Karnataka High Court
Sri Naresh Kumar vs State Of Karnataka on 2 December, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
CRL.P. NO.8003 OF 2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.8003 OF 2019
BETWEEN:
1. SRI. NARESH KUMAR
S/O SHRI. PRADEEP CHAND
AGED ABOUT 28 YEARS
ASSISTANT MANAGER (MARKETING)
S.K.BIKES PVT. LTD.
D-233, 234, 235
FOCAL POINT, PAHSE-7
LUDHIANA-10
PUNJAB.
2. SRI. RAJESH KAPOOR
S/O LATE SH. ROSHANLAL KAPOOR
AGED ABOUT 48 YEARS
DIRECTOR
S.K.BIKES PVT. LTD.
D-233, 234, 235
FOCAL POINT, PAHSE-7
LUDHIANA-10
PUNJAB. ... PETITIONERS
(BY SRI.C.R. RAGHAVENDRA REDDY, ADVOCATE)
AND:
1. STATE OF KARNATAKA
TOWN POLICE STATION
DODDABALLAPURA-561203
BENGALURU RURAL DISTRICT
REP BY STATION HOUSE OFFICER
REP. BY SPP HIGH COURT OF KANRATAKA
BANGALORE
CRL.P. NO.8003 OF 2019
2
2. SRI. WASIM AHMED
S/O MOHAMMED SARDAR
AGED ABOUT 35 YEARS
CYCLE MECHANIC
RESIDING AT NO.421
NEAR KALLINAANE, THYAGARAJANAGAR
DODDABALLAPURA TOWN-561203
BENGALURU DISTRICT. ... RESPONDENTS
(BY SMT. NAMITHA MAHESH, HCGP FOR R1)
* SRI.S.H.RAGHAVENDRA, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C, PRAYING TO QUASH/ SET ASIDE THE ORDER
DATED 19.07.2019 PASSED BY THE LEANED ADDITIONAL CIVIL
JUDGE AND JMFC AT DODDABALLAPURA TAKING
COGNIZANCES OF THE COMPLAINT IN C.CNO.846/2019 AND
ISSUE OF SUMMONS TO THE PETITIONER AS PER ANNEXURE-A
AND ETC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for quashing of the proceedings in C.C.No.846/2019 pending on the file of Additional Civil Judge and JMFC at Doddaballapura.
2. A complaint came to be filed by respondent No.2 alleging that there was an agreement between respondent No.2 and the petitioners to assemble, transport and deliver cycles to various * Corrected vide chambers order dated 28.12.2020 CRL.P. NO.8003 OF 2019 3 schools in four districts of State of Karnataka at a cost of Rs.122/- for each bicycle to assemble and deliver.
3. In the complaint, it is alleged that the petitioners have cheated respondent No.2. They never had any intention to make any payment of monies inasmuch as though work was done by respondent No.2, the payments were not released on time. It is claimed that respondent No.2 has assembled and delivered nearly 83,000 cycles to various government schools whereas the payments relating thereto has not been made. On that basis, a Crime No.113/2017 was registered by Doddaballapura Police Station and on investigation, a charge sheet has been laid on 30.05.2019. It is this charge sheet that the petitioners are assailing in these proceedings.
4. In the charge sheet laid, upon investigation, there are charges levelled against the accused CRL.P. NO.8003 OF 2019 4 Nos.1 and 2 indicating that prima facie there are offences committed by the petitioners as alleged by respondent No.2.
5. Sri.C.R.Raghavendra Reddy, learned counsel for the petitioners would submit that at the most the dispute between the petitioners and respondent No.2 is civil in nature. If at all, it is only a claim for money by respondent No.2 against the petitioners as regards which a suit for recovery would be the proper and necessary remedy to be resorted to by respondent No.2. Respondent No.2 is misusing and abusing the process of criminal law by initiating criminal proceedings so as to pressurise the petitioners to succumb to the demands of the respondent No.2. In this regard, he relies on the following decisions:
a. Crl.A No.217/2020 [Akhtar Shakeel vs. State of Uttar Pradesh and others] CRL.P. NO.8003 OF 2019 5 [Supreme Court] more particularly Para mentioned at Pages 4 and 5 "The allegations on the face of it reveals a contractual relationship between the parties in pursuance of which the respondent made supplies of carpets on credit. The respondent then received payment which was short and incomplete. The FIR was then lodged nearly nine years later in 2017. The complaint does not allege that the appellant had any dishonest intention from the inception of the business relationship to cheat the respondent by not making full payment for the goods supplied or misappropriate any payment received from the American purchaser by breach of trust by dishonest misappropriation. The mere use of words "mala fide" and "mischievous intention"
cannot constitute a criminal offence in absence of any imputation of mens rea. Merely stating that the appellant had acted fraudulently and mischievously by retaining the amount stated to have been paid by the American Company and not transferring it to the complaint at best makes out a case for failure to make full payment of the goods supplied and which constitutes a purely civil money claim".
