Karnataka High Court
Kaushik T A vs The State Of Karnataka on 15 April, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF APRIL, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.101149/2014
BETWEEN:
1. SRI. KAUSHIK T.A.
AGE:35 YEARS,
OCC:BUSINESS
2. SMT. T. VAISHNAVI W/O KAUSHIK T A
AGE:35 YEARS, OCC:HOUSEHOLD
BOTH R/O NO.20, GODAVARI NILAYA
I CROSS, PATEL NAGAR, BELLARY-583101.
...PETITIONERS
(BY SRI. SANTOSH B MALAGOUDAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH PSI BRUCEPET POLICE STATION,
REP. BY ADDL. SPP,
SPP OFFICE, HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
2. M. VIJAYAKRISHNA
S/O M. VENUGOPAL
AGED ABOUT 20 YEARS, OCC:STUDENT,
R/O 17TH WARD, BEHIND MG ROAD,
VISHAL NAGAR, BELLARY.
...RESPONDENTS
(BY SRI. PRAVEEN K UPPAR, HCGP FOR R1)
(SRI. SURESH K MITHARE, ADV. FOR R2) (ABSENT)
2
THIS PETITION IS FILED UNDER SECTION 482 OF Cr.P.C.
SEEKING TO QUASH THE ENTIRE CHARGE SHEET IN CC
NO.112/2014 PENDING ON THE FILE OF THE I-ADDL. CIVIL
JUDGE (JR.DN.) AND JMFC COURT, BELLARY, INSOFAR AS THE
PETITIONERS ARE CONCERNED.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the petitioners' counsel and also learned HCGP for respondent No.1. The counsel representing respondent No.2 is absent. This matter is listed for final hearing and hence, taken up for final disposal.
2. The petitioners who started 2D and 3D animation course in the year 2009 and in pursuance of the said course, some of the students have taken admission and respondent No.2 paid an amount of Rs.55,666/- towards the said course and owner of the said premises entered into franchise agreement with these petitioners and taken over the franchise agreement with these petitioners and he cannot run the Institution and hence, the same made the students to 3 file a complaint before the Police. In pursuance of the said complaint, the police have registered the case against these petitioners and also while filing the charge sheet arrayed accused No.3 and subsequently, respondent No.2 also filed complaint before the Consumer Redressal Forum, Ballari and in the said proceedings, compromise was entered into between the complainant/respondent No.2 and these petitioners made payment in favour of the complainant. The criminal case was already registered against these petitioners and the same is pending before the Court of I Addl. Civil Judge (Jr.Dn.) and JMFC, Ballari.
3. The counsel appearing for the petitioners relying upon judgment of the Apex Court in the case of Vesa Holdings Private Limited and Another Vs. State of Kerala and Others reported in (2015) 8 SCC 293 would contend that the Apex Court in order to invoke Section 420 of IPC held para-12 of the judgment that it is settled 4 proposition of law that every breach of contract would not give rise to an offence of cheating and only deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words, for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. The counsel further also relying upon the another judgment of the Apex Court in the case of Uma Shankar Gopalika Vs. State of Bihar and Another reported in (2005) 10 SCC 336 brought to my notice para-6 of the judgment that whether on the facts discloses in the petition of complaint any criminal offence whatsoever is made out much less offences under Sections 420/120-B of IPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amount to 5 Rs.4,20,000/-, they would pay a sum of Rs.2,60,000/- to the complainant out of that, but the same has never been paid. Further observed at para-7 of the judgment that the complaint does not disclose any criminal offence at all much less any offence of purely civil dispute between the parties for which remedy lies before a Civil Court, hence, invoked the Section 482 of Cr.P.C. The counsel relying upon this judgment contends that there was no any intention to cheat the complainant and only due to the franchisee agreement entered into between the petitioner and accused No.3 they could not run the institution and there was no any deception at the inception. Hence, this Court can invoke Section 482 of Cr.P.C.
4. Per contra, learned Government Pleader in his arguments, he contends that based on the complaint, the case has been registered and police have continued the investigation and filed the charge sheet 6 against this petitioner and also against franchisee as accused No.3. Hence, there are prima facie material to proceed against the petitioners.
5. Having heard the arguments of the counsel for petitioners and also the learned Government Pleader, this Court has to examine the factual aspects of the case. The dispute with regard to the commencement of Master Programs in 2D and 3D by these petitioners. Subsequently the accused No.3 entered into agreement taken over the proceedings with these petitioners and subsequently he did not continue and there was no any intention of cheating the students and course has been started and the same was run for a period of six months but did not continue the same. Hence, the complainant has also approached the Consumer forum and these petitioners have also made the payment. The counsel also produced the memo along with documents for having made the payment. 7 For having received the amount towards payment and when such being the case and payment has been made and apart from that there is force in the contention of the counsel for petitioners that there was no any deception at the inception as held in the judgment of the Apex Court which has been relied upon by the counsel for petitioners in paragraph No.12 of the said judgment the Apex Court held that if the intention to cheat has developed later on, the same cannot amount to cheating. In the case on hand, it has to be noted that at the initial stage there was no any intention of deceiving the students and course has been commenced and due to the subsequent development the course could not be continued. Hence, all these consequences were taken place.
6. In the case on hand, already payment has been made and also there was no any intention of deceiving the students at the very inception as held by 8 the Apex Court and the judgment relied upon by the counsel for petitioners is aptly applicable to the case on hand. Having considered that there was no any intention of deceiving the students at the inception and subsequent development has caused the closure of the institution and also the payment made by the complainant and others also refunded before the consumer forum. Hence, I am of the opinion, that if the proceedings is continued, it amounts to abuse of process and also further I am of the opinion that when there was no any malafide intention or not, intentional cheating at the time of commencing institution the offence under Section 420 of IPC does not attracts. Hence, it is a fit case to exercise the powers under Section 482 of Cr.P.C.
7. In view of the discussions made above, I pass the following;
9
ORDER The petition is allowed.
The proceedings initiated in C.C.No.112/2014 pending on the file of I-Addl. Civil Judge (Jr.Dn) and JMFC Court, Bellary insofar as petitioner is concerned is hereby quashed.
Sd/-
JUDGE JTR/msr