Karnataka High Court
Sri. Chandrakanth vs The State By Magadi Road Police Station on 13 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:37872
CRL.P No. 9521 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 9521 OF 2023
BETWEEN:
1. SRI CHANDRAKANTH
S/O RAMALINGAM
AGED ABOUT 50 YEARS
MANAGING DIRECTOR
M/S. RAMALINGAM CONSTURCIONS
OFFICE AT NO.1, N.R.TOWERS
SIRSI CIRCLE, BINNYMILL ROAD
BENGALURU - 560 023.
2. RAAMALINGAM
S/O NACHIMUTHU
AGED ABOUT 76 YEARS
DIRECTOR OF
M/S. RAMALINGAM CONSTURCTIONS
OFFICE AT NO.1, N.R.TOWERS
Digitally signed
by NAGAVENI SIRSI CIRCLE, BINNYMILL ROAD
Location: HIGH BENGALURU - 560 023.
COURT OF
KARNATAKA
3. SRI KARTHIK
S/O DORAISWAMY
AGED ABOUT 35 YEARS
MANAGER OF
M/S. RAMALINGAM CONSTRUCTIONS
OFFICE AT NO.1, N.R.TOWERS
SIRSI CIRCLE, BINNYMILL ROAD
BENGALURU - 560 023.
...PETITIONERS
(BY SRI R.P.SOMASHEKHARAIAH, ADVOCATE)
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NC: 2024:KHC:37872
CRL.P No. 9521 of 2023
AND:
1. THE STATE BY MAGADI ROAD
POLICE STATION
VIJAYANAGAR SUB-DIVISION
MAGADI ROAD
BENGALURU - 560 040
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU.
2. SRI H.S.SHANMUGAPPA
S/O SHANKARAPPA
AGED ABOUT 47 YEARS
HOSADUPADHA HALLI
SIKARIPUR TALUK
SHIVAMOGGA - 577 427.
...RESPONDENTS
(BY SMT. SOWMYA R., HCGP FOR R1;
SRI H.KANTHARAJ, SR. ADVOCATE FOR
SRI NIKHIL M., ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C.,(528 OF BNSS) PRAYING TO QUASH THE
PROCEEDINGS IN PCR 2792/2023 ON THE FILE OF THE 2ND
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
BENGLAURU PURSUANT TO THE ORDER DATED 01.04.2023
AND THE FIR REGISTERED BY THE RESPONDENT NO.1 POLICE
IN CR.NO.82/2023 FOR THE OFFENCE U/S 420, 324, 504 AND
506 OF IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.P No. 9521 of 2023
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioners - accused Nos.1 to 3 are before this Court calling in question registration of a crime in Crime No.82/2023, now pending before the 2nd Additional Chief Metropolitan Magistrate, Bengaluru, for the offences under Sections 420, 324, 504 and 506 of the IPC.
2. Heard Sri R.P.Somashekharaiah, learned counsel for petitioners, Smt. Sowmya R., learned High Court Government Pleader for respondent No.1 and Sri Kantharaj. H., learned senior counsel along with Sri Nikhil M., learned counsel for respondent No.2.
3. The genesis of the issue is with regard to a sub- contract awarded to respondent No.2 - complainant, by the petitioners who are the office bearers of M/s.Ramalingam Constructions Private Limited, who was awarded a contract of construction of a channel at Shivamogga on the bed of the Tunga river. The contract is awarded on 21.04.2017. After the contract was awarded to the petitioners, the company is said to -4- NC: 2024:KHC:37872 CRL.P No. 9521 of 2023 have entered into a sub-contract with respondent No.2 - complainant by drawing up certain terms and conditions. The dispute between the two, i.e., the contractor and the sub- contractor arose for the payment of money and settlement of dispute between them. The petitioners are said to have registered a complaint against respondent No.2 - complainant in the case at hand. It transpires that the complaint comes to be closed by drawing up a non-cognizable report on the ground that the complainant approaches the police station and admits that he would not claim anything more than what has been claimed by him earlier. Immediately thereafter, a private complaint is registered by the complainant invoking Section 200 of the Cr.P.C. before the learned Magistrate and the matter has been referred under Section 156(3) of the Cr.P.C., for investigation and therefore, the impugned crime is registered by the jurisdictional police in Crime No.82/2023. The registration of the crime has driven the petitioners to this Court in the subject petition.
