IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3937 OF 2013 BETWEEN:
SRI HARISH RAJ URS S/O LATE SRINIVAS RAJ URS AGED ABOUT 32 YEARS R/A NO.65, 10TH MAIN, D BLOCK J.P. NAGAR, MYSORE 570008 ALSO AT:
NO.96 A 2ND MAIN, BIKASIPUR NEAR ISRO LAYOUT BANGALORE 560078 ... PETITIONER (BY SRI: JAIRAJ G, ADVOCATE) AND:
1. STATE OF KARNATAKA BY SANJAYNAGAR POLICE STATION BANGALORE 560094 2. KUMARI SHOBARANI D/O LATE K.R. VENKATARAJAE URS AGED ABOUT 30 YEARS R/A NO.24 2ND CROSS, KALLAHALLI MANDYA 571401 ... RESPONDENTS (BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R1; SRI.M.SUBRAMANI, ADV. FOR R2) THIS CRL.P IS FILED U/S. 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.73/13 PENDING ON THE FILE OF THE VIII ADDL.C.M.M., BANGALORE.
THIS CRL.P COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner has sought to quash the proceedings initiated against him in C.C.No.73/2013, presently pending on the file of the VIII Addl. C.M.M. Court, Bangalore.
Heard the learned counsel for the petitioner, learned SPP- II for respondent No.1 and learned counsel for respondent No.2.
2. On the basis of the complaint lodged by the respondent No.2, Crime No.203/2012 of Sanjay Nagar Police Station was registered against the petitioner and after completing investigation, charge-sheet has been laid under section 420 IPC. The material allegation against the petitioner is that the petitioner and respondent No.2 were in love for about five years. The petitioner herein promised to marry the second respondent, but since three years cut-off the relationship with her and on 23.05.2012, he married another lady.
3. Learned counsel for the petitioner submits that the allegations made against the petitioner, even if accepted as true do not constitute the ingredients of the offence under section 420 IPC. Further he submits that according to the prosecution, for about three years there was no contact between the petitioner and the second respondent. Under the said circumstances, at the most the petitioner could be charged only under section 415 of IPC which is punishable with imprisonment upto one year. But in the instant case, as per the very case of the prosecution, charge-sheet is laid after three years. Therefore, viewed from any angle, prosecution of the petitioner is illegal and is an abuse of process of court. In support of his submissions, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in ABHOY PRADHAN vs. STATE OF WEST BENGAL, 1999 Cri.L.J. 3534, the decision of the High Court of Judicature at Madras in K.U.PRABHU RAJ vs. STATE by Sub Inspector of Police, A.W.P.S. Tambaram & Another in Crl.OP.No.1273/2011 in 2012(2) TLNJ 529 (Civil) and another decision of the Calcutta High Court in SHIBNATH MUKHERJEE & Ors. vs. STATE OF WEST BENGAL, 2005(3) Crimes 233.
4. Refuting the submissions, learned counsel appearing for the second respondent would submit that having collected necessary evidence, charge-sheet has been laid against the petitioner. The trial Court has already framed charges against the petitioner based on the prima facie material available on record. The very fact that charges have been framed by the trial court it goes to show that sufficient material is available to proceed in the matter. Hence, there is no case for quashing of the proceedings.
5. Learned SPP-II also would submit that contents of the charge-sheet disclose commission of offence. Hence there is no ground to quash the proceedings.
6. Considered the submissions and perused the records.
7. The allegation made against the petitioner, in my opinion, even if accepted as true, would at the most amounts to breach of promise to marry and not cheating within the meaning of section 415 or section 417 of IPC. What is “cheating” has been defined in section 415 of IPC. It reads as under:
dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ‘cheat’.
8. In this context, it is apt to refer to the decision of the Hon’ble Supreme Court in HRIDAYA RANJAN PRASAD VERMA vs. STATE OF BIHAR (2000)4 SCC 168, wherein it is held as under:
“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.”
9. As held by the Hon’ble Supreme Court in the above case, elements of deception, cheating and fraudulent intention should be shown to be existing right at the beginning of the transaction i.e., at the time when the offence is said to have been committed. There are no such allegations in the complaint so as to constitute the offence of cheating or other charges levelled against the petitioner. As a result, I do not have any hesitation to hold that the initiation of criminal action against the petitioner is an abuse of process of law and same cannot be allowed to be continued.
Accordingly, the petition is allowed. The proceedings in C.C.No.73/2013 presently pending on the file of the VIII Addl.
C.M.M. Court, Bangalore are hereby quashed.
Sd/- JUDGE Bss