Karnataka High Court
Smt. Anupama W.M vs The State Of Karnataka on 20 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 134
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.7426/2019
BETWEEN :
1. Smt. Anupama W.M.
W/o Sri Rajesh N.T.
Aged about 38 years
2. Sri Rajesh
S/o Thimme Gowda
Aged about 42 years
Both are residing at No.202,
Silver Line, 5th Main, 4th Cross,
ITI Layout, Mallathahalli, Nagarabhavi,
Bengaluru-560 056.
Also at No.535, 9th Main,
M.C.Layout, Vijayanagar,
Benglauru-560 040.
... Petitioners
(By Sri Shaik Ismail Zabiulla, Advocate)
AND :
1. The State of Karnataka
by Gnanabharathi Police Station
Represented by State Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.
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2. Sri Yogendra Kumar G.J. S/o Javaregowda
Aged about 46 years
Residing at No.2140/A,
Ishwarya Nilaya, 31st Cross, 60 Feet Road,
'D' Group Poornachandra Layout
Srigandhakaval, Bengaluru-560 091.
Also at No.269, 9th 'A' Main,
4th Block, Nandini Layout,
Bengaluru-560 096.
... Respondents
(By Sri H.R.Showri, HCGP for R1;
Sri Dinesh Kumar K. Rao, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the PCR No.17591/2014 and
Criminal Case arise out of it in C.C.No.18445/2018 filed
against them for the alleged offences punishable under
Sections 418 and 420 r/w 34 of IPC, pending against
them on the file of IX Additional Chief Metropolitan
Magistrate, Bengaluru.
This Criminal Petition coming on for Admission this
day, the Court made the following:-
ORDER
This petition is filed by accused Nos.1 and 2 under Section 482 of Cr.P.C. praying to quash the proceedings in CC.No.18445/2018(PCR No.17591/2014), pending on the file of the IX ACMM, Bengaluru, for the offences punishable under Sections 418 and 420 r/w. Section 34 of IPC.
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2. I have heard the learned counsel for the petitioners-accused and the learned counsel for respondent No.2-complainant as well as the learned HCGP for respondent No.1-State.
3. Though this case is listed for admission, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
4. The factual matrix of the case is that a private complaint has been filed by respondent No.2 contending that by virtue of an agreement entered into between the petitioners-accused and the complainant, the complainant entrusted the work of construction of the house. The petitioners-accused without using the material as per the specification mentioned in the agreement, dated 29.8.2013 and by using the low quality material have constructed the building and within a short span of time there was deficiency of work and leakage in the building. The work has been done with an intention -4- to cheat the complainant-respondent No.2. On the basis of the complaint, the learned Magistrate took cognizance and issued the summons.
5. It is the submission of the learned counsel for the petitioners that respondent No.2-complainant has approached the Consumer Forum contending that there is deficiency of service by the accused and the ingredients of Sections 418 and 420 are lacking in the complaint itself and as such the complaint is not maintainable in law. It is his further submission that at the time of entering into transaction if there was any intention of the accused to cheat the complaint then only the learned Magistrate has to take cognizance and issue summons. In the absence of the same, the learned Magistrate has wrongly taken cognizance and registered the case for the offences punishable under Sections 418 and 420 IPC. In order to substantiate his arguments, he has relied upon the decisions in the case of India Brewery and Distillery Ltd., & others Vs. Shaw -5- Wallace and Company Ltd., reported in ILR 1999 KAR 1506 and in the case of M/s.Sharada Properties and Others Vs. Dr.Nirmal Kumar Misra and Another, reported in ILR 2001 KAR 3901. It is his further submission that initiation of the proceedings is civil in nature and it is nothing but an abuse of process of law. On these grounds, he prayed to allow the petition and to quash the proceedings against the accused-petitioners.
6. Per contra, the learned counsel for respondent No.2-complainant vehemently argued and submitted that from the inception itself the accused were having an intention to cheat and as such they have used the low quality material for construction and as such the offences punishable under Sections 418 and 420 are made out. It is his further submission that if the accused persons with dishonest intention induces and make any valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security and if he was having mens rea, then under such -6- circumstances it constitutes an offence punishable under Section 420 of IPC. It is his further submission that the trial Court after taking into consideration the said fact, has come to a right conclusion that the complainant has made out a case. Learned HCGP also submits that the learned Magistrate after taking into consideration the factual matrix of the case has rightly taken cognizance. On these grounds, they prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records, including the order of the trial Court.
8. I am not having any difference of opinion with regard to ratio laid down in the decisions mentioned supra. In catena of decisions, this Court as well as the Hon'ble Apex Court have been consistently held that if there was any intention of the accused to cheat the complaint then only the learned Magistrate is justified in -7- taking cognizance and registering the case. Whether the ingredients under Sections 418 and 420 of IPC attract or not, has to be ascertained by the learned Magistrate. The Court has to examine as to whether there are ingredients to attract Section 420, which are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 of IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant at the inception. This proposition of law has been also laid down by the Hon'ble -8- Apex Court in the case of Indian Oil Corporation. Vs. NEPC India Ltd. And Others, reported in (2006)6 SCC
736. In the said decision, it has been observed that if the allegations contained in the complaint, taken at their face value, on the facts constitute an offence under Indian Penal Code, then under such circumstances, the complaint cannot be quashed merely because it relates to a commercial transaction or breach of contract for which civil remedy is available or has criminal offence. A commercial transaction or dispute may also involve criminal offence. The principles relating to exercise of power by the Courts under Section 482 of Cr.P.C. to quash the complaint and criminal proceedings have been elaborately discussed in the said decision at paragraph- 12, which read as under:-
12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash -9- complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few--
Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agrawalla, Rajesh Bajaj v. State NCT of Delhi, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works Ltd. v. Mohd.
Sharaful Haque. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations.
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Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the
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complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out:
(a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
9. Keeping in view the ratio laid down in the aforesaid decision and on perusal of the order of the trial Court, though the trial Court has come to the conclusion that the offences have been made out, it has not
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elaborately discussed as to how the petitioners-accused were having any intention to cheat from the inception of the agreement. On going through the entire facts and circumstances of the case, I am of the considered opinion that the learned Magistrate without properly appreciating the facts and without looking into the material in a right perspective has passed the impugned order. In that light, the impugned order is not sustainable in law and the same is liable to be quashed.
In the light of the discussion held by me above, petition is allowed. The order of taking cognizance by the IX ACMM, Bengaluru, in CC.No.18445/2018(PCR No.17591/2014) for the offences punishable under Sections 418 and 420 r/w. Section 34 of IPC as against the accused-petitioners herein stands quashed. The matter is remanded back to the learned Magistrate to reconsider all the aspects and then take an appropriate decision in accordance with law as observed above.
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Consequently, I.A.No.1/2019 is disposed of as it does not survive for consideration.
Sd/-
JUDGE *ck/-