IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA Criminal Petition No.9242/2016 BETWEEN:
1. SMT. K.ROOPA RANI W/O SRI S.PRADEEP KUMAR, AGED ABOUT 45 YEARS, R/AT NO.96, 41ST CROSS, 3RD MAIN, 8TH BLOCK, JAYANAGAR, BENGALURU-560 082.
2. SRI P.R.BABU VARMA S/O P.RAMAVARMA, AGED ABOUT 47 YEARS, NO.103, R.K.BLOCK, PURVA REVERA, MARATHAHALLI, VARTHUR ROAD, WHITE FIELD, BENGALURU-560 078.
…PETITIONERS (BY SRI Y.RAJENDRA PRASAD SHETTY, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REP.BY MAHADEVAPURA POLICE STATION, BENGALURU CITY.
2. SMT. A.RADHA W/O SRI A.MADHUSUDHANA RAO, AGED ABOUT 40 YEARS, R/AT NO.C-701, SPRING BEAUTY APARTMENTS, BROOKFIELDS, KUNDALAHALLI, BENGALURU-560 093 (BY SRI I.S.PRAMOD CHANDRA, SPP-II FOR R1 ... RESPONDENTS SRI B.RANGASWAMY, ADVOCATE FOR R2 (ABSENT)) THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH THE CHARGE SHEET IN C.C.NO.50373/2013 REGISTERED BY THE 1ST RESPONDENT AGAINST THE PETRS. U/S 420 R/W 34 OF IPC WHICH IS PENDING BEFORE THE X A.C.M.M., BENGALURU.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioners and learned SPP-II appearing for respondent No.1. The learned counsel for respondent No.2 is absent.
2. The facts essential for disposal of the petition are that, on the promise of inducting respondent No.2 into a partnership business contemplated by the petitioners, respondent No.2 advanced a sum of Rs.21 lakhs to the petitioners. However, the intended hospitality business could not be set up on account of non-release of finance by the Karnataka State Financial Corporation (hereinafter referred to as ‘the Corporation’ for short) and hence, the said project was shelved by the petitioners. Respondent No.2/complainant sought return of the amount given to the petitioners. Towards repayment of the said amount, petitioner No.1 issued a cheque for Rs.21 lakhs for and on behalf of the petitioners. The said cheque when presented for encashment was dishonored for “insufficient funds”. Respondent No.2/complainant initiated action against petitioner No.1 under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’ for short). The said proceedings ended in conviction of petitioner No.1/accused No.1 in C.C.No.27284/2012 dated 23.12.2015. Subsequent to the said conviction order, respondent No.2 filed a complaint before respondent No.1 on 28.10.2012 alleging that the aforesaid cheque was issued by petitioner No.1/accused No.1 with intent to cheat and defraud her. Based on the said complaint, a case in Crime No.677/2012 was registered against the petitioners/accused Nos.1 and 2 and after investigation, charge sheet has been laid against them under Section 420 read with Section 34 of IPC.
3. Placing reliance on a decision of the Hon’ble Supreme Court in the case of Kolla Veera Raghav Rao Vs., Gorantla Venkateswara Rao and Another reported in (2011) 2 SCC 703, the learned counsel for the petitioners/accused Nos.1 and 2 would submit that when petitioner No.1/accused No.1 has already been tried by the competent jurisdictional Court for the offence under Section 138 of the Act and is convicted, the petitioners are not liable to be tried again for the same offence.
4. The facts in the instant case clearly disclose that respondent No.2 advanced a sum of Rs.21 lakhs to the petitioners on the promise of the petitioners that she would be inducted as one of the partner in the hospitality business proposed to be set up by the petitioners. The facts reveal that the said project did not take place on account of non-release of finance by the Corporation. At this juncture, respondent No.2 sought refund of the amount paid by her to the petitioners. It is not in dispute that on behalf of the petitioners, petitioner No.1/accused No.1 issued a cheque towards discharge of the amount received from respondent No.2. If, in fact, the petitioners intended to cheat or defraud respondent No.2, petitioner No.1/accused No.1 would not have issued the said cheque. Though, the said cheque was dishonored for “insufficient funds” and separate action has been initiated against petitioner No.1/accused No.1 for the consequences that has arisen on account of dishonor of the said cheque, yet the circumstances of the case reveal that there was no intention on the part of the petitioners at any point of time to cheat respondent No.2. The facts of the case do not satisfy the ingredients of offence under Section 420 of IPC. Therefore, prosecution of the petitioners for the alleged offence is wholly illegal and an abuse of process of Court and therefore, cannot be allowed to be continued.
5. Consequently, criminal petition is allowed. The charge sheet filed in C.C.No.50373/2013 against the petitioners pending on the file of X ACMM, Bengaluru, is hereby quashed.
Sd/-
JUDGE PB