4. Learned counsel for petitioners submits that the dispute between the contractor and the sub-contractor with -5- NC: 2024:KHC:37872 CRL.P No. 9521 of 2023 regard to the payment of money or recovery of money is sought to be redressed by registering a crime for the offences under Sections 420, 324, 504 and 506 of the IPC. He submits that the criminal law cannot be set into motion for recovery of money.
5. Sri H. Kantharaj, learned senior counsel appearing for respondent No.2 would refute the submissions of the learned counsel for petitioners to contend that in every case, the Court has not quashed the proceedings, which has a civil flavour. The criminal law can be set into motion apart from initiating civil proceedings. He would place reliance upon the judgment of the Apex Court in the case of LEE KUN HEE AND ORS. VS. STATE OF U.P AND ORS. reported in 2012 AIR SCW 1316. On the merit of the matter, he would submit that the matter is at the stage of investigation, as the complainant was assaulted by the petitioners. He seeks dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record. -6-
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7. The afore-narrated facts are not in dispute and requires no reiteration. The contract between the petitioners and respondent No.2 - complainant, sub-contractor from the hands of the petitioners, is a matter of record. The contract is entered into between the two by drawing up certain terms and conditions, pursuant to the contract awarded by the State, in favour of the principle contractor. The dispute arose between the two, a complaint seeking to register a crime against the complainant, which is rendered as a non-cognizable report by the jurisdictional police. The grounds for settlement of dispute reads as follows:
"£À£Àß ºÉýPÉ µÀ£ÀÄäR ©£ï ¯ÉÃmï ±ÀAPÀæ¥Àà 45 ªÀµÀð £ÀA.112 £Éà PÁæ¸ï, 2£Éà ºÀAvÀ zÀÆ¥ÀzÀºÀ½î ²PÁj¥ÀÄgÀ, ²ªÀªÉÆUÀÎ ºÁ° ªÉÆ:9440383156 ಈ ೕಲ ಂಡ ಾಸದ ಾ ೆ ಮ ೆಯ 03 ವಷ ಗ ಂದ ಸಂ ಾರ ಸಮತ ಾ ಾಸ ಾ ದು", ನನ$ ಪ&$ ಗೃ()*ಾ ದು". ಇಬ-ರು ಮಕ ದು", /ಡಬು 0ಾಂಟ2ಕ34 0ೆಲಸ 5ಾ 0ೊಂ ರು7ೆ8ೕ ೆ. 9 ಾಂಕ:-19.01.2023 ರಂದು :2ೕ 0ಾ& ; '<= >ೊ? ಾ@A ನಂ.1, ಎ=ಆ4 ಟವ4 <D$AE FೋG, <D$AE. Fಾಮ ಂH ಕ=Iಟ2J= ಕಪDಯ 0ೆಲಸ 5ಾಡು&8ದು", ಈತನು Dೕ ದ ದೂ?ನ ಾFಾಂಶ ೇ ೆಂದFೆ, 9 ಾಂಕ:-18.01.2023 ರಂದು ೕಲ ಂಡ ಕLೇ?ಯ ಬ :2ೕ ಷನುMಖ ಎಂಬ ವOP8 ಬಂದು ಅ ಾಚOಶಬ"ಗ ಂದ Dಂದನ 5ಾ , ನನ ೆ ಹಣ Dೕಡ ೇ0ೆಂದು ೇ 0ೆ ಇಟು3 Dೕಡ9ದ" ಷ ೇವ ೆ 5ಾಡು&8 ೆಂದು Uೇ ೆದ?0ೆ UಾPರುವ ಷಯ0ೆ ಸದ? :2ೕ ಷನMಖರವರನು$ Vಾರ 5ಾ >ಾಗ ಕಂಪD ಮತು8 ಅವರ ನಡು ೆ ವOವUಾರಗ ದು", ಆ Vಾರ ಾ ಾನು ಸದ? ಕLೇ? ಬ ಬಂದು ನನ$ ಸಮ ೆOಯನು$ 0ೇಳಲು ಬಂ9ರು7ೆ8ೕ ೆಂದು & Xರು7ಾ8Fೆ. Uಾ ೆYೕ ಷ ೇವ ೆ 5ಾಡು7ೆ8ೕ ೆಂದು Uೇ ದು" Dಜ ಆದFೆ ಾನು *ಾವ[>ೇ \ೕವ ೆದ?0ೆ UಾPರುವ[9ಲ. ಇನು$ ಮುಂ>ೆ ಸದ? Vಾರದ \ೕವ ೆದ?0ೆ Uಾಕುವ[9ಲ.
