Karnataka High Court
Raju Krishna Shedbalkar vs State Of Karnataka on 12 July, 2021
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JULY 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.P NO 100898 OF 2020
BETWEEN
1. RAJU KRISHNA SHEDBALKAR,
S/O KRISHNA S. SHEDBALKAR (KAMBLE),
AGED ABOUT: 38 YEARS,
R/AT: RAMATHEERTHA NAGAR,
NEAR GANESH CIRCLE, BELAGAVI,
BELAGAVI CITY-590015.
2. CHABUTAYI KRISHNA SHEDBALKAR,
W/O KRISHNA S. SHEDBALKAR (KAMBLE),
AGED ABOUT: 60 YEARS,
R/AT: RAMATHEERTHA NAGAR,
NEAR GANESH CIRCLE, BELAGAVI,
BELAGAVI CITY-590015.
3. SAVITREE KAMBLE W/O NANDAKUMAR KAMBLE,
AGED ABOUT: 45 YEARS,
R/AT: RAMATHEERTHA NAGAR,
NEAR GANESH CIRCLE, BELAGAVI,
BELAGAVI CITY-590015.
4. SANGEETA AMIT MALAGE,
W/O AMIT MALAGI,
AGED ABOUT: 42 YEARS,
R/AT: KAGAL, KOLHAPUR,
MAHARASHTRA-416216.
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5. SANJU KRISHNA SHEDBALKAR,
S/O KRISHNA S. SHEDBALKAR (KAMBLE),
AGED ABOUT: 43 YEARS,
R/AT: RAMATHEERTHA NAGAR,
NEAR GANESH CIRCLE, BELAGAVI,
BELAGAVI CITY-590015.
6. SANDYA SUNIL KOLKAR W/O SUNIL KOLKAR,
AGED ABOUT: 39 YEARS,
R/AT: RAMATHEERTHA NAGAR,
NEAR GANESH CIRCLE, BELAGAVI,
BELAGAVI CITY-590015.
.....PETITIONERS
(BY SRI SHIVAPRASAD SHANTANAGOUDAR, ADV.)
AND
1. STATE OF KARNATAKA
MALA MARUTHI POLICE STATION,
MARKET SUB-DIVISION,
BELAGAVI CITY,
REPRESENTED BY:
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD.
2. MS.SUSHMITA D/O GOPAL KAMBLE,
AGED ABOUT: 29 YEARS,
R/O: EWS 332/333,
ASHOK NAGAR,
BELAGAVI-590016.
.....RESPONDENTS
(BY SRI RAVINDRA NAIK, HCGP FOR R-1
SRI DINESH M. KULKARNI, ADV. FOR R-2)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASH THE FIR AND COMPLAINT AND ALL PENDING AND
FURTHER PROCEEDINGS PURSUANT TO THE REGISTRATION OF THE
FIR REGISTERED BY THE RESPONDENT POLICE IN MALAMARUTHI
POLICE STATION, IN CRIME NO.64/2020 ON THE FILE OF THE JMFC
II-COURT, BELAGAVI, FOR THE OFFENCES P/U/S 406, 417 & 420 R/W
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SEC. 34 OF IPC. I.A.NO.01/2020 FOR STAY: I.A.NO.01/2020 IS FILED
U/S 482 OF CR.P.C. SEEKING TO STAY ALL THE FURTHER
PROCEEDINGS PURSUANT TO THE REGISTRATION OF THE FIR IN
CRIME NO.64/2020 FOR THE OFFENCES P/U/S 406, 417 & 420 R/W
SEC. 34 OF IPC, PENDING ON THE FILE OF THE JMFC II-COURT,
BELAGAVI.
THIS PETITION COMING ON FOR ADMISSION, ON THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Though the matter is listed for admission, with the consent of learned counsel for parties, it is taken up for final disposal.
2. Petitioners/accused Nos.1 to 6 are before this Court seeking to quash the first information report along with the complaint registered in Crime No.64/2020 of Malmaruti Police Station for the offences punishable under Sections 406, 417 and 420 read with Section 34 of Indian Penal Code, 1860 (for short, 'IPC') now pending before the learned II Addl. J.M.F.C., Belagavi (for short, 'trial Court').
