{"id":111335,"date":"1997-06-30T00:00:00","date_gmt":"1997-06-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bank-of-baroda-and-etc-vs-ms-samrat-exports-on-30-june-1997"},"modified":"2016-09-18T08:30:29","modified_gmt":"2016-09-18T03:00:29","slug":"bank-of-baroda-and-etc-vs-ms-samrat-exports-on-30-june-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bank-of-baroda-and-etc-vs-ms-samrat-exports-on-30-june-1997","title":{"rendered":"Bank Of Baroda And Etc. vs M\/S Samrat Exports on 30 June, 1997"},"content":{"rendered":"
Karnataka High Court<\/div>\n
Bank Of Baroda And Etc. vs M\/S Samrat Exports on 30 June, 1997<\/div>\n
Bench: M Chinnappa<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 1. The petitioners herein are the accused before C.M.M., Bangalore, in C.C. No.
\n8206\/1996 for the alleged offence under section 409, IPC. The Chief Manager,
\nChairman, Managing Director and Directors of Bank of Baroda are the accused
\npersons. They have preferred these petitions against the order passed by the learned
\nMagistrate directing to issue process to these petitioners.\n<\/p>\n
 2. Heard.\n<\/p>\n
 3. The learned counsel for the petitioners contended that the complaint was
\nwithout any bona fide reasons. If the complaint is taken as a whole, no offence is
\nmade out as against these petitioners. There is no dishonest intention on the part of
\nthese petitioners to constitute an offence under section 409, IPC. These petitioners
\nwere not concerned with the transaction as on the date of the alleged incident.
\nTherefore, he submitted that the learned Magistrate has not applied his judicial mind
\nin taking cognizance of the offence. Therefore, the petitioners are entitled to be
\ndischarged.\n<\/p>\n
 4. Per contra, the learned counsel for the respondent submitted that all these
\ncontentions can be raised only before the learned Magistrate. The questions involved
\nare on factual aspects which cannot be decided by this Court. He also submitted that
\nit is for the complainant to establish the necessary ingredients to constitute an
\noffence. As such, the petition is not maintainable.\n<\/p>\n
 5. To answer this arguments, it is now necessary to refer to the facts which are
\nnot in dispute. The petitioner had advanced a loan to Rainbow Granites wherein the
\ncomplainant was a guarantor. The said Rainbow Granites committed default in
\npayment of the amount. Therefore, the bank debited a sum of Rs. 82,799\/- to the
\naccount of the respondent being a guarantor. The debit was notified to the
\nrespondent. The respondent by his letter dt. 24-8-92 requested for crediting back the
\namount to his account although he admitted his liability as guarantor. Thereafter, the
\npetitioner-bank considering the request of the respondent credited his account with
\nthe amount that has been debited to his account. The respt. became a defaulter in
\nrespect of the amount due by him to the Bank. Therefore, the petitioner bank filed an
\napplication before the Debt Recovery Tribunal for recovery of a sum of Rs.
\n1,15,59,183.74 and the same was nominated to the proprietor of the R 1 when he had
\nbeen to the bank. It is further alleged by the petitioner that because of the filing of
\nthe application in Debt Recovery Tribunal, the respdt. appeared to have decided to
\nharass the bank and its officials on absolutely false and frivolous grounds. With the
\nview in mind, according to the petitioner, the respondent presented the criminal
\ncomplaint in the Court of the IV Addl. C.M.M., Bangalore, alleging that by debiting a
\nsum of Rs. 82,799\/- to his account, the bank has committed an offence of criminal
\nbreach of trust punishable under section 409, IPC. This complaint was presented on
\n6-10-1995. The amount was adjusted on 13-2-91. In the meantime, the application
\nbefore the Debt Recovery Tribunal was also made. Therefore, though the respdt.
