Karnataka High Court
Smt. Anupama Hegde vs The State Of Karnataka on 7 September, 2020
Author: G.Narendar
Bench: G.Narendar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
W.P.NO.2961/2019 (GM-RES)
C/w
CRL.P.NO.2822/2016
IN W.P.NO.2961/2019
BETWEEN
SMT. ANUPAMA HEGDE
@ SMT.ANUPAMA BHAT,
W/O SRI DINESH HEGDE,
AGED ABOUT 47 YEARS,
PROFESSION: ADVOCATE,
R/AT NO.9/22
2ND MAIN, 1ST BLOCK EAST,
JAYANAGAR,
BENGALURU-560 011.
...PETITIONER
(BY SRI ARUNA SHYAM M, ADV.)
AND
1. THE STATE OF KARNATAKA
REP BY SUBRAMANYAPURA
POLICE AND CCB POLICE THROUGH
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001.
2. SMT. RENUKADEVI.N
W/O SRI NITHYANANDA RAO
AGED MAJOR,
NO.001, AKSHAYA NILAYA,
W.P.No.2961/2019
C/w Crl.P.No.2822/2016
2
ESHWARI LAYOUT
YADAV FARM, JP NAGAR,
7TH PHASE, BENGALURU-560 078
3. SRI SUNDAR RAJAN M.K.
S/O SRI KRISHNA SWAMY M.N.
OCCUPATION: ARTIST,
NO.4, 15TH CROSS,
100 FEET RING ROAD,
J.P.NAGAR 5TH PHASE,
BENGALURU-560 078.
...RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1,
SRI H.S.VIVEKANANDA, ADV. FOR R3,
NOTICE TO R2 IS D/W.)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA READ
WITH SECTION 482 OF THE CODE OF CRIMINAL
PROCEDURE PRAYING TO QUASH THE ADDITIONAL
CHARGE SHEET DATED: 09.11.2018 FILED IN CRIME
NO.7527/2015 (C.C.NO.7358/2016 ON THE FILE OF
LEARNED I ACMM) BENGALURU BY THE CCB POLICE
FOR THE OFFENCES PUNISHABLE U/S 406, 408, 464,
468, 471, 420, 120B, 506, 509 R/W SECTION 34 OF THE
INDIAN PENAL CODE AND THE ORDER IN
C.C.NO.7358/2016 ON THE FILE OF LEARNED I ACMM
BY VIDE ORDER DATED 22.12.2018 THEREBY ISSUING
NON-BAILABLE WARRANT (NBW) AGAINST THE
PETITIONER AND ALL FURTHER PROCEEDINGS
PURSUANT THERETO SO AS FAR AS THIS PETITIONER
IS CONCERNED, WHICH ARE PRODUCED AT
ANNEXURES-A AND B RESPECTIVELY ETC.
IN CRL.P.NO.2822/2016
BETWEEN
SMT. ANUPAMA HEGDE
@ ANUPAMA BHAT
W/O SRI DINESH HEGDE,
AGED ABOUT 47 YEARS,
OCC: ADVOCATE,
W.P.No.2961/2019
C/w Crl.P.No.2822/2016
3
R/AT NO.9/22, 2ND MAIN,
1ST BLOCK EAST, JAYANAGAR
BANGALORE-560011.
...PETITIONER
(BY SRI ARUNA SHYAM.M, ADV.)
AND:
1. THE STATE OF KARNATAKA,
THROUGH J.P. NAGARA P.S,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING
BANGALORE - 560001.
2. SRI SUNDAR RAJAN .M.K
S/O KRISHAN SWAMI .M.N
MAJOR
OCC: ARTIST
R/AT NO.4, 15TH CROSS,
100 FEET RING ROAD
J.P.NAGAR 5TH PHASE
BENGALURU - 560 078.
...RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1,
SRI H.S.VIVEKANANDA, ADV. FOR R2.)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 CR.P.C PRAYING TO QUASH THE
COMPLAINT AND FIR DATED 05.04.2016 IN
CR.NO.165/2016 REGISTERED BY THE RESPONDENT
POLICE FOR THE OFFENCES P/U/S 120(B),
409,418,468,420 AND 471 R/W 34 OF IPC PENDING ON
THE FILE OF IV A.C.M.M., BANGALORE IN SO FAR AS
THIS PETITIONER IS CONCERNED.
W.P.No.2961/2019
C/w Crl.P.No.2822/2016
4
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.12.2019, COMING ON
FOR 'PRONOUNCEMENT OF ORDERS', THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
Heard Sri.Aruna Shyam.M, learned counsel for the petitioner, Smt.K.P.Yashodha, learned High Court Government Pleader for respondent No.1 - State and Sri.H.S.Vivekananda, learned counsel for respondent No.3 in W.P.No.2961/2019 and respondent No.2 in Crl.P.No.2822/2016.
2. The facts in brief are that one Smt.Vishalakshi Bhat, who is arrayed as accused No.1 in C.C.No.7358/2016 pending on the file of the I Additional Chief Metropolitan Magistrate, Bengaluru, was employed as the Branch Manger of HDFC Life Insurance, BTM Layout Branch, Bengaluru. That, between the years 2013 to 2015, the said accused is alleged to have induced several persons to invest in certain schemes allegedly launched and run by the W.P.No.2961/2019 C/w Crl.P.No.2822/2016 5 HDFC Company. That one such Scheme was called 'Employee Benefit Scheme' and it is alleged that she represented to several people that if money is invested in her name with the Bank as per the Scheme, higher rates of interest will be paid by the Bank for deposits by the employees and stating so, she is said to have convinced numerous complainants to transfer money to her account or to hand-over money to her by promising them that she would invest it in the deposit schemes and on maturity, she would return it along with accrued interest. Further, that she would represent to the employers that the said person, who has invested, is a blood relative and thereby enabling the said person to attractive rates of interest on the said investments.