3. For the sake of convenience, the parties in this petition are referred to as per their status and ranking before the trial Court.
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4. Brief facts of the case are that the informant Sushmita Kamble i.e., respondent No.2 herein lodged the first information with Malmaruti Police against the accused Nos.1 to 6 stating that she is a M.Tech graduate and was working as Lecturer in NITK Suratkal. Since her elders were searching for a groom, accused No.1 visited the house of the informant on 15.12.2019 along with his family members and again his family members visited the house of informant on 29.12.2019. On 26.01.2020, it was informed to the father of the informant that accused have agreed for the marriage of accused No.1 with the informant. Thereafter accused No.1 and the informant were in touch over phone. On 09.02.2020, their engagement was performed in the house of the informant and on the same day a 'yadi' was prepared. According to which, 40 grams gold ornaments and Rs.15,000/- towards the clothes is to be given to accused No.1 and as per his direction, the marriage is to be performed on 27.04.2020 in Vidyadhiraj Sabha Gruha, Ramanagar, Belagavi. Accordingly, the said hall was booked by -5- paying an advance of Rs.75,000/-. Rs.15,000/- was paid to the accused No.1 towards the clothes to be purchased for him.
5. It is stated that accused No.1 used to message to the informant and was also talking over phone. He also sent a copy of the marriage invitation card though Whats App. He insisted the informant to purchase a kancheevaram silk saree and accordingly, informant along with her family members went to Kanchi and purchased a silk saree. For which, an amount of Rs.20,500/- was paid by the accused. On 08.03.2020, the informant and her family members went to Dattapeetha, Narasobawadi in Maharashtra, to perform pooja for the welfare of accused No.1. On 13.03.2020, accused No.1 visited the house of the informant and had purchased the clothes for him. Since there was lockdown in view of Covid-19, performance of marriage was postponed.
6. It is stated by the informant that on 09.06.2020, as it was the birthday of the accused No.1, the informant wanted to give him a surprise and therefore, she went to Ankola and met -6- him along with her family members. After the birthday celebration, informant enquired accused No.1 regarding their marriage. Accused No.1 informed that he is having some problem in his workplace and sought for 15 days time. On 16.04.2020, informant came to know from the news item published in the newspaper 'Jana Madhyama' regarding the marriage of accused No.1 with another lady who was working with him in the Court, on 14.06.2020. Immediately the informant along with her family members went to meet the Prl. District Judge, Karwar but they could not meet him. They have sent their objections through post. It is stated that accused No.1 being a Judicial Officer acted negligently and defrauded the informant who is a lady. Therefore, she requested the police to register the case against all the accused and to initiate legal action.
7. Accordingly, the police registered the FIR in Crime No.64/2020 for the offence punishable under Sections 406, 417, 420 read with Section 34 of IPC and took up investigation. -7- Accused Nos.1 to 6 have approached this Court seeking to quash the FIR registered against them as stated above.
8. Heard Sri Shivaprasad Shantanagoudar, learned counsel for petitioners, Sri Ravindra Naik, learned H.C.G.P. for respondent No.1 and Sri Dinesh M. Kulkarni, learned counsel for respondent No.2.
9. Learned counsel for petitioners submitted that accused No.1 is the Judicial Officer. Petitioner No.2 is the mother, petitioners No.3, 4 and 6 are the sisters and petitioner No.5 is the brother of accused No.1. He further submitted that absolutely there is no allegation to constitute the offences punishable under Sections 406, 417 and 420 read with Section 34 of IPC. Even though there were marriage talks between accused No.1 and the informant, there was some differences and since there was no compatibility between them, marriage talks had broken. But accused have not committed any offences as alleged by the informant.
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10. Learned counsel further submitted that even according to the first information, she came to know regarding the marriage of accused No.1 with another lady on 16.04.2020 but the first information was came to be lodged on 07.07.2020 i.e., about 3 months after coming to know about the fact. This inordinate delay is not at all explained. The informant made false allegations against accused No.1 and all his family members without any basis.
