Karnataka High Court
M V Ganga vs State Of Karnataka on 27 August, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION No. 5603 OF 2009
BETWEEN:
1. M.V.Ganga
Billichukki
Aged about 37 years
R/at. No.30, 4th Cross,
Santhrupthi Nagar
J.P.Nagar, 7th Phase
Bangalore - 560 079
2. M.R.Venkatesh
Billichukki
Aged about 62 years
R/at No.30, 4th Cross,
Santhrupthi Nagar
J.P.Nagar, 7th Phase
Bangalore - 560 079
3. Chandrakantha
Aged about 56 years
R/at No.30, 4th Cross,
Santhrupthi Nagar
J.P.Nagar, 7th Phase
Bangalore - 560 079
4. M.V.Ashok
S/o. M.R.Venkatesh
Aged about 33 years
R/at No.30 4th Cross,
Santhrupthi Nagar
2
J.P.Nagar, 7th Phase
Bangalore - 560 079 ...Petitioners
(By Shri Shekar & Kumar, Advocate)
AND:
1. State of Karnataka
By Hulimavu Police Station
Bangalore
Represented by the
State Public Prosecutor
High Court Building
Bangalore - 560 001
2. Smt C.P.Akkayamma
W/o. Krishnappa
Aged about 48 years
Janatha Colony
Hunasemaranahalli Village
Chikkajala Hobli
Bangalore - 562 157 ...Respondents
(By Shri K.Dilip Kumar, GP for R1)
(By Shri G.Jeeva Prakash Associates, Adv., for R2)
This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure praying that this
Hon'ble Court may be pleased to set aside the order
dated 05.05.2009 passed by the V Addl.C.M.M.,
Bangalore City in P.C.R.No.8171/2009. Thereby
referring the case to station house officer, Hulimavu
Police Station for investigation and report against the
petitioners herein for the commission of offences
punishable under Section 418, 420 IPC.
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This Criminal Petition coming on for admission on
this day, the Court made the following: -
ORDER
The respondent No.2 lodged a private complaint in PCR No.8171/2009 before the V ACMM, Bangalore against one Sri.M.V.Arun as accused and petitioner Nos.1 to 4 herein as accused Nos.2 to 5 alleging offences punishable under Sections 418 and 420 of IPC and requested the Court to take cognizance of the said offences or to refer the complaint to the J.P.Nagar police for investigation under Section 156(3) of Cr.P.C.,
2. On presentation of the complaint on 05.05.2009, the learned Magistrate passed the following order:
"Complainant present. Heard. Refer it to SHO, Hulimavu PS for investigation and report. Call on 18.07.2009."
3. Based on such reference, Hulimavu police registered the case in Crime No.162/2009 for the offences punishable under Sections 418 and 420 IPC 4 and took up investigation. On coming to know of the registration of the case by Hulimavu police station, petitioners presented this petition seeking to quash the order dated 05.05.2009 passed by the learned Magistrate referring the case to the police for the investigation and also to quash the complaint filed by respondent No.2.
4. Upon service of notice, respondent No.2 has appeared through her learned counsel.
5. Respondent No.1 is represented by the State Public Prosecutor.
6. I have heard the learned counsel for the petitioner as well as the learned counsel for respondent No.2.
7. In the private complaint presented by respondent No.2 it was interalia alleged that accused No.1 was introduced to the complainant in the year 2004 through her friends Mrs.Munirathnamma and 5 Mrs. Sowmya and in the background of the familiarity accused No.1 approached the complainant and obtained loan of Rs.60,000/- and issued 10 post dated cheques each for Rs.6,000/- and cleared the said debt / liability through cheques and thereby gained confidence of the complainant; that accused No.1 once again approached the complainant in the month of May 2006 and stated that his father is required to undergo a major surgery for which he is in need of a sum of Rs.5.00 lakhs; that the complainant on coming to know that father of accused No.1 was serious, agreed to help accused No.1; that since the complainant had no financial capacity to meet the required sum of Rs.5.00 lakhs, she alongwith her friend Mrs.Munirathnamma approached their known person Mr.Mohan Babu who agreed to advance the loan subject to condition that he would not directly lend the loan to accused No.1, on the other hand he would give the loan in the name of complainant or Munirathnamma and since Munirathnamma told the complainant that her husband would object, 6 complainant took the risk of helping accused No.1; that the complainant received a sum of Rs.2,50,000/- from Mohan Babu on 22.08.2006 and paid the same to accused No.1 by cash and acknowledging the said debt accused No.1 issued a crossed post dated cheque for Rs.2,50,000/- drawn on Vijaya Bank, Audugodi Brach and also a promissory note for the said amount; that the complainant once again borrowed Rs.2,50,000/- from Mr.Mohan Babu on 11.06.2006 and paid the same to accused No.1 in respect of which also accused No.1 issued another post dated cheque for Rs.2,50,000/- drawn on Vijaya Bank, Audugodi Branch and also promissory note dated 26.08.2006 agreeing to repay the said amount with interest at 18% p.a., upto the date of repayment; that when the complainant presented the cheques for collection after the due dates, both the cheques were returned unpaid with the bankers endorsement "funds insufficient". Thereafter, complainant initiated prosecution against accused No.1 for the offence punishable under Section 138 of the 7 Negotiable Instruments Act in CC No.35244/2006 on the file of XII ACMM, Bangalore; that when the summons issued from the Court in that case against the accused No.1 in the present complaint sought to be served on him, he was not found in the house while these petitioners - accused Nos.2 to 5 were present in the house and on enquiry these petitioners informed the summons serving officer that they do not know as to the whereabouts of the accused therein. However, the said summons was served on accused No.3 herein; that later accused No.1 informed over the phone to the police that he would settle the money as such., it is clear that accused Nos.2 to 5 are in constant contact with accused No.1, but all the family members are denying the whereabouts of the accused No.1 only with a view to shield him from the prosecution; that from the above, it is clear that accused Nos.2 to 5 with an intention to cheat the complainant and to protect accused No.1 from being prosecuted have furnished wrong information that they do not know as to the whereabouts of accused No.1 8 and thereby they have committed offences punishable under Sections 418 and 420 of IPC.
