IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5376 OF 2014 BETWEEN:
1. DR REKHA D/O SRI T RAMACHANDRA SHETTY AGED ABOUT 34 YEARS RESIDING AT NO.401, 2ND ‘B’ CROSS, 3RD STAGE, 3RD BLOCK BASAWESHWRANAGARA BANGALORE-560079 2. SRI T RAMACHANDRA SHETTY S/O LATE M D TIRUMALA SHETTY AGED ABOUT 59 YEARS RESIDING AT NO.401, 2ND ‘B’ CROSS, 3RD STAGE, 3RD BLOCK BASAWESHWRANAGARA BANGALORE-560079 (BY SRI: G.DEVARAJ, ADVOCATE) AND:
UNION OF INDIA BY COMMANDANT COMMAND HOSPITAL, AIR FORCE POST AGARAM ... PETITIONERS BANGALORE-560050 (BY SRI: PRADEEP SINGH, CGC) ... RESPONDENT THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 22-06-2014 TAKING COGNIZANCE OF THE OFFENCES AGAINST THE PETITIONERS UNDER SECTIONS 107, 108, 109,405, 506, 415, 418 AND 420 OF THE IPC IN P.C.R.NO.18831/2008 ON THE FILE OF THE HON'BLE 4TH ACMM, AT BANGALORE AND QUASH THE COMPLAINT AND THE ENTIRE PROCEEDINGS IN PCR.NO.18831/2008, INITIATED AGAINST THE PETITIONERS, ON THE FILE OF HON'BLE 4TH ACMM, AT BANGALORE.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner No.1 was selected to undergo post graduation course of Anasthesia at Command Hospital Air force, Bangalore, which is affiliated to Rajiv Gandhi University of Health Science, Bangalore. Petitioner No.1 on completion of PG Course was to join as a Specialist Medical Officer in Army. In the instant case, petitioner No.1 had undergone post-graduate training in Anasthesia Branch of Medicine at Command Hospital, Air Force, Bengaluru. One of the conditions required to be complied by petitioner No.1 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. Petitioner No.2 -father of petitioner No.2 stood as surety to petitioner No.1.
2. The respondent lodged a private complaint under Section 200 of Code of Criminal Procedure, against the petitioners herein seeking prosecution of the petitioners for the offences punishable under Sections 107, 108, 109, 405, 406, 415, 418 and 420 of IPC. The allegations made against petitioners 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 (70% over weight). Pre-medical examination was conducted on 25th August 2005 and again the Accused was declared unfit>75% 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 petitioners, but the petitioners failed to comply with the demand made therein and hence the respondent sought initiation of criminal action against the petitioners. The petitioners are before this Court seeking to quash the said proceedings.
4. The learned counsel for the petitioners 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 petitioners herein without taking cognizance of the alleged offences, as a result, the learned Magistrate had no jurisdiction to try the offences. Secondly, he contends that the allegations made against the petitioners does not make out the ingredients of any of the offences alleged in the private complaint. The averments made in the complaint would indicate that petitioner No.1 herein was found unfit to join the services on account of her obesity. It was not an intentional act on the part of petitioner No.1. The complaint does not disclose that the petitioners 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 by petitioner No.1. On the other hand, the records would indicate that petitioner No.1 was willing to join the services, but the respondent themselves refused to issue the commissioning order. Therefore, there is absolutely no basis for the respondent to initiate criminal action against the petitioners.
5. In support of his argument, learned counsel for the petitioners 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 petitioners, 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 petitioners, the respondent has taken civil action against the petitioners by filing a civil suit in O.S.No.4701/2008 for recovery of the bond amount. The said suit was decreed by the trial Court and the appeal preferred by the petitioners herein before this Court in RFA No.1226/2011 is pending consideration. Learned Counsel submits that in identical case, in RFA No.1941/2011, 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 RFA No.1941/2011 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, it is solely on account of obesity, the petitioner No.1 could not join the service and therefore, there is no basis to contend that petitioner No.1, right from the beginning had an intention to cheat the respondent. As a result, the initiation of criminal proceedings against the petitioners 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 petitioners and would submit that the very purpose of taking the bond and surety from the petitioners was to ensure that after the post graduation training, petitioner No.1 would render service in the Defence. The petitioner No.1 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 petitioners clearly attract the ingredients of the offence punishable under Section 420 of IPC, as well as the other offences levelled against the petitioners. 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 petitioners. But in the instant case, the allegations made against the petitioners 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 No.1 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 petitioners 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 No.1 has executed a bond and petitioner No.2 stood as surety, as required by the respondent/ complainant undertaking to serve the Armed Forces Medical Services after post graduation of petition No.1. According to the complainant, when petitioner No.1 was subjected to medical test, she was declared unfit on account of obesity (70% 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 more than 75% simple obesity. The above averments clearly indicate that on account of the medical condition of petitioner No.1, she was found unfit to join the services. There is no averments whatsoever in the complaint to suggest that petitioner No.1 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 No.1 was ready to join the services. It is on account of the conditions imposed by the respondent, the petitioner No.1 was disabled to join the services. In the said circumstances, merely because petitioner No.1 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 petitioner No.1 is that with an intention to cheat the respondent, the petitioner No.1 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 No.1 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 petitioner No.1 has voluntarily induced obesity with an intention to defeat the bond. 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 petitioner No.1, 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 petitioners have 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 petitioners. As a result, I do not have any hesitation to hold that the initiation of criminal action against the petitioners 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.18831/2008 are quashed.
*mn/-
Sd/- JUDGE