainant has got released the jewelleries pledged with Rishab Jewellers by paying Rs.11,30,000/-.

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7.5 However, out of the said jewelleries, one pearl necklace, one diamond bracelet and zarkan ear ring are still in the custody of accused.

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7.6 It is further alleged that during the month of January 2014, accused had approached the complainant for financial assistance of Rs.15 lakhs. Though initially the complainant was reluctant, on repeated request she lent Rs.15 lakhs in instalments to the accused by borrowing the same from her relatives. Accused has also borrowed Rs.15 lakhs from complainant and has not repaid both amount.

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7.7 Later complainant came to know that accused

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has taken money from other relative and family friends to

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the tune of Rs.3 Crores and has not returned. She is in the habit of giving threat to the lenders through anti-social elements and filing of false complaints. This let to the complainant suffering from mental tension, depression and other health problems.

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7.8 The accused has cheated the complainant by borrowing the jewelleries as well as hand loan of Rs.15 lakhs and failed to return them and thereby committed the offences punishable under Sections 420, 506B and 406 IPC.

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The trial Court referred the complaint for investigation to the jurisdictional police. After conducting detailed investigation, the concerned police have filed charge sheet against the accused Malini Swaroop as accused No.1 and her husband B.M.Swaroop Kumar as accused No.2. During the investigation, the investigating officer has seized gold jewels from Objector Kamalesh

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Kumar, who is cited as CW-11 and CW-10 Praveen and subjected them to PF 78/2016.

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Complainant filed application under Section 451 and 457 Cr.P.C to release the property in PF.78/2016 to her interim custody. It was dismissed by the trial Court vide order dated 13.07.2017. Crl.RP.341/2017 filed before the City Civil and Sessions Judge, Bengaluru (CCH-57) also came to be dismissed on 19.05.2017. The same was challenged before this Court in Crl.P.5027/2017. It was allowed on 24.04.2018.

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It is further averred that initially investigation was carried out by Hanumanthanagar Police. By virtue of the order passed by the Deputy Commissioner of Police (Crimes), Bengaluru City in No.1155/Crime(3)/COP/2016 dated 06.08.2016, the investigation was transferred to CCB, Bengaluru and hence the case was transferred to I ACMM, Bengaluru.

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The Hanumanthanagar Police has seized

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certain property through mahazar and the CCB Police have submitted the same to the trial Court. Vide letter dated 18.08.2016 Hanumanthanagar Police have transferred the

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papers to CCB Police, which includes statement of CW-11 Kamalesh Kumar dated 02.08.2016. The panchanama dated 20.11.2015 produced along with the charge sheet clearly indicate that a diamond necklace with peacock ear rings totally weighing 88 gms and a pair of diamond bangles totally weighing 58.950 gms was pledged by accused No.1 with CW-11 Kamalesh Kumar.

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The CCB Police have also conducted mahazar dated 02.08.2016 after issuing notice to Objector/CW-11 Kamalesh Kumar to produce the said ornaments and in turn he has produced the same and they were returned back to him, with a direction to produce the same before the Court as and when directed and they shall not be disposed of till the conclusion of the trial. On 02.08.2016 Objector/CW-11 Kamalesh Kumar has also stated that out

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of these ornaments he has given a pair of diamond bungles

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to his friend Ashok and since Ashok is not in station he would produce same within a week and if he fails to produce, it action may be taken against him.

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Thus these two ornaments are in custody of Objector/CW-11 Kamalesh Kumar. However, the Hanumanth Nagar Police as well as CCB Police have not subjected these two ornaments in property forum and also not produced them before the Court. However, they are submitted to jurisdiction of the trial Court by way of charge sheet.

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Complaint filed application under Section 451 and 457 to release two these property to his interim custody. CW-11 voluntarily appeared before the trial Court and filed objections to the said application. After hearing

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both parties, the trial Court has allowed the said application on 30.11.2019. Complainant has executed ideminity bond

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and the trial Court also issued released order dated 02.12.2019.

