IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5234/2014 BETWEEN:
DR. RASHMI MANJUNATH AGED ABOUT 36 YEARS W/O DR.PRANAV KANDACHAR PRESENTLY RESIDING AT B 102 UKN ESPERANZA OFF VARTHUR MAIN ROAD THUBARAHALLI BANGALORE-560066. ... PETITIONER (BY SRI GAUTAMADITYA S, ADV.) AND:
UNION OF INDIA BY COMMANDANT COMMAND HOSPTIAL AIRFORCE POST AGRAM BANGALORE-560007. ... RESPONDENT (BY SRI PRADEEP SINGH, CGC. ) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE CRIMINAL COMPLAINT IN PCR. NO.18818/2008 FILED BY THE RESPONDENT NO.1 AND PENDING ON THE FILE OF THE 4TH ACMM, BANGALORE AS AGAINST THIS PETITIONER.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner was selected to undergo post graduation course of DDVL at Command Hospital Air force, Bangalore, which is affiliated to Rajiv Gandhi University of Health Science Bangalore. She was required to undergo training in DDVL Branch of Medicine at Command Hospital, Air Force, Bangalore. One of the conditions required to be complied by the petitioner was to render service in the Defence for a minimum period of five years and for the said purpose she was required to execute a bond along with surety / guarantor in a sum of Rs.5,00,000/- in the event of willful failure to join the Armed Forces Medical Service after completing the post graduation.
2. The respondent lodged a private complaint under Section 200 of Code of Criminal Procedure, against the petitioner herein seeking prosecution of the petitioner for the offence punishable under Sections 107, 108, 109, 405, 406, 415 and 420 of IPC. The allegations made against her find place in paragraph 10 of the complaint, which is extracted herein below :-
“10. The Complainant submits that, the Accused are aware that having availed the benefit of these training and the course offered by the Command Hospital Air Force the Accused have made the Government of India through its office of the Air Force incur much more expenses than the Bond amount throughout the period of the course. The Armed Forces Medical Service has to cater its requirements in the services in order to meet the vacancies that arise. By virtue of the Accused being medically examined by Special Medical Board on 13/04/2005 the Accused was declared unfit on account of obesity (40% over weight). Pre-medical examination was conducted on 25th August 2005 and again the Accused was declared unfit>30% simple obesity a medical condition which should be well within the control of Accused. The Accused is aware that defence service demands certain parameters of medical fitness. The Accused being not medically fit has caused the Government incur huge expenses with the hope that the first Accused would be a useful person in the discharge of services in the AFMS commensurate to her qualification. Therefore, the Accused has cheated the Defence (Union of India) and in the process the second Accused has encouraged and abetted the criminal act of the first Accused.”
3. Further it is stated that a legal notice was issued to the petitioner, but the petitioner failed to comply with the demand made therein and hence the respondent sought initiation of criminal action against the petitioner. The petitioner is before this Court seeking to quash the said proceedings.
4. The learned counsel for the petitioner has raised two fold contentions. Firstly, pointing out the procedural irregularity committed by the learned Magistrate, he submits that the learned Magistrate has proceeded to issue summons to the petitioner herein without taking cognizance of the alleged offences, as a result, the learned Magistrate had no jurisdiction to try the offence. Secondly he contends that the allegations made against the petitioner do not make out the ingredients of any of the offences alleged in the private complaint. The averments made in the complaint would indicate that the petitioner herein was found unfit to join the services on account of her obesity. It was not an intentional act on the part of the petitioner. The complaint does not disclose that the petitioner had any intention to cheat the respondent either at the time of execution of the bond or at the stage of completion of post graduation. On the other hand, records would indicate that she was willing to join the services, but the respondents themselves refused to issue the commissioning order. Therefore, there is absolutely no basis for the respondent to initiate criminal action against the petitioner.
5. In support of his argument, learned counsel for the petitioner has placed reliance on the decision of the Hon’ble Supreme Court in the case of HRIDAYA RANJAN PRASAD VERMA AND OTHERS Vs. STATE OF BIHAR AND ANOTHER reported in (2000) 4 SCC 168 and with reference to paragraph 15 would submit that even assuming that there is breach of contract on the part of the petitioner, mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction i.e., at the time when the offence is said to have been committed. On the same issue, learned counsel has referred to two other decisions of the Hon’ble Supreme Court in the case of VIR PRAKASH SHARMA Vs. ANIL KUMAR AGARWAL AND ANOTHER reported in (2007) 7 SCC 373 and UMA SHANKAR GOPALIKA Vs. STATE OF BIHAR AND ANOTHER reported in (2005) 10 SCC 336 wherein the above principle has been reiterated.
