Karnataka High Court
Prabhakar H J vs State Of Karnataka on 16 June, 2020
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
CRIMINAL PETITION NO. 4436 OF 2018
BETWEEN:
PRABHAKAR H J
S/O JANARADHANA BHAT
AGED ABOUT 51 YEARS
PROPRIETOR,
SRI ANNAPOORNESHWARI CONSTRUCTIONS,
MAIN ROAD, KALASA,
MUDIGERE TALUK
CHIKKAMGALURU - 577124.
... PETITIONER
(BY SRI. T N RAGHUPATHY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
R/BY STATION HOUSE OFFICER,
LAKKAVALLI POLICE,
NOW BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BENGALURU - 560001.
2. THE CHIEF EXECUTIVE OFFICER,
ZILLA PANCHAYATH,
CHIKKAMAGALURU - 577 124.
...RESPONDENTS
(BY SRI. H R SHOWRI, HCGP FOR R1;
SRI. ASHOK NAIK, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C PRAYING TO QUASH THE FIR NO.48/2017 AND
CRIME NO.23/17 DATED 17.03.2017 REGISTERED BY THE
1ST RESPONDENT POLICE BEFORE THE ADDITIONAL CIVIL
JUDGE AND JMFC, THARIKERE, CHIKKAMAGALURU.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:-
2
ORDER
Petitioner being an accused in Crime No.23/2017 of Lakkavalli Police Station for the offences punishable u/s.420, 120-A, and 120-B r/w Sec.34 of IPC 1860 is invoking their Inherent Jurisdiction of this Court u/s.482 of Cr.P.C. 1973 seeking quashment of the criminal proceedings in question.
2. First respondent-State after service of notice has entered appearance through the learned AGA and the second respondent-Zilla Panchayat, Chikkamagalur is represented by its Panel Counsel.
3. Learned counsel for the petitioner submits that petitioner being the successful bidder in the public tender process having secured the works contract of Karakuchi & Belenahalli Projects has accomplished the job; the Department concerned having finalized the last Bill dated 30.03.2015 has conveyed the same to the petitioner; when this was the position the 2nd respondent vide letter dated 17.02.2017 complained to the Superintendent of Police, Chikkamagalur that the petitioner has received excess payment in a sum of Rs.3.79 crore by defrauding the Government without any particulars; this apart, the 3 alleged transaction is stated to have been spread over a period of eight years; the jurisdictional S.P. without any application of mind vide e-mail dated 07.03.2017 has directed the respondent-police to register the crime.
4. Learned counsel for the petitioner further submits that setting the criminal law in motion is a serious matter; where the FIR does not have a bare minimum fact matrix that would prima facie constitute an offence, it is nothing but abuse of process of law and therefore the proceedings in question are liable to be set at naught; learned counsel also takes the Court through the contents of the FIR dated 07.03.2017 and the letter dated 17.02.2017 addressed by 2nd respondent to the S.P. to substantiate his submission that the criminal proceedings in question have no legs to stand.
5. Learned AGA appearing for the respondent- Police and learned Panel Counsel representing the respondent-complainant vehemently oppose the petition making submission for sustaining the impugned criminal proceedings; both they contend that an FIR need not be like an encyclopedia of facts; if bare essentials of an offence are alleged, the Investigating Agency would 4 undertake the investigation and thereafter depending upon its outcome, further action would be taken, which may eventually turn out to the benefit of the accused also; ordinarily, inherent powers of the Court are not readily invokable and that the case of the petitioner does not fall within the class of rarest of rare cases; the amount involved being very huge, the case is investigation-worthy; so contending they seek dismissal of the petition.