b. Crl.A No.834/2017 [The Commissioner of Police and others vs. Devender Anand and others] [Supreme Court] Para 4 thereof "4. Having heard the learned counsel appearing on behalf of the parties at length and considering the material on record, we are of the opinion that the criminal proceedings initiated by respondent No. 1 - original CRL.P. NO.8003 OF 2019 6 complainant is nothing but an abuse of the process of law for settling a civil dispute. 4.2 It is required to be noted that after having come to know that the property was mortgaged with the Andhra Bank, the original complainant himself paid the mortgage money and got the mortgage redeemed. Not only that, thereafter, he got the sale deed executed in his name. Thereafter also, he filed the complaint with the learned Magistrate, being an application under Section 156(3) of the Cr.P.C., which came to be rejected by the learned Magistrate, vide order dated 27.03.2015. The said order was not assailed by the complainant. It appears that thereafter he filed a private complaint under Section 200 Cr.P.C. which was pending before the learned Magistrate. Despite the above, he filed a writ petition before the High Court, which is nothing but an abuse of the process of law. The criminal proceedings have been initiated by the original complainant to settle the civil dispute. Therefore, in the facts and circumstances of the case, the Investigating Officer and other police officers were justified in not registering the FIR and in coming to the conclusion that the complaint be filed. The earlier opinion on preliminary inquiry was never placed before the DCP. Thereafter, on thorough investigation/inquiry and considering the facts and circumstances of the case narrated hereinabove, when it was opined that the dispute between the parties is of a civil nature, the High Court ought not to have issued further directions. The High Court ought to have closed the proceedings. Not only the High Court has issued further directions, but even has imposed costs and an action against the appellants 3 to 5 herein which, in the facts and circumstances of the case, is not sustainable".
CRL.P. NO.8003 OF 2019 7 c. Crl.A Nos.313-314/2000 [Hridaya Ranjan P D Verma and others vs. State of Bihar and others] [Supreme Court] Para 17 thereof "Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under section 420 IPC and its allied offences under sections 418 and 423 has not been made out. So far as the offences under sections 469, 504 and 120B are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana & Ors. v. Bhajan Lal and Ors. (Supra) and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in complaint. All that the respondent No. 2 has alleged against the appellants is that they did not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make the respondent No. 2 part with property is not alleged expressly or even impliedly in the complaint. Therefore the core postulate of dishonest intention in order to deceive the complainant-respondent no.2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered CRL.P. NO.8003 OF 2019 8 view, an abuse of process of the court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same".
6. Learned counsel for the petitioners would submit that on account of respondent No.2 pressurizing the petitioners, they have called respondent No.2 to their office at Ludhiana and at the instance of respondent No.2, a further amount of Rs.30,00,000/- including GST amount were made. Based on all the above, he submits that the proceedings ought to be quashed.
7. Per contra, Sri.S.H.Raghavendra, learned Counsel for respondent No.2 would submit that the petitioners have always had an intention not to make payment of amounts to respondent No.2. Therefore, the offence punishable under Section 420 are made out inasmuch as respondent No.2 has supplied 83,000 cycles to various government schools for which the CRL.P. NO.8003 OF 2019 9 payments are to be made. He further refers to the statements made in para 3 of the petition wherein the petitioners have alleged that only 28,995 cycles have been assembled and supplied for which only an amount of Rs.35,37,390/- is payable by the petitioners which the petitioners claim that the said amounts have been paid. However, as per the account statement produced by respondent No.2, a total of nearly Rs.62,00,000/- had been paid by the petitioners to respondent No.2. Relying on the same, he submits that if at all the claim of the petitioners itself is that the total amount due is Rs.35,37,390/-, a sum of Rs.62,00,000/- would not have been paid. On this ground, he submits that the petitioners are making false statement before this Court and are seeking to abuse the process of this Court. He submits that the investigation having been completed and charge sheet having been laid, CRL.P. NO.8003 OF 2019 10 there being prima facie evidence as regards the involvement of the petitioners in the offence as alleged against them, this is not a fit case for this Court to exercise the powers under Section 482 of Cr.P.C.
