Karnataka High Court
Smt Abhinaya K vs State Of Karnataka on 14 June, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC:21369
CRL.P No. 9205 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 9205 OF 2021
BETWEEN:
1. SMT. ABHINAYA K
D/O KALEGOWDA,
AGED ABOUT 40 YEARS
2. SMT. RATHNA KALEGOWDA
W/O KALEGOWDA,
AGED ABOUT 65 YEARS
3. SMT. THRUPTHI K
D/O KALEGOWDA,
AGED ABOUT 37 YEARS
ALL THE PETITIONERS ARE R/AT
NO.29, IST B MAIN,
BEST COUNTY-2, M.S PALYA,
VIDYARANYAPURA POST,
Digitally signed by B BENGALURU-560097.
K
MAHENDRAKUMAR ...PETITIONERS
Location: HIGH
COURT OF
(BY SRI. SANDESH J. CHOUTA, SENIOR COUNSEL FOR
KARNATAKA SRI. K.V. MANOJ, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY VIDYARANYAPURA POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING COMPLEX,
2. ER. H. MANJUNATH
S/O ER. K. HANUMANTHAPPA,
NO.1108 - SHEELA SADANA,
NO.3, PRIYADARSHINI ESTATE,
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NC: 2024:KHC:21369
CRL.P No. 9205 of 2021
GOTTEGERE,
NEAR NICE TOLL NAKA,
BANNERGHATTA ROAD,
BENGALURU-560 083.
...RESPONDENTS
(BY SMT. M.M. WAHEEDA LEARNES,HCGP FOR R1;
SRI MANJUNATH H., R2 (PARTY-IN-PERSON))
THIS CRL.P IS FILED U/S. 482 CR.P.C., 1973 PRAYING TO SET
ASIDE THE ORDER PASSED BY THE IV ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU, DIRECTING THE I.O.
TO CONDUCT FURTHER INVESTIGATION, DATED 02.03.2021 IN
P.C.R.NO.2390/2021 ARISING OUT OF CR.NO.438/2017 OF
VIDYARANYAPURA POLICE STATION, FOR THE OFFENCE P/U/S
384, 420 R/W 34 OF IPC NOW PENDING ON THE FILE OF XLI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU.
THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Respondent No. 2 lodged a first information report (FIR) on 17.07.2017 with Respondent No. 1, alleging offenses punishable under Sections 34, 120B, 379, 384, 417, 418, 420, 426, 500, 504, and 506 of the IPC. The summary of the allegations in the FIR is as follows:
2. Due to a failed marriage and in order to gain custody of his minor daughter, Respondent No.2 enrolled as an Advocate in August 2014 and interned and practiced with a Senior Advocate named Sri CHH. He first saw Respondent No.2 with a grieving face and moist eyes whilst coming out of the Senior's cabin. His heart skipped a beat as he looked upon her as a South Indian princess, bemused and allured by her in October 2013. They regularly -3- NC: 2024:KHC:21369 CRL.P No. 9205 of 2021 communicated between October 2013 and April 2014 and had first met at Gopalan Mall.
3. Respondent No. 2 visited accused Nos.1 to 3 at a nursing home on an invitation to see the newborn baby girl of the accused No.3 and gifted them an exquisite Johnson and Johnson baby product. He treated accused No. 2 to a sumptuous breakfast at an AAB restaurant, and en route home, accused No. 2 insisted and performed her first physical activity on him.
4. Until April 2017, he spent several man-hours assisting accused Nos.1 to 3 and pursued cases on behalf of accused No.3 in various litigations arising from matrimonial disputes. Accused No.2 joined his Senior's office under the guise of an internship for two to three months in 2015, during which she engaged in various physical activities in the office. In November 2016, he took accused No.2 to Vikram Hospital, provided exemplary care, treated her to delightful food, and dropped her back home. He attended to the medical needs of the minor son of accused No.2 and also took accused No. 2 to Apollo Hospital for treatment.
5. Between April 2017 and June 2017, accused No.2 made false promises regarding friendship, love, and marriage.
Respondent No.2 treated her to exquisite food on more than 26 occasions, resulting in a financial loss of Rs.54,000/-. He also treated her to numerous movies, incurring an additional loss of Rs.21,000/-. Due to her false promises, he gifted her lingerie, kurtas, watches, etc., resulting in a further loss of Rs.30,000/-. He spent over Rs.50,000/- on travel and was defrauded into -4- NC: 2024:KHC:21369 CRL.P No. 9205 of 2021 purchasing law books worth Rs.5,000/-. He took accused No.2 and her children to various events, incurring a loss of Rs.14,000/-, and advanced her a cash loan of Rs.14,500/-.
