The court established that the bank's lien and right of set-off were valid, and the complaint was filed with a mala fide motive, leading to an abuse of the court's process.

M. P. CHINNAPPA, J.

( 1 ) THE petitioners herein are the accused before the Chief Metropolitan Magistrate, Bangalore, in c. C. No. 8206 of 1996, for the alleged offence under section 409 of the Indian Penal Code, 1860. The chief manager, chairman, managing director and directors of Bank of Baroda are the accused persons. They have preferred these petitions against the order passed by the learned magistrate directing to issue process to these petitioners. Heard.

( 2 ) LEARNED counsel for the petitioners contended that the complaint was without any bona fide reasons. If the complaint is taken as a whole, no offence is made out as against these petitioners. There is no dishonest intention on the part of these petitioners to constitute an offence under section 409 of the Indian Penal Code, 1860. These petitioners were not concerned with the transaction as on the date of the alleged incident. Therefore, he submitted that the learned magistrate has not applied his judicial mind in taking cognizance of the offence. Therefore, the petitioners are entitled to be discharged.

( 3 ) PER contra, learned counsel for the respondent submitted that all these contentions can be raised only before the learned magistrate. The questions involved are on factual aspects which cannot be decided by this court. He also submitted that it is for the complainant to establish the necessary ingredients to constitute an offence. As such, the petition is not maintainable.

( 4 ) TO answer this argument, it is now necessary to refer to the facts which are not in dispute. The petitioner had advanced a loan to Rainbow Granites wherein the complainant was a guarantor. The said Rainbow Granites committed default in payment of the amount. Therefore, the bank debited a sum of Rs. 82,799 to the account of the respondent being a guarantor. The debit was notified to the respondent. The respondent by his letter dated August 24, 1992, requested for crediting back the amount to his account although he admitted his liability as guarantor. Thereafter, the petitioner-bank considering the request of the respondent credited his account with the amount that has been debited to his account. The respondent became a defaulter in respect of the amount due by him to the bank. Therefore, the petitioner-bank filed an application before the Debt Recovery Tribunal for recovery of a sum of Rs. 1,15,59,183. 74 and the same was nominated (sic) to the proprietor of respondent No. 1 when he had been to the bank. It is further alleged by the petitioner that because of the filing of the application in Debt Recovery tribunal, the respondent appeared to have decided to harass the bank and its officials on absolutely false and frivolous grounds. With this view in mind, according to the petitioner, the respondent presented the criminal complaint in the court of the IV Addl. C. M. M. , Bangalore, alleging that by debiting a sum of Rs. 82,799 to his account, the bank has committed an offence of criminal breach of trust punishable under section 409 of the IPC. This complaint was presented on October 6, 1995. The amount was adjusted on February 13, 1991. In the meantime, the application before the Debt Recovery Tribunal was also made. Therefore, though the respondent came to know that the amount was debited to its account in the month of August, 1992, no complaint was filed against the bank.

( 5 ) LEARNED counsel for the petitioners submitted that on the other hand, the respondent had written letters to the bank requesting the bank to proceed against Rainbow Granites to recover the amount or to take possession of the goods belonging to Rainbow Granites. Therefore, it is clear that this complaint came to be filed as rightly pointed out by learned counsel for the petitioners belatedly, obviously due to the fact that an application was filed before the Debt recovery Tribunal. With this background, it is now necessary to find out as to whether the main ingredient of dishonest intention has been made o

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