IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.595 OF 2015 BETWEEN:
MR BRIJ MOHAN VASISHTA S/O LATE DEVAKI NANDAN VASISHTA AGED ABOUT 67 YEARS, MANAGING PARTNER/AUTHORIZED SIGNATORY, TRANS ASIAS BIOTECH RESIDING AT NO. 506, SILICON TOWERS, 209/1, 4TH CROSS, BYRASANDRA, C.V. RAMAN NAGAR POST, BANGALORE 560093 (BY SRI: N.S.VIJAYANTH BABU, ADVOCATE) AND MR DEEPAK MELWANI S/O MR. MURLI MELWANI, AGED ABOUT 51 YEARS, RESIDING AT NO.R-46, GOLDEN ENCLAVE, AIRPORT ROAD, BANGALORE 560017 ... PETITIONER ... RESPONDENT (BY SRI: A.D.ANJAN KUMAR, ADVOCATE FOR SRI: MADHUKAR DESHPANDE, ADVOCATE) THIS CRL.P IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.55061/2014, PENDING IN THE FILE THE X-ACMM COURT, BENGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTION 420 OF IPC.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for petitioner. Learned counsel for respondent seeks time to submit arguments. Prayer rejected. Perused the records.
Petitioner has sought to quash the proceedings initiated against him in C.C.No.55061/2014 pending on the file of X ACMM, Bengaluru, for the alleged offence punishable under section 420 IPC.
2. Respondent filed a private complaint before the X ACMM, Bengaluru, numbered as PCR.No.51424/2014 (CC.No.55061/ 2014) against three accused persons. Petitioner herein is shown as accused No.1. The material allegation made in the complaint is that the petitioner herein met the complainant and his father about five years ago and informed them that he is the Managing Partner of Trans Asias Biotech which deals with medicines. Accused persons expressed that they had started a new partnership firm and that they were in need of funds to develop their business and induced the complainant and his father to enter into a transaction with them. “The accused persons fraudulently acquired funds and compounded it with a false commitment to repay the amount and also pay good returns on the amount.” Accused No.1 also gave his handwritten offer letter seeking funds. Believing the words of accused persons, complainant and his aged father invested a sum of Rs.25 lakhs with accused persons between 28.06.2009 to 12.11.2010. The amounts were received by petitioner/accused No.1 as an investment to their firm for different purposes.
3. The further case of the complainant is that on 7.3.2013, accused No.1 personally approached the complainant and gave a Memorandum of Understanding (MOU) and expressed that he was willing to execute the MOU on a stamp paper. To reach an amicable settlement, the complainant agreed to a much reduced amount as per the MOU given by the accused and in terms thereof, petitioner issued two postdated cheques. Further allegation is that, in order to avoid repayment, the accused persons with a mala fide intention have transferred the properties which stood in their names to their respective wives’ names through gift deeds. Finally, it is averred in the complaint that, “12. This entire methodology of the accused persons raising funds from friends & acquaintances promising them good returns at exorbitant rates of interest, that too without doing business in the firm, is a ponzi scheme. There are other people to whom they had approached and taken money from. When these persons ratcheted up the pressure to recover their amounts, the accused persons juggled with the partnership deed and made them a partner in their firm, which has made them also liable to repay the amounts to the complainant. The accused No.1 along with accused no.2 and 3, have connived to borrow big amounts of money, and pass on the debt to their firm. When his scam was unearthed, and complainant demanded his money back, the accused No.1 threatened to do away with his life. When the accused No.1 finally admitted his legal liability, he gave cheques that bounced, and to top it all, in order not to repay the money to the complainant, the accused persons have concurrently and fraudulently transferred their assets, and are now trying to desperately sell the said properties deceitfully. All the accused persons made false representation, took money on behalf of a partnership firm, and have cheated the complainant and his father. Thereby all the accused persons have committed the offence punishable u/s 420 of the IPC”.
4. Learned counsel for the petitioner submits that the transaction entered into between the parties is the subject matter of MOU dated 07.03.2013. In terms of the said MOU, the parties have mutually settled their inter se dispute and the petitioner herein agreed to repay a sum of Rs.25,90,000/- which was paid by way of two cheques. Since the said cheques were dishonoured, the complainant initiated action under section 138 of Negotiable Instruments Act and in both these proceedings, petitioner has been convicted. Petitioner has also filed Civil Suit for recovery of amount in O.S.No.5854/2013 and the same is decreed against the petitioner. As a result, the grievance of the parties is suitably redressed and the complainant has no cause of action against the petitioner. The alleged transaction does not disclose any element of cheating and deception and ingredients of said offence is not made out in the complaint.
5. On going through the complaint, it is clear that the alleged transaction between the parties was the subject matter of Memorundum of Understanding dated 07.03.2013. It is borne on record that in respect of dishonour of the cheques issued by the petitioner, complainant has already resorted to necessary action under section 138 of Negotiable Instruments Act. Even the suit for recovery filed by petitioner in respect of the alleged transaction has been decreed against the petitioner. Under the said circumstances, allegation made in the complaint that in order to defraud the complainant/respondent, accused persons have transferred the immovable properties in the name of respective wives does not furnish a cause of action for prosecution of the petitioner for the offence under section 420 of IPC. The portion of the complaint extracted above clearly disclose the dispute between the parties has arisen out of a monetary transaction in respect of which complainant has already taken appropriate recourse. Execution of gift deeds have nothing to do with the alleged M.O.U or the dishonour of cheques issued by the petitioner. The said allegation, even if accepted on its face value, does not make out the ingredients of offence under section 420 of IPC. Except making ambiguous allegations in the complaint that petitioner and the other accused persons have resorted to deceive complainant, the surrounding facts do not support these allegations. The transaction essentially relates to monetary transaction between the parties in respect of which suitable redressal has been resorted by the respondent and hence, the criminal process initiated by the respondent is nothing but malafide, vindictive and abuse of process of law and therefore liable to be quashed.
For the above reasons, petition is allowed. Proceedings in C.C.No.55061/2014 pending on the file of X ACMM, Bangalore are quashed only insofar as petitioner/accused No.1 Sri.Brij Mohan Vasishta is concerned.
Sd/- JUDGE Bss