8. Heard the learned counsel for the petitioners and the learned Counsel for the respondents and perused the records.
9. Though it has been contended by the learned counsel for the petitioners that the criminal proceedings have been misused and the petitioners are forced to face the criminal proceedings when the matter is civil in nature, I am of the considered opinion that on perusal of the documents, which had been filed, the same would not be the case which shall be explained shortly.
CRL.P. NO.8003 OF 2019 11
10. The learned counsel for the petitioners has relied upon the decision of AKHTAR SHAKEEL's case (supra) to contend that when there is a contractual relationship between the parties and supplies have been made, there cannot be an imputation of dishonest intention or mischievous intention. In the very same decision, the Apex Court while coming to a decision on the matter on hand has taken into account the fact that the complaint had been filed nine years from the date on which the transaction happened and also the fact that the payments were being made by the accused from time to time to the complainant. Therefore, it was held that the claim of monies is civil in nature and criminal prosecution cannot be initiated.
11. In the present case the facts are slightly different inasmuch as the petitioners in the petition itself has stated that only 28,995 CRL.P. NO.8003 OF 2019 12 bicycles has been assembled and supplied for which total amount payable was Rs.35,37,390/- whereas the payment made itself is around Rs.62,00,000/-. This in my considered opinion would negative the contention of the petitioners making the said contention unbelievable.
12. If at all it was only Rs.35,37,390/- payable, the petitioners would not have paid Rs.62,00,000/- on account of a complaint being filed by respondent No.2 and/or for the reasons that the petitioners wanted to conduct business in the State of Karnataka. It is not expected that any businessman would pay double the amount than what it is due for that purpose. Per contra, the statement made by respondent No.2 is that 83,000 cycles have been assembled and supplied is more believable for the reason that there are invoices which are produced to that CRL.P. NO.8003 OF 2019 13 effect and it matches with the payments which have been made leaving the balance unpaid.
13. Be that as it may. This Court is concerned not with the payment or otherwise but whether there was any intention from the inception on the part of the petitioners not to make payment to respondent No.2 thereby amounting to offence of cheating.
14. The fact that the petitioners themselves have stated a lesser number of cycles and lesser amount but paid a larger amount and as also the fact that even those payments were made even after supply of bicycles would indicate that the petitioners waited for the respondent to supply the cycles before they stopped making payments.
15. The contention of the respondent No.2 is that part payments were made so as to prevail upon CRL.P. NO.8003 OF 2019 14 the respondent No.2 to continue the work is more believable at this stage and therefore, there is an element of probability that the petitioners always wanted to not to make payment of the amount due as and when they were due.
16. The charge sheet having been laid if at all the petitioners were to contend that only so many cycles were assembled and delivered for which payments have been made by them, the same would be subject matter of trial, which could be placed before the trial Court and taken note of by the said Court while adjudicating the matter.
17. Similar would be the situation in respect of respondent No.2 who would also be required to place records as regards number of cycles assembled and delivered more so when the cycles had been delivered to government schools on a government contract.
CRL.P. NO.8003 OF 2019 15
18. The decisions in DEVENDER ANAND and HRIDAYA RANJAN P.D.VERMA stated supra, are also to the similar effect that when there are civil disputes, criminal proceedings cannot be initiated and ought to be quashed.
19. As discussed relating to the facts, it cannot be said with certainty that the disputes between the petitioners and respondent No.2 are purely civil in nature. As discussed above, the charge sheet having been already laid implicating the petitioners, there is nothing on record which would show or would categorically establish that the disputes are civil in nature.
20. For the aforesaid reasons the said decisions being not applicable to present facts as also for the reasons aforestated, the petition as filed is dismissed.
CRL.P. NO.8003 OF 2019 16
21. The observations made herein are only for the purpose of consideration of 482 petition. The trial Court shall consider and dispose of the matter on merits in accordance with law uninfluenced by the observations made herein.
Sd/-
JUDGE Prs*