Karnataka High Court
Sri Vikas Mohan Rathod vs State Of Karnataka on 11 July, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC:23935
WP No. 1254 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 1254 OF 2023 (GM-RES)
BETWEEN:
1. SRI VIKAS MOHAN RATHOD
AGED ABOUT 40 YEARS
S/O MOHAN RATHOD
RESIDING AT NO.4001
A LODHA BELLISSIMO
40TH FLOOR
N.M.JOSHI MARG
MAHALAKSHMI
APOLLO MILLS COMPOUND
MUMBAI - 400 001.
2. SMT.ALPA SAUMIL BHAVSAR
Digitally signed
AGED ABOUT 40 YEARS
by PADMAVATHI W/O SRI SAUMIL UPENDRA BHAVSAR
BK RESIDING AT NO. 26
Location: HIGH
COURT OF BHAVSAR HOUSE
KARNATAKA BEHIND PANKAJ SOCIETY
NEHRU ROAD
VAKOLA BRIDGE
MUMBAI -400 055.
BOTH ALSO AT
REGIONAL OFFICE
NO. 3504/A, 3RD FLOOR
14TH MAIN, HAL II STAGE
JEEVANBHEEMANAGAR
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NC: 2023:KHC:23935
WP No. 1254 of 2023
BENGALURU - 560 038.
...PETITIONERS
(BY SRI BHARATH KUMAR S., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY JEEVANBHEEMANAGAR POLICE STATION
REPRESENTED BY
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
ANNEX HIGH COURT BUILDING
BENGALURU - 560 001.
2. SRI VINESH N.,
S/O NAGENDRAPPA
AGED ABOUT 35 YEARS
R/AT VSS ELECTRICALS
NO. 140/C
4TH MAIN ROAD, 3RD STAGE
WOC ROAD
NEAR PARK, MANJUNATHANAGAR
RAJAJINAGAR
BENGALURU - 560 010.
...RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R-1;
SRI ABHISHEK M.R., ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C., PRAYING TO QUASH THE PRIVATE
COMPLAINT NO. 55656/2022, DATED 27.07.2022 PENDING ON
THE FILE OF X ADDL CHIEF METROPOLITAN MAGISTRATE, AT
BENGALURU (ANNEXURE - A) AND ETC.,
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NC: 2023:KHC:23935
WP No. 1254 of 2023
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners are before this Court calling in question proceedings in Crime No.263 of 2022 which arise out of a private complaint in PCR No.55656 of 2022 for offences punishable under Sections 506, 341, 504, 120B, 420 and 34 of the IPC.
2. Heard Sri. Bharath Kumar S., learned counsel appearing for petitioners, Sri Mahesh Shetty, learned High Court Government Pleader appearing for respondent No.1 and Sri Abhishek M.R., learned counsel appearing for respondent No.2.
3. Petitioners have a transaction with the 2nd respondent. The transaction is with regard to certain works to be completed and the dispute in those works leads to several proceedings sought to be initiated by the petitioners against the 2nd respondent and by the 2nd respondent against the petitioners. The petitioners seek to register a crime before the jurisdictional -4- NC: 2023:KHC:23935 WP No. 1254 of 2023 police which ends up in drawing up a non-cognizable report and in the complaint so registered by the 2nd respondent it appears that the police have shown some indulgence. All those are the facts that are narrated in the petition.
4. The 2nd respondent/complainant then registers a private complaint in PCR No.55656 of 2022 invoking Section 200 of the Cr.P.C. contending that the petitioners have indulged in cheating, wrongful restraint of the complainant, criminal intimidation and criminal conspiracy as is obtaining under Sections 420, 341, 504, 506 and 120B and 34 of the IPC. Learned Magistrate, on the private complaint, refers the matter for investigation to the jurisdictional police, it then becomes a crime in crime No.263 of 2022 for the aforesaid offences. The moment the crime is registered, the petitioners are before this Court calling in question the very registration of crime. This Court having entertained the petition has interdicted further investigation against the petitioners. Therefore, the investigation has been stalled since then. The interim order so granted is in subsistence even as on date. -5-
NC: 2023:KHC:23935 WP No. 1254 of 2023
5. Learned counsel appearing for petitioners taking this Court through the complaint so registered by the 2nd respondent would contend that a matter which is purely contractual in nature is sought to be given a colour of crime by registering a private complaint. Learned Magistrate, according to the learned counsel, ought not to have referred the matter for investigation, as no ingredients of any of the offences alleged were even found in the complaint. He would seek quashment of registration of the crime.
6. Learned counsel for the 2nd respondent/complainant would refute the submissions to contend that the petitioners, who had a transaction of certain works, ought to have shared the profit with the complainant in terms of what was agreed. Several times the complainant has asked the petitioners to share the amount that was to be given to him. That having not been done, left with no choice, the complainant has registered a private complaint seeking the amount that is to be paid by the petitioners. He would submit that investigation is yet to complete, the Court should permit investigation and further proceedings in the least and seeks dismissal of the petition. -6-
NC: 2023:KHC:23935 WP No. 1254 of 2023
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts are not in dispute. They lie in a narrow compass. The complainant was engaged to execute two projects of electrical contracts, one in Karnataka and one in Kerala. Both these are referred to as 2 sites. In both these sites, the works are said to be short completed by the complainant and therefore, the amount is not paid to the complainant. In turn, the complainant takes this Court through the objections filed to the petition to demonstrate that the work is completed and despite the work being completed, the petitioners have not paid the amounts that is due to the complainant.
9. What would emerge in terms of the aforesaid submission is that, there is a dispute between the petitioners and the 2nd respondent regarding payment of money and in that regard, private complaint is filed by the 2nd respondent seeking recovery of that money. Since the entire issue now -7- NC: 2023:KHC:23935 WP No. 1254 of 2023 springs from the private complaint, I deem it appropriate to quote certain paragraphs of the private complaint for the purpose of quick reference:
".... .... ....