Uಾಕುವ[9ಲ Uಾ ೆYೕ ಇನು$ ಮುಂ>ೆ ಾನು -7- NC: 2024:KHC:37872 CRL.P No. 9521 of 2023 ಕLೇ?ಯ ಬ ಬಂದು *ಾವ[>ೇ ?ೕ&ಯ ಗ]ಾ^ೆ ವ ೈFೆ 5ಾಡುವ[9Eಲ 5ಾಡುವ[9Eಲ. ನನ$ ಮತು8 Fಾಮ ಂH ಕ=Iಟ2J=
ಕ=Iಟ2J= ಕಪDಯ ವOವUಾರವನು$ ಾ ೇ ೇ?0ೊಂಡು ಾOಯಯುತ ಾ ಬ ೆಹ?X0ೊಳ`a7ೆ8ೕ ೆ.ೆ ಇನು$ ಮುಂ>ೆ ಾ ನ Vಾರದ ಾನು ಎ ಯು ಸಹ ಪ2 ಾ8ವ ೆ 5ಾಡುವ[9ಲ ೆಂದು ಈ ಮುಲಕ & ಸು7ಾ8 ಈ ೕ ನ ಎ]ಾ ವOವUಾರವ[ :ವbಗcದ ನdೆ9ರುವ[ದ?ಂದ ಸದ? ಸಮ ೆOಯನು$ ಾನು :ವbಗcದ ಬ ೆಹ?X0ೊಳa7ೆ8ೕ ೆಂದು Uೇ ನ£Àß ೕ]ೆ Dೕ ರುವ ದೂರು ಅ\ ಯನು$ ಮು0ಾ8ಯ 5ಾಡ ೇಂ0ೆಂದು ಈ ಮೂಲಕ 0ೋ?0ೊಳea7ೆ8ೕ ೆ."
ೆ (Sic) (Emphasis added) The settlement is entered on 19.01.2023. The complainant then approaches the learned Magistrate invoking Section 200 of the Cr.P.C. by registering a private complaint on 29.03.2023.
8. A perusal at the complaint would indicate that it is registered on a breach of agreement or what was agreed between the petitioners and the complainant or between the complainant and the company, the sub-contractor and the principle contractor. The plea of the complainant in the private complaint can be gathered from paragraph No.16 onwards, reads as follows:
"16. The complainant submits that, the accused persons with common intention they have committed the offence punishable under section 420, 324, 504, 506 of IPC.-8-
NC: 2024:KHC:37872 CRL.P No. 9521 of 2023
17. The complainant submits that, the accused person have local person and highly influenced persons. Hence the police have colluded with accused person and hence the complainant has no other alternative, hence approaching this Hon'ble Court.
18. The complainant submits that, the accused persons are having common intention for cheat the complainant and wrongful gain go grab the money illegally. Hence the accused is committed an offence punishable under section 420, 324, 504, 506 of IPC.
19. The complainant submits that, all the above said incidents took place on the complainant residence in the jurisdiction of the Magadi Road Police Station.
