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2022 Supreme(Kar) 423
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAJENDRA BADAMIKAR, J.
Shreesha Sasithota Prabhakaran S/o Prabhakar Bhatt – Petitioner
Versus
The State of Karnataka – Respondent
Criminal Petition No. 9971 of 2022
Decided On : 10-11-2022
Advocate Appeared:
For the Petitioner: Chandrashekara K.A.
For the Respondents: V.S. Hegde, K. Nageshwarappa.
Point of Law : An occasion to deal with the powers and jurisdiction of the Court to impound passport in exercise of powers under Passport Act and it is clearly held that, the Act being a Special Act, whereas Section 104 of Cr.P.C. is a general provision for impounding any document or thing, it shall prevail over that sections in the Cr.P.C. as regards the passport. [Para 14]
Headnote:
Criminal Procedure Code,1973 - Section 439 - Indian Penal Code,1860 - Sections 420, 419, 406, 403, 120-B and 506 - Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 - Sections 4 , 16 and 9 - Banning of Un-Regulated Deposit Schemes Act, 2019 - Sections 5 and 21(3) – Offence of Cheating – Criminal conspiracy - Charged - Complainant and her family members have invested Rs. 17,50,00,000/- towards purchase of high value shares through a company called M/s Sunness Capital India Pvt. Ltd. having its registered office at 213, II Floor, V-Main, Opposite Bank of India, RPC Layout - Present petitioner/Accused No. 1 and others are Directors of the company - After investment of said money, authorities of the said company have neither issued any share nor repaid invested amount and an enquiry, they alleged to have given vague and untenable excuses in order to shirk from responsibility and avoided payments with sole intention of defrauding complainant and several other investors - It is further alleged that, petitioner/Accused No. 1 and other accused by colluding with their staff members were alleged to have diverted the entire funds to utilize same for their personal use and not for purpose for which funds were collected from various other investors - In that context, a complaint came to be lodged against this petitioner/Accused No. 1 and others in jurisdictional Police Station - Whether it is under Section 439 of Cr.P.C. and otherwise is appealable.
Finding of Court : Court reported in Lokesh vs. State of Karnataka, ILR 2021 Kar. 4783 wherein a similar issue arose in pursuance of Section 14(A) of SC/ST (POA) Act and the Court has framed a point as to whether Criminal Petition or Criminal Appeal is maintainable against an order of Special Court or exclusive Court in granting or refusing bail - Aspect has been dealt in detail - Division Bench of Court has specifically observed that, since SC/ST Act is a special enactment under Section 14(A)(2) of Act, appeal provision is available and in view of availability of remedy of appeal under Section 14(A)(2), it will not be open to High Court to exercise original concurrent jurisdiction under Section 438 and 439 of Cr.P.C - Division Bench’s decision of this Court in Lokesh’s case (cited supra), covers entire issue, which is also involved in present case and answers same holding that the provisions of Special Act will prevail, when a specific provision is made by granting an alternative remedy - Petition under Section 438 or 439 of Cr.P.C. is not maintainable when offences under KPIDFE Act are incorporated and only remedy available is to file an appeal under Section 16 of KPIDFE Act - Petition does not survive for consideration and accordingly, petition stands dismissed with liberty to petitioners to file an appeal under Section 16 of the KPIDFE Act. [Para 15 and 16]
Result : Petition stands dismissed.
ORDER :
1. This petition is filed by the petitioner/Accused No. 1 under Section 439 of Cr.P.C. for enlarging him on bail in Crime No. 11/2022 of Shankarapura Police Station, Bengaluru City, registered for the offences punishable under Sections 420, 419, 406, 403, 120-B and 506 of IPC; under Sections 4 and 9 of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (for short ‘KPIDFE Act’) and also Sections 5 and 21(3) of Banning of Un-Regulated Deposit Schemes Act, 2019 (for short ‘BURDS Act’), which is now pending on the file of Principal City Civil and Sessions Judge at Bengaluru, in Spl. C.C. No. 1792/2022.
2. The brief factual matrix of the prosecution case are that, the complainant and her family members have invested Rs. 17,50,00,000/- towards purchase of high value shares through a company called M/s Sunness Capital India Pvt. Ltd. having its registered office at 213, II Floor, V-Main, Opposite Bank of India, RPC Layout, Vijayanagar, Bengaluru. The present petitioner/Accused No. 1 and others are Directors of the company. After investment of said money, the authorities of the said company have neither issued any share nor repaid the invested amount and an enquiry, they alleged to have given vague and untenable excuses in order to shirk from responsibility and avoided payments with the sole intention of defrauding the complainant and several other investors. It is further alleged that, the petitioner/Accused No. 1 and other accused by colluding with their staff members were alleged to have diverted the entire funds to utilize the same for their personal use and not for the purpose for which the funds were collected from various other investors. In that context, a complaint came to be lodged against this petitioner/Accused No. 1 and others in the jurisdictional Police Station.
3. On the basis of the said complaint, a case in Crime No. 11/2022 came to be registered against the petitioner/Accused No. 1 and in that context, he was arrested and remanded to judicial custody. Hence, the petitioner/Accused No. 1 has approached the learned Sessions Judge with a bail petition seeking regular bail and that bail petition came to be rejected. Therefore, the petitioner is before this Court by filing a petition under Section 439 of Cr.P.C.
4. Heard the learned counsel for the petitioner/Accused No. 1 and the learned SPP-II, who appeared along with learned HCGP for the respondent/State. Perused the records.
5. Learned counsel for the petitioner/Accused No. 1 would contend that, the KPIDFE Act does not bar filing of any petition under Section 439 of Cr.P.C. and the petitioner has not challenged the order of rejection of his bail petition by the learned Special Judge. The learned counsel would also contend that, right of liberty under Article 21 of the Constitution of India is involved and under Section 16 of the Act, the right cannot be deprived. Hence, he would contend that, this Court is having concurrent jurisdiction under the provisions of 439 of Cr.P.C. and it can entertain this petition and the bar under Section 16 is not applicable.
6. Per contra, the learned SPP-II has seriously opposed the bail petition on the ground of its maintainability and invited the attention of the Court to Section 16 of the KPID Act. He would contend that the KPID Act is a special enactment and the provisions of the special enactment will prevail over general provisions. The learned SPP-II would also invites the attention of the Court towards intention of the Legislation in enacting the Special Act and scope and scheme of the Act and he would further assert that the intention of the Legislation is to protect the interest of the depositors. He would also invites the attention of the Court to Section 18 of the KPIDFE Act, which was having over-riding effect and as such, he would contend that, in view of over-riding effect under Section 18 of the KPIDFE Act and when there is an alternative remedy provided under the Act, the provis