6. Respondent No. 2 questioned accused No. 2 about her illicit liaisons with various men, ranging from a driver to a lawyer. Accused No.2 repeatedly lied and was unapologetic about her behavior but agreed to reimburse all the money he had spent on her till 19 June 2017. However, she defaulted on her promises, repeatedly cheated, dodged the agreed deadlines, absconded, cut off communication with the intent to defraud, and threatened him via SMS. On 27.06.2017, she gave him an envelope with a balance amount of Rs.92,000/- and argued about various issues, especially her rejoinder to her letter of apology. She refused to fulfill her promises and return his books. She defamed him before his ex- Senior and used him against him.
7. Therefore, the petitioners are accused of being prima facie guilty of criminal conspiracy with common intent, theft of Rs.92,000/-, extortion, cheating, criminal intimidation, and breach of peace. The police registered the FIR for offenses punishable under Sections 34, 384, and 420 of the IPC.
8. After investigation, the police submitted a 'B' report. Respondent No.2 filed a protest petition, and the learned Magistrate, after rejecting the 'B' report, directed further investigation. The present petition is filed against this directive.
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9. Sri Sandesh J Chouta, the learned Senior Counsel representing the petitioners, argued that the allegations against the petitioners arise from a strained relationship between petitioner- accused No.2 and respondent No.2. He contended that these allegations are being given a criminal texture with vengeful intent to wreak vengeance. According to him, the allegations against the petitioners do not satisfy the essential elements required to constitute the offences of cheating, theft and extortion. Therefore, in the absence of a prima facie case against the petitioners, the learned Magistrate erred in directing further investigation.
10. In contrast, respondent No.2, representing himself, argued that the allegations and the materials collected during the investigation clearly establish the commission of the offences alleged against the petitioners. Despite this, the police, acting with an ulterior motive, submitted the 'B' report based solely on the statements of accused Nos.1 to 3 and other witnesses. The learned Magistrate, recognizing these discrepancies and gaps highlighted in the protest petition, made a just decision to call for further investigation. According to respondent No.2, the materials collected during the investigation, when viewed alongside the allegations in the FIR, sufficiently disclose the commission of cognizable offences, thus justifying the need for further inquiry.
11. Respondent No. 2 also argued that the Court should not interfere with the ongoing investigation at this stage, especially when there are clear allegations disclosing commission of cognizable offences. He emphasized that the investigation should -6- NC: 2024:KHC:21369 CRL.P No. 9205 of 2021 be allowed to proceed to ensure that all relevant facts and evidence are thoroughly examined, and justice is served. In support, he places reliance on the following decisions:
1) State of Haryana and others -vs- Ch.Bhajan Lal and others - AIR 1992 SC 604 -
2) State of Karnataka -vs- M Devendrappa and another - (2002) 3 SCC 89.
3) Veena Mittal -vs- State of Uttar Pradesh & ors -
Criminal Appeal No.122/2022.
4) M/s.Neeharika Infrastructure Pvt. Ltd. -vs- State of Maharashtra - AIR 2021 SC 1918.
5) Central Bureau of Investigation -vs- Aryan Singh Etc. - Laws(SC)-2023-4-11.
12. The arguments presented by the learned Senior Counsel for the petitioner and the respondent, who represented himself, have been duly considered.
13. In the first information report (FIR) lodged by Respondent No.2, it is admitted that Accused No.2 made false promises regarding friendship, love, and marriage. Respondent No.2, in the FIR, has admitted that he has been a litigant since 2010 due to a failed marriage and ongoing custody battles for his minor daughter. He also mentioned that his estranged wife has foisted a dozen false cases against him, which led him to become an Advocate. Additionally, he stated that all the accused had failed marriages and that he attended to the medical needs of the minor son of Accused No.2, Master Nishal. The averments made in the -7- NC: 2024:KHC:21369 CRL.P No. 9205 of 2021 FIR clearly establish that the marriage of Respondent No.2 is still subsisting, as is the marriage of Accused No.2 and the other accused.
14. The police, in their final report, stated that Respondent No.2, being an Advocate well-versed in the law, intended to solemnize his marriage with Accused No.2 without obtaining a decree as to dissolution of dissolving his own marriage in MC No. 574/2010, despite being fully aware that Accused No.2 was married and had children. The report further noted that Accused Nos.1 to 3, upon noticing the character of Respondent No.2, distanced themselves, prompting Respondent No.2 to lodge the FIR with malicious intent.