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Objector/CW-11 Kamalesh Kumar challenge the order dated 30.11.2019 in Crl.R.P No.965/2019. It was dismissed on 23.05.2022. After the said dismissal once again the trial Court issued direction vide letter dated 22.07.2022 to the concerned police. In turn the concerned police have handed over the same to Objector/CW-11 Kamalesh Kumar. However, he has given statement that against the order in Crl.R.P.NO.965/2019 he has filed Crl.P.No.5342/2022 and he will handover the ornaments after the disposal of the same.

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In the light of the development that have taken place, complainant has filed application dated 16.09.2022 under Section 451 and 457 of Cr.P.C to issue show cause notice to respondent No.3 investigating officer seeking explanation on the report submitted by them on 12.08.2022 and also for not complying with the order of

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trial Court dated 22.07.2022. On the said application the trial Court sought report from respondent No.3 investigating officer. However, respondent No.3 has not furnished any explanation on 30.09.2022 or further dates. However, the trial Court has ultimately rejected the application field by the complainant on 25.10.2022. The complainant has challenged the order dated 25.10.2022 on the following:

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GROUNDS

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i) The impugned order is not sustainable either in law or facts and liable to be set aside. The trial Court has fails to appreciate the fact that respondent No.3 has not complied with the direction issued by it on 12.08.2022 and 22.07.2022 but also committed contempt of the Court. Instead of complying the order, respondent No.3 has submitted report which is nothing but disrespect to the order passed by the trial Court. If the trial Court was satisfied with the report dated 12.08.2022, it ought not have sought an explanation vide order dated 30.09.2022.

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Such being the case, the rejection of application filed by complainant based on same report is incorrect.

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(ii) Even though Crl.P.5342/2022 is pending before this Hon'ble Court, there was no interim order and as such there was no impediment for respondent No.3 to execute the order in question. After the passing of the order by the Sessions Court in Crl.RP.No.965/2019, respondent No.4 has sent a legal notice dated 27.05.2022 to the complainant to make payment of Rs.23 lakhs for obtaining the ornaments. It also amount to contempt of the Court.

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(iii) There is no rival claim or counter claim by any other person for the jewels in question. The two ornaments in question belongs to the complainant. The details mentioned in the pawn ticket tally with details of the ornaments and authenticity certificate and purchase bill. Viewed from any angle the order rejecting the application filed by the complainant it is not sustainable and hence the petition.

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In support of his arguments, learned counsel for

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petitioner has relied upon the following decisions:

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i) Emperor Vs. Haribandhu Patro ( Emperor )¹ ii) S.Arunkumar Vs. The State ( S.Arunkumar )²

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On the other hand, learned counsel representing Objector/CW-11 Kamalesh Kumar who is respondent No.4 in Crl.P.No.353/2018 has challenged the order dated 30.11.2019 passed by the trial Court ordering release of the ornaments to the interim custody of complainant and dated 23.05.2022 passed by the Sessions Court rejecting the revision filed by him contending that they are not sustainable. They are erroneous, biased and there is no application of mind. They have not taken into consideration the statement of objection filed by Objector/CW-11 Kamalesh Kumar. While taking the pledge of the ornaments in question Objector/CW-11 Kamalesh Kumar has paid 11 lakhs to the accused and issued pawn receipt. Therefore his interest is required to be protected.

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1 AIR 1948 PATNA 180

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2 LAWS(MAD)-2016-1-170 Dt:11.01.2016

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Since the payments are not made, the ornaments cannot

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be released. Diamond bangles weighing 50.90 grams were

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not pledged with him and pray to set aside the impugned order.

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Heard arguments and perused the records.

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Thus, from the material placed on record in the charge sheet, as well as the contentions raised by the complainant Asha Manjunath, it is evident that the ornaments in question, which includes gold as well as diamond ornaments belong to the complainant. Accused No.1 under the guise of attending a marriage function, borrowed her gold as well as diamond ornaments, but failed to return them. After making enquiry, complainant Asha Manjunath came to know that accused No.1 has pledged the gold ornaments as well as diamond ornaments, and thereby failed to return them. While complainant got the gold ornaments released by paying the money, the

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diamond ornaments remained with Objector/CW-11

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Kamalesh Kumar.

