Karnataka High Court
B R Arunkumar vs State Of Karnataka on 26 September, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION Nos.30940-30941/2016 [GM-RES]
IN WRIT PETITION No.30940/2016:
BETWEEN:
B.R. ARUNKUMAR
S/O. LATE B.N.RAJARAO,
AGED ABOUT 50 YEARS,
OCC:BUSINESS,
R/AT NO.1, AKSHYA NILAYA,
6TH CROSS, 2ND MAIN,
PATTEGAR PALYA,
BANGALORE-560 072. ... PETITIONER
(BY SRI SIDDHARTH B. MUCHANDI, ADV.)
IN WRIT PETITION No.30941/2016:
BETWEEN
S. SRINIDHI
S/O LATE K.SRINATH,
AGED ABOUT 32 YEARS,
CHAIRMAN
GOLDEN FRUIT CAPITAL PVT LTD.
NO.4085, K.R.ROAD,
BANGALORE-560 018. ... PETITIONER
(BY SRI SIDDHARTH B. MUCHANDI, ADV.)
W.P. Nos.30940-30941/2016
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AND:
1. STATE OF KARNATAKA
BY POLICE OF
H.S.R. LAYOUT POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR
2. MRS. NIRMALA PRAKASH
W/O DR.PRAKASH,
AGED 43 YEARS,
NO.181, GOWRI NILAYA,
13TH MAIN, 5TH SECTOR,
HSR LAYOUT,
BANGALORE-560 102 ... RESPONDENTS
[COMMON]
(BY SRI. CHETAN DESAI, HCGP FOR R1;
SRI. S.T. BIKKANNAVAR, ADV., FOR R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA R/W. SECTION
482 OF CR.PC, PRAYING TO QUASH THE ENTIRE PROCEEDINGS
IN C.C. NO.21064/2015 BEFORE HON'BLE VI ADDITIONAL CMM
BANGALORE VIDE ANNEXURE-F IN SO FAR AS THESE
PETITIONERS ARE CONCERNED.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING-B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The present petitions were initially filed by two petitioners seeking quashing of the entire proceedings in CC No.21064/2015 said to be pending before the learned VI Additional Chief Metropolitan Magistrate at W.P. Nos.30940-30941/2016 -3- Bengaluru [henceforth for brevity, referred to as 'Court below'].
2. Learned Counsel for the Petitioners files a memo seeking permission to withdraw Writ Petition No.30940/2016 confining to the Petitioner No.1. As such, Writ Petition No.30941/2016 is of the original Petitioner No.2 Sri. S. Srinidhi alone.
3. The summary of the case in CC No.21064/2015 that are gathered from the materials placed before this Court is that the present Respondent No.2 lodged a complaint with the Respondent No.1-Police on 24.06.2013. The summary of the complaint is that the Complainant who claims herself to be the wife of a practicing Medical Doctor, was introduced to the present Petitioners through Accused Nos. 3 and 4 who are said to be patients under her husband. At the inducement of the Accused W.P. Nos.30940-30941/2016 -4- Nos.1 and 2 who induced her to invest huge sum of money for their alleged business said to be being carried under the name and style of M/s. Akshaya International and M/s. Golden Fruit Capital Private Limited and being assured with huge returns in the form of sharing the profit, she was made to invest a sum of Rs.40,00,000/- with them. In that regard, Accused Nos. 1 and 2 also executed Agreements on 4.8.2012 and 18.03.2013. According to the Complainant, the Accused failed to give her the profit amount or refund the amount invested by her. Even as per the Agreement as on 30.05.2013, the Accused were liable to pay her a sum of Rs.56,00,000/- which also they did not pay and were avoiding to pay any amount to her. She has specifically accused of cheating her having deceptive intention. The said complaint was registered with the Respondent No.1- Police Station under Station Crime No.336/2013 for W.P. Nos.30940-30941/2016 -5- the offences punishable under Sections 406 and 420 of Indian Penal Code. The Police are said to have conducted the investigation and filed charge sheet against the Accused for the offence punishable under Sections 406, 420 read with Section 34 of Indian Penal Code. The case was numbered as CC No.21064/2015 in the Court below.
4. It is the contention of the petitioner [who was original Petitioner No.2] as well as the arguments of the learned Counsel for the Petitioner that alleged transaction is purely a financial transaction for the purpose of business. As such, any litigation would be in the form of a civil litigation. The Agreement dated 4.8.2012 and On Demand Promissory Note dated 18.03.2013, copies of which are at Annexures-A & B specifically and clearly mentions that the parties to the transaction are only the Complainant [Respondent No.2] and one Sri. B.R. Arunkumar [Earlier Petitioner W.P. Nos.30940-30941/2016 -6- No.1]. The present Petitioner [earlier Petitioner No.2] is in no way connected to the said transaction. Further, there is no intention to deceive the Complainant. As such, no mensrea can be noticed in the alleged transaction. Therefore, the alleged offence punishable under Section 420 of Indian Penal Code is not attracted.
5. Learned Counsel for Respondent No.2 in his arguments, submitted that the very documents produced by the Petitioner herein by their mere reading itself go to show that from the inception, the petitioner joined by other accused were determined to practice deception upon the Complainant and as such, they cheated her with not less than a sum of Rs.40,00,000/-. Keeping the present petitioner in the transaction as a person in whose company investment is required to be made, the accused have also clearly W.P. Nos.30940-30941/2016 -7- shown by their conduct that the present petitioner is also a party to the alleged commission of crime.