20. The complainant submits that, this Hon'ble court got jurisdiction to try this matter.
Wherefore the complainant above named prays this Hon'ble Court may be pleased to refer the above case for investigation under section 156(3) of CrPC to Magadi Road Police Station for an offence punishable under section 420, 324, 504, 506 of IPC, in the interest of justice and equity."
The complainant narrates that, it is with the common intention to cheat the complainant and get wrongful gain or taking the money illegally, the petitioners have committed the offences. Therefore, it is undoubtedly a dispute with regard to the claim of money, by the complainant. Breach of an agreement; claim of money or recovery of money cannot be made as the subject matter of the crime, as the criminal law -9- NC: 2024:KHC:37872 CRL.P No. 9521 of 2023 cannot be set into motion for recovery of money. This is by now too well settled a principle of law. The Apex Court in the case of LALIT CHATURVEDI AND OTHERS Vs. STATE OF UTTAR PRADESH AND ANOTHER reported in 2024 SCC OnLine SC 171, has held as follows:
"5. This Court, in a number of judgments, has pointed out the clear distinction between a civil wrong in the form of breach of contract, non- payment of money or disregard to and violation of the contractual terms; and a criminal offence under Sections 420 and 406 of the IPC. Repeated judgments of this Court, however, are somehow overlooked, and are not being applied and enforced. We will be referring to these judgments. The impugned judgment dismisses the application filed by the appellants under Section 482 of the Cr. P.C. on the ground of delay/laches and also the factum that the chargesheet had been filed on 12.12.2019. This ground and reason is also not valid.
6. In "Mohammed Ibrahim v. State of Bihar"4, this Court had referred to Section 420 of the IPC, to observe that in order to constitute an offence under the said section, the following ingredients are to be satisfied:--
"18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived;
and
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(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
19. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security)."
7. Similar elucidation by this Court in "V.Y. Jose v. State of Gujarat"5, explicitly states that a contractual dispute or breach of contract per se should not lead to initiation of a criminal proceeding. The ingredient of 'cheating', as defined under Section 415 of the IPC, is existence of a fraudulent or dishonest intention of making initial promise or representation thereof, from the very beginning of the formation of contract. Further, in the absence of the averments made in the complaint petition wherefrom the ingredients of the offence can be found out, the High Court should not hesitate to exercise its jurisdiction under Section 482 of the Cr. P.C. Section 482 of the Cr. P.C. saves the inherent power of the High Court, as it serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years, when no criminal offence is made out. It is one thing to say that a case has been made out for trial and criminal proceedings should not be quashed, but another thing to say that a person must undergo a criminal trial despite the fact that no offence has been made out in the complaint. This Court in V.Y. Jose (supra) placed reliance on several earlier decisions in "Hira Lal Hari Lal Bhagwati v. CBI"6, "Indian Oil 7 Corporation v. NEPC India Ltd." , "Vir Prakash Sharma v. Anil Kumar Agarwal"8 and "All Cargo Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain"9.
8. Having gone through the complaint, which was registered as an FIR and the assertions made therein, it is quite clear that respondent no. 2/complainant - Sanjay Garg's grievance is regarding failure of the appellants to pay the outstanding amount, in spite of the respondent no. 2/complainant - Sanjay Garg's repeated demands.
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NC: 2024:KHC:37872 CRL.P No. 9521 of 2023 The respondent no. 2/complainant - Sanjay Garg states that the supplies were made between the period 01.12.2015 and 06.08.2017. The appellants had made the payments from time to time of Rs. 3,76,40,553/- leaving a balance of Rs.
1,92,91,358/-.
9. We will assume that the assertions made in the complaint are correct, but even then, a criminal offence under Section 420 read with Section 415 of the IPC is not established in the absence of deception by making false and misleading representation, dishonest concealment or any other act or omission, or inducement of the complainant to deliver any property at the time of the contract(s) being entered. The ingredients to allege the offence are neither stated nor can be inferred from the averments. A prayer is made to the police for recovery of money from the appellants. The police is to investigate the allegations which discloses a criminal act. Police does not have the power and authority to recover money or act as a civil court for recovery of money.
