H Madhana Mohan Rao vs State Of Karnataka Rep By Hospet Town Ps on 23 October, 2009

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Karnataka High Court

H Madhana Mohan Rao vs State Of Karnataka Rep By Hospet Town Ps on 23 October, 2009

Bench: A.N.Venugopala Gowda

THE HONBLE MR. JUSTECE AN. \}',EN:UGé3PALA. 

IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DI-IARWAD

DATED THIS THE 23% DAY OF OCTOBE3R,A--'.;3O{)49"'.   *

BEFORE

CRIMINAL PETITION N6;.,.i'132/adds...  

BETWEEN:

AND.

S/0. L.H.Subba Rao ' "_
Aged about 61 years__  _
N0. 52, 3"1 Cross Road C C *
Ravindhrahafha Nagar? '"
SHIMO_(}.A'.'v 4' 5:,  * ' " '.

Sri. H.Madhana Mchan Rae  .  "

   » _  A_   PETITIONER
(Bysr.i»  Kua1ka1*ani,»;Adv-*)a+«-..C 

State c§f.I4{'arnafa.I<aAC.' =  _.
Represer1ted'byV VH0s'pet"Town Police Station
H4t§)Spe.t 

' jSn.Jc';CN'.*cgov:in--daappa

'- . S,' Q'. iatfe ._ C .VI\fa1'ayanappa

' Aged about 57 years

Hospgft Town
Be11ary.._District.
 '  RESPONENTS

 "{--B}'zn."Sri. RH. Gotkhindi, H.C.G.P.)
"§(By Sri. Hanumantha Reddy Sahukar, Adv.)

 



DJ

instead of filing a suit for specific performance of the

contract, ﬁled O.S. No. 297/2006, on the file of 

Judge (Jr.Dn.) at Hospet, for a decree 

injunction, which was decreed on O?»/_12/2_0O'/',---- 

the petitioner from alienating the suit progjerty in"'fa\fo:'ur 

third persons or from creating -encumbrance esokirierwthe suit --. '

property, by violating the terim's.i_:ofu'theisaleli agreement
dtd.28/ 05/2003, till respondent herein

under the said sale The 2nd respondent had ialsoiVi,nit.iated";criminal-proceedings against the petitioner. which lywas registered' tor offences punishable under 471, 504, 506 R/W. Sec. 34 I.P.C. The casepVwa,s','.reigistered in PC. No. 102 / 2007 on the * file at Iriiiospeti. An investigation was ordered to be police. After investigation, police ﬁled 'B' report)' Secefndteiirespondent filed a protest Memo to the 'B' report which after consideration, was rejected. Petitioner i..:states«--._that, at the intervention of certain persons, an 'Carnicalole settlement came to be entered into with regard to t/V his illegal goal. It is not the case of the respondent/complainant that, there was a dishonest intention on the part of the petitioner, when ~ entered into. As already noticed, thAebrespon'dent" .hiasv"ﬁled suits against the petitioner pursuant:the,_agreerr1eiit ' sale / contract. V .

6. Sec. 415 1.9.0. deﬁnevs"i«.cheatinig'." .iAr'i offence of cheating cannot be haire out Ll1'1lCSS the following ingredients areprnadew i i I. oi'--.a p_ei=;<}oii' making a false or or by other action iiii H it it II.i'--. it 'iiishonestly inducing any person altod'elive.rianj5"'property or to consent that any person "shall retain any property and ﬁnally ir1ite_n't.ionally inducing that person to do or ornit i do anything which he would not do or omit. it . For the purpose of constituting an offence of i"ii'_'~._\'uirchieatiI'1g the complainant is required to show that, the / Ar:

accused had fraudulent or dishonest intention at the time of making the promise or the representation. Even i:1"va"'c_a's_e where the allegations are made in regard to failurei * part of the accused to keep his promise, in the' a culpable intention at the time of making"i11.i:tial»prornisle absent, no offence U/sec. 420'lE'.(_3 can'-be said7;toi{t1ax(eV been a i' made out. In order to make oiitethe case. an? offence punishable U/sec. 42£)_ﬂg--IPC-'_, the"~--._ _1'"a,cts _ disclosing the ingredients of theVoffenceVt_r_nt1st 'he :.av'erred'--.the complaint Petition.

7.__ln _tlherciasAe._ Stat§«.._oft_vIiIaryana vs. Bhajanlal, reporteeiam.1992'e;s:ipp1e'mem:--I;' sec 355, it has been held as follows; l i ii i 3 . l V In fhel"l').§lt3lCdT'(:)p of the interpretation of the

i)an'ouS* ..relevantWprovtstons of the Code under AVXIV and of the principles of law this Court in a series of decisions "'«.._relavti'ng.:to the exercise of the extraordinary power V urzder Article 226 or the inherent powers under it 'i Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein EV .~'°§ such power could be exercised either to prevent abuse of the process of any court or otherwiseétoi secure the ends of justice, though it may not. possible to lay down any precise, clearly "

and sufﬁciently channelised and guidelines or rigid formulae";

exhaustive list of myriad kindsof' cases iuherein if such power should be exelrciised.