6. The petitioner in this case has not denied the alleged investment of a sum of Rs.40,00,000/- by the Respondent No.2 [Complainant herein]. Even the petitioner is also relying upon two documents at Annexures - A & B which are shown as agreement and On demand Promissory Note respectively. In the document at Annexure-A, though the parties to the agreement as first and second party are shown to be present Respondent No.2 [Complainant] and one B.R. Arunkumar [earlier Petitioner No.1], but the very same agreement also shows that the present petitioner Sri. S. Srinidhi had also participated in that agreement by being present at the time of the alleged agreement and by lending his name in his alleged capacity as Chairman and Managing Director of M/s. Golden Fruit Capital Private Limited. The very W.P. Nos.30940-30941/2016 -8- agreement at Annexure-A mentions in it that the said investment of Rs.40,00,000/- made by the complainant will be parked with M/s. Golden Fruit Capital Private Limited. That means the said investment is shown to have been borrowed for its investment in the company of the present petitioner. The petitioner [S. Srinidhi] has also signed the said document as a witness in his alleged capacity as Chairman and Managing Director. However, though he is projected as Chairman and Managing Director of M/s. Golden Fruit Capital Private Limited in the main body of the agreement, but while signing, he has projected himself as Chairman and Managing Director of M/s. Montage Infotech Private Limited. That means in the very same document, the present petitioner at two places have represented him in two different capacities. Further, he has accompanied the party to the agreement i.e., Mr. B.R. Arunkumar and allowed W.P. Nos.30940-30941/2016 -9- him to make use of his name for the said transaction wherein the Complainant was made to part away a sum of Rs.40,00,000/-. However, the said agreement though mentions that the same is only between the first party and second party and that no other persons are liable, but the role of the present petitioner and his involvement in the said transaction at this stage gives rise to strong suspicion.
7. After the first agreement dated 4.8.2012 which is at Annexure-A, according to the petitioner, the Complainant and said Sri. B.R. Arunkumar are said to have entered into another agreement which according to the petitioner is at Annexure-B. A perusal of the said document at this stage and prima facie go to show that the said document bears nomenclature as an 'On Demand Promissory Note'. In the said On Demand Promissory Note, the recitals are shown as though it is an agreement between W.P. Nos.30940-30941/2016
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first and second parties wherein also the Complainant is shown as first party and Sri. B.R. Arunkumar is shown as second party. Even in this document also, the name of the present petitioner Sri. S. Srinidhi in his capacity as Chairman and Managing Director of M/s. Golden Fruit Capital Private Limited is also shown stating that the investment will be parked in his company. Further, the said document which is titled 'On Demand Promissory Note' mentions about investment of Rs.40,00,000/- made by the Complainant and it also shows that she has acknowledged the profit till December of that year. Further, the very same document which is shown as 'On Demand Promissory Note' also mentions that to ensure return of the invested amount and profit amount from January 2013, a cheque for a sum of Rs.56,00,000/- was given to the first party by the second party. However, the said document does not W.P. Nos.30940-30941/2016
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mention as to who is the drawer of the said instrument. Ironically, at the conclusion, the said document which was titled in the front page as 'On Demand Promissory Note' was concluded as an 'Agreement' stating that the said agreement should be notarized. Even in the said document also, the present petitioner S. Srinidhi has put his signature as a witness, however, showing that he is Chairman and Managing Director of M/s. Montage Infotech Private Limited. Thus, the very look at Annexures-A & B and the manner how they are recited and also the manner how the present petitioner though was shown to be a party in the transaction, but intentionally was attempted to be kept out of the purview of the legal entangles under those two documents, creates a serious doubt about the conduct of the present petitioner as well as one Sri. B.R. Arunkumar who is second party in those two documents.
W.P. Nos.30940-30941/2016
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8. Further, a reading of cross examination of the present complainant as PW.1 in CC No.1629/2014, copy of which is produced by the petitioner at Annexure-J, stating that the said deposition is of the complainant in a proceeding for the offence punishable under Section 138 of Negotiable Instruments Act, also clearly shows that the complainant has admitted the suggestion as true that the complainant has invested money in M/s. Golden Fruit Capital Private Limited through M/s. Akshaya International firm. As such, said S. Srinidhi [present petitioner] is also an accused in the said case. A perusal of these materials produced by none else than the petitioner himself at this stage and prima facie would show that at the time when the agreement is said to have been entered into between the complainant and Sri. B.R. Arunkumar in the presence of the present petitioner on 4.8.2012, the Accused W.P. Nos.30940-30941/2016
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therein including the petitioner had designed the deception to be practiced against the complainant and had an intention to deceive her. As such, the argument of the learned Counsel for the petitioner that the petitioner had no intention to deceive the complainant and that there is no mensrea is not acceptable.
9. Further, the analysis made about clearly shows that there is no reason to show that the alleged offence punishable under Section 420 of Indian Penal Code has been incorporated without any basis. As such, I do not find any merit in the petition.
10. Accordingly, Writ Petition No.30941/2016 stands dismissed.
11. Considering the memo and submission, Writ Petition No.30940/2016 filed by the Petitioner No.1 stands dismissed as not pressed.
W.P. Nos.30940-30941/2016
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12. The Registry to take note of the same. The Petitioner to carry out necessary amendment in the cause title during the course of the day.
Sd/-
JUDGE AN/-