IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.5291 OF 2012 BETWEEN :
1. MRS. GEETHA LACHIREDDY W/O SUBRAMANYAM SREENIVASAIAH AGED ABOUT 36 YEARS RESIDING AT B-7-1, OAKYARD APARTMENTS 38TH CROSS, JAYANAGAR 9TH BLOCK BANGALORE-560 041 2. MR. SUBRAMANYAM SREENIVASAIAH S/O LATE SREENIVASAIAH VENLASUBBAIAH ATTIBELE AGED ABOUT 47 YEARS RESIDING AT B-7-1, OAKYARD APARTMENTS 38TH CROSS, JAYANAGAR 9TH BLOCK BANGALORE-560 041 ... PETITIONERS (BY SHRI. S. AJESH KUMAR FOR SHRI. ASHWIN CHIKKAMATH, ADVOCATES) AND :
1. STATE OF KARNATAKA TILAKNAGAR POLICE STATION BANGALORE 2. MR. S. RAMESH KUMAR S/O LATE SRINIVASA R NO.150/151, 4TH CROSS MUNESHWARA LAYOUT ULLAL MAIN ROAD BANGALORE-560056 ... RESPONDENTS (BY SHRI. NASRULLA KHAN, HCGP FOR R1; SHRI. S.G. BHAGAVAN, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE FIR AND COMPLAINT IN CR. NO.327/2012 WITH THE FIRST RESPONDENT POLICE STATION AGAINST THE PETITIONER THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Shri.Ajesh Kumar S., learned Advocate for petitioner, Shri.Nasrulla Khan, learned HCGP for State and Shri.S.G.Bhagawan, learned Advocate for second respondent.
2. Shri.S.Ramesh Kumar, complainant was a Director on the Board of M/s. Cosmoshakthi Software Solutions Private Limited (hereinafter referred to as ‘Cosmoshakthi’), a company incorporated under the Companies Act, 1956. Under a share purchase agreement dated 18.03.2008, he offered to sell 51% shares to M/s. Ascent Consulting Services Private Limited (hereinafter referred to as ‘Ascent Consulting’), a company promoted by petitioners. In terms of share purchase agreement they had agreed to pay a sum of `50,00,000/-. Out of the said sum they paid a sum of `30,00,000/- and did not pay the balance sum. This led to litigation between the parties. They settled the dispute amicably on 21.05.2011 on following consent terms:
7. The principal Promoters shall be paid a total of ` 31,00,000/- as settlement for transfer which shall be paid in two parts a) `20,00,000/- on signing of this Settlement Agreement paid by way of i) Cheque No.280553 dated 21st May 2011 to Ramesh Kumar S for an amount of `12,00,000/-
ii) Cheque No.280554 dated 21st May 2011 to Naresh Bhardwaj for an amount of `8,00,000/-
b) `11,00,000/- on transfer of all clients contracts or on an agreement how they will be managed within the period of next 30 days.
3. In terms of above settlement, petitioner paid the sum of `31,00,000/-. However, after about three months, on 25.08.2012, complainant, Ramesh Kumar lodged the instant FIR No.327/12 alleging offences punishable under IPC and also Information Technology Act, 2000. Feeling aggrieved, petitioners have presented this petition.
4. Shri.Ajesh Kumar, arguing in support of this petition submits that the dispute which arouse pursuant to non-payment of `20,00,000/- as required under the Share purchase agreement was settled between the parties by entering into a settlement deed. Complainant has acted upon the agreement and written to M/s.MNE Technologies Private Limited conveying that as per Clause 5 of the settlement deed, all contracts currently in the name of ‘Accent Consulting’ for the product iBuild 9.0 would be transferred to the Principal Promoters or their new entity. It is submitted that after entering into the settlement deed and also receiving the sum of `31,00,000/-, complainant made a futile attempt seeking winding up of petitioners’ company by filing Company petition No.218/2011. However complainant withdrew the same on 19.03.2012. Complainant also approached the Company Law Board, Chennai in Co. P. No.26/2012 seeking winding up of Company on the ground of oppression. The said petition has been dismissed for default on 31.07.2018. The complainant has not pursued the matter any further.
