IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO. 577/2018 BETWEEN:
1 SHYSON THOMAS AGED ABOUT 56 YEARS S/O LATE SRI PC JOSEPH 2 ASHWIN THOMAS AGED ABOUT 25 YEARS S/O SRI SHYSON THOMAS BOTH ARE R/A 637/1 MUNISWAMAPPA LAYOUT HAL 3RD STAGE BANGALORE 560 017 (BY SRI VIKHAR AHMED B, ADVOCATE) ... PETITIONERS AND:
1 STATE OF KARNATAKA BY INSPECTOR OF POLICE ULSOOR POLICE STATION REP BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA 2 SRIRAM PRASATH M S/O V.P.MANI, AGED ABOUT 31 YEARS 6d, PONNU NALLI KONAR STREET KOVILMEDU VEALANDIPALAYAM COIMBATORE 641025 ... RESPONDENTS (BY SRI S RACHAIAH. HCGP FOR R-1 SRI G.F.HUNASIKATTIMATH, ADV FOR R-2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN CR.NO.421/2017 ON THE FILE OF IV ADDL.C.M.M., BENGALURU VIDE ANNEXURE-A.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION .THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri Vikhar Ahmed, learned Advocate appearing for petitioners, Sri S Rachaiah, learned HCGP appearing for respondent-1 – State and Sri G.F.Hunasikattimath, Learned Advocate appearing for respondent-2. Perused the records.
2. Second respondent herein filed a complaint before Commissioner of Police alleging that he had paid a sum of Rs.25 lakhs on 06.05.2016 and Rs.5 lakhs on 02.06.2016 to the petitioners on being selected for the Co-Pilot position at Air Pegasus and also on the assurance that he would be trained abroad. He has alleged that all of a sudden, operation of Air Pegasus is stopped and inspite of seeking for refund of money, petitioners did not refund the said amount with interest and as such, he had been put to untold humiliation and as such, he sought for necessary action being taken against petitioners. It is apt at this juncture to note the specific prayer made in the complaint which reads:
“So I kindly please request you to take necessary action against Mr.Shyson Thomas (Managing Director of Air Pegasus) and Mr.Ashwin Thomas (Director of Air Pegasus) and help me to recover the money I paid, which will be a life saving help for me and my family.”
On the basis of said complaint, jurisdictional police have registered a case in Crime No.421/2017 by Halasur Police for the offences punishable under Sections 406 and 420 read with Section 34 IPC. For quashing of proceedings, petitioner is before this Court.
3. A memo is filed by learned Advocate appearing for petitioners stating that on account of financial contingencies, money could not be refunded and subsequently, petitioners have refunded a sum of Rs.30 lakhs to the complainant and as such, he seeks for quashing of proceedings.
4. Though learned Advocate appearing for respondent-2 does not dispute said fact namely respondent-2 - complainant having received a sum of Rs.30 lakhs, he would yet contend that petitioners did not keep up their promise to depute the complainant for being training abroad and as such there is element of cheating on the part of the accused.
5. It requires to be noticed at the initial stage itself that a complaint lodged for cheating may have flavor of both civil dispute and criminal. It will have to be examined on facts and circumstances of each case as to whether there was any mens rea on the part of the accused at the time of alleged commission of offence namely, as to whether accused person had an intention to cheat the complainant? If the answer is in the negative, continuation of the proceedings would be uncalled for, inasmuch as, accused would be made to undergo the ordeal of trial and it would be an abuse of process of law. Further, if the allegations disclose it has flavor of both civil and criminal intent, accused cannot be heard to contend that despite such criminal liability being found in the allegations made in the complaint, yet, complainant has to choose the forum of civil proceedings only. Intention of the accused will have to be gathered from material on record including the allegations made in the complaint by the complainant or the victim. In this background, if the complaint in question is perused, it would indicate the sole purpose for which complaint is lodged, is to seek for refund of money and there is not even a whisper in the complaint that petitioners had intention of cheating the complainant either at the time when they received the amount or any time prior to it or subsequently thereafter. Thus, basic requirement of mens rea being conspicuously absent in the compliant in question, continuation of proceedings against petitioners would definitely be an abuse of process of law and as held by Hon’ble Apex Court in the case of STATE OF HARYANA vs BHAJAN LAL & OTHERS reported in (1992)1 SCC Supp. 335 namely that necessary ingredient of an offence need to be found in the complaint, question of proceeding further would be an exercise in futility and also waste of precious judicial time. In that view of the matter, in the instant case, petitioners are entitled to the relief sought for.
Hence, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Proceedings pending against petitioners in Crime No.421/2017 registered by Halasur police for the offences punishable under Sections 406 and 420 read with Section 34 IPC on the file of IV Additional Chief Metropolitan Magistrate, Bangalore is hereby quashed and petitioners are acquitted of the aforesaid offences.
SD/- JUDGE *sp