11. Learned counsel for petitioners relied on the decision in M. Giriprasad and Others Vs. K. Munikrishna Reddy1 wherein the Co-ordinate bench of Andra Pradesh High Court held that the promise to marry does not in any way attract the offence under Section 420 of IPC. Learned counsel also placed his reliance on the decision in Uma Shankar Gopalika Vs. State of Bihar2 to contend that to constitute an offence under Section 420 of IPC, there must be an intention on behalf of the accused to cheat, from the very inception. Unless the said condition is fulfilled, the offence under Section 420 is not made 1 Crl.P.No.8824/2013 2 (2005) 10 SCC 336 -9- out. Therefore, learned counsel for petitioners prayed for allowing the petition by quashing the FIR and the criminal proceedings initiated against the petitioners.
12. Per contra, learned counsel for respondent No.2/ complainant opposing the submissions made by the learned counsel for petitioners submitted that the first information makes it clear that accused No.1 being a Judicial Officer promised to marry the informant and had received Rs.15,000/- towards purchase of his clothes. He deceived the informant by dishonestly inducing the informant and family members to purchase clothes, book the marriage hall by spending huge amount. He had also sent copy of the marriage invitation card which made the informant to believe that he is genuinely agreed to marry her. The conduct of accused No.1 in particular and other accused in general, constitute cheating as defined under Section 415 of IPC. Accused Nos.2 to 6 are the mother, sisters and brother of accused No.1 were throughout with him and they have played vital role in commission of the offence.
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13. Learned counsel further submitted that the first information clearly shows that when the informant met accused No.1 in Ankola on 09.06.2020 on his birthday, accused No.1 specifically sought 15 days time to finalize the date of marriage, on the pretext that there was some problem in his workplace. But within 5 days i.e., on 14.06.2020, he got married the lady who is working with him in the Court. This shows the conduct of accused No.1 in committing the offence alleged by the informant. The marriage was attended by accused Nos.2 to 6 which show that all the accused were having required animus to constitute offence alleged against them. Since there are specific allegations made against the petitioners for having committed the offence and since the investigation is at the initial stage, it is not a fit case to quash the FIR and the criminal proceedings. Therefore, he prays for dismissal of the petition as devoid of merits.
14. Perused the materials on record.
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15. In the light of the rival submissions, the point that would arise for my consideration is, "Whether the criminal proceedings initiated against these petitioners/accused Nos.1 and 6 is liable to be quashed?"
16. My answer to above the point is in 'partly affirmative' for the following:
REASONS
17. The informant lodged the first information stating that accused No.1 being the Judicial Officer agreed to marry her and in furtherance of the same, there was engagement ceremony on 09.02.2020 in the house of the informant. A 'Yadi' was prepared agreeing to give 40 grams of gold to accused No.1 along with Rs.15,000/- towards clothes. Accordingly, cash of Rs.15,000/- was also given to accused No.1 and the marriage hall was booked by paying Rs.75,000/- for the marriage to be celebrated on 27.04.2020.
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18. It is also stated that accused No.1 had sent copy of the marriage invitation card to the informant through Whats App and she purchased kancheevaram silk saree at the instance of accused No.1. It is further stated that on 09.06.2020 she had gone to Ankola and met accused No.1 as it was his birthday. On that day accused No.1 sought for 15 days time to finalize his date of marriage. But within 5 days, a news item was published in 'Jana Madhyama' reporting the marriage of accused No.1 with some other lady who was also working with him.
19. It is the specific contention of the learned counsel for petitioners that the ingredients of Section 406, 417 and 420 of IPC are not at all attracted to the facts and circumstances of the case.
20. I have given my anxious consideration to this contentions taken by the petitioners.
21. To constitute an offence punishable under Section 406 of IPC, there must be criminal breach of trust as defined under Section 405 of IPC. To constitute criminal breach of trust, there must be entrustment of the property or domain over the
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property or there must be dishonest misappropriation of such property. In the present case, even though it is stated that a sum of Rs.15,000/- was paid to accused No.1 for purchase of clothes and spent Rs.75,000/- for booking the marriage hall, the ingredients of Section 405 of IPC is not attracted. It cannot be said that there was entrustment of property and there is dishonest, misappropriation of the same. Therefore, the offence under Section 406 of IPC is not made out.