15. To constitute the offence of cheating, the complainant must have parted with property based on a representation that the accused knew to be false, with the accused harbouring dishonest intentions from the beginning. In the FIR, there is no allegation, let alone a specific one, that Accused No.2, with the intention to cheat, induced Respondent No.2 to spend money on her for food, garments, entertainment, etc., by promising marriage. The only allegation is that Accused No.2 made false promises regarding love, friendship, and marriage. The essential element of deception from the inception is conspicuously absent, thus failing to constitute the offence of cheating.
16. To constitute the offence of extortion, a person must intentionally put the complainant in fear of injury and thereby induce the complainant to deliver any property. In this case, there -8- NC: 2024:KHC:21369 CRL.P No. 9205 of 2021 is neither any allegation, nor any material, to substantiate that Respondent No.2 was put in fear of injury, thereby being dishonestly induced to part with his property.
17. The allegation is that Accused No.2 made false promises regarding friendship, love, and marriage to defraud Respondent No.2 into spending money on her travel, food, etc. Even if these allegations are accepted at face value, they do not meet the essential elements required to constitute the offence of extortion.
18. In paras-29 and 30 of the protest petition, it is alleged as follows:
"29. I state that the Accused No. 2 defaulted on all her promises, repeatedly cheated me, dodged the agreed deadlines, absconded and cut off communications with the intention to defraud me of my legal dues hence I issued her a Legal Notice online on 239 June 2017. The same day the Accused No. 2 agreed to pay but once again tried to cheat me into a settlement by paying a part of the amount she had agreed upon. The Accused No. 2 also threatened me via SMS@1202 hours that "..... if you do not end this here I will have to write all that you have done to me and commit suicide with a letter to the police. your parents.. Senior chh. ..u will be responsible.." I refused any sort of settlement and walked away from the Hon'ble HCK. The Accused No. 2 kept harrassing me over phone and SMSes but I told her that an unconditional apology was the first prerequisite and I wouldn't accept anything else. Later in the afternoon she SMSed saying that she would comply with the unconditional apology and also pay the balance amount. We spoke again at 1700 hours and fixed a new deadline on 27th June 2017.
30. I state that on 27th June 2017, the Accused No. 2 gave me an envelope supposedly with the balance amount of Rs. 92,000/- but kept arguing with me on various issues -9- NC: 2024:KHC:21369 CRL.P No. 9205 of 2021 between us especially my Rejoinder to her Letter of Apology. She had some work in my Ex Senior CHH's Office and she joined me at about 1400 hours near Anandrao Circle so that I could safely drop her home. The journey to her house was a very painful one for me. I dropped the Accused No.2 in the road diagonally opposite to her house well before 1530 hours. After I reached home, I was very hurt by the unapologetic behaviour of the Accused No. 2. Later I SMSed her at about 2210 hours since I couldn't find both the Apology Letter and the Cash in the Car. The Accused No. 2 replied with taunts and I told her to study for her exams because it was any way her money so she could have just asked for it instead of stealing it from me."
19. The allegations made herein clearly establish that an unconditional apology from Accused No.2 was a prerequisite for reaching a settlement. Respondent No.2 admitted that Accused No.2 handed over an envelope containing the balance amount of Rs.92,000 and argued about the rejoinder to her apology letter. Respondent No.2 also stated that he sent a message to Accused No. 2 at approximately 22:10 hours on 27.06.2017, indicating that he could not find the apology letter and the cash in the car after dropping her off at her house.
20. In the extracted messages, Respondent No.2 reiterated that he could not find the apology letter and cash in the car. Accused No.2 replied, asserting that she had given them to him. Respondent No.2 then sent another message to Accused No. 2, stating that she had not sent the payment and apology letter, to which Accused No.2 responded that she had a copy of the acknowledgment. This acknowledgment, showing receipt of Rs.1,68,000, was collected during the investigation and formed part
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NC: 2024:KHC:21369 CRL.P No. 9205 of 2021 of the final report. Respondent No.2 alleges that this acknowledgment is fabricated and was produced for the first time to mislead the Court.
