IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD [)ATED THIS THE 15 “‘ DAY OF FEBRUARY, 2011 BEFORE THE HON’BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL PETITION No.7212/2010 BETWEEN: Syed Shabbir Hussaini, S/o Syed Mehamood Hussaini, 51 years, 0cc: Agriculture. Rio Tegginakeri Oni, Koppal. Petitioner (By Shri Syed R. H. Advocate) AND: Umesh B. Chekki, Age 49 years, 0cc: Manager, Shree Gousideshwara Urban Co-Op Bank, Koppal. At: Koppal, Dist: Koppal. Respondents (By Sri Rajashekar R. Gunjalli. Adv.) This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, praying to set-aside the judgment S and order passed in Crl.R.No.61/2009 by Sessions Judge Court, Koppal, dated 8.1 .20 10, and etc. This petition coming on for hearing this day, the Court made the following: ORDER Heard the learned Counsel for the petitioner. 2. The brief facts are as follows: It is the case of the petitioner, that the Manager of Sri Gavisiddeshwar Urban Co-operative Society, Koppal, had furnished a loan of Rs.20,000/- to the petitioner on 6.10.1994. It is the complainant’s case, that he has repaid the entire amount on 28.4.1999, along with interest. It is his further case that, at the time of granting the loan, the Manager of the Bank had obtained the signature of the complainant and his surety on several printed blank papers. It is now the grievance of the petitioner, that inspite of the loan having been discharged as early as in 1999, the accused-bank Manager has misused the blank papers that were duly signed by the petitioner and his 3 surety at the time when he had availed the loan and the same are being setup to claim that the petitioner had borrowed a loan of Rs.50,000/-, which has remained unpaid and has sought to recover the same. In this regard, the matter has been referred to the Arbitrator under the provisions of the Karnataka Co operative Societies Act, and it was only after he received a notice of the proceedings on 30.7.2003, that he became aware of the fraud sought to be played on the petitioner. It is his further case, that the Arbitrator has passed an award against the complainant for the recovery ofthe amount. 3. The same having been challenged before the Appellate Tribunal, Gulbarga, the appeal also has been dismissed. It is the complainant’s case that, the act of the accused/respondent herein gives rise to a criminal liability and since the papers obtained from the petitioner have been misused for unlawful benefit by the accused, he had also registered a case against the said accused. The Magistrate after taking 4 cognizance of the complaint, recorded the sworn statement of the complainant and marked the document produced in support of his complaint, and has proceeded to hold that the complainant has not made out a case for proceeding further, on the reasoning, that when the petitioner became aware of the accused having initiated proceedings for recovery of money in the year 2003, there was no explanation forthcoming as to why the petitioner did not choose to take any action for five years and thereafter has flied a complaint before the Court. It is on that notion, the learned Magistrate has proceeded to hold, that there is no material on which the complaint can be acted upon and hence, has dismissed the complaint in terms of Section 203 of the Code of Criminal Procedure. 4. That order having been challenged by way of revision before the Court of the Sessions Judge, Koppal, and the action of the learned Magistrate having been affirmed on the 5 S very reasoning narrated by the learned Magistrate, the petitioner is before this Court. 5. The learned Counsel for the petitioner would submit, that the complaint of the petitioner has been given a short-shift by the Courts below. The petitioner is, in law, entitled to enforce his right by establishing, that fraud has been played on him and process ought to have been issued to the accused in order that they offer their explanation as to the manner in which the loan transaction has been effected by the petitioner, if at all, and how they would not be guilty of the offence of fraud. On the other hand, the complainant is in a position to establish beyond all reasonable doubt, that the accused had indeed misused the documents obtained from the petitioner for illegal benefit. 6. Having regard to the above facts and circumstances as evident from the records, the petitioner even now has no explanation as to why there was no action taken in 6 so far as the alleged offences committed by the accused is concerned for five long years. As rightly held by the courts below, there were parallel proceedings for recovery of the amount on the alleged fraudulent documents, which has culminated in a final award against the petitioner. It is thereafter, that the petitioner has decided to initiate criminal proceedings. This conduct on the part of the petitioner itself raises a doubt as to the correctness of the allegations. Therefore, the Magistrate has rightly held that there was no material on which it could be said, on the face of it, that there was the possibility of the commission of offence and has rejected the complaint. There is no ground for interference. The petition is rejected. sal 3UDGE Sub/