6. Dilating on the above point learned counsel would submit that in respect of the surety bond executed by the petitioner, the respondent has taken civil action against the petitioner by filing a civil suit in O.S.No.4702/2008 for recovery of the bond amount. Though the said suit was decreed by the trial Court, yet in the appeal preferred by the petitioner herein before this Court, in RFA No.1941/2011 by order dated 14.09.2012, this Court has set aside the judgment and decree passed in O.S.No.4702/2008 and consequently dismissed the above suit. Learned counsel has drawn my attention to the observation made by this Court in paragraph 16 of the said order which reads as under :-
“A reference to the said medical report would indicate that at the point when the 1st defendant had completed her PG Course, the Medical Board of the plaintiff themselves had found her to the unfit medically. This aspect of the matter becomes relevant in the instant case since there is nothing on record placed by the plaintiff to indicate that notwithstanding the same the plaintiff had offered to take the 1st defendant as a Short Service Commission Officer pursuant to completion of the Course and despite that she had not joined.”
7. It is the submission of the learned counsel that the findings recorded by this Court in the Civil Suit would clearly indicate that it is solely on account of obesity, the petitioner could not join the service and therefore, there is no basis to contend that the petitioner, right from the beginning had an intention to cheat the respondent. As a result, the initiation of criminal proceedings against the petitioner is wholly illegal and an abuse of process of law and therefore, liable to be quashed at the hands of the Court.
8. Learned counsel for the respondent has seriously opposed the submissions made by the learned counsel for the petitioner and would submit that the very purpose of taking the bond from the petitioner was to ensure that after the post graduation training the petitioner would render service in the Defence. The petitioner was well aware that she was required to keep herself medically fit, yet she voluntarily gained obesity with an intention to avoid joining the services and to defeat the bond. The allegations made against the petitioner clearly attract the ingredients of the offence punishable under Section 420 of IPC, as well as the other offences levelled against the petitioner. It is the submission of the learned counsel that Criminal proceedings at the investigation stage could be quashed, only if the allegations made in the complaint do not make out any of the offences alleged against the petitioner. But in the instant case, the allegations made against the petitioner clearly satisfy the ingredients of the above offences and therefore, there is no reason to quash the proceedings. Further the learned counsel contends that by violating the conditions of the bond, the petitioner has subjected the Government to huge expenses and in the said circumstance, if the complaint is quashed, it would send a wrong signal to the society and hence prays for dismissal of the petition.
9. Having heard the learned counsel for the petitioner and the learned counsel for the respondent and on going through the material on record, there is no dispute regarding the fact that the petitioner has executed a bond as required by the respondent / complainant undertaking to serve the Armed Forces Medical Services after her post graduation. According to the complainant when the petitioner was subjected to medical test, she was declared unfit on account of obesity (40% over weight). Further it is stated in the complaint that pre-medical examination was conducted on 25.08.2005 and again she was declared unfit for the reason of 30% simple obesity. The above averments clearly indicate that on account of the medical condition of the petitioner she was found unfit to join the services. There is no averments whatsoever in the complaint to suggest that the petitioner has refused to join the medical services at any point of time. On the other hand, a plea has been urged that if the Commissioning order was issued, the petitioner was ready to join the services. It is on account of the conditions imposed by the respondent, the petitioner was disabled to join the services. In the said circumstances, merely because the petitioner has failed to join the services, it cannot be held that she had any intention to cheat the respondent as contended by the respondent.
10. In paragraph 10 of the complaint it is stated that the accused being well aware of the parameters of the medical service demands was required to keep herself medically fit. In other words, the allegations against the petitioner is that with an intention to cheat the respondent the petitioner gained weight voluntarily. This submission in my view, cannot be accepted. If the obesity was self induced, the respondent by taking recourse to medical aid could have brought down the obesity, so that she could render the service. Notwithstanding the above contention, the fact remains that at the time of completion of the post graduation, the petitioner was obese and therefore, she was unfit to join the services and not because she intended to defeat the bond. There is nothing in the complaint to indicate that the petitioner has voluntarily induced obesity with an intention to defeat the bond. On the other hand, the observations made by this Court in RFA would clearly indicate that when the petitioner was found medically unfit, she was not offered with a short service commission, as observed by this Court in RFA 1941/2011. Therefore, there is no basis for the respondent to contend that in order to cheat the complainant she refused to join the services. The material on record clearly indicate that it is solely on account of the obesity of the petitioner the respondent found her unfit to join the services.
11. In the light of the above facts and circumstances, the allegations made in the complaint that the petitioner has cheated the respondent and has caused loss to the Government, cannot be accepted. Furthermore, as held by the Hon’ble Supreme Court, elements of deception, cheating and fraudulent intention should be shown to be existing right at the beginning of the transaction i.e., at the time when the offence is said to have been committed. There are no such allegations in the complaint so as to constitute the offence of cheating or other charges leveled against the petitioner. As a result, I do not have any hesitation to hold that the initiation of criminal action against to petitioner is an abuse of process of law and issue cannot be allowed to be continued.
12. For the above reason, the petition is allowed. The proceedings pending on the file of the IV ACMM, Bangalore in PCR No.18818/2008 are quashed.
Sd/- JUDGE NG* CT: BMS