5. Shri.Ajesh Kumar further contended that complainant has, in all, received a sum of `61,00,000/- which is `11,00,000/- in excess of the agreed sale consideration. After receiving the consideration, 51% shares have been transferred in favour of petitioners. Thus, the controlling rights of the company ‘Cosmoshakthi’ stood transferred in petitioners’ favour. The said company has been renamed as ‘Ascent Software Solutions India Private Limited’. Complainant with malafide intention has been making repeated attempts to harass petitioners. On 27.03.2012 he also got issued a legal notice to the petitioners seeking arbitration of the dispute with reference to the share purchase agreement. However, the complainant did not take any further action in this behalf. Hence, no Arbitrator was appointed. Again, after a lapse of nearly one year and three months, the complainant initiated criminal proceedings by lodging instant complaint. He argued that the specific allegation in the complaint is that on 21.05.2011, date on which parties had entered into the settlement, petitioners had threatened the complainant. He argued that the delay in lodging the complaint speaks volumes about complainants’ malafide intentions. Accordingly, he prayed for quashing the criminal proceedings initiated against petitioners.
6. Shri.Nasrulla Khan, learned HCGP and Shri.S.G.Bhagwan argued in support of the complaint.
7. I have carefully considered the rival contentions and perused the records.
8. The list of dates and events and the corresponding documents show that petitioners and complainant entered into a share purchase agreement on 18.03.2018 whereunder petitioners paid a sum of `30,00,000/- to the complainant. The dispute arose with regard to the balance amount of `20,00,000/-. As per the settlement deed dated 21.05.2011, petitioners have paid a sum of `31,00,000/-. Thus, petitioners have paid `11,00,000/- in addition to the originally agreed sum.
9. Shri.Ajesh Kumar is right in his submission that complainant has conveyed to business associates that he entered into a settlement agreement on 21.05.2011 with the petitioners. A copy of the letter written to M/s. MNE Technologies Private Limited reads as follows:
To, MNE Technologies Pvt. Ltd., 201-210, ‘C’ Wing, 2nd Floor, Mittal Tower, M.G.Road, Bangalore – 560 001.
Subject: Transfer of Contract/AMC from Ascent Consulting Services Private Limited to iBuild Software Solutions Private Limited Dear Sir, The principal promoters of Ascent Software Solutions Private Limited (formerly known as Cosmoshakthi Software Solution Private Limited) viz., Ramesh Kumar S and Naresh Kumar Bhardwaj have reached a settlement agreement with Ascent Consulting Services Private limited (ASCPL) on 21/05/2011. According to Clause 5 of the Agreement all the contracts currently in the name ASCPL for the product iBuild 9.0 shall be transferred to the Principal promoters or their new entity subject to the consent of the customer except IBM.
We have incorporated a new company, by name iBuild Software Solutions Private Limited for the purpose of taking over the contracts of ASCPL. You are requested to furnish your consent for transferring the Contract/AMC from ASCPL to iBuild Software Solutions Private Limited.
Thanking you Yours truly, For iBuild Software Solutions Private Limited Sd/-
Ramesh Kumar S CEO 10. Records also disclose that the company petition filed before this Court has been withdrawn. The company petition filed before the Company Law Board, Chennai is said to have been dismissed for non-prosecution. By causing a legal notice on 27.03.2012 complainant has also initiated action under the Arbitration clause contained in the share purchase agreement. It is stated that no further action has been taken thereon.
11. Thus, after having initiated different modes of legal remedies, the complainant has filed the instant complaint after one year and three months reckoned from the date of settlement. In complaint, it is alleged that on 21.05.2011 petitioners called complainant to their office and obtained signatures on some papers by illegally confining him. Shri Ajesh Kumar is right in arguing that this allegation is palpably false particularly in view of his own communication to his business associates wherein complainant has clearly informed about the settlement and also sought their consent to transfer the contracts. The same is not disputed by the learned advocates for the respondents. Further, complainant has taken recourse to filing company petition and invoking Arbitration Clause. The delay of one year and three months in lodging the FIR is not explained.
12. In view of the documents referred to hereinabove it is conspicuously clear that the complainant has attempted to arm-twist the petitioners by filing the instant FIR.
Resultantly, this petition merits consideration and accordingly, it is allowed. The proceedings in Crime No.327/2012 on the file of the II Addl. CMM Court, Nrupatunga Road, Bangalore and all further proceedings thereon are quashed.
No costs.
Sd/- JUDGE SPS