10. The chargesheet also refers to Section 406 of the IPC, but without pointing out how the ingredients of said section are satisfied. No details and particulars are mentioned. There are decisions which hold that the same act or transaction cannot result in an offence of cheating and criminal breach of trust simultaneously.10 For the offence of cheating, dishonest intention must exist at the inception of the transaction, whereas, in case of criminal breach of trust there must exist a relationship between the parties whereby one party entrusts another with the property as per law, albeit dishonest intention comes later. In this case entrustment is missing, in fact it is not even alleged. It is a case of sale of goods. The chargesheet does refer to Section 506 of the IPC relying upon the averments in the complaint. However, no details and particulars are given, when and on which date and place the threats were given. Without the said details and particulars, it is apparent to us, that these allegations of threats etc. have been made only with an intent to activate police machinery for recovery of money.
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11. It is for the respondent no. 2/complainant - Sanjay Garg to file a civil suit. Initiation of the criminal process for oblique purposes, is bad in law and amounts to abuse of process of law.
12. In view of the aforesaid discussion, the impugned judgment is set aside and the present appeal is allowed quashing the FIR and resultant proceedings, including the chargesheet.
13. We clarify that the present appeal only deals with the question of criminal offence. We have not commented or made any observations on the civil rights of respondent no. 2/complainant - Sanjay Garg."
(Emphasis supplied) The afore-quoted judgment of the Apex Court would clearly elucidate the principle of law that the criminal justice system should not be permitted to be used for the purpose of recovery of money. The case at hand is a dispute between the contractor and the sub-contractor with regard to an agreement and for certain amount to be paid or to be recovered from each other. Therefore, it is a clear case that it should be thrashed out before a competent civil Court and not to set the criminal law into motion.
9. In so far as the judgment relied on by the Learned Senior Counsel for the complainant, there cannot be any qualm about the principles laid down by the Apex Court therein, those are rendered qua the facts brought before the Apex Court. The
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NC: 2024:KHC:37872 CRL.P No. 9521 of 2023 Apex Court holds that an act would give raise to two proceedings, one under the civil law and another under the criminal law, those are not the facts obtaining in the case at hand. Therefore, the judgment is inapplicable to the case at hand.
10. The other offence that is laid against the petitioners is the offence under Section 324 of the IPC. Section 324 of the IPC deals with voluntary causing hurt with a dangerous weapon. It reads as follows:
"Section 324 : Voluntarily causing hurt by dangerous weapons or means: Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
In the case at hand there is no allegation of usage of any weapon, as the investigation papers that is produced by the State would not reveal even a wound certificate collected by the Investigation Officer. Learned senior counsel submits that
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NC: 2024:KHC:37872 CRL.P No. 9521 of 2023 wound did happen, it was treated but the certificate was not taken. This submission is neither here nor there. Therefore, Section 324 of the IPC as well, cannot be sustained against the petitioners.
11. Now, what remains is Sections 504 and 506 of the IPC. Both have them have hurled abuses against each other and complaints are registered against each other, the allegation do not meet the ingredients of section 503 of IPC. Therefore, the impugned crime is to be obliterated failing which it would become an abuse of process of law and result in miscarriage of Justice. However, the obliteration of the crime will not come in the way of the complainant instituting civil proceedings before the competent Court for recovery of money or any money related dispute between the two, in accordance with law.
12. For the aforesaid reasons, the following:
ORDER a. The criminal petition is allowed.
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NC: 2024:KHC:37872 CRL.P No. 9521 of 2023 b. The impugned crime in Crime No.82/2023, pending before the 2nd Additional Chief Metropolitan Magistrate, Bengaluru, stands quashed.
I.A.No.1/2024 stands disposed, as a consequence.
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(M.NAGAPRASANNA) JUDGE NVJ List No.: 2 Sl No.: 27 CT:SS