One such complainant is the defacto complainant -
Respondent No.3/2 in the petitions.
3. It is relevant to note that several complaints having been filed resulting in serial W.P.No.2961/2019 C/w Crl.P.No.2822/2016 6 prosecutions and led to the first accused approaching this Court in Crl.P.Nos.8704/2016, 8705/2016, 8706/2016, 8707/2016, 8708/2016, 8709/2016, 8710/2016, 8711/2016, 8712/2016 and 8713/2016.
A Co-ordinate Bench of this Court, after examining the law laid down in this regard and the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr.P.C and after relying upon the law laid down by the Hon'ble Apex Court in the case of T.T. Antony vs. State of Kerala and others reported in (2001) 6 SCC 181, was pleased to quash the FIRs and chargesheets filed in various cases and by order dated 11.01.2017 proceeded to order as follows:
'9. It is necessary that a case of fresh investigation based on the second or successive FIRs not being a counter case filed in connection with the same or connected cognizable offence alleged to have been committed in the course of same transaction and in respect of which pursuant to the first FIR either W.P.No.2961/2019 C/w Crl.P.No.2822/2016 7 investigation is under way or vital report under Section 173(2) Cr.P.C. is forwarded to the Magistrate, it is necessary for this Court to quash the same in exercise of power under Section 482 as laid down by the Supreme Court. Accordingly, the respective FIRs and the charge sheets in the above cases stand quashed.
10. It would also be necessary for the respective Investigating Officer involved in each of the cases to approach the court below which shall return the charge sheets to the concerned Investigating Officer who in turn shall hand over the same to the Investigating Officer in the case that was instituted against the petitioner namely, C.C. No.7358/2016 on the file of the I Additional Chief Metropolitan Magistrate who shall in turn proceed in terms of the directions issued herein above and the charge sheets laid before the court. The original records pertaining to each of the cases shall also stand transferred to the W.P.No.2961/2019 C/w Crl.P.No.2822/2016 8 aforesaid court which shall try the case as one.'
4. That pursuant to the directions of this Court, an additional charge sheet came to be filed and in the additional charge sheet, the petitioner was sent up as an accused and arrayed as accused No.6.
It is in this background, the petitioner is before this Court.
5. The petitioner had, at an earlier point of time, on registration of the FIR No.0165/2016 dated 05.04.2016 approached this Court in Crl.P.No.2822/2016 praying to quash the FIR dated 05.04.2016 in Crime No.0165/2016 registered by respondent - Police for the offence punishable under Sections 34, 120B, 409, 418, 468, 420 and 471 of IPC. This Court after appreciating the merits was pleased to grant an interim order of stay of further proceedings in Crime No.0165/2016 by order dated 13.04.2016 and the interim relief came to be W.P.No.2961/2019 C/w Crl.P.No.2822/2016 9 extended from time to time. Subsequently, on account of filing of additional charge sheet, second petition i.e., W.P.No.2961/2019 came to be preferred and the Co-ordinate Bench of this Court by order dated 18.01.2019 was pleased to stay further proceedings in C.C.No.7358/2016 insofar as it concerns the petitioner. The said interim order also came to be extended from time to time.
6. It is relevant to note, at this stage itself, that though several complaints have been lodged against first accused, the petitioner is sought to be implicated by only one of the complainants, as the petitioner is the sister of accused No.1 and also a practicing advocate. It is submitted by learned counsel for the petitioner that the petitioner is a practicing advocate, regularly appearing before this Court and is a counsel of standing. That, she is the Standing Counsel for certain statutory bodies like APMC and is also appointed to discharge duties as a W.P.No.2961/2019 C/w Crl.P.No.2822/2016 10 Central Government Standing Counsel. That apart, from the lone complaint, there is absolutely no criminal antecedent to the petitioner. That she is a Life Member of the Advocates Association and that her husband is also well placed and that the petitioner was also appointed as the Chairman of the Child Welfare Committee. It is submitted that the petitioner has been roped in as an accused merely because she was standing by her sister and rendering professional advice. That as a counter blast and to wreak vengeance, the complainant has stated that the petitioner is also in the know of the alleged fraud and other criminal acts committed by accused No.1.
He would submit that the petitioner is wholly innocent of the allegations set out against her. He would submit that the very fact that none of the other complainants have even whispered about the petitioner itself is suffice for this Court to infer that the vague and bald allegations against the petitioner W.P.No.2961/2019 C/w Crl.P.No.2822/2016 11 is a baseless one and is nothing but a vindictive act to prevent the petitioner from rendering any professional assistance to the first accused. He would submit that the petitioner being a registered practitioner of law is duty bound to render services to the best of her ability to anyone, who seeks her assistance as a professional. The fact that the accused is a relative does not in any manner hinder or prohibit the petitioner from discharging her duties as mandated under statute, namely, the Advocates Act, 1961. That if legal practitioners are sought to be prosecuted for rendering legal assistance, then the scenario would turn very scary and all counsels could be pressurized from rendering professional advice or assistance to people, who seek out the same. He would contend that it could be used as a tool by manipulative litigants to coerce the counsel from rendering services to the best of his ability and he would submit that the instant prosecution is an act W.P.No.2961/2019 C/w Crl.P.No.2822/2016 12 of abuse of process of law. He would submit that apart from the defacto complainant - respondent No.3/2, other complainants have not even whispered about the petitioner. The instant complainant also does not narrate or detail any overt-act by the Petitioner. He would contend that even in the charge sheet, there is absolutely no material apart from the bald and vague statement of the petitioner having planned the fraud along with accused No.1, who is her sister.
7. Learned counsel for the petitioner would take this Court through the complaint, which is extracted below in toto for the sake of convenience:
'To The Station House Officer, J.P.Nagar Police Station, Bangalore.
