IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.4999 OF 2016 BETWEEN:
1. SRI.A.S. GOVINDRAJ S/O LATE SRINIVASAYYA SHETTY AGED ABOUT 64 YEARS NO 1346, AMMAVARPET, KOLAR - 563101 KOLAR DIST 2. SRI RAGHUVAMSHI S/O SRI A S GOVINDRAJ, AGED ABOUT 32 YEARS NO 1346, AMMAVARPET, KOLAR - 563101 KOLAR DIST (BY SRI: S P KULKARNI, ADVOCATE) AND ... PETITIONERS 1. THE STATE OF KARNATAKA REPRESENTED BY ITS POLICE SUB - INSPECTOR, MALEBENNUR POLICE STATION, HARIHAR TALUK, DAVANAGERE DISTRICT NOW REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA BUILDING BANGALORE - 560001 2. SRI C B RAMESH S/O SRI C BASAVARAJAPPA, PROPRIETOR, AGED ABOUT 38 YEARS M/S DHANALAKSHMI TRADERS, MALEBENNUR, INDIRANAGAR, TQ HARIHAR-577601.
DIST: DAVANGERE ... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI: PRABHUSWAMY.N., ADVOCATE FOR SRI: V.B. SIDDARAMAIAH, ADVOCATE FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT AND FIR IN CR. NO.10/2016 DATED 1.2.2016 REGISTERED BY THE MALEBENNUR POLICE, HARIHAR TALUK, DAVANAGERE DIST. U/S 409 AND 420 R/W 34 OF IPC ON THE FILE OF THE ADDL. C.J. (JR. DN.) AND J.M.F.C., HARIHAR, IN SO FAR AS THE PETRS. ARE CONCERNED, BEING ARBITRARY, ERRONEOUS, NOT MAINTAINABLE, CONTRARY TO LAW.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for petitioners and learned Addl. SPP for respondent No.1. Learned counsel for respondent No.2 prays time. Prayer rejected. Perused the records.
2. Petitioners are aggrieved by the registration of FIR against them in Cr.No.10/2016 for the alleged offences under sections 409 and 420 r/w 34 IPC. Petitioners are shown as accused Nos.1 and 2 in the said FIR.
3. Complaint was lodged by second respondent on the allegation that he had sold five loads of paddy to accused No-3 Ambarisha Kumar. Accused No.3 took delivery of the paddy, on the promise that the cost of said paddy amounting to Rs.19,67,267/- would be credited to the bank account of the complainant. The amount was not credited to his account and on enquiry with the driver, he was informed that the said paddy was unloaded in the Rice Mill of the petitioners.
4. Learned counsel appearing for the petitioners’ submits that the allegations made in the complaint, even if accepted on their face value do not make out the ingredients of offences under sections 409 and 420 IPC insofar as the petitioners are concerned. Petitioners are running a Rice Mill and are involved in hulling activity. The averments made in the complaint go to show that the sale transaction was between accused No.3 and the complainant. These allegations do not render the petitioners culpable for wrong delivery of paddy or for non-payment of amount by accused No.3 and thus seeks to dismiss the petition.
5. Learned Addl. SPP appearing for respondent No.1 argued in support of the impugned action contending that the allegations made in the complaint prima-facie make out the ingredients of the offences under sections 409 and 420 IPC and the matter being under investigation, petition is required to be dismissed.
6. A reading of the complaint discloses that the transaction has taken place between accused No.3 and the complainant. It is specifically stated in the complaint that on the promise of crediting sale price of Rs.19,67,267/-, accused No.3 took delivery of five loads of paddy from the complainant. It is not the case of the complainant that the petitioners had taken delivery of the said paddy from the complainant on false promise with intention to cheat or deceive the complainant. The only allegation made against the present petitioners is that during enquiry, the complainant came to know that paddy was delivered to the rice mill of the petitioners. Even assuming that the aforesaid paddy was delivered to the rice mill of the petitioners, the same at the most would be a wrong delivery, in respect of which, complainant is required to take appropriate action either to repossess the goods or to proceed against the seller for recovery of the amount due to him. Said delivery, even if assumed to be true, does not constitute the ingredients of offences under sections 420 or 409 IPC.
7. In order to constitute an offence under section 420 IPC, there must be essentially an element of cheating and dishonest intention on the part of the accused. In the absence of these ingredients and there being no material to show that the petitioners herein had any culpable intention to cheat and defraud the complainant, sections 420 and 409 IPC do not get attracted insofar as the petitioners are concerned.
8. In that view of the matter, the prosecution instituted against the petitioners being opposed to the provisions of sections 409 and 420 IPC and contrary to the material on record, cannot be sustained.
Accordingly, the petition is allowed. FIR registered against the petitioners in Crime No.10/2016 on the file of learned Addl. Civil Judge(Jr.Dn.) & JMFC, Davanagere are quashed. Investigation shall continue against accused No.3 in accordance with law.
*mn/-
Sd/- JUDGE