\ncame to know that the amount was debited to its account in the month of August
\n1992, no complaint was filed against the bank.\n<\/p>\n
 6. The learned counsel for the petitioners submitted that on the other hand, the
\nrespondent had written letters to the bank requesting the bank to proceed against
\nRainbow Granites to recover the amount or to take possession of the goods belonging
\nto the Rainbow Granites. Therefore, it is clear that this complaint came to be filed as
\nrightly pointed out by the learned counsel for the petrs. belatedly, obviously due to
\nthe fact that an application was filed before the Debt Recovery Tribunal. With this
\nbackground, it is now necessary to find out as to whether the main ingredient of
\ndishonest intention has been made out in the complaint.\n<\/p>\n
 7. The learned counsel for the petitioners submitted that admittedly this
\nrespondent was the guarantor and the bank had the lien on all the assets which are
\navailable in the bank in the account of the respondent and the bank has every right
\nto credit it to the account due towards the loan either as a prl. borrower or as
\nguarantor. Hence no offence was made against the petitioner. That being the case,
\nthe entire proceedings are liable to be quashed. To substantiate this argument he
\nplaced reliance on a decision, ,
\nMadhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre,<\/a> wherein it is held
\n(para 7) :\n<\/p>\n
  “The legal position is well-setted that when a prosecution at the initial
\nstage is asked to be quashed, the test to be applied by the Court is as to whether
\nthe uncontroverted allegations as made prima facie establish the offence. It is also for
\nthe Court to take into consideration any special features which appear in a particulars
\ncase to consider whether it is expedient and in the interest of justice to permit a
\nprosecution to continue. This is so on the basis that the Court cannot be utilised for
\nany oblique purpose and where in the opinion of the Court chances of an ultimate
\nconviction are bleak and, therefore, no useful purpose is likely to be served by
\nallowing a criminal prosecution to continue, the Court may while taking into
\nconsideration, the special facts of a case also quash the proceedings even though it
\nmay be at a preliminary stage.”\n<\/p>\n
 With this principle in mind, it is now necessary to consider whether any useful
\npurpose would be served by continuing this criminal proceedings.\n<\/p>\n
 From a reading of the entire complaint, it cannot be inferred that the
\nrequirements of Section 409, IPC. is satisfied. The allegations are that the petitioners
\nherein had debited a sum of Rs. 82,779\/- to the credit of the bank for the amount due
\nfrom Rainbow Granites. The complainant’s grievance is that the bank should have
\nproceeded against the principal borrower it should not have debited the amount to
\nthe account of the complainant. Whether that act on the part of the Bank would
\nconstitute an offence is the questions.\n<\/p>\n
 8. To substantiate the argument that it does not amount to an offence, the
\nlearned counsel for the petitioners placed reliance on a decision , Punjab National Bank v. Surendra Prasad Sinha,<\/a> wherein
\ntheir Lordships have held that adjustment of FDR securities deposited by a guarantor
\nthereafter by bank on maturity of said deposits is not a criminal breach of trust. Their
\nLordships have observed that creditor has right of adjustment in view of the liability
\nstill subsisting and there is no dishonest intention in adjusting the amount.\n<\/p>\n
 9. In , State Bank of India v. M\/s. Indexport Registered,<\/a> a
\ndecree was obtained and executed. The said order was challenged before their
\nLordships on the ground that the decree-holder should have first exhausted the
\nremedy by way of executing a mortgage decree loan and then proceeded against the
\nguarantor. Negativing this contention their Lordships over-ruled the decision, , Union Bank of India v. Manku Narayana and<\/a> held (at p. 1745 of
\nAIR) :\n<\/p>\n
  “The decree for money is simple decree against the judgment-debtors
\nincluding the guarantor and in no way subject to the execution of the mortgage
\ndecree against the judgment-debtor No. 2. If on principle a guarantor could be sued
\nwithout even suing the principal debtor there is no reason, even if the decretal
\namount is covered by the mortgaged the decree, to force the decree-holder to
\nproceed against the mortgaged property first and then to proceed against the
\nguarantor. It appears the above quoted observation in Manku Narayan’s case.  (supra) are not based on any established principles of law and\/or
\nreasons and in fact, are contrary to law. It, of course, depends on the facts of each
\ncase how the composite decree is drawn up. But if the composite decree is decree
\nwhich is both a personal decree as well as a mortgage decree, without any limitations
\non its execution, the decree-holder, in principle, cannot be forced to first exhaust the
\nremedy by way of execution, of the mortgage decree along and told that only if the
\namount recovered is insufficient, he can be permitted to take recourse to the
\nexecution of the persons decree.”\n<\/p>\n
 In this case also as stated earlier, the respondent was the guarantor of the bank
\nand he has debited the amount and subsequently, after the case was filed before the
\nDebt Recovery Tribunal, the said amount was remitted back to the account of the
\nrespondent. It may be true that subsequent conduct of the petitioner in remitting
\nback the amount may not be a mitigating circumstance to proceed against the
\npetitioners, but the fact clearly discloses that there was no dishonest intention on
\nthe part of the petitioners not misappropriate this amount for itself.\n<\/p>\n
 10. The Madras High Court in N. Mohamed Hussain Sahib v. The Chartered Bank,
\nMadras,<\/a>  has held :\n<\/p>\n
  “The general lien of bankers over any goods bailed to them is embodied
\nin S. 171 of the Contract Act. The question is whether any such lien may be over
\nmoney deposited by the customers ……. Whether the right of the bank is called a lien
\nor set off, the said right can be exercised only by the bank by getting the funds
\ndeposited in its branch by the customer transferred to it with the consent of the
\ncustomer.”\n<\/p>\n
 It is held that it is not open to the customer to call upon the bank to exercise
\nany such lien or set off.\n<\/p>\n
 11. In Canara Bank v. Taraka Prabhu Publishers Pvt. Ltd., ,
\nthe Andhra Pradesh High Court has held that in a case of recovery of loan by a bank,
\ncan transfer the amount deposited in current account to its loan account for set off.