From Mr. M.K.SUNDER RAJAN, S/o. Mr. M.N.Krishna Swami, Residing at No.4, W.P.No.2961/2019 C/w Crl.P.No.2822/2016 13 15th Cross, 100 Feet Ring Road, 5th Phase, J.p.Nagar, Bangalore - 560 078.
Sir/s SUB: COMPLAINT AGAINST SMT.
VISHALAKSHI BHAT, MR.
SRIKANTH HEGDE, SMT.
ANUPAMA BHAT AND M/S. HDFC LIFE INSURANCE, BTM LAYOUT BRANCH AND ITS BRANCH OFFICIALS FOR CHEATING AND MIS-APPROPRIATING LAKHS OF RUPEES.
1) I, the undersigned, been residing in the above address for the last 15 years and in Bangalore for the last 60 years with my family, and I am a recognized film and cine actor in Kannada and Tamil Languages in a career spanning for more than 40 years.
2) In the year 2015, through one of my friends, Smt. Renuka Devi.N, I was introduced to Smt. Vishalakshi Bhat, who represented that she was the Branch Manager of HDFC Life Insurance, BTM Layout Branch, Bangalore. During one of the interactions in the above said year, Smt. Vishalakshi Bhat informed me that the Bank has come out with a scheme known as 'Employee benefit scheme', wherein the person investing was shown as a blood relative, who would then be covered under an Insurance, also would be paid attractive interest over the said investment.W.P.No.2961/2019 C/w Crl.P.No.2822/2016 14
3) Based on repeated representations and assurances from the said Smt. Vishalakshi Bhat and also on the opinion of the introducer Smt. Renuka Devi.N, I invested a sum of Rs.48,00,000/- (Rupees Forty Eight Lakhs only), which was my hard-earned money and lifelong savings earned thru my cine and tele career. One of the major factors that made me to invest such a huge sum was that the scheme was promoted by a renowned and known bank by name HDFC Life, which created a trust in me to invest. I did not suspect the intention of the said Smt. Vishalakshi Bhat or the Bank at that point in time, and invested such a huge sum with a fond hope that my investment would yield good returns more than the prevailing bank rate of interest.
4) On the instructions of the said Smt. Vishalakshi Bhat, I invested the sum of Rs.48,00,000/- (Rupees Forty Eight Lakhs only) on 21-10-2015 by transferring the amount from my account to the account of Smt. Vishalakshi Bhat by way of RTGS bearing No.098ODAD1979 to the Account of Smt. Vishalakshi Bhat bearing No.50100065844255. The receipt evidencing transfer of the amount is enclosed along with this complaint.
5) As per the promise and assurance of Smt. Vishalakshi Bhat, the said amount was invested for a period of 10 days and she showed me some documents for this scheme on her mobile and she was supposed to pay interest at the rate of 14%.
Besides the same, the said Smt. W.P.No.2961/2019 C/w Crl.P.No.2822/2016 15 Vishalakshi Bhat was also supposed to issue a certificate of investment form HDFC Life which had all the details of investment and the benefits of the investment, tenure of investment and so on and so forth.
6) After I transferred the aforesaid amount by way of RTGS, I followed up with Smt. Vishalakshi Bhat for the certificate of investment, but to my utter shock and surprise she kept on postponing issuing of the certificate on one pretext or the other. I constantly followed up with her thru telephone calls and personal visits, but did not yield any results. What added to my suspicion was that I did not receive the any interest for the above said amount from Smt. Vishalakshi Bhat as promised by her.
7) It is also pertinent here to mentioned that whenever I asked her the investment certificate and interest amount, she used to say that there is some auditing and other issues in the Bank (HDFC Life), and the same would be paid as soon as the issues are settled, which answer was neither convincing nor reliable, as here conduct became questionable day after day, and she stopped answering my calls by the end of October, which caused lot of mental stress and agony to me and my family and I then realized that the HDFC Insurance documents she showed me was false.
8) However, in the month of November 2015, I came to know from different sources and known individuals that Smt. Vishalakshi Bhat has absconded from Bangalore and W.P.No.2961/2019 C/w Crl.P.No.2822/2016 16 non-reachable over the phone also. I also came to know many individuals have also invested with Smt. Vishalakshi Bhat and have been cheated of crores of rupees. Later I was informed that many individuals who have been cheated have filed police complaints in different police stations against Smt. Vishalakshi Bhat.
9) I am also of the reasonable belief that Smt. Vishalakshi Bhat had an intention to cheat people like me and others of our hard- earned money and life savings, and has played a very clever and cunning game with connivance with some bank officials of HDFC Life, as it is apparent that HDFC accounts were used to transact crores of rupees, which could not have happened without the active connivance of the Bank officials.
10) I have also learnt from sources that the husband of Smt. Vishalakshi Bhat had full knowledge of this multi-crore scam and abetted with her in committing this offence. Even the sister of Smt. Vishalakshi Bhat, who happens to be a Practicing Lawyer, has planned it ingeniously with an intention to cheat me and similar investors.
As the amount involved is extremely huge and involvement of bank officials is clear and apparent, I request your kind-self to immediately investigate the matter by summoning Smt. Vishalakshi Bhat and all involved, including her Husband (Mr. Srikanth Hegde) and Sister (Smt. Anupama Bhat) in the fraud and initiate appropriate penal action W.P.No.2961/2019 C/w Crl.P.No.2822/2016 17 against them, and also ensure that I get back my investment as soon as possible. As public funds are involved, and the bank being custodian of public funds, the matter needs to be investigated by high-rank police officials at the earliest before the evidence wades or tempered with. Hoping for a thorough investigation in the matter and early action.
