Karnataka High Court
Creative Infotech Company vs The State Of Karnataka on 6 July, 2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL PETITION No. 1086 OF 2021
BETWEEN
1. Creative Infotech Company,
Rep. by its Proprietor,
Mohit Hegde,
2. Mohit Hegde,
Aged about 49 years,
S/o. Ragurama Hegde,
Proprietor,
Creative Infotech,
Having Office at
No.S108, 1st Floor,
South Block, Manipal Centre,
Dickenson Road,
Bengaluru-560042.
...Petitioners
(By Sri. M.T.Nanaiah, Senior Advocate, for
Sri M.R.C.Manohar, Advocate)
AND
1. The State of Karnataka,
By Wilson Garden Police Station,
Bengaluru, Represented by
The State Public Prosecutor,
High Court Complex,
Bengaluru-560001.
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2. K.C.Sharath Gowda,
Aged about 38 years,
Son of Chandra Gowda,
Sales Head and Incharge of
Ms. Mahathru Technologies,
No.18/2, 1st Floor,
12th Cross, 8th Main,
Wilson Garden,
Bengaluru-560027.
...Respondents
(By Sri. B.J. Rohith, HCGP, for respondent no.1;
Sri. S. Balakrishna, Advocate for respondent no.2)
This Criminal Petition is filed under Section 482
Cr.P.C. praying to quash the FIR and complaint in
Cr.No.34/2019 registered by Wilson Garden Police,
Bengaluru for the offence punishable under Section 120B,
420, 471, 468, 465, 467,506B of IPC and the case is now
pending on the files of VI A.C.M.M., at Bengaluru
This Criminal Petition coming on for admission
through video conferencing this day, the court made the
following:
ORDER
This is a petition under Section 482 Cr.P.C., the petitioners have sought quashing of FIR in Cr.No.34/2019 registered by the first respondent - police station in relation to offences punishable under Sections 120-B, 420, 471, 468, 465, 467, 506 of IPC.
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2. Heard Sri.M.T. Nanaiah, learned Senior Counsel for the petitioners, the High Court Government Pleader for respondent no.1 and Sri. S. Balakrishna, learned counsel for respondent no.2.
3. It was the argument of Sri. M.T. Nanaiah that the second respondent being in charge of the business concern viz., Mahathru Technologies of which his wife is the proprietrix, entered into business transaction with the petitioners for buying the laptops. The first petitioner is a proprietary concern and the second petitioner is its proprietor. He referred to FIR to submit that according to the second respondent, when he entered into business transaction with the petitioners, it was assured to him that a discount to the extent of 15 to 18% would be given to him whenever he would buy laptops in bulk quantity. There was an understanding that at the time when GST invoices would be issued, he would be given discount of 10 to 12% and the remaining discount of 6 to 8 % would be 4 adjusted at the end of the financial year by giving him a credit note. He further submitted that as the second respondent has stated in the FIR, he made online payment of the purchase money to the petitioners and that he received the invoices up to July, 2018 and did not receive the invoices of the purchases made by him from August 2018 onwards. Entire quantity of laptops were not supplied to him, and when the second respondent met the petitioners to request them to supply the quantity of laptops that remained to be supplied as per the agreement and to release the credit note towards the discount amounting to Rs. 4 crore, the petitioners are said to have told him that they have supplied all the laptops and they were not due to pay any money to him towards credit note, and rather he was due to pay Rs. 4.95 Crores. Sri. M.T. Nanaiah, submitted that based on these allegations, FIR came to be registered against the petitioners for the offences aforesaid.
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4. He argued that the FIR thus registered against the petitioners is frivolous. One Mrs. Kavitha Wagamore and Mrs. Vasudha Shenoy have been arrayed as accused 3 and 4 in the FIR. They are the employees in the first petitioner's proprietary concern, looking after the accounts and the sales department. The second respondent might have stated that he had been cheated by the accused, but the fact is that much before registration of FIR against the petitioners and two other accused, the second petitioner had made a report against the second respondent and his two employees viz., Mrs. Kavitha Wagamore and Mrs. Vasudha Shenoy alleging fraud and cheating committed on the first petitioner - concern. His FIR was registered as 421/2018 by the Halasuru Police Station, Bengaluru for the offences under Section 406, 408, 418, 419, 420, 468, 471, 120-B r/w 34 IPC. In his FIR he has stated that his employees and the second respondent colluded to cheat him, that they started a parallel business concern under the name and style of Viva Info Solutions. They used to run this parallel business from the office of the first 6 petitioner. The petitioners had not assured of giving any discount to the extent of 15 to 18%. His assurance of giving discount, as the second petitioner came to know, was probably by Mrs. Kavitha Wagamore and Mrs. Vasudha Shenoy for the purpose of running their business. Actually they were selling the laptops to the petitioners' customers for a price less than the petitioners could sell. After coming to know about this fraud the second petitioner made a complaint to the police which was registered in Cr.No.421/2018 at Halasuru Police Station. Later on investigation was held and charge sheet came to be filed against the second respondent, his wife and Mrs. Kavitha Wagamore and Mrs. Vasudha Shenoy. He also submitted that the second respondent in the course of his transaction with the petitioners had issued three cheques for total mount of Rs.6,34,99,734/-. All these cheques when presented to Bank were returned dishonoured and therefore the petitioners had to initiate proceedings under Section 138 of the Negotiable Instruments Act. It was his submission that the present FIR against the petitioners 7 was nothing but vindictive action. If according to second respondent, the petitioners are due in a sum of money on account of the discount offered to him, he has to file a suit for recovery of the money and necessarily he has to prove the contract of offering the discount. A plain reading of the FIR does not indicate that the petitioners have committed of any offence of fraud, cheating, forgery etc. If the FIR is allowed to sustain, it is nothing but abuse of process of court and hence it needs to be quashed.