6. Having heard the learned counsel for the parties and having perused the petition papers, it is inclined to grant relief to the petitioner for the following reasons:
(a) Section 415 of IPC, 1860 defines the offence of cheating; ordinarily, a person is said to cheat when he by deceiving another person fraudulently or dishonestly induces him to deliver any property/valuables or to retain the same; in order to bring home a case within the meaning of cheating, it is not sufficient to merely allege that a false representation had been made, but it should be stated that the representation was false to the knowledge of the accused and further that it was made in order to deceive the complainant; the offence of cheating enacted in Sec.420 involves an aggravated case of cheating qua the one as defined u/s.415; the offence of cheating 5 under Sec.420 of the Penal Code as defined in Sec.415 of the Code has two essential ingredients, viz. (i) deceit, ie., dishonest or fraudulent misrepresentation to a person, and
(ii) the inducing of that person thereby to deliver property(money); in other words, in order to constitute the offence of cheating it should be alleged that the accused deceived the complainant dishonestly inducing him to part with any property which he would not have parted but for the deception played on him; thus obviously dishonest intention on the part of the accused at the time of making the representation to the complainant is a sine qua non;
(b) the above being the brief view of law relating to the offence of cheating enacted in Secs. 415 & 420, let me see whether the allegations made in the letter dated 17.02.2017 addressed to the Superintendent of Police, Chikkamagalur by way of complaint has essential ingredients of the said offence; the letter in vernacular reads as under:
"«µÀAiÀÄ: aPÀ̪ÀÄUÀ¼ÀÆgÀÄ f¯Éè vÀjÃPÉgÉ vÁ®ÆèQ£À°è £ÀqÉ¢gÀĪÀ §ºÀÄUÁæªÀÄ PÀÄrAiÀÄĪÀ ¤Ãj£À AiÉÆÃd£ÉU¼ À À°è CªÀåªÀºÁgÀ ªÀiÁrgÀĪÀ UÀÄwÛUÉzÁgÀgÀ ªÉÄÃ¯É PÀÛªÀÄ PÉÊUÉƼÀÄîªÀ §UÉ.Î G¯ÉèÃR: D¢üÃPÀëPÀ D©üAiÀÄAvÀgÀ PÀbÉÃj vÀ¤SÁ ªÀgÀ¢ ¸ÀA.D.C/UÁæPÀÄ.¤Ã.&£Éå.ªÀÈ/ªÉÄʸÀÆgÀÄ/2016-17, ¢£ÁAPÀ: 26-10-2016.
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(c) the contents of the complaint does not mention anything about the offence of cheating except baldly stating that the contractor having received totally a sum of Rs.3.79 crore has defrauded the Government and therefore he should be immediately arrested for the offence of cheating; admittedly, it was a case of Works Contract; most of the bills have already been cleared in the preceding eight years, the last one being dated 30.03.2015; no statements of account or material particulars of payments have been made out as to how much work was done and how much money was paid and further how much is paid in excess of entitlement; these being the bare minimum of legal requirement, the absence of the same is concpisuous 7 in the complaint; it does not disclose any offence as rightly argued by petitioner's counsel; the Apex Court in STATE OF HARYANA vs. BHAJAN LAL, AIR 1992 SC 604 has laid down seven broad guidelines to keep in mind for treating a petition for quashment of criminal proceedings; guidelines (1), (2) & (3) read as under:
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused".
The case of the petitioner squarely falls within the parameters of above guidelines and therefore the criminal proceedings cannot be sustained against him.
7. There is also force in the submission of the learned counsel for the petitioner that setting the criminal law in motion being a serious matter, cannot be 8 permitted to be done casually; the Apex Court in PEPSI FOODS LTD. AND ANOTHER VS. SPECIAL JUDICIAL MAGISTRATE AND OTHERS, 1998 SCC (CRI) 1400 observed: "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course.............."
As already stated above, the tender for Works Contract having been accepted, some work has already been accomplished by the petitioner and that substantial amount is paid after clearing many bills, the last of them being dated 30.03.2015; the complaint dated 17.02.2017 itself states that eight years have lapsed and the work has not been fully accomplished; whether the amount has been received without accomplishing the work, can be a matter of civil dispute meant for adjudication by ordinary civil courts; such an allegation cannot be a subject matter of criminal complaint; there has been a lot of delay and no explanation is offered for brooking the same.
In the above circumstances, this petition succeeds and the proceedings arising from Crime No.23/2017 of Lakkavalli Police Station for the offences punishable 9 u/s.420, 120-A, and 120-B r/w Sec.34 of IPC 1860, are hereby quashed so far as the petitioner is concerned.
The observations herein above made being confined to the criminal case in question, shall not come in the way of the respondents taking up appropriate proceedings for the recovery of amount due, if any.
Sd/-
JUDGE cbc