IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17th DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.4211/2014 BETWEEN:
M.R. Malleshappa Aged about 83 years S/o. Rudrappa Shetty Occ: Agriculturist R/o. Nisarga Gajanoor Village Shivamogga Taluk – 577 201. …Petitioner (By Sri. Jagadeesh D.C., Advocate) AND:
K.G.V.Murthy Aged about 60 years S/o. Late K.Gurubasappa Special Secretary to Government of Karnataka Department of Law Justice and Human Rights Vidhana Soudha Bangalore – 560 001. ...Respondent (By Sri. B.V.Acharya, Senior Counsel.) This Criminal petition is filed under Section 482 of Cr.P.C. praying that this Hon’ble Court may be pleased to set aside the order dated 24.06.14 passed in Crl.R.P.No. 27/14 by the FTC Shimoga and consequently direct the III Addl. C.J. and JMFC, Shimoga to proceed with the trial in C.C.No.5176/13 against the accused No.1 for the offences committed by him P/U/S 406, 415, 419, 420 and 506(2) of IPC in accordance with law.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R This petition is filed under Section 482 of Cr.P.C. seeking to set aside the order dated 24.06.2014 passed in Crl.R.P.No.27/2014 by the Fast Track Court, Shivamogga. By the said order, the learned Presiding Officer has set aside the order passed by the learned Magistrate, taking cognizance of the offences punishable under Sections 406, 415, 419, 420 and 506(2) of IPC.
2. Heard the learned counsel for the petitioner and the learned Senior Counsel appearing on behalf of the respondent.
3. The petitioner filed a private complaint under Section 200 of Cr.P.C. against the respondent and two others alleging that on the day of the engagement ceremony of the daughter of the complainant on 26.07.1999, the accused Nos. 1 to 3, on the promise to secure a job to the son-in-law of the complainant, received Rs.1,00,000/- and thereafter received another sum of Rs.1,00,000/- from the complainant, but failed to secure job to the son-in-law of the complainant and thereby committed the offences punishable under Sections 406, 415, 419, 420 and 506(2) of IPC.
4. On receiving the complaint, the same was referred for investigation under Section 156(3) of Cr.P.C. Upon investigation, the Investigating Officer submitted a `B’ Report. The complainant filed his objection thereto and let- in his evidence by way of sworn statement and also examined one witness in support of the accusations made against the respondent. On consideration of the said material, the learned Magistrate took cognizance of the above offences and issued summons to the respondent. The respondent challenged the said order by preferring a revision petition in Crl.R.P.No. 27/2014 and by order dated 24.06.2014, the learned Presiding Officer, Shivamogga, set aside the order of taking cognizance by the Magistrate. Feeling aggrieved by the said order, the petitioner is before this Court.
5. The learned counsel for the petitioner submits that the allegations made in the private complaint and the sworn statement of the petitioner, squarely attract the ingredients of the offences charged against the respondent and other accused persons. The circumstances narrated by the petitioner, clearly indicate that with the intention to deceive the complainant a false promise was made with intent to extract Rs.2,00,000/-, which has been spoken to by P.W.2, examined as a witness, and in the said circumstances, there being prima facie material to proceed against the petitioner, the learned Sessions Judge ought not to have set aside the order of taking cognizance of the said offences by the learned Magistrate, and hence seeks to set aside the impugned order passed by the revisional Court.
6. The learned Senior Counsel appearing for the respondent would submit that the allegations made in the complaint, even if accepted as true on their face value, do not make out the ingredients of the offences alleged against the respondent. According to the complainant, the alleged talks had taken place in the year 1999. The private complaint came to be lodged in the year 2005. There is no material either to show the payment of the amount or any steps taken to secure the job to the son-in-law of the petitioner. In this regard there were exchange of notices and the claim made by the petitioner for return of the amount has been flatly denied by the respondent, apparently for the reason that the alleged claim was bogus. Instead of taking recourse to civil action, the petitioner has resorted to criminal action so as to pressurize the respondent to part with the huge amount by foisting a false case against him. Placing reliance on a decision of the Apex Court in S.W. Palanitkar and others vs. State of Bihar and another, reported in (2002) 1 SCC 241, the learned Senior Counsel would submit that in the absence of any averment in the complaint to the effect that at the time of commission of the alleged offence, there was an intention on the part of the respondent, either to deceive or cheat the complainant, the respondent cannot be prosecuted for the alleged offence. Hence, the Revisional Court has rightly set aside the order of taking cognizance passed by the learned Magistrate and the same does not call for interference by this Court.