5. The learned counsel for the second respondent argued that there are no grounds for quashing the FIR. Actually the second petitioner resorted to forging the signature of second respondent's wife on the cheques said to have been issued at the time of entering into business transaction with the petitioners. Entire quantity of laptops were not delivered to the second respondent and even the invoices were prepared to show that the laptops were delivered to the second respondent. The invoice numbers found on the invoice forms raised in connection with 8 disputed delivery of laptops are all forged and fabricated. For these reasons, the second respondent ought to make a complaint against the petitioners when he discovered cheating and forgery. The police are investigating into the matter. At this stage, there cannot be interference under Section 482 Cr.P.C. for quashing the FIR.
6. If the FIR registered against the petitioners and two others is read, it appears that the second respondent wanted to purchase laptops from the first petitioner's business concern and there is no dispute with regard to this. The petitioners dispute offering of discount to the extent of 15 to 18% and claim to have supplied the entire quantity of laptops which is again disputed by the second respondent. But what is important to be noted here is that on 16.11.2018 itself, the second petitioner lodged an FIR with Halasur Police against the second respondent, his wife Smt. H.G. Pranitha, Mrs. Kavitha Wagamore and Mrs. Vasudha Shenoy alleging that his employees viz., Mrs. Kavitha Wagamore and Mrs. Vasudha Shenoy colluded with 9 the second respondent and his wife to run a parallel business under the name and style of Viva Info Solutions and caused loss to him. In the said FIR, he has in detail mentioned the manner in which there was collusion among the said four persons and how the sales from his business concern was being routed to his customers without his knowledge at a lesser price. As submitted by Sri. M.T. Nanaiah, Halasur police filed charge sheet pursuant to FIR 421/2018 and the charge sheet is also produced here. The petitioners have also produced the copies of the complaints filed by them against the second respondent's proprietary concern, i.e., Mahathru Technologies for initiating action under Section 138 of N.I.Act. These complaints were filed on 12.12.2018 and 28.01.2019. Now if the allegations made by the second respondent in his FIR registered in Cr.No.34/2019 are seen in the background of the FIR registered by the second petitioner, a doubt arises about the veracity of the allegations in the second respondent's FIR. Apparently it can be made out from the allegations made by the second respondent that he did not think of 10 taking any action till 26.2.2019, although he came to know that the petitioners stopped issuing invoices in the month of August, 2018. In the FIR it is stated that the alleged incident related to the period 16.10.2018 to 21.12.2018, that means what the second respondent has stated in his report to the police that he did not receive the invoices from August, 2018 onwards can be said to be false. According to the second respondent, the petitioners have to pay him an amount of Rs.4.95 crore towards the discount offered to him, which is disputed by the second petitioner. Therefore it may be stated that if really the petitioners had offered discount, it is a matter of contract to be proved by the second respondent for recovering the amount said to be due to him. He has to file a suit for recovery of money against the petitioners. Even if the invoices were raised without his knowledge and without supplying the laptops to him, that aspect can be gone into by the civil court if the second respondent files a suit. The FIR lodged by the second petitioner in Cr.No.421/2018 and the charge sheet filed thereon cannot be ignored at this 11 stage. The petitioners have made allegations not only against the second respondent and his wife, but also against his two employees. If what he has stated in his FIR is true and the same is established in the court, necessarily the accused in FIR No.421/2018 may have to be punished for the offences invoked in the charge sheet. If really the second respondent's grievance about cheating and forgery by the petitioners is genuine, he should have made a report to the police much earlier. If he thought of making a complaint to the police after registration of FIR against him in Cr.No.421/2018 and initiation of proceeding under Sec.138 of N.I.Act, obviously a doubt arises about the veracity in the contents of FIR 34/2019. The petitioners have made allegations against his employees viz., Mrs. Kavitha Wagamore and Mrs. Vasudha Shenoy and that the second respondent has also blamed them in his FIR. Therefore it can be said that the allegations against this petitioner in FIR No.34/2019 do not prima facie appear to be believable. Initiation of criminal action against the petitioners, in the above circumstances, since 12 appear to be frivolous and vindictive, it can be said that it is nothing but abuse of process of court. Therefore this petition deserves to be allowed and accordingly the FIR in Cr.No.34/2019 registered by Wilson Garden Police Station, Bengaluru is quashed so far as petitioners i.e., accused no.1 and 2 respectively are concerned.
Sd/-
JUDGE sd