22. Section 420 of IPC is also invoked against these petitioners. To constitute the offence punishable under Section 420 of IPC, there must be cheating dishonestly by inducing the person to deliver any property or to make alter or destroy the whole or any part of valuable security etc. On going through the first information in detail, it is revealed that even these requirements to constitute the offence punishable under Section 420 of IPC is not made out.
23. The other penal provision invoked against the petitioners is Section 417 of IPC. To constitute this offence, the
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requirements of cheating is defined under Section 415 is to be satisfied. Section 415 of IPC reads as under:
415. Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
24. In the present case, specific allegations are made by the informant that she had paid Rs.15,000/- to petitioner No.1 for the purpose of purchase of clothes. Further the marriage hall was booked by paying Rs.75,000/- believing the words of accused No.1 that the marriage will be performed on 27.04.2020.
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25. Learned counsel for petitioners relied on the decision in Uma Shankar (supra) to contend that the intention to deceive should be from the inception then only the offence or cheating could be made out.
26. As already stated above, the offence under Section 420 IPC is not made out against the accused. However, cheating as defined under Section 415 of IPC requires deceiving of any person fraudulently or dishonestly by inducing him to do anything which he would not have done if he were not so deceived. Therefore, dishonest intention to cheat a person to constitute the offence under Section 415 of IPC, punishable under Section 417, is also to be from the inception.
27. In this regard, learned counsel for respondent No.2 drawn my attention to the averments made in the first information. It is stated by the informant that she visited Ankola on 09.06.2020, as it was the birthday of the accused No.1. On that day, when the informant enquired accused No.1 regarding the probable date of marriage, he sought for 15 days time on
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the ground that he is having some problem in his office. However, within 5 days he got married another lady working with him, on 14.06.2020. I do find considerable force in the contention taken by the respondent No.2 that accused No.1 was having intention to deceive the informant, received the money for purchase of clothes and also got booked the marriage hall. Prima facie it constitutes the offence under Section 415 of IPC punishable under Section 417 of IPC. I do not find any reason to reject this contention ignoring the specific averments made in the first information.
28. Learned counsel for respondent No.2 further submits that there are photographs, copy of the draft invitation card, call details, Whats App messages exchanged between accused No.1 and respondent No.2, to prima facie show that accused No.1 was having required animus to commit cheating and the same are being produced before the Investigating Officer during investigation. Copies of those photos, copy of the invitation card, copy of the yadi, Whats App chats, news item regarding marriage of accused No.1 are produced by respondent No.2
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along with the application seeking vacating the interim order of stay. The averments made in the first information and these documents constitute prima facie material to invoke the Section 417 against accused No.1.
29. Accused No.2 is the mother, accused Nos.3, 4 and 6 are the sisters and accused No.5 is brother of accused No.1. There are no specific allegations against any of these accused for having committed the offence. Mainly the allegation is against accused No.1 and there is reference to his family members. Under such circumstances, it cannot be said that these accused have also committed any of the offence as contended. The engagement said to have performed with accused No.1, the yadi said to have been drawn at the instance of accused No.1, cash of Rs.15,000/- was said to have paid to accused No.1 and the marriage hall was booked at the instance of accused No.1 and it was accused No.1, who refused to marry the informant as he married another lady, without disclosing the fact to the informant. But no such specific allegations are made against any of the other accused. Therefore, I am of the opinion that the FIR
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registered against accused Nos.2 to 6 is to be quashed. However, accused No.1 is not entitled for such relief as there are prima facie materials made available to proceed against him for the offence punishable under Section 417 of IPC. With regard to the offence punishable under Section 420 and 406 same is to be quashed even against accused No.1. Hence, I answer the above point partly in the affirmative and proceed to pass the following:
ORDER The Criminal Petition is allowed in part.
The FIR in Crime No.64/2020 of Malamaruti Police Station registered against accused No.1 for the offence punishable under Sections 406 and 420 of IPC is quashed. However, the FIR registered against him for the offence punishable under Section 417 of IPC is not disturbed.
The above said FIR registered against accused Nos.2 to 6 is quashed in its entirety.
Sd/-
JUDGE Naa