Karnataka High Court
T Arun Kumar vs Smt Rukmini on 7 August, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NO.29336/2017(GM-Res)
BETWEEN :
T.Arun Kumar,
Son of A.Thangavelu,
Aged about 41 years,
Residing at FC - 29,
HAL Quarters,
Suranjan Das Road,
Vimanapura Post,
Bengaluru - 560 017. ...PETITIONER
(By Sri.Siji Malayil, Adv.)
AND :
1. Smt.Rukmini,
Wife of Venugopal,
Aged about 38 years,
Residing at No.93/1,
Ganesh Temple Street,
Anandanagar, Marattahalli,
Bengaluru - 560 037.
2. Kum.Malathi,
Daughter of Venugopal,
Aged about 23 years,
Residing at No.93/1,
Ganesh Temple Street,
Anandanagar, Marattahalli,
Bengaluru - 560 037.
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3. Pavan,
Son of Venugopal,
Aged about 21 years,
Residing at.No.93/1,
Ganesh Temple Street,
Anandanagar, Marattahalli,
Bengaluru - 560 037
4. The Senior Branch Manager,
Vijaya Bank,
Marathahalli Branch,
No.17, Krishna Grand,
Outer Ring Road, Junction,
Bengaluru - 560 037.
5. The SHO
HAL Police Station,
Bengaluru - 560 037. ...RESPONDENTS
(By Sri.S.Rachaiah, HCGP)
. . . .
This writ petition is filed under Articles 226 and 227
of the Constitution of India read with Criminal Petition
under Section 482 of Code of Criminal Procedure praying
to allow this petition and set-aside the impugned order
dated 28.04.2017 in rejecting the application under
Section 451 & 457 of Cr.P.C. in C.C. No.54006/2015
passed by the learned XLIII Additional Chief Metropolitan
Magistrate, Bangalore vide Annexure `J' and direct the
respondent No.4 to release frozen money sum of
Rs.25,08,732/- bearing DD No.104880 dated 23.09.2013
drawn on respondent No.4 Bank in favour of the petitioner.
This writ petition coming on for preliminary hearing
this day, the Court made the following:
-3-
ORDER
Heard Sri.Siji Malayil, learned counsel appearing for the petitioner and perused the records.
2. An application filed by the petitioner herein in C.C.No.54006/2015 under Sections 451 & 457 of Cr.P.C. with a direction to the Vijaya Bank to release the amount of Rs.25,08,732/- in favour of petitioner came to be rejected by order dated 28.04.2017 and same has been called in question in this writ petition.
3. Petitioner herein filed a complaint under Section 200 Cr.P.C. against Sri.Venugopal, his wife, son and daughter alleging thereunder that said Sri.Venugopal had agreed to sell the property bearing No.442/429/321 situated at Doddanakundi village, K.R.Pura Hobli, Bangalore East Taluk measuring 22 squares for a total consideration of Rs.72,00,000/- and pursuant to same, a sum of Rs.30,00,000/- was paid by cash and RTGS transfer. It has been further alleged that complainant had applied for a loan from HDFC Bank and for said purpose, -4- he obtained Encumbrance Certificate relating to property in question and found that property had been sold in favour of one Sri P Shiva Krishna Reddy by the representative of Canara Bank and as such, he questioned the accused who admitted to have borrowed loan from Canara Bank. It is further alleged that accused informed the complainant that money paid by the complainant to the accused as advance had been converted for purchasing demand draft (in question) for ` 25,08,732/- and same is with the Advocate for accused and it was also stated that accused Nos.1 and 2 have been contesting the case against Canara Bank by questioning the auction sale. It is also alleged by the complainant, that on approaching the Manager, Canara Bank, complainant was informed that accused is a fraudster and Bank is possessing surplus money than dues which accused owe to the Bank. It is further alleged that accused Nos.1 to 4 had falsely reported to the complainant that property is free-hold property without encumbrances and on receiving ` 30,00,000/- as advance, with full knowledge about pendency of recovery -5- proceedings initiated by the Canara Bank for selling the property in question by auction sale from where they had availed loan, yet had entered with an agreement to sell said property and as such it was alleged and proceedings are continued against other accused. Accused Nos.1 to 4 have cheated the complainant to the tune of ` 30,00,000/. During the pendency of said proceedings, Venugopal is said to have expired.
4. Petitioner herein filed the application in question alleging that DD purchased by deceased Venugopal for a sum of ` 25,08,732/- from the money advanced by petitioner favouring Canara Bank had not been encashed and on account of Sri.Venugopal having expired, Vijaya Bank, Marathahalli Branch, Bangalore had frozen his account in their Bank. Hence, contending that petitioner having advanced the amount to deceased Venugopal, is entitled for said amount, which is now with Vijaya Bank, Marathahalli. It is the grievance of learned counsel appearing for petitioner that Venugopal having expired, other accused persons had filed an application for their -6- discharge and have also been discharged and as such there is likelihood of said amount being released in favour of respondents herein i.e., accused 2 to 4 by Bank, though it is petitioner's money and as such he is entitled for same. Hence, petitioner has sought for release of said amount in his favour.
5. Perusal of records would disclose that Vijaya Bank by communication dated 14.03.2015 - Annexure `F' has informed the Investigating Officer that amount covered under the Demand Draft has not been presented for payment or cancellation and said Demand Draft has become out of date. Hence, Bank has pleaded its inability to transfer the amount. Further Vijaya Bank has also informed the Investigating Officer that as per the directions issued by the Investigating Officer the account of Venugopal has been frozen. In this background, Trial Court has rightly observed that amount is neither in the custody of the Court nor in the custody of Police and said Demand Draft has not been encashed nor presented for cancellation and when said Demand Draft has admittedly -7- become stale, application in question would not be maintainable.
6. In this background trial Court has rightly observed that remedy open to the petitioner is to initiate appropriate proceedings before the jurisdictional Court for recovery of said amount. The application filed by the petitioner under Sections 451 and 457 is rightly held as not maintainable by trial Court. There is no other good ground to entertain this petition. Hence, criminal petition is hereby dismissed.
Liberty already reserved by the trial Court would necessarily enure to the benefit of the petitioner and petitioner would be entitled to initiate appropriate proceedings against accused persons for recovery of the amount. However, no opinion is expressed on merits.
SD/-
JUDGE SPS