\nThe Bank has right of set off in terms of contract to recover the debt due to it.\n<\/p>\n
 12. From the above decisions and also the averments made in the complaint, it is
\nabundantly clear that there existed a relationship of creditor and debtor and the
\ndemands are mutual and between the same parties. Therefore, the bank has a lien or
\nright of set-off. That right was exercised by the Bank in this case. Therefore, there is
\nno dishonest intention on the part of the Bank to misappropriate the amount to
\nconstitution offence under section 409, IPC.\n<\/p>\n
 13. The circumstance under which this complaint came to be filed also is a
\nrelevant factor to be noted. As stated earlier, after the bank approached the Debt
\nRecovery Tribunal to recover the amount from the complainant after a lapse of about
\n3 years from the date of adjustment, the complainant filed this case. Therefore, the
\nlearned counsel for the petitioners is right in his submission that this case was filed
\nonly to counterblast the claim of the petitioner herein.\n<\/p>\n
 14. The learned counsel for the petitioners further argued that entire reading of
\nthe complaint discloses that all the accused persons ‘are’ the office-bearers of the
\nBank. It is relevant to mention here that the complaint came to be filed on 6-11-95,
\nwhereas the amount was adjusted on 13-2-91. On the basis of this he submitted that
\nthese accused persons were never office-bearers of the Bank, during the relevant
\ntime, i.e. as on 13-12-91. This has not been controverted by the respondent.\n<\/p>\n
 15. However, the learned counsel for the respondent submitted that it is purely a
\nquestion of fact to be established before the Court below. But there must be at least
\nan averment to the effect that these accused persons were office-bearers as
\nindicated in the cause title as on the date of the commission of the offence. On the
\nother hand, the complainant has chosen to file a complaint as against the persons
\nwho were then office-bearers on the date of filing of the complaint and not on the
\ndate of debit entry made in the account of the Bank. The learned counsel has also
\nmade a statement at the Bar that the 2nd accused was not the Chief Manager as on
\nthat date. So also the 3rd accused was not the Chairman and Managing Director of
\nthe Bank and all the Directors, i.e. accused Nos. 4 to 14 became Directors much after
\nthis incident. Therefore, the complaint is filed against them also is not maintainable. It
\nis also necessary to mention that for the reasons best known to the complainant, he
\nhas not made the persons who were responsible for debiting to the account of this
\ncomplainant as accused. It is true that this is a question of fact to be agitated before
\nthe learned Magistrate but there is nothing to indicate that these are the persons
\nwho were responsible for the alleged commission of the offence and no material was
\nplaced before the Court below to show all these accused persons were holding the
\npost as stated in the cause title. However, bearing in mind the principles enunciated
\nby their Lordships in (1996 SCC 37) (sic) that High Court can exercise its jurisdiction
\nunder section 482, Cr.P.C. only in the rarest of rare cases without going into the pros
\nand cons of the case, I have considered the entire case to find out as to whether the
\nallegations constitute an offence.\n<\/p>\n
 16. For the reasons stated above, I hold that this is a rarest of rare case wherein
\nit calls for interference by this Court as the complaint came to be filed with a mala
\nfide motive for the purpose of harassing the petitioner and it Board of Directors just
\nbecause the petitioner-bank filed the case against the respondent. The issue of
\nprocess amounts to clear abuse of process of Court resulting in failure of justice.
\nHence, the petition deserves to be allowed.\n<\/p>\n
 17. Accordingly, I proceed to pass the following :\n<\/p>\n
 ORDER  <\/p>\n
 Both the petitions are allowed. The entire proceedings in C.C. No. 8206\/95
\ndirecting issue of process against the accused persons is set aside. The complaint
\nstands dismissed.\n<\/p>\n
 18. Petition allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Karnataka High Court Bank Of Baroda And Etc. vs M\/S Samrat Exports on 30 June, 1997 Bench: M Chinnappa ORDER 1. The petitioners herein are the accused before C.M.M., Bangalore, in C.C. No. 8206\/1996 for the alleged offence under section 409, IPC. The Chief Manager, Chairman, Managing Director and Directors of Bank of Baroda are […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-111335","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"\nBank Of Baroda And Etc. vs M\/S Samrat Exports on 30 June, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bank-of-baroda-and-etc-vs-ms-samrat-exports-on-30-june-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bank Of Baroda And Etc. vs M\/S Samrat Exports on 30 June, 1997 - 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