Karnataka High Court
Dell International Services India ... vs The Police Sub-Inspector on 23 July, 2018
Equivalent citations: AIRONLINE 2018 KAR 696
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.3538 OF 2011
BETWEEN:
DELL INTERNATIONAL SERVICES
INDIA PRIVATE LIMITED
(FORMERLY KNOWN AS
DELL COMPUTER INDIA PRIVATE LTD)
HAVING ITS REGD OFFICE PRESENTLY AT
12/1, 12/2, 2A, 13/1A,
DIVYASHREE GREENS,
KORAMANGALA INNER RING ROAD,
DOMLUR POST,
BANGALORE 560071,
REP BY ITS AUTHORIZED REPRESENTATIVE
MR. SURESH RAMACHANDRA.
... PETITIONER
(BY SRI: K.R.KRISHNAMURTHY, ADVOCATE)
AND
1. THE POLICE SUB-INSPECTOR
VYALIKAVAL POLICE STATION
BANGALORE 560 003
2. MR M C CHANDRAIAH
MAJOR
S/O.CHANNAIAH
2
R/AT.NO.11, 6TH CROSS, 10TH MAIN
VASANTH APPA BLOCK, GANGANAGAR
BANGALORE 560 032.
3. MR. ADIKESHAVALU
S/O.LATE D K NAIDU
AGED ABOUT 69 YEARS
MANAGING TRUSTEE OF
M/S.SRINIVASA TRUST
NO.7/21, 1ST CROSS, 9TH MAIN
R M V EXTENTION,
BANGALORE 560080.
... RESPONDENTS
(BY SMT: NAMITHA MAHESH B.G., HCGP FOR R1
SRI: SHIJU ABRAHAM VERGHIS, ADVOCATE A/W
SRI: K.MANOHARACHAR, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH
THE PROCEEDINGS IN CRIME NO.183/10 PENDING BEFORE THE
RESPONDENT NO.1.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The petitioner has sought to quash the FIR in Crime No.183/2010 for the offences punishable under Sections 417, 420, 465 and 471 of IPC.
2. Heard Sri.K.R.Krishnamurthy, learned counsel appearing for the petitioner and Smt.Namitha Mahesh B.G, learned HCGP 3 for respondent No.1 and Sri.Shiju Abraham Verghis, learned counsel along with Sri.K.Manohar Achar appearing for respondent No.2.
3. Learned counsel for the petitioner at the outset submits that the dispute between the parties is purely Civil in nature. The petitioner- a Private Limited Company, was a tenant under respondent No.3. The petitioner had entered into an agreement of lease dated 29.09.2003 in respect of the said office premises. Pursuant of this agreement a sum of Rs.50,373,216/- was paid as security deposit. Towards repayment of security deposit, a separate agreement was entered into between the parties. There was another agreement, styled as Facilities and Amenities agreement. The petitioner issued a notice to respondent No.3 intimating his desire to vacate the above premises on 30.06.2008 and called upon the respondent No.3 to refund the security deposit received under the aforesaid lease agreement dated 29.09.2003. Respondent No.3 failed to refund the security deposit. Even though the petitioner was entitled to hold the premises until return of deposit as per the terms of the agreement, yet in view of the arbitration clause contained in the 4 lease agreement, arbitral dispute was raised. The petitioner approached this Court by making an application under Section 11(5) of the Arbitration and Conciliation Act, 1996, seeking appointment of a sole Arbitrator. Accordingly, order has been passed by this Court for appointment of a Sole Arbitrator on 14.12.2009. Even in the said application, the petitioner had disclosed the execution of aforesaid three agreements including the agreement for security deposit. Sole Arbitrator is seized of the dispute and arbitration proceedings are going on. Respondent No.3 expired on 24.04.2013.
4. Learned counsel submits that FIR is registered against the petitioner during the pendency of the arbitration proceedings with the sole intention to stall the arbitration proceedings and to compel the petitioner to agree to the unreasonable demands of respondent Nos.2 and 3. Placing reliance of the decision of the Hon'ble Supreme Court in the case of Sheila Sebastian V/s R.Jawaharaj and another reported in 2018 SCC online SC 522, learned counsel further submits that the allegations in the complaint do not make out of the ingredients of the offences alleged against the petitioner. The said complaint is filed against 5 the petitioner-Company but it does not contain any allegations whatsoever regarding the alleged forgery by the Company. The respondent No.3 during his life time did not file any complaint before the police alleging that his signature has been forged either by the petitioner-Company or by its Officers. FIR is lodged by respondent No.2, who is an employee of respondent No.3. In view of these defects, the FIR ought not to have been registered against the petitioner. The learned counsel has emphasized that in the absence of any allegations against any one of the Officers of the Company, the criminal action initiated against the petitioner is a sheer abuse of the process of Court. Thus the petitioner has sought to quash the entire proceedings.