5. The Complainant submits that after getting the contract, the Complainant has started the works along with his labourers. During the work progress, the accused persons have paid some amount to the Complainant. Thereafter, the Complainant has completed the works within the agreed period and requested the accused persons to pay the balance amount of Rs.7,70,522/-, but the accused went-on postponing the time for one or the other reason. But, failed to pay the balance amount.
6. The Complainant submits that the Complainant several times requested and demanded the accused to pay the balance amount, but the accused refused to pay the same. That on 29.06.2022, the Complainant went near the aforesaid ENSEMBLE INFRASTRUCTURE INDIA LTD., and requested the accused persons to pay the balance amount towards the completion of the aforesaid works. At that time, the accused have refused to pay the same, instead of which, they all abused the Complainant in filthy language and threatened the Complainant with dire consequences to his life and limbs and also told that if once call over phone, they will do away with his life. The Complainant got feared and worried about his money. Moreover, the Complainant ought to disburse the salaries to his Labours / Employees who were discharged the works with the Complainant.
7. The Complainant submits that immediately on 29.06.2022 went to the jurisdictional Police Station and lodged Police Complaint, but the police -8- NC: 2023:KHC:23935 WP No. 1254 of 2023 have not received the Complaint. That on the same day i.e., on 29.06.2022 lodged complaint before the Commissioner of Police, Infantry Road, Bengaluru and the office have issued acknowledgement for having received the complaint. But, the jurisdictional police have not taken suitable action against the accused and rendered proper justice to the Complainant in accordance with law.
8. The Complainant submits that the accused are highly influential persons having man, money and muscle power and also political influence and therefore the jurisdictional police till today have not taken suitable action against the, but not rendered proper justice to the Complaint.
9. The Complainant submits that without alternative approached this Hon'ble Court seeking for necessary relief in the above matter and this Hon'ble Court has got jurisdiction to entertain the complaint and render proper justice to the complainant in accordance with law in the above matter.
10. For the above said act the Accused Nos.1 to 3 has committed the offences punishable u/s.420, 341, 504, 506, 120(B) r/w. sec.34 of IPC."
(Emphasis added) The complainant demands that the petitioners have to pay the complainant balance of Rs.7,70,522/- for the works that have been completed and that is the share the complainant seek from the hands of the petitioners. In fact, the petitioners also admits that it is the share that the complainant is entitled to. Therefore, if the complainant is wanting to recover any amount from the hands of the -9- NC: 2023:KHC:23935 WP No. 1254 of 2023 petitioners/accused, setting the criminal law into motion is not the remedy, as held by the Apex Court in plethora of judgments. The Apex Court in the case of SARABJIT KAUR v. STATE OF PUNJAB AND ANOTHER reported in 2023 SCC OnLine SC 210 has elucidated the principles with regard to setting the criminal law in motion by the several pleadings for recovery of money.
10. The offences that is alleged against the petitioners is the one punishable under Section 420 of the IPC. For an offence to become punishable under Section 420 of the IPC, its ingredients as found in Section 415 of the IPC are necessary to be present in a transaction. The transaction between the parties is a works contract between them. If the works contract is a mutually agreed contract, the question of deception on the victim/complainant by the petitioners right from the beginning of the transaction cannot be laid, as the key ingredient for an offence under Section 415 of the IPC is deception from the beginning. Therefore, Section 420 of the IPC cannot be laid against the petitioners.
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11. The only offence that remains is Section 341 of the IPC. For an offence to become punishable under Section 341 of the IPC, the ingredients as obtaining under Section 339 of the IPC is necessary to be present. Section 339 of the IPC reads as follows:
"339. Wrongful restraint - Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Exception.--The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section."
In terms of Section 339 of the IPC (supra) for a wrongful restraint to be proved, the foundation should be that the person against whom such wrongful restraint is made should not be permitted to move around in any direction. That is not the issue in the case at hand. The complaint narrates that when he wanted to step into the office of the accused he was stopped and not let in. This is not wrongful restraint as obtaining in Section 339 of the IPC for it to become an offence. The Apex Court in the case of KEKI HORMUSJI GHARDA V.
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NC: 2023:KHC:23935 WP No. 1254 of 2023 MEHERVAN RUSTOM IRANI1 has delineated as to what would amount to wrongful restraint under Section 341 of the IPC. The Apex Court holds as follows:
"12. "Wrongful restraint" has been defined under Section 339 IPC in the following words:
"339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Exception.--The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section."
The essential ingredients of the aforementioned provision are:
(1) Accused obstructs voluntarily; (2) The victim is prevented from proceeding in any direction;
(3) Such victim has every right to proceed in that direction.
13. Section 341 IPC provides that:
"341. Punishment for wrongful restraint.--Whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both."
14. The word "voluntary" is significant. It connotes that obstruction should be direct. The obstructions must be a restriction on the normal movement of a person. It should be a physical one. They should have common intention to cause obstruction."
1 (2009)6 SCC 475
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NC: 2023:KHC:23935 WP No. 1254 of 2023
12. In the light of the judgments of the Apex Court quoted (supra) and also in view of none of the facts meeting the ingredients that are necessary to drive home the offences as alleged, permitting further proceedings against the petitioners would amount to abuse of the process of law and result in miscarriage of justice.
13. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Impugned proceedings in Crime No.263 of 2022 (PCR No.55656/2022) pending before the X Additional Chief Metropolitan Magistrate, Bengaluru stands quashed qua the petitioners.
Consequently, I.A.No.2 of 2023 also stands disposed.
Sd/-
JUDGE BKP List No.: 1 Sl No.: 46