Yours Faithfully, Sd/-
(M.K.SUNDER RAJAN) CELL No.9342544555 Encl : RTGS Counterfoil'
8. From a reading of the above, the complainant nowhere has even whispered that the petitioner had at any time met him, called him or contacted him and had given out any assurance and the only statement by which the petitioner is sought to be implicated along with other accused is the lone sentence in paragraph No.10 i.e., "Even the sister of Smt.Vishalakshi Bhat, who happens to be Practicing Lawyer, has planned it ingeniously with an intention to cheat me and similar investors". He would submit W.P.No.2961/2019 C/w Crl.P.No.2822/2016 18 that the usage of the words 'Practicing Lawyer' would go to demonstrate the contention that the complaint is a counter blast by the complainant to the efforts by the petitioner to professionally assist the first accused.
9. Proceeding further, learned counsel for the petitioner would take this Court through the complaint lodged by the employer of the first accused, which reads as under:
PCR No.15333/2015 (page No.204) 'M/s HDFC Life Insurance Company Limited Having its Branch office at 4th Floor, Block 2A, Esquire Centre No.9, M.G.Road, Bangalore-560 001. Represented by its Manager-Human Resources Mr.Anand.S COMPLAINANT V/s Mrs. Vishalakshi Bhat, W/o Mr. Srikanth, No.675/9, 12th Cross, 4th main, Shreyas Colony, J P Nagar 7th Phase, W.P.No.2961/2019 C/w Crl.P.No.2822/2016 19 Bangalore - 560078 ACCUSED Complainant under Section 190 & 200 of the Code of the Criminal Procedure R/w 420,425,464,468 and 506 of Indian Penal Code The complainant begs to state as follows:
Address for service
1. The address of the Complainant for the service of summons, notices etc is as furnished in the cause title above, it may also be served through their counsels J.S.Advocates & Legal Consultants, No.216, First Floor, 4th Main, 16th Cross, Malleshwaram West, Bangalore-560
055.
2. The address of the Accused for similar purposes is as per the above cause title.
Facts of the case
3. The Complainant is Company registered under the provisions of the Companies Act, 1956 and are into the business of Sales of life insurance policies and are registered, licensed and governed by the Insurance Regulatory and Development Authority (IRDA). The Complainant Company operates across India through numerous branches and enjoys and practices a high degree of values and business ethics both inside and outside the Company.
W.P.No.2961/2019 C/w Crl.P.No.2822/2016 204. Mr. Anand.S, Manager - Human Resources of the Complainant Company and is fully conversant with the facts and circumstances of the case as per the information received and derived from the records and the books of the Complainant Company maintained in usual and ordinary course of business. He is duly authorized to empower and competent to sign and verify the pleadings for and on behalf of the Complainant company to institute this Complaint and prosecute and to do all acts, deeds in general for due prosecution of the same. A copy of the authority letter is produced herewith as Annexure-A.
5. The Complainant Company during the course of its business had appointed the accused herein (Employee ID:19789) as circle Head and the subsequently became Associate Circle head at BTM Layout, Bangalore Branch from 2013 and was entrusted with the responsibility to shortlist candidates who are interested to work as insurance agents / financial consultants with the complainant company. Further such shot listed Financial Consultants have to undergo IRDA mandated training / examination / certification and post completion of the same Financial Consultant can be engaged by the complainant company. Such IRDA qualified Financial Consultants then are engaged as an agent authorized to do W.P.No.2961/2019 C/w Crl.P.No.2822/2016 21 only specified activities. Also the company makes all Financial Consultants undergo product training / Anti Money Laundering training and then those agents would explain about the various policies offered by the Complainant Company to anyone interested in the insurance policy offered by the Company and they would ensure that appropriate documents like proposal form, identity proof, address proof etc are collected from such prospect and also explain about the terms and conditions of policies and the risks and thereafter collect the requisite policy amount in line with Company internal process guidelines and issue acknowledgements for the same and also they would ensure that the policy availed by the customer is delivered to them. And for having carried out the above functions the Complainant Company used to pay commission charges in respect of the each policy issued. Further in order to monitor and motivate various financial consultants the Complainant Company had appointed Business leaders and even they would be remunerated for having discharged their duties.
6. In addition to the above the accused herein was also supposed to procure business and also ensure that any amount collected from any customers is only towards the insurance policies of complainant Company and in return Customers also receive appropriate insurance policy and receipts for having W.P.No.2961/2019 C/w Crl.P.No.2822/2016 22 invested with the Company. The accused was also handling grievances of the customers and resolve the same.
7. The Complainant Company being a company registered with Registrar of companies and the Memorandum of Association and Articles of Association are available in the public domain and they speak only about carrying on the business of selling various insurance policies and at no point of time the Complainant Company accepts any money deposits and pay interests on the same from public / employees.
8. The Complainant Company submits that the accused herein in spite of the above mis utilized her official position and has informed several customers of the Complainant Company that the Company would accept deposits under the Employee Benefit Scheme and has induced several customers to invest their savings by assuring them to pay high interest. Based on the assurance of the accused several customers have invested their savings and for having accepted the investment from several customers the accused herein had issued fake receipts on fabricated letter heads and other documents of the Complainant Company. The copy of the fake employee benefit scheme on a fabricated letter head to lure customers to invest is produced herewith as Annexure-B. W.P.No.2961/2019 C/w Crl.P.No.2822/2016 23
9. After accepting the payments/investments towards the repayment of the Principal and interest she has issued her post dated personal cheques towards the repayment of the same and when the same got dis honoured the accused herein has initially avoided them and now she is gone missing and absconding from 2/11/2015. The copies of the cheques issued by the Accused herein are produced herewith as Annexure-C. The investors with the accused herein have lodged their grievances before the Complainant requesting for stern action against the accused and are threatening the Complainant Company to compensate the losses suffered. The copy of the complaint dated 6/11/2015 given by the one of the investor is produced herewith as Annexure-D.