5. Meeting the above arguments, Sri.Shiju Abraham Verghis, learned counsel for respondent No.2 submits that it is only after the service of notice in C.M.P.No.24/2009, the respondent Nos.2 and 3 came to know about agreements set up by the petitioner. These agreements are got up by playing fraud and forgery with an intention to cheat the petitioner and to wriggle out of the terms of the lease agreement entered into between the parties. The allegations made against the petitioner require investigation 6 and therefore, on the purported contentions, the proceedings cannot be quashed.
6. Having heard the learned counsels for the respective parties and on going through the records produced before the court, the only point that arises for consideration is, whether the criminal proceedings initiated against the petitioner amount to abuse of process of court warranting interference under section 482 of Cr.P.C.?
7. Undisputedly, the dispute between the parties arising out of the lease agreement is seized by the sole arbitrator appointed by this Court in C.M.P.No.24/2009. Learned counsels have made available the copy of the issues framed by the learned arbitrator which read as follows:
ISSUES
1. Whether the claimant proves that the respondent executed agreement for security deposit and agreement for amenities & facilities as alleged in para 4 of the claim statement?
2. Whether the claimant proves that it has vacated the demised premises on 30.06.2008 and retained the key by exercising option of retaining possession as per the terms 7 of the agreement by employing security men to take care of the said building and the respondent is liable to reimburse the expenditure incurred by the claimant as alleged in para 10 of the claim statement?
3. Whether the respondent proves that the claimant connived and cooked up documents as alleged in para 13 of the objection statement?
4. Does the claimant prove the service of notice dated 15.11.2008 and the postal acknowledgement?
5. Whether the claimant is entitled for refund of advance amount of Rs.4,53,40,462,82 with 18% interest as claimed?
6. Whether the respondent proves that the claimant has not vacated the premises and is still in its possession and the claimant is liable to pay a sum of Rs.10,35,32,602/- as on 11.07.2010 by way of counter claim?
7. What relief/s parties are entitled to?
8. What order or award?
8. As could be seen from the above, the issue relating to the existence and genuineness of the agreement for security deposit and agreement for amenities and facilities is pending determination of the Arbitrator. Both the parties admit that the arbitration proceedings are nearing completion. Learned counsel 8 for respondent No.2 has produced copies of the proceedings pending before the Arbitrator and the opinion of the handwriting expert. But, the matter having been seized by the sole arbitrator, it is not proper for this Court to express any opinion on the said question. On the other hand, since the criminal proceedings are arising out of the same dispute, both the proceedings cannot be allowed to be proceeded with simultaneously. Undeniably, any finding of the Arbitrator will have a direct bearing on the allegations of fraud and forgery levelled against the petitioner. In that view of the matter, I am of the opinion that the impugned proceedings cannot be continued during the pendency of the arbitration proceedings.
9. Even though the learned counsel for the petitioner has urged that there is inordinate delay in initiating the criminal proceedings against the petitioner in as much as existence of the above agreements had come to the knowledge of the respondent Nos.2 and 3 during the pendency of the C.M.P. proceedings, yet in view of the above observations, I do not intend to go into the said question. Likewise, the contention urged by the learned 9 counsel for the petitioner that no allegations are made against the Company so as to prosecute the Company/petitioner No.1 for the alleged offences, in my view, even the said issue cannot be gone into at this stage as I propose to reserve liberty to the respondent No.2 to revive the action depending on the ultimate result of the arbitration.
Hence, the following order:-
Criminal Petition is allowed. The further proceedings in Crime No.183/2010 are quashed, reserving liberty to respondent No.2 or any of his representatives in interest to revive the complaint allegations, depending upon the ultimate result of the arbitration proceedings.
Any observation made in this order will not influence the Arbitrator in any manner.
Sd/-
JUDGE SB.
Bss