IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2165 OF 2012 BETWEEN:
SRI M S VIJAYASARATHY AGED ABOUT 40 YEARS S/O LATE SRI M V SHIVANANJAPPA NO. 21, "ANANYA", 1ST FLOOR YAMUNA BAI ROAD, MADHAVANAGAR BANGALORE - 560001 ... PETITIONER (BY SRI: D.R.RAVI SHANKAR, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPTD. BY THE STATION HOUSE OFFICER YESHWANTHAPURA POLICE STATION BANGALORE CITY 2. SRI. R NARENDRA AGED ABOUT 38 YEARS S/O SRI. RANGAIAH M/S A.N. MARKET PVT.LTD., NO. 114/C, 5TH MAIN, 1ST CROSS, TUMKUR ROAD, OPP. CMTI BANGALORE CITY ... RESPONDENTS (BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R1 SRI: SHARATH S.GOWDA, ADVOCATE FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:26.10.11 IN C.C.NO.32480/11 PENDING ON THE FILE I ACMM, BANGALORE.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner is accused No.4 in C.C.No.32480/2011 on the file of the I Addl. Chief Metropolitan Magistrate Court at Bengaluru. The charge-sheet came to be laid against the petitioner and other accused persons alleging commission of offences punishable under sections 420, 120B read with 34 of Indian Penal Code.
2. The case of the prosecution is that the complainant had supplied textile chemicals to accused No.1 –Company on credit and in respect of the said transaction, a total sum of Rs.33,45,280/- was due by accused No.1. In respect of the said transaction, accused Nos.1 to 4 in collusion with each other, alleged to have obtained receipt dated 4.11.2010 for full and final settlement of all the dues by the accused No.1 – Company. According to the complainant (CW.1) under the said receipt, only a sum of Rs.12,00,000/- was paid by accused No.1 to the complainant and thereby accused No.1 –Company and its officers cheated and duped the complainant of the remaining amount of Rs.21,45,280/-.
3. Insofar as the present petitioner is concerned, the allegations are that, petitioner being the Advocate of accused No.1, prepared the aforesaid receipt knowing fully well that the amount of Rs.12,00,000/- paid by accused No.1 was not in full and final settlement of all the dues payable by accused No.1 and further when the complainant approached accused No.1 with regard to mischief played by accused No.1, the petitioner - accused No.4 is alleged to have demanded Rs.1 lakh cash as a cut.
4. Learned counsel for the petitioner submits that the allegations made against the petitioner do not attract the ingredients of the offence under section 420 or section 120B of Indian Penal Code. The dispute raised by the complainant is purely civil in nature. Eventhough the complainant has contended that a huge sum of Rs.33,45,280/- was due to him, charge-sheet does not contain any material in support of the said dues or outstanding by accused No.1. Even assuming that there was such an outstanding, the complainant/ respondent No.2 has not initiated any recovery proceedings which indicate that criminal process has been made use of by the complainant to settle financial claims which is purely civil in nature. Further the learned counsel submits that the petitioner being an Advocate is no way concerned with the alleged recovery of the amount or issuance of the receipt by the complainant. Therefore, there is no basis for the prosecution of the petitioner and thus seeks for quashing of the proceedings initiated against the petitioner.
5. Meeting the above argument, learned counsel appearing for the respondent No.2 submits that necessary averments are made in the complaint as well as in the statement which are supported by the incriminating material collected by the Investigating Agency which prima facie disclose that the petitioner by playing fraud and mischief used a blank letter head of accused No.1 Company to fabricate a false receipt in the computer maintained in his office. Accused No.1 – Company was due in a sum of Rs.33,45,280/- to the complainant. But for the misrepresentation and fraud played by the petitioner, the complainant would not have received Rs.12,00,000/-. These circumstances clearly make out the offences committed by the petitioner. He further submits that the Investigating Agency having collected prima facie material in support of the accusations, there is no ground for quashing the proceedings and hence, seeks for dismissal of the petition.
6. Learned SPP-II appearing for the respondent No.1 has argued in support of the charges foisted against the petitioner contending that the material produced by the prosecution is sufficient to make out the offences alleged against the petitioner.
7. Considered the submissions and perused the material on record.
8. The petitioner herein is an Advocate by profession.
The only allegation made against the petitioner is he colluded with accused No.1 and its officers and managed to obtain a receipt from the complainant. These receipts are produced along with the charge-sheet. It is important to note that the letter dated 01.11.2010 and the acknowledgement or receipt of payment dated 04.11.2010 were produced by the complainant himself as Annexures to the private complaint which indicate that the copy of the said acknowledgement was given by the complainant on the date of execution of the said document.
9. A bare perusal of the letter dated 01.11.2010 indicates that there was a discussion between the parties and in furtherance thereof, the complainant agreed to receive a sum of Rs.12,00,000/- towards full and final settlement of the entire due of Rs.21,31,590/-. Subsequent receipt is dated 04.11.2010. The contents of the said receipt make it evident that in terms of the earlier discussion, accused No.1 handed over the cheque for Rs.12,00,000/- and it is only after the receipt of the said bankers cheque, the acknowledgement or receipt was signed by the complainant. If infact there was