10. The accused herein has accepted several payments assuring to invest the same with the Complainant Company and thereafter has siphoned off the same and in order to vonvince the customers to invest she has also fabricated certain certificates in the name of the Complainant Company for deceiving the customers that the same is being issued by the company. The Complaint and the forged certificate issued to one of the complainant to have been received from the accused are produced herewith as Annexure-E & F. W.P.No.2961/2019 C/w Crl.P.No.2822/2016 24
11. The Complainant Company submits that in order to cheat the general public in the name of the Complainant Company the accused herein has issued fabricated cash receipts assuring interest at higher rates and better returns on their investments to be done in name of Accused. The copies of the fabricated cash receipts issued by the accused under the complainant company anme is produced herewith as Annexure-G. The accused herein using the same modus operandi has cheated several customers which includes Doctors. The copies of the complaints submitted by Doctors are produced herewith as Annexure-H and J.
12. The Complainant Company submits that for few customers the accused herein has received payments and issued policies assuring the same to be one time investment policy and the policy amount would be returned with high returns. Whereas the accused herein has raised policy wherein the customer has to pay yearly to get the benefits from the policy. The copies of the complaints lodged before the Complainant Company are produced herewith as Annexure-K and L. Further, with regard to the same few of the customers have lodged the complaints before the jurisdictional police stations. The copies of the FIR's lodged by the jurisdictional police stations are produced herewith as Annexure-M and N. W.P.No.2961/2019 C/w Crl.P.No.2822/2016 25
13. It is very clear from the above acts that the accused has induced general public and several customers of the Complainant Company in investing their money in alleged non-existing schemes and in order to convince the customers to invest she has also fabricated / created several forged documents using name / logo of the Complainant Company and thereby has committed offences which are punishable under the provisions of the Indian Penal code for Cheating, fraud, Criminal Breach of Trust and Fabrication of documents.
14. It is further submitted that, by doing the aforementioned activities set forth above the accused has committed a gross violation of the terms and conditions of her appointment which invites for the serious cheat and fraud and also disrepute to the Complainant Company. The acts fo the accused herein has caused irreparable loss and injury both financially and strategically to the complainant's Company.
15. It is submitted that, the Complaint Company had appointed Accused herein to discharge her official duties but the accused herein mis uning her position has illegally induced general public to invest assuring false promises and has collected huge amounts from the persons who either had policies with the company or even were new to the company but the amount collected from them for investment in the company was never W.P.No.2961/2019 C/w Crl.P.No.2822/2016 26 deposited with the Complainant company for which the Complainant Company has to feel the wrath of the customers and hence the accused herein has caused wrongful loss to the Complainant Company and making wrongful gain for the accused which amounts to Criminal breach of Trust (perfidy) and cheating, which are punishable under section 409,406 & 420 of IPC.
16. The complainant company has already lodged a complaint before the Commissioner of Police, Bangalore City on 06/11/2015, however no action seems to be have been initiated against the accused and if no enquiry and investigation is conducted and the accused is not punished, for the acts of the accused, the Complainant Company will face irreparable loss and damages, because the Complainant Company is one of the leading Insurance Company having innumerable customers, who avail the Insurances of the Company and if even a small segment of customers loose faith, the same would amount to greater loss and injury to the complainant company. The copy of the complaint given to Commissioner of Police on 06/11/2015 is produced herewith as Annexure-P. PRAYER WHEREFORE the complainant most respectfully prays that this Hon'ble Court be pleased to take cognizance of the W.P.No.2961/2019 C/w Crl.P.No.2822/2016 27 offences, refer the matter to the jurisdictional police for investigation or in the alternative record the sworn statement of the complainant, to summon, and to try the accused for the alleged offences and punish in accordance with law, in the interest of justice and equity.'
10. Learned counsel would take this Court through the pleadings in paragraph Nos.5, 6, 7 and
16. He would submit that the employer has narrated the modus operandi adopted by the first accused and it would clearly reveal that the petitioner could not have played any role. As, even as per the employer, first accused has misused her position in the Bank and is alleged to have induced several customers and third parties to part with money's. The modus operandi detailed by the complainant/employer would make it amply clear that the instant petitioner could not have played any role as she was neither in the know of the Scheme launched by the Bank nor did she have any access to the accounts of the W.P.No.2961/2019 C/w Crl.P.No.2822/2016 28 Banks. He would submit that even as per the lone complainant, who has made allegations against the petitioner, there is no allegation that the instant petitioner had ever met him, contacted him muchless interacted with him. That the above said fact is demonstrated by the very complaint itself.
11. Lastly, he would contend that the police have neither recovered any money nor any incriminating material from the petitioner. He would submit that assuming that the first accused has played fraud even then, the said fraud has been perpetuated by taking advantage of the banking system to which the petitioner neither had any access nor any control. He would further submit that the first accused and the petitioner though sisters are living separately with their respective families. That the instant prosecution has caused severe trauma not only to the petitioner but also to her husband and her child. That complaint has tarnished the fair W.P.No.2961/2019 C/w Crl.P.No.2822/2016 29 name of the family and that the petitioner's family is a respectable family and the instant complaint is nothing but a clear attempt to pressurize the petitioner and thereby, force her to desist from rendering any professional assistance and it is also an arm twisting method, to coerce the petitioner to part with money.
12. The respondent No.1 - State has filed statement of objections.
13. It is contended by learned High Court Government Pleader that several persons have parted with the money between the years 2013 to 2016 to Smt.Vishalakshi Bhat i.e., the first accused and the sister of the petitioner herein. It is pleaded and contended that during the said period, accused No.1, the petitioner herein and three others persuaded several persons to deposit amounts in the name of first accused in a particular Scheme and in the name W.P.No.2961/2019 C/w Crl.P.No.2822/2016 30 of first accused to entitle them to higher rates of interest. It is contended that totally 127 witnesses have given statements against the petitioner, first accused and others. The petition is opposed on the ground that the same cannot be entertained and relief be granted on the basis of presumption and surmises. It is contended that the charge sheet having been filed, the petitioner should be relegated to the trial Court and seek her exoneration after going through the grind of full fledged trial.