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Vide order dated 30.11.2019, the trial Court has directed Objector/CW-11 Kamalesh Kumar to handover a diamond necklace with peacock earrings and a pair of diamond bangles. However, he has failed to produce them. He unsuccessfully challenged the said order before the Sessions Court. When the investigating officer failed to produce the said ornaments before the trial Court, complainant filed application under Section 451 r/w 457 Cr.P.C to issue show cause notice to him. In Crl.P.No.5342/2022, he has challenged the said order. The trial Court rejected the said application only on the ground that the petitions filed by Objector/CW-11 Kamlesh Kumar is pending before this Court.

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At the outset, it is relevant to note that initially, the investigation was carried out by

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Hanumanthnagar police. Later it was handed over to CCB.

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Vide Mahazar dated 25.11.2015 , Police Sub-inspector Lingappa. K has drawn the mahazar in the presence of complainant Asha Manjunath, attesting witnesses at Paras Kala Jewellers belonging to Objector/CW-11 Kamalesh Kumar and admitting the fact of accused No.1 having pledged gold and silver ornaments, he has produced pawn tickets and the investigating officer has collected the same. Objector/CW-11 Kamalesh Kumar has undertaken to produce the diamond jewels in question as and when directed. When the investigating officer during the course of investigation came to know that the gold and diamond ornaments belonging to complainant were pledged with Objector/CW-11 Kamalesh Kumar by accused No.1, the proper course available to him was to seize them along with the pawn tickets. For reasons best known to him, he has not chosen to do so. Even though, in the beginning of

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the mahazar, it is specifically stated that they are proceeding to the shop of Objector/CW-11 Kamalesh Kumar for the purpose of seizing the ornaments as well as

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the pawn tickets, the investigating officer is not having any explanation for not seizing the said ornaments.

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In fact, on 02.08.2016, ASI Venkatesh Murthy has drawn Mahazar at Hanumanthnagar police station with regard to Objector/CW-11 Kamalesh Kumar producing the diamond jewels, viz., a diamond necklace with peacock earrings and a pair of diamond bangles. Instead of seizing the same, once again, ASI Venkatesh Murthy has chosen to return them to CW-11 Kamalesh Kumar, with a direction to produce them as directed by the Court and he shall not part with them. It appears both the investigating officers to favour Objector/CW-11 Kamalesh Kumar have chosen not to seize these ornaments.

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Anyhow, when the trial Court vide order dated 30.11.2019 directed release of the said ornaments to the interim custody of the complainant Asha Manjunath, the proper course open to the investigating officer was to secure the same through Objector/CW-11 Kamalesh Kumar

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and produce them before the Court, so as to enable the trial Court to handover the same to the interim custody of the complainant. If there is any dispute between the Objector/CW-11 Kamalesh Kumar and accused No.1 with regard to the amount due towards pledging of the ornaments, he is at liberty to proceed against her. Admittedly, accused No.1 is not the owner of the ornaments in question. Therefore, when the order of the trial Court was not complied with, the complainant is justified in requesting the trial Court to issue show cost notice to the investigating officer as to why action should not be taken against him. Consequently, the trial Court has

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erred in rejecting the application filed by the complainant.

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In the light of the above discussions, this Court

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is of the considered opinion that the petition filed by complainant deserves to be allowed, whereas the petition filed by Objector/CW-11 Kamalesh Kumar is to be rejected. It is the responsibility of the trial Court to secure the ornaments in question and handover the same to the

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interim custody of the complainant. If the investigating officer fails to comply with the order dated 30.11.2019, the trial Court is at liberty to take action against such officials including direction to the employer to take disciplinary action against such erring officials and accordingly, the following:

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ORDER

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(i) Crl.P.No.11924/2022 filed by complainant/Asha Manjunath under

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Section 482 Cr.P.C. is allowed.

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