(1) (2) Where the allegations 'made in' the first information report orgthe iycomplaint, even if they are taken"M'~at '_thf;'i'." "face"~lvalue and accepted in their entirety:"do_& no"t..piima--facie constitute any _offenceHor., malceput a case against_thce__accused." ' S Where titer-allegations in the fi'r'st" information rep.o'rt"v if '-materials, if any, accompanying' theV"iF1R't' do not disclose a Vcogntcable;;offen_ce,_justyFy.ing an investigation by police O_i'f"lC€?fS"~Li?'£d€I'~ Section 156(2) of the Code .ex.:-'ept 'u_ndeyr""an order of a Magistrate (3/..

S .. investigation is permitted by ._@ 'within the"pu_rv1ie«Lv~.of Section 155(2) of the Code." V' = Where theunco.ntroverted allegations made in the Fl'Ror complaint and the evidence g:CVOiVL'&'Cted in'""'support of the same do not 'disclose the commission of any offence and "make out a case against the accused. Wiieregvithe allegations in the FIR do not constirate a cognizable offence but constitute only a non--cognizable offence, no a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

Where the allegations made in the Fir or complaint are so absurd mil inherently 10 improbable on the basis of which no prudent person can ever reach a just conclusion that i. there is sufficient ground for proceedin'g._f"--«_ against the accused. 4 ,_ (6) Where there is an express legal bar engrafted' ~ H in any of the provisions of the Code "or ' concerned Act {under which o;'""c'rirninaE' proceeding is instituted) tcftheiristitution._ancl._ ' continuance of the proceeding5§"an'd/Lay where ' there is a specific provision in the Codepr the ' concerned Act, providing efﬁcacious irredressggg for the grievance of thevagrgrieved'party,'_= " V (7) Where a criminal procee_dirr.g is "manifestly attended with.» .rnalaﬁcie= and/or where "the proceeding is :0f1Ct1iiCiC"uS]iy,ift~.Si'iII;i'E9d with an ulterior motive for wre'aI~:ing uengeairice on the accused and withl,ar--.view ._to 's'pite*-- hint due to privateancl personai*gn4dgV'e;_ ' " V

8. Keep_ing44"i_ni.ixiiewgjutiie ratio Law indicated by the Apex noticed supra, it has to be examineciwhetherg aicjase' been made out for exercise of the jurisdictionVU/sec.A¥fi82'.Cr.P.C. For the said purpose, 'Nthe rnadeﬁn the complaint, even if given face Wvaiue 'and..4ta}§e~n to be correct in its entirety, whether makes out arroffence it 'r9, it is well settled position of law that, the power ~--.i.i*3/As§ec.iA-$82 Cr.P.C. can be exercised in cases where a person 12 made that he had an intention to cheat the respondent from the very inceptionf

14. What has been alleged in the petition as also the statement H complainant and his witnesses reiateiitob his'--_ subsequent conduct. The date statements were allegeiiclllyi'-._madei"hy. rhegi"-.

appellant had not':_b--e_en disclosedi._v witnesses of the complainant.i"-.ltl"is really absurd to optne ~aif'ayl""such stat'efnent would be made thy' the before all of them atthe sameV:'tlme'i.and that in his own distrfi..c'2;:i *_-Theliy, be wholly un.natura_l, "

I In oniyé because he had issued cheques lﬁwhiclh the same by itself would. that he had cheated the l ' s..compl'a-inant. Assuming that such a statement 1,"-.ha"a'_beenluhmade, the same, in our opinion, not exhibit that there had been any on the part of the appellant herein to _ v'_v'corn7init an offence under Section 41? of the * Penal Code.

i Considering the case sought to be made out by the 'respondent against the petitioner, the dispute is essentiaily /' ,.« 4 14' convert purely civil disputes into criminal cases, This is obviously on account of a prevailentu'i._V_ impression that civil law remedies are....._tim'e* consuming and do not adequately protects-the interests of lenders/ creditors. Such a --tendertcyl"i.s".. seen in several family disputes also,"1lea_ding=.to__ irretrievable break down of V'mar.r_iages/ There is also an impressizin'-that a peVrsonYc'o'uld'l somehow be entangled in criminallprosecuition, there is a likelihoo§;~..0f sseutgtlementl iii/iny eﬂort to settle civil dispu_tes which do not involve any criminal""o;fe:nce; pressure though crimilrial.lprosecution.'_"should----~l§e deprecated and v. State of U.P. (20oot_(2)"'s¢c's35), -this:icou'rt..ob:lerved.- 'V _ if a matter, which is essentially' has been given a cloak-.. of it ~__cn'miind~l oﬁence. Criminal proceedingsﬁiarei not a short cut of other 'remedies available in law. Before issuing it gproceVss_a'*criminal court has to exercise a great i = deal'.'ofcaution. For the accused it is a serious rr3.__attei':' This Court has laid certain principles 'o_nlihe basis of which High Court is to exercise it 'l"'._its jurisdiction under this Section has to be 'A exercised to prevent abuse of t e process of 4"

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