21. The respondent No.2 has made several perverse allegations against the accused No.2 at paras-25 and 28 of the protest petition, which read thus:
"25. I state that in the period from 24th June 2014 upto 27th june 2017, the Accused No. 2 made false promises to me with regards friendship, love, marriage, promises of being faithful to me life long, of being my trusted Associate in Law, of being my Best Friend etc. only to use me for getting her Orgasms to satisfy her physical fantasies in almost all rooms of her house, the ground floor, 1st floor, 2nd floor irrespective of whether we were alone or the little one Lakshu was present or all were present is mentioned apart from other places because jurisdictional police in Vidyaranyapura for Mahazar with regard to the penal offences.
28. I state that on 29th April 2017, I questioned the Accused No.2 on her illicit liaisons with a string of men ranging from a driver devraj to lawyer natraj, her reluctance to tie Rakhi to her so called brother in law one Surya@Suri, her Vaginal Infection on return from Hyderabad, Delhi trips wherein her shenanigans were captured in over 200 photographs etc. and I was oblivious of all these despicable character traits of the Accused No. 2. She repeatedly lied and was unapologetic of her behaviour. I had always treated all the three children in equity with all that I had done for them wasn't even done by the Accused No. 2 let alone the Accused Nos.1 & 3 or the other family members. I even considered investments to safeguard Nihal's future. I was primordially hurt that the Accused No.2 kept making false promises on Nihal's name which she would inevitably break causing harm to Nihal. Hence I had to undertake an
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NC: 2024:KHC:21369 CRL.P No. 9205 of 2021 exercise to make her realise her mistakes and correct her. It was agreed by her to reimburse me all the money I had spent on her till date by the 19th of June 2017."
22. The respondent No.2 had lodged FIR in Crime No.360/2018 before the Konanakunte Police Station against Mrs. Swathi and two others making similar allegations, and in the said FIR, he has stated that the accused No.1 viz: Swathi had engaged him to represent her in G&W No.8/2017 and accused No.2 are the illicit accomplices of the accused No.1, and the accused No.1 cheated and defrauded the complainant with respect to the professional fees and expenses payable to him. The police after investigation submitted `B' report stating that the allegations against the accused therein are not established. In the protest petition, it is alleged that the accused - Mrs.Swathi is having illicit liaison with the Investigating Officer.
23. The allegations made are not only perverse, but reflect the mindset of the respondent No.2, and are made to harm the reputation of the accused No.2 who is also an Advocate by profession.
24. The final report submitted by the police indicated that notices were issued to Respondent No.2 on 13.12.2017 and 16.02.2018 through registered post, and a notice was personally served on 31.05.2018 to furnish documents and the names of witnesses to substantiate the allegations against the accused. Despite these notices, Respondent No.2 did not provide any evidence or the names of witnesses. Consequently, due to a lack
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NC: 2024:KHC:21369 CRL.P No. 9205 of 2021 of sufficient evidence and witnesses, a charge sheet against the accused could not be submitted, and the dispute arose from a strained relationship.
25. The learned Magistrate, without verifying whether the allegations made in the protest petition, on their face, disclosed the commission of a cognizable offence, opined that the Investigating Officer had not collected documents or recorded statements from relevant persons to substantiate that Respondent No.2 habitually got close to people who visited his senior's chambers for extraneous considerations. Furthermore, the statement of Accused No.2 was not produced with the final report to substantiate that the apology letter was obtained under threat. As previously stated, Respondent No.2 did not respond to the notices issued by the Investigating Officer, who called upon him to produce documentary evidence and the names of witnesses to substantiate his allegations against the accused.
26. The Apex Court, in a series of cases, has held that where a criminal proceeding is manifestly attended with malafide or maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite the accused due to private and personal grudge, the High Court, in the exercise of its power under Section 482 of the CrPC, can intervene to prevent the abuse of the process of any Court or to secure the ends of justice.
27. In the present case, the FIR was lodged only after the alleged relationship between Accused No.2 and Respondent No.2
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NC: 2024:KHC:21369 CRL.P No. 9205 of 2021 became strained. The allegations arise out of this strained relationship, and even if accepted at face value, they do not satisfy the essential elements required to constitute the offences alleged against the petitioners. Therefore, further investigation directed against the petitioners would be an abuse of the process of law. Accordingly, I pass the following:
ORDER
i) The petition is allowed.
ii) The impugned order directing the Investigating Officer to conduct further investigation dated 2.3.2021 in PCR No.2390/2021 arising out of Cr.No.438/2017 of Vidyaranayapura Police Station passed by the learned IV Addl. Chief Metropolitan Magistrate, Bengaluru City, is hereby quashed.
Sd/-
JUDGE BKM