7. Considered the submissions and perused the records.
8. According to the complainant, during the engagement ceremony of his daughter, the respondent assured to secure a job to the son-in-law of the complainant and for the said purpose, received a sum of Rs.1,00,000/- and the balance amount of Rs.1,00,000/- some time later. The averments made in this regard in the complaint, read as under :
“¦AiÀiÁðzÀÄzÁgÀgÀÄ ºÉüÀĪÀÅzÉãÉAzÀgÉ, ¦AiÀiÁðzÀÄzÁgÀgÀ ªÀÄUÀ¼ÁzÀ J.JA.±ÁgÀzÁ ªÀÄvÀÄÛ JgÀqÀ£Éà DgÉÆævÀgÁzÀ ²ªÁ£ÀAzÀ¥Àà EªÀgÀ ªÀÄUÀ£ÁzÀ PÉ.J¸ï.±ÀAPÀgï EªÀgÀ ¤²ÑvÁxÀðªÀÅ ¢£ÁAPÀ 27-06-1999 gÀAzÀÄ ¦AiÀiÁðzÀÄzÁgÀgÀ ªÀÄ£ÉAiÀÄ°è dgÀÄVzÀÄÝ, DUÀ DgÉÆævÀgÉ®ègÀÆ ¦AiÀiÁðzÀÄzÁgÀgÀ ªÀÄ£ÉUÉ D¢£À §A¢zÀÄÝ, £ÀAvÀgÀ ¤²ÑvÁxÀð DVzÀÄÝ, vÀzÀ£ÀAvÀgÀ DgÉÆævÀgÉ®ègÀÆ ¸ÉÃjPÉÆAqÀÄ JgÀqÀ£Éà DgÉÆævÀgÀ ªÀÄUÀ£ÁzÀ CAzÀgÉ ¦AiÀiÁðzÀÄzÁgÀgÀ C½AiÀÄ£ÁzÀ PÉ.J¸ï.±ÀAPÀgï EªÀjUÉ ¸ÀPÁðj GzÉÆåÃUÀ PÉÆr¸ÀĪÀÅzÁV ¨sÀgÀªÀ¸É ¤ÃrzÀÄÝ, ¸ÀzÀj PÉ®¸À PÉÆr¸ÀĪÀ ¤«ÄvÀÛ ¦AiÀiÁðzÀÄzÁgÀjAzÀ gÀÆ.2,00,000-00 (JgÀqÀÄ ®PÀë gÀÆ¥Á¬Ä) UÀ¼À£ÀÄß PÉÆqÀ¨ÉÃPÉAzÀÄ DgÉÆævÀgÉ®ègÀÆ PÉýzÀÄÝ, ¦AiÀiÁðzÀÄzÁgÀgÀÄ vÀªÀÄä ªÀÄUÀ¼ÀÄ ºÁUÀÆ C½AiÀÄ ZÉ£ÁßV EgÀ§ºÀÄzÉA§ D¸É¬ÄAzÀ gÀÆ.2,00,000-00 (JgÀqÀÄ ®PÀë gÀÆ¥Á¬Ä) UÀ¼À£ÀÄß DgÉÆævÀjUÉ PÉÆqÀ®Ä M¦àPÉÆArzÀÄÝ, CzÉà ¢£À ¦AiÀiÁðzÀÄzÁgÀgÀÄ DgÉÆævÀgÁzÀ JgÀqÀÄ ºÁUÀÆ ªÀÄÆgÀ£Éà DgÉÆævÀgÀÄUÀ¼À ¸ÀªÀÄPÀëªÀÄzÀ°è MAzÀ£Éà DgÉÆævÀgÀ PÉÊUÉ gÀÆ.1,00,000-00 (MAzÀÄ ®PÀë gÀÆ¥Á¬Ä)AiÀÄ£ÀÄß £ÀUÀzÁV ¤ÃrgÀÄvÁÛgÉ. D ¸ÀªÀÄAiÀÄzÀ°è DgÉÆævÀgÉ®ègÀÆ ¸ÀºÀ ¦AiÀiÁðzÀÄzÁgÀjUÉ MAzÀÄ ªÉÃ¼É ¸ÀPÁðj PÉ®¸À ¦AiÀiÁðzÀÄzÁgÀgÀ C½AiÀÄA¢jUÉ CAzÀgÉ JgÀqÀ£Éà DgÉÆævÀgÀ ªÀÄUÀ¤UÉ PÉÆr¸À¢zÀÝgÉ ºÀtªÀ£ÀÄß MAzÉà UÀAn£À°è ªÁ¥À¸ÀÄì PÉÆqÀĪÀÅzÁV DgÉÆævÀgÉ®ègÀÆ ¦AiÀiÁðzÀÄzÁgÀjUÉ ¨sÀgÀªÀ¸ÉAiÀÄߣÀÄß ¸ÀºÀ PÉÆnÖzÀÝgÀÄ.”