8. The Division Bench of this Court in Guruduth Prabhu & Others Vs. M.S.Krishna Bhat & Others reported in 1999 Crl.L.J.3909 has held that even at the stage of referring the complaint to the police for investigation in exercise of power under Section 156(3) of Cr.P.C., the Magistrate is required to apply his judicious mind to the allegations made in the complaint for the purpose of finding out as to whether the allegations made therein constitutes commission of any cognizable offence and whether it warrants investigation by the police.
9. The order passed by the learned Magistrate in the case on hand as extracted above would not indicate the application of mind to the averments made in the complaint. The order impugned appears to be a mechanical order passed by the learned Magistrate referring the complaint to the police for investigation 9 even without looking into the averments made therein and without satisfying as to whether the allegations made therein constitutes cognizance offence which warrants investigation by the police. Therefore, the order of reference passed by the learned Magistrate referring the complaint to the police for investigation is perverse and illegal being contrary to the law laid down by this Court.
10. Apart from this, it is not the case of the complainant that the accused No.1 in the present complaint who is the sole accused in the prosecution launched for the offence punishable under Section 138 of the Negotiable Instruments Act was very much present in the house when the police official went near the house for serving the summons and that these petitioners deliberately concealed his presence in the house. Reading of the complaint allegations makes it clear that even according to the complainant, the accused No.1 was not in the house when the police officials went near his house to serve the summons and 10 further according to the complaint allegations accused No.1 was reaching the house late in the night and was leaving the house early in the morning so as to avoid service of summons on him. May be from this allegations, it can be assumed that accused No.1 had the knowledge of prosecution launched against him and the summons issued against him by the jurisdictional Court and he appears to have avoided service of summons. However, that by itself cannot be the basis to contend that these petitioners have deliberately concealed the whereabouts of accused No.1. The very allegation that accused No.1 was coming to the home late in the night and was leaving the house early in the morning indicates that the complainant also knows this fact and inspite of the same he could not take necessary steps to serve the summons or warrant on accused No.1. On the basis of allegations made in the complaint, the ingredients of the offences punishable under Sections 418 and 420 of IPC prima facie not made out. To attract offence under Section 418 of IPC, 11 there must be cheating with the knowledge that the offender is likely thereby to cause wrong loss to the person whose interest in the transaction to which the cheating relates, either by law or by legal contract to protect.
11. Section 415 of IPC defines cheating as under:
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 personal in body, mind, reputation or property, is said to "cheat".
12. Section 420 of IPC deals with the punishment for cheating and dishonestly inducing delivery of property, and the said sections reads as under:
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Whoever cheats and thereby dishonestly induces the person deceived to delivery 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 to 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.
13. Reading of the aforesaid provisions makes it clear that there must be fraudulent or dishonest inducement with an intention to deceive such person and thereby make the person so deceive to delivery any property or to consent such person to retain only property or should intentionally induce the persons, so deceive to do or omit to do anything which he is not expected to do. In the case on hand from the allegations made in the complaint, there is no averments to the effect that these petitioners had in any way deceived or induced the complainant to part with any property. The entire allegations about the receipt of 13 money and issuance of the cheques are against accused No.1. The allegations in the present complaint against these petitioners is that they deliberately concealed the whereabouts of accused No.1 when the complainant sought to serve the summons on accused No.1.
14. Having regard to the allegations made in the complaint, I am of the considered opinion that the ingredients of the offences punishable under Sections 418 and 420 of IPC is not made out. The learned Magistrate even without applying his mind to the averments made in the complaint has mechanically referred the said complaint for investigation to the police. Therefore, the complaint as against these petitioners was not competent and it is liable to be quashed. In this view of the matter petition is allowed. The order dated 05.05.2009 passed by the V ACMM, Bangalore in PCR No.8171/2009 referring the complaint to the police for investigation and the complaint lodged by respondent No.2 against these petitioners arraigned as accused No.2 to 5 are hereby quashed. However, it is 14 made clear that the respondent No.2 is at liberty to proceed with the complaint against accused No.1.
Sd/-
JUDGE GH