SMT. DAKSHYAINI. B v. SUMITHRA R

3. Heard the learned counsel for the appellant and learned High Court Government Pleader for the State and perused the material available on record.

4. In the complaint lodged by Mahadevaswami K G he has alleged that one Shambulingu M., working as a teacher, induced him to open an account in a chit fund run by him in the name of his wife Smt.B.Dakshayini (accused) and upon his insistence, the complainant joined 3 chits. Accordingly every month he used to pay in total of Rs.30,000/- through cash to the accused and her husband. The first chit which commenced from 15.06.2019 and ended on 15.09.2022 and he paid Rs.10,000/- per month and paid the entire chit amount of Rs.5,00,000/- and for the 2nd chit which commenced from 12.01.2020, he has paid 32 installments of Rs.10,000/- each amounting to Rs.3,20,000/- and for the 3rd chit which commenced on

10.04.2022, he paid an amount of Rs.10,000/- each for 7 months amounting to Rs.70,000/- and paid in all - 4 - NC: 2024:KHC:10236 CRL.A No. 743 of 2023 Rs.8,90,000/- but later, he came to know that the said Shambulingu committed suicide. When he went and requested the accused to return the chit amount, the said accused without repaying the amount vacated the house and fled away etc.

5. It is alleged that the appellant and her husband collected huge amount from many depositors and from the proceeds, purchased properties in the name of their relatives and thereby cheated the complainant and other depositors etc.

6. The learned High Court Government Pleader contended that the appellant, her father and her brother have colluded with each other and persuaded the public to join the chit and received deposits from various persons and after collecting a huge amount, cheated them. He contends that in the present case the complainant has been cheated to the tune of Rs.8,90,000/-. He further contended that the petition preferred under Section 438 of Cr.P.C is not maintainable, since the accused have - 5 - NC: 2024:KHC:10236 CRL.A No. 743 of 2023 committed an offence under the KPIDFE Act and the learned Sessions Judge has rightly rejected the prayer seeking anticipatory bail referring to Section 18 (2) of the said Act.

7. The learned Sessions Judge relied on a decision of this Court in Shreesha Sasithota Prabhakaran Vs. The State of Karnataka in (Crl.P.No.9971/2022), Dated 10.11.2022 and rejected the prayer seeking anticipatory bail, observing that the provisions of Section 438 of Cr.P.C. are not applicable, since the KPIDFE Act has overriding effect, over all other provisions of Law. It is observed that, in this case, Section 9 of the KPIDFE Act, 2004 is invoked and therefore, the accused is not entitled for the grant of anticipatory bail, as the very petition is not maintainable in view of the clear bar under Section 18 (2) of the said Act.

8. One of the contentions raised by the learned counsel for the appellant is that Section 9 of the KPIDFE Act is not applicable to the case on hand, since the - 6 - NC: 2024:KHC:10236 CRL.A No. 743 of 2023 definition of “deposit” does not include the amount received by way of subscription, in respect of a chit. It is therefore contended by the learned counsel that the decision referred to by the learned Sessions Judge is not applicable and the learned Sessions Judge was not right in rejecting the petition seeking anticipatory bail holding that the same is not maintainable in view of Section 18(2) of the KPIDFE Act.

9. As per the definition of “deposit” provided under Section 2(2) (vii) of KPIDFE Act, a “deposit” does not include the amount received by way of subscription in respect of a chit. In the present case, the offence alleged under the KPIDFE Act is one under Section 9 of the said Act, i.e., any financial establishment fraudulently committing default in the repayment of ‘deposit’ etc. Hence, it cannot be said that a prima facie case is made out against the appellant, at this stage, which would attract the provisions of the said act. - 7 - NC: 2024:KHC:10236 CRL.A No. 743 of 2023

10. The allegations against the appellant are that she has cheated the complainant after receiving the chit subscription in a sum of Rs.8,90,000/- and then failed to return the said amount and further that the proceeds collected the complainant and similar other depositors were invested by acquiring various assets etc., in the name of father and brother of the accused.

11. A perusal of the complaint averments would reveal that one Shambulingu, working as a teacher, met the complainant and he insisted him to join the chit which was being run in the name of his wife i.e., the appellant. The said Shambulingu committed suicide on 03.11.2022. The allegations are that on coming to know about him committing suicide, when the complainant requested the appellant to return the matured amount, initially she promised that the amount would be returned, but later vacated the house and fled away and thereby cheated the complainant and similar other depositors. - 8 - NC: 2024:KHC:10236 CRL.A No. 743 of 2023

12. The prosecution has to establish it’s case in due course. The offences alleged are not punishable with death or imprisonment for life. During the pendency of this appeal, interim bail was granted to the appellant on

21.04.2023. It is submitted that the appellant has appeared before the Investigating Officer and executed the bond as specified in the order and co-operated with the investigation.

13. In the above facts and circumstances, the relief sought in this appeal can be granted by imposing necessary conditions. Accordingly the following: ORDER i) Appeal is allowed. ii) The order dated 03.03.2023 passed Crl.Misc.121/2023 by the Court of Prl.District and Sessions Judge at Mysuru is set aside. - 9 - NC: 2024:KHC:10236 CRL.A No. 743 of 2023 iii) The order dated 21.04.2023 granting interim bail to the appellant/accused is made absolute with further conditions as under: a. The appellant/accused shall be available for the purpose of investigation as and required co-operate with the investigation. b. She shall not tamper with the prosecution witnesses/evidence in any manner. c. She shall furnish proof of her residential address and shall inform the Investigating Officer/Court, if there is any change in the address. d. She shall be regular in attending the Court proceedings. SD/- JUDGE GSR List No.: 1 Sl No.: 23