9. These averments go to show that an amount of Rs.1,00,000/- was paid in the hands of accused No.1 in the presence of accused Nos. 2 and 3 on the date of engagement of the daughter of the complainant, whereas in his protest petition, the complainant/petitioner has come up with a totally different version stating that, the said payment was made after the engagement ceremony before the performance of marriage. The marriage of the daughter of the complainant was performed on 13.02.2000, whereas the engagement ceremony was held on 27.07.1999. Apart from failing to produce any reliable material to substantiate the alleged payment, the contradiction noted above create serious doubt on the claim made by the complainant. Be that as it may, there is nothing in the entire record to indicate that, pursuant to the alleged talks, any steps have been taken either by the complainant or his son-in-law to secure an employment, either by approaching the respondent (accused No.1) or by making any application thereto. It is only after six years from the date of the alleged payment of the amount, the complainant has come up with the private complaint. But in the entire complaint, there is nothing to indicate that at the inception of the alleged incident, the respondent had any intention to deceive or cheat the petitioner, so as to make out a case for criminal prosecution. The averments made in the complaint and the sworn statement, even if accepted on the face of it as true, would at the most lead to the inference that accused No.1 promised to secure a job, but there is nothing in the entire complaint or in the sworn statement to suggest or infer that such a promise was made with a fraudulent intention to deceive the respondent, so as to constitute an offence punishable under Section 420 of IPC.
10. In this context, it is apt to refer to the decision of the Hon’ble Supreme Court in S.W. Palanitkar and others vs. State of Bihar and another reported in (2002)1 SCC 241, in para 15 whereof, it is held that, “15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. 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, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.”
11. The Revisional Court has considered this aspect of the case and referring to the statements of P.W.1 and P.W.2 has held that the averments contained in the complaint and the sworn statement do not prima facie make out the offences alleged against the respondent, inviting cognizance of the said offences.
12. I have gone through the statement of P.W.2. This statement is contradictory to the averments made in the complaint. As already stated above, in the complaint it is alleged that during the engagement ceremony a sum of Rs.1,00,000/- was paid into the hands of accused No.1 in the presence of accused Nos. 2 and 3, but in his protest petition, the complainant has asserted that the said amount was paid subsequent to the date of the engagement. Contrary to this evidence, P.W.2 in his statement has stated that the said amount of Rs.1,00,000/- was paid to accused No.3. In the wake of these patent contradictions, and in the absence of necessary averments that the respondent was motivated with a fraudulent intention to cheat and deceive the petitioner at the time of making the alleged promise, the revisional Court was justified in reversing the cognizance taken by the learned Magistrate. On considering the entire material on record, I am also of the view that the allegations made against the respondent do not attract the ingredients of Sections 406, 415, 419, 420 and 506(2) of IPC. Consequently, I do not find any reason to interfere with the impugned order.
The petition is dismissed.
Sd/- JUDGE Mgn/-