14. Learned counsel for respondent No.3/2 would also contend that in the light of the charge sheet having been filed, this Court cannot entertain the petition and grant relief and that the petitioner be directed to approach the trial Court for relief or face trial and seek acquittal in accordance with law. It is contended that the question as to whether the petitioner is involved or not is a matter for trial and W.P.No.2961/2019 C/w Crl.P.No.2822/2016 31 could be adjudicated only after a full fledged trial and would pray for rejection of the petition.
15. Per contra, learned counsel for the petitioner would submit that in the absence of any material whatsoever, it would be a travesty of justice to direct the petitioner to undergo the agony of trial.
He would further contend that the petitioner is being deprived of professional achievements on account of the pendency of case and that there is not even an iota of material to demonstrate the culpability of the petitioner. He would contend that in the absence of any incriminating material, this Court is empowered to exercise powers conferred on it under the provisions of Section 482 of Cr.P.C and quash the complaint. He would submit that if the petitioner is forced to undergo trial, the same would take several years and in the interregnum, the pendency of the criminal case would severely affect the career progression of the petitioner. He would submit that in W.P.No.2961/2019 C/w Crl.P.No.2822/2016 32 the absence of an iota of material to demonstrate the involvement of the petitioner, this Court ought to intervene and render justice to the petitioner.
16. Learned counsel for the petitioner would place reliance on the ruling of the Hon'ble Apex Court rendered in the case of State of Haryana and Others vs. Bhajan Lal and Others reported in AIR 1992 SC 604, and would invite the attention of the Court to paragraph No.108 of the said judgment to contend that this is a case, which falls squarely within the criterion evolved by the Hon'ble Apex Court for exercising the jurisdiction conferred either under Article 226 of the Constitution of India or under Section 482 of Cr.P.C. Paragraph No.108 of the said judgment reads as under:
'108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced W.P.No.2961/2019 C/w Crl.P.No.2822/2016 33 above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.W.P.No.2961/2019 C/w Crl.P.No.2822/2016 34
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'
17. In particular, learned counsel would invite the attention of the Court to the sub-paragraphs 1, 3, 5 and 7 and would submit that the case of the petitioner squarely falls within the grounds and circumstances detailed at sub-paras 1, 3, 5 and 7.
Nextly, he would place reliance on the ruling of the W.P.No.2961/2019 C/w Crl.P.No.2822/2016 35 Hon'ble Apex Court in the case of Manik Taneja and Another vs. State of Karnataka and Another, reported in (2015) 7 SCC 423 and would invite the attention of the Court to observations at paragraph Nos.8, 9 and 10, which read as under:-
'8. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made, prima facie, establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit the prosecution to continue. Where, in the opinion of the Court, the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may quash the proceeding even though it may be at a preliminary stage.
9. In State of T.N. v. Thirukkural Perumal [(1995) 2 SCC 449 : 1995 SCC (Cri) 387] considering the scope of Section 482 CrPC to quash the FIR/criminal proceedings, this Court has held as under:
(SCC p. 450, para 4) "4. ... The power of quashing an FIR and criminal proceeding should be exercised sparingly by the courts.
Indeed, the High Court has the W.P.No.2961/2019 C/w Crl.P.No.2822/2016 36 extraordinary or inherent power to reach out injustice and quash the first information report and criminal proceedings, keeping in view the guidelines laid down by this Court in various judgments (reference in this connection may be made with advantage to State of Haryana v.
Bhajan Lal [1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] ) but the same has to be done with circumspection. The normal process of the criminal trial cannot be cut short in a rather casual manner."
10. So far as the issue regarding the registration of FIR under Section 353 IPC is concerned, it has to be seen whether by posting a comment on the Facebook page of the traffic police, the conviction under that section could be maintainable. Before considering the materials on record, we may usefully refer to Section 353 IPC which reads as follows:
"353.Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either W.P.No.2961/2019 C/w Crl.P.No.2822/2016 37 description for a term which may extend to two years, or with fine, or with both."
A reading of the above provision shows that the essential ingredients of the offence under Section 353 IPC are that the person accused of the offence should have assaulted the public servant or used criminal force with the intention to prevent or deter the public servant from discharging his duty as such public servant. By perusing the materials available on record, it appears that no force was used by the appellants to commit such an offence. There is absolutely nothing on record to show that the appellants either assaulted the respondents or used criminal force to prevent the second respondent from discharging his official duty. Taking the uncontroverted allegations, in our view, the ingredients of the offence under Section 353 IPC are not made out.'
18. He would submit that the prosecution has not placed any material to demonstrate the allegation of connivance of the petitioner or to demonstrate the petitioner as a co-conspirator. Apart from the bald statement of the complainant, there is no other material, which demonstrates the nexus between the petitioner and her sister/first accused.
W.P.No.2961/2019 C/w Crl.P.No.2822/2016 3819. In the light of the above contentions canvassed on behalf of the petitioner, this Court posed a specific query to the learned High Court Government Pleader and to the learned counsel appearing on behalf of the defacto-complainant -
respondent No.3/2.
20. Learned High Court Government Pleader was asked as to whether any recovery of money has been made from the petitioner to which the learned High Court Government Pleader would fairly concede that no money has been recovered from the petitioner. On a query as to whether the Bank accounts of the petitioner has been verified, she would submit in the positive and on further query as to whether any irregular transaction was noticed, she would submit in the negative. Learned High Court Government Pleader was further queried as to whether there is any incriminating material apart from the statement of the complainant to which she W.P.No.2961/2019 C/w Crl.P.No.2822/2016 39 would submit in the negative. On a further query as to whether any of other several complainants have mentioned about the role of the petitioner to which the learned High Court Government Pleader would fairly submit that no other complainant has complained about the petitioner.
