Sadasivan v. Saji Kujmar V and The State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943 CRL.MC NO. 8800 OF 2019 [C.C.NO.1629/2018 PENDING ON THE FILE OF THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM] ## PETITIONER/ACCUSED: SADASIVAN AGED 58 YEARS BRANCH MANAGER, M/S. CANARA BANK, THIRUMALA BRANCH, THIRUVANANTHAPURAM. PIN 695 006. BY ADV S.S.ARAVIND ## RESPONDENTS/COMPLAINANT & STATE: 1 SAJI KUJMAR .V AGED 45 YEARS S/O. VIJAYAN, B.S BHAVAN, VELICODE, OORUTTAMBALAM, THIRUVANANTHAPURAM PIN 695 507. 2 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KEREALA, ERNAKULAM PIN 682 032. BY ADVS. R1 BY SRI.V.T.RAGHUNATH R2 BY SRI. ARAVIND V. MATHEW, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 15.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No.8800 of 2019 2 ## O R D E R The petitioner herein is the sole accused in C.C.No.1629 of 2018 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. The aforesaid case arises from a private complaint submitted by the 1[st] respondent herein. The offences alleged against the petitioner are under Sections 405 and 409 of the Indian Penal Code (IPC). 2. The factual matrix of this case is as follows: The petitioner is the Branch Manager of Canara Bank,Thirumala Branch,Thiruvananthapuram. The 1[st] respondent pledged some gold ornaments with the bank and availed a credit facility. As the 1[st] respondent failed to repay the amount as per the schedule, bank initiated recovery proceedings and as part of the same, Annexure-2 notice dated 10.8.2015 was issued to the 1[st] respondent. Annexure-3 is the copy of the aforesaid notice, which was returned to the petitioner herein as CRL.MC No.8800 of 2019 3 undelivered. Thereafter, on 13.8.2015, a paper publication was affected at the instance of the petitioner herein on behalf of the bank, wherein auction of the gold ornaments was notified. The date of proposed auction was 20.8.2015. Thereafter, as evidenced by Annexure-5, the gold ornaments belonging to the 1[st] respondent herein were sold for a total consideration of Rs.1,23,000/-. Thereafter, a further notice was sent to the 1[st] respondent on 26.10.2015, wherein the 1[st] respondent was intimated about the auction proposed to be conducted. A reply was sent by the 1[st] respondent as per Annexure-A6. Thereafter, Annexure A6(a) notice was issued by the petitioner herein to the 1[st] respondent pointing out that the issuance of notice on 26.10.2015 was a mistake and it was also informed that consequent to the publication of sale notified by the petitioner herein, the gold ornaments of the 1[st] respondent were sold and after adjusting the sale proceeds of the said gold ornaments, CRL.MC No.8800 of 2019 4 balance amount to be paid by the 1[st] respondent is Rs.7,243/- plus interest with effect from 30.9.2015. A request for clearing the balance amount was also made. Several communications were followed in respect of the same. Later, on 7.5.2016, the 1[st] respondent remitted an amount of Rs.7723/- as evidenced by Annexure-9 and accordingly the loan was closed. 3. Subsequently, C.M.P.No.972/2016 (Annexure-11) was submitted by the 1[st] respondent before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram, alleging offences mentioned above. After conducting inquiry under Section 202 Cr.PC., the learned Magistrate issued summons to the petitioner herein as evidenced by Annexure-10. 4. This Crl.M.C. is filed by the petitioner seeking to quash the entire proceedings, on the ground that, no case is made out from the averments contained in Annexure-11 complaint. CRL.MC No.8800 of 2019 5 5. Heard Sri. S.S. Aravind, the learned counsel for the petitioner, Sri. V.T. Reghunath, the learned counsel for the 1[st] respondent and Sri. Aravind V. Mathew, the learned Public Prosecutor for the 2[nd] respondent. 6. Learned counsel for the petitioner contends that, the offence under Section 405 of 409 are not attracted in view of the fact that, all the actions taken by the petitioner were as part of his official duties and in exercise of the rights of the bank, as per the terms and conditions contained in Annexure-1 loan agreement. No question of misappropriation of amounts arises in this case as the entire sale proceeds were credited to the account of the 1[st] respondent herein and by remitting the balance amount towards the said loan, 1[st] respondent accepted the same. No dishonest intention can also be attributed against the petitioner,in the absence of which, no offence under Section 405 and 409 are attracted. CRL.MC No.8800 of 2019 6 7. On the other hand, learned counsel for the 1[st] respondent contends that, the auction sale itself was conducted without following the procedure contemplated as per the guidelines of the bank as evidenced by Annexure R1(a). Learned counsel further points out that, the offence of criminal breach of trust would get attracted, if a person with whom a entrustment of any property or any dominion over the property is made, disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. Here, by placing reliance upon the obligation cast upon the petitioner by virtue of Annexure R1(a) circular, the learned counsel for the 1[st] respondent contends that the disposal of the property was not in the manner as prescribed in the guidelines and hence the offence is attracted. Accordingly 1[st] respondent prays for dismissal of the Crl.M.C. CRL.MC No.8800 of 2019 7 8. The only question that arises is as to whether the offences as alleged are attracted from the available materials. In this case, when we are examining the factual circumstances, it can be seen that the question of entrustment is not under dispute. The property was entrusted with the bank on the basis of Annexure-1 agreement and the 1[st] petitioner was the custodian of the same. However, one of the basic ingredients to attract Section 405 of IPC is the dishonest misappropriation or disposal of the property with dishonest intention. So the crucial question arises is as to whether there is any dishonest intention on the part of the petitioner while conducting the sale of the gold ornaments of the 1[st] respondent. 9. The main contention put forward by the learned counsel for the 1[st] respondent is that, going by the averments contained in Crl.M.C., it can be seen that Annexure-2 notice which is dated 10.8.2015 was returned CRL.MC No.8800 of 2019 8 undelivered on 11.8.2015 and the same was received back by the petitioner on 19.8.2015. The learned counsel points out that, it is evident from Annexure-4 that, the sale notification was published on 13.8.2015. This would indicate that, even before the receipt of the information with regard to the service of Annexure-2 notice upon the 1[st] respondent, a paper publication was issued notifying the sale of the gold ornaments. The learned counsel brought my attention Ext.R1(a) guidelines formulated by the Canara bank with regard to the manner by which the auction of gold/jewelry is to be conducted. The guidelines prescribed therein indicate that, the scheme of the procedure is to await for the service of notice and then to proceed with the sale of property by making paper publication in this regard. 10. It is true that going by the aforesaid guidelines, it can be seen that, there is some flaws while following the procedure contemplated therein. CRL.MC No.8800 of 2019 9 Apparently, the sale was notified by way of paper publication before knowing the out come of service of Annexure-2 notice upon the respondent. However, the question arises here is as to whether the violation of that guidelines by itself can be treated as a material for inculpating the petitioner herein. It is true that, the aforesaid violation can have some consequences as regard to the right of the first respondent herein. However, in my view, that by itself is not sufficient to attract culpability as contemplated under Section 405 of the IPC. This is particularly because, mere violation of guidelines alone cannot lead to the conclusion of existence of a dishonest intention. In order to attribute dishonest intention, some more materials are required. Even if we proceed on the assumption that there was some procedural lapses in conducting the auction, the fact remains that the entire sale proceedings of the gold ornaments were credited to the account of the 1[st] respondent herein. CRL.MC No.8800 of 2019 10 The 1[st] respondent has remitted the balance amount after adjusting the sale proceeds thereof. Even though the 1[st] respondent has taken a contention that the gold ornaments were sold for a lower price, I do not think that is a material aspect herein because the auction was conducted through competitive bids. No malafides are also alleged against the petitioner herein with respect to the conduct of auction and the only allegation is with regard to non compliance of procedure. 11. The learned counsel for the petitioner relies on the decision in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [AIR 1998 SC 128] wherein it was observed as follows: _“_ Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must re- CRL.MC No.8800 of 2019 11 flect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” In this case, it is contended that, the learned Magistrate has not applied his mind before issuing the summons to the petitioner. As mentioned above, in order to attract the offence under Section 405 of the IPC, there must be a misappropriation of the property with dishonest intention. In this case, the question of misappropriation does not arise at all. This is particularly because, the amounts which were received from the sale conducted in pursuance to the auction, CRL.MC No.8800 of 2019 12 were credited to the account of the 1[st] respondent and the same was accepted by the 1[st] respondent as such. In such circumstances, it cannot be treated that there is any misappropriation, as the entire proceeds were gone into the account of the 1[st] respondent himself. Thus the act of taking cognizance was not proper. 12. Another offence alleged is under Section 409 of the IPC. Section 409 IPC is the aggravated form of criminal breach of trust. In this case, I am convinced that the offence of criminal breach of trust is not attracted in the facts and circumstances of the case. In view of the said findings, the offence under Section 409 IPC is also not attracted. At this juncture, the learned counsel for the 1[st] respondent points out that the petitioner has also a remedy to seek or discharge under Section 245(1) of the Cr.PC by raising all these contentions. Of course, that is a remedy available to the petitioner herein. However, that will not preclude this Court from exercising power under Section 482 of CRL.MC No.8800 of 2019 13 the Cr.PC, if the materials placed on record and the averments in the complaint do not make out a case for attracting the offences alleged against the petitioner. In this case, due to the reasons mentioned above, I am convinced that neither the offence under Section 405/406 nor under Section 409 IPC are attracted in this case. In such circumstances, I am of the view that, this is a fit case in which power of this Court under Section 482 of the Cr.PC can be invoked. In the result, this Crl.M.C. is allowed. Annexure- 11 complaint and all further proceedings in C.C.No.1629/2018 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram are hereby quashed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.8800 of 2019 14 A PPENDIX OF CRL.MC 8800/2019 |PETITIONER’S ANNEXURES|| |---|---| |ANNEXURE 1|TRUE COPY OF LOAN APPLICATION DATED 04/04/2014| ||SUBMITTED BY THE 1ST RESPONDENT.| |ANNEXURE 2|TRUE COPY OF REGISTERED NOTICE DATED| ||10/08/2015 ISSUED TO THE 1ST RESPONDENT.| |ANNEXURE 3|TRUE COPY OF THE RETURN MEMO DATED 11/08/2015.| |ANNEXURE 4|TRUE COPY OF PUBLICATION IN KERALA KAUMUDI| ||DAILY DATED 13/08/2015.| |ANNEXURE 5|TRUE COPY OF PROCEEDINGS OF THE AUCTION| ||CONDUCTED BY THE PETITIONER ON 24/08/2015.| |ANNEXURE 6|TRUE COPY OF LETTER ISSUED BY THE 1ST| ||RESPONDENT DATED 30/10/2015.| |ANNEXURE P6(a)|TRUE COPY OF REPLY ISSUED BY THE PETITIONER| ||DATED 4/11/2015 TO THE 1ST RESPONDENT.| |ANNEXURE P7|TRUE COPY OF LETTER DATED 12/11/2015 ISSUED BY| ||THE 1ST RESPONDENT.| |ANNEXURE P7(a)|TRUE COPY OF REPLY DATED 17/11/2015 TO| ||ANNEXURE A7 LETTER.| |ANNEXURE 8|TRUE COPY OF LETTER DATED 14/12/2015 ISSUED BY| ||THE 1ST RESPONDENT.| |ANNEXURE 8(a)|TRUE COPY OF REPLY DATED 23/12/2015 ISSUED BY| ||THE PETITIONER.| |ANNEXURE 9|TRUE COPY OF PAY-IN-SLIP DATED 07/05/2016.| |ANNEXURE 10|TRUE COPY OF SUMMONS IN CC NBO. 1629/2018| ||BEFORE THE ADDL CHIEF JUDICIAL MAGISTRATE| CRL.MC No.8800 of 2019 15 COURT, THIRUVANANTHAPURAM, DATED 24/12/2018. ANNEXURE 11 TRUE COPY OF COMPLAINT CMP NO. 972/2016 FILED BY THE 1ST RESPONDENT BEFORE ADDL. CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM DATED 18/02/2016. ## RESPONDENT’S ANNEXURES: ANNEXURE R1(a) TRUE COPY OF THE CIRCULAR BEARING NO-153/2015 DATED 25.3.2015 ANNEXURE R1(b) TRUE COPY OF THE REQUEST GIVEN TO THE THIRUMALA POST OFFICE. ANNEXURE R1(c) TRUE COPY OF THE REPLY RECEIVED FROM THIRUMALA POST OFFICE.