21. This Court posed a further query to learned counsel representing respondent No.3/2 -
defacto complainant. Learned counsel was queried as to whether the complainant had ever met the petitioner with regard to the transaction, to which he would fairly submit that the petitioner had never canvassed the Scheme nor canvassed for any deposit but would contend that the role of the petitioner has been that of a conspirator and that she must demonstrate her innocence during the trial and this Court ought not to interfere at this stage.
W.P.No.2961/2019 C/w Crl.P.No.2822/2016 4022. In the above background, the short point that falls for consideration is whether the petitioner has made out a case for grant of relief as prayed for in the petition and whether she is entitled for an exoneration at this stage. The law in this regard is well settled, more particularly, the law in this regard as laid down by the Hon'ble Apex Court in the case of State of Haryana v. Bhajan Lal and as stated supra is well settled. The Hon'ble Apex Court has detailed some of the circumstances, which if demonstrated by the accused would entitle him or her for a relief in a petition instituted invoking Article 226 of the Constitution of India or inherent powers of the High Court under Section 482 Cr.P.C.
23. Th i s C o u r t h a s p e r u s e d t he e n t i r e materials and has perused additional chargesheet by which the petitioner has been sent up as an accused.
The material does not even prima facie detail the alleged role said to have been played by the petitioner W.P.No.2961/2019 C/w Crl.P.No.2822/2016 41 as a co-conspirator. That apart, the prosecution is one for cheating. The law in this regard is also well settled. The Hon'ble Apex Court in the case of Samir Sahay vs. State of Uttar Pradesh and Another reported in (2018) 14 SCC 233, while examining the scope of Sections 420 and 415 of IPC has been pleased to hold as under:-
'16. Before we proceed further to examine the contentions of the learned counsel for the parties, it is necessary to notice the ingredients for establishing a charge under Section 420 IPC. Section 415 IPC defines "cheating" which is to the following effect:
"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"."
17. Section 420 IPC is with regard to the cheating and dishonestly inducing delivery of property which is to the following effect:
W.P.No.2961/2019 C/w Crl.P.No.2822/2016 42"420. Cheating and dishonestly inducing delivery of property.-- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
18. According to Section 415 IPC, the inducement must be fraudulent and dishonest which depends upon the intention of the accused at the time of inducement. This Court had occasion to consider Sections 415 and 420 IPC in Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] . This Court after noticing the provisions of Sections 415 and 420 IPC stated the following in paras 14 and 15: (SCC pp. 176-77) "14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases W.P.No.2961/2019 C/w Crl.P.No.2822/2016 43 the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."
19. Again in Dalip Kaur v. Jagnar Singh [Dalip Kaur v. Jagnar Singh, (2009) 14 SCC 696 : (2010) 2 SCC (Cri) 223] , this Court noticed the ingredients of Section 420 IPC. In paras 9 to 11 the following was stated: (SCC pp. 699-700) W.P.No.2961/2019 C/w Crl.P.No.2822/2016 44 "9. The ingredients of Section 420 of the Penal Code are:
'(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.'
10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [Ajay Mitra v. State of M.P., (2003) 3 SCC 11 : 2003 SCC (Cri) 703] )
11. There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v.
Janak C. Mehta [R. Kalyani v. Janak C. W.P.No.2961/2019 C/w Crl.P.No.2822/2016 45 Mehta, (2009) 1 SCC 516 : (2009) 1 SCC (Cri) 567] is attracted, which are as under: (SCC p. 523, para 15) '(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.'"
20. Applying the ratio laid down by this Court as noted above, it is clear that ingredients of Section 420 IPC are not made out in the present case, either from the first information report or from any other material. From the first information report as extracted above only allegation made against the appellant was that he accompanied his father W.P.No.2961/2019 C/w Crl.P.No.2822/2016 46 Major P.C. Sahay (Retd.) when he assured that the money of the applicants will not be lost and it shall be the responsibility of his father (late P.C. Sahay). The following allegations made in the first information report need to be specially noticed:
"Along with him his son Samir Sahay, Advocate who was already acquainted with the applicant also accompanied his father. Major P.C. Sahay gave the abovesaid assurance, and the applicant and his wife Smt Uma Devi deposited rupees one lakh with Major P.C. Sahay in this regard and he gave the receipt of the same to the applicant of which the applicant is enclosing the photocopy. Like this Major P.C. Sahay(retired) has got deposited total amount of Rs 86,000 from me and my wife. But after some days it came to be known that the said Company has run away along with the lakhs of rupees of the depositors after closing its office."
21. In the first information report even allegation of making assurance was not made against the appellant but was made against Major P.C. Sahay (Retd.), father of the appellant. There was no allegation that the appellant fraudulently or dishonestly induced the complainant to deposit money. This Court in Arun Bhandari v. State of U.P. [Arun Bhandari v. State of U.P., (2013) 2 SCC 801 :
(2013) 2 SCC (Cri) 21] , has held that it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise. A mere failure to keep up promise subsequently cannot be presumed W.P.No.2961/2019 C/w Crl.P.No.2822/2016 47 as an act leading to cheating. An earlier two-
Judge Bench judgment of this Court in State of Kerala v. A. Pareed Pillai [State of Kerala v. A. Pareed Pillai, (1972) 3 SCC 661 : 1972 SCC (Cri) 705] , was quoted with approval in para 21. Paras 21, 22, 23 and 24 which are relevant are to the following effect: (Arun Bhandari case [Arun Bhandari v. State of U.P., (2013) 2 SCC 801 : (2013) 2 SCC (Cri) 21] , SCC pp. 811-12) "21. Before we proceed to scan and analyse the material brought on record in the case at hand, it is seemly to refer to certain authorities wherein the ingredients of cheating have been highlighted. In State of Kerala v. A. Pareed Pillai [State of Kerala v. A. Pareed Pillai, (1972) 3 SCC 661 : 1972 SCC (Cri) 705] a two-Judge Bench ruled that: (SCC p. 667, para 16) '16. ... To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise [and] such a dishonest intention cannot be inferred from [a] mere fact that he could not subsequently fulfil the promise.'
22. In G.V. Rao v. L.H.V. Prasad [G.V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693 :
2000 SCC (Cri) 733] , this Court has held thus: (SCC pp. 696-97, para 7) '7. As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, W.P.No.2961/2019 C/w Crl.P.No.2822/2016 48 the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay [Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575 : 1956 Cri LJ 1116] , a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B. [Mahadeo Prasad v. State of W.B., AIR 1954 SC 724 : 1954 Cri LJ 1806] , that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.'
23. In S.W. Palanitkar v. State of Bihar [S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 : 2002 SCC (Cri) 129] it has been laid down that: (SCC p. 250, para
21) '21. ... In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up W.P.No.2961/2019 C/w Crl.P.No.2822/2016 49 promise subsequently cannot be presumed as an act leading to cheating.'
24. In the said case while dealing with the ingredients of criminal breach of trust and cheating, the Bench observed thus:
(S.W. Palanitkar case [S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 : 2002 SCC (Cri) 129] , SCC p. 246, paras 9-10) '9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived;
and (iii) in cases covered by, (ii)(b) the act of omission should be one which causes or is likely to cause damage or harm to W.P.No.2961/2019 C/w Crl.P.No.2822/2016 50 the person induced in body, mind, reputation or property.'"
22. The Chief Judicial Magistrate while rejecting the application of the appellant for seeking discharge has not even referred to any allegation or evidence on the basis of which it can be said that ingredients of Section 420 IPC were made out in the facts of the present case.
23. We are, thus, of the considered opinion that in the present case ingredients of Section 420 IPC were not made out so as to frame any charge under Section 420 IPC against the appellant.
24. In the result, the appeal is allowed, the order of the Chief Judicial Magistrate dated 28-2-2007 and the judgment of the High Court dated 21-10-2016 [Sameer Sahay v. State of U.P., 2016 SCC OnLine All 2373] are set aside. The appellant shall stand discharged from the charges under Section 420 IPC in Case No. 545 of 2002.'
24. The lone complainant, who has alleged involvement of the petitioner, is the defeacto-
complainant - respondent No.3/2. Neither the first accused employer nor other victims have even whispered about the petitioner in the complaints. All the complainants uniformly point a accusing finger at W.P.No.2961/2019 C/w Crl.P.No.2822/2016 51 the first accused. The pleadings in the compliant lodged by the Bank clearly describes in detail the modus operandi adopted by the first accused for alleged duping customers of the Bank and various third parties. The details of the Scheme are also set out and the manner in which the Scheme is implemented is also set out. The allegation by the employer is that the first accused has taken advantage of her position as an employer of the Bank to induce the customers and third parties to invest in the scheme launched by it. The said details appeal to logic.
25. It is not the case of the third respondent or the prosecution that the petitioner was aware of the Scheme or that she was well trained in the different nuances of marketing the Scheme and details of the Scheme. It is also not the case of the prosecution or defacto complainant - respondent No.3/2 that the petitioner had, at any point of time, W.P.No.2961/2019 C/w Crl.P.No.2822/2016 52 approached the defacto complainant and represented or induced him to invest in the Scheme. It is also not the case of the defacto complainant that he had parted with any money on account of the representation of the petitioner herein. Except for a stray sentence that the petitioner has indigenously planned it with first accused, nothing more is forthcoming from the material on record. This factor if considered in the background of the fact that no recovery of any money from the petitioner accused or no recovery of any incriminating material from the accused, the contention that the complaint is a malafide one, borne out of vindictiveness and is a counter blast to the professional services rendered by the petitioner to the first accused, who is also her sister, cannot be brushed aside lightly. That apart, the claim of the petitioner that she is a Life Member of the Advocates Association and a Standing Counsel of statutory bodies and a standing counsel of the W.P.No.2961/2019 C/w Crl.P.No.2822/2016 53 Central Government Department are not repudiated or denied. The contention that the petitioner is happily placed as a professional is also not denied. It is also fairly admitted that there is no material to demonstrate the diversion of any funds to the petitioner also assumes significance. In this background as held by the Hon'ble Apex Court driving the petitioner to undergo the pain and agony of a criminal trial would certainly amount to miscarriage of justice. Further, it is not for the petitioner to prove her innocence rather it is for the prosecution to demonstrate her guilt.
26. In the opinion of this Court, there is no material forthcoming nor is a case made out before this Court to compel the petitioner to undergo the travails of a full fledged trial. In the absence of any cogent material indicative of the petitioner's culpability, it would be travesty of justice to permit W.P.No.2961/2019 C/w Crl.P.No.2822/2016 54 the criminal case to hang as damocles sword over the petitioner's career.
Accordingly, the petitions are allowed.
The complaint and FIR dated 05.04.2016 in Crime No.165/2016 registered by respondent -
Jayaprakash Nagar Police, Bengaluru insofar as it relates to the petitioner is hereby quashed.
The additional charge sheet dated 09.11.2018 in Crime No.7527/2015 (C.C.No.7358/2016) pending on the file of I Additional Chief Metropolitan Magistrate, Bengaluru insofar as it relates to the petitioner is hereby quashed.
Sd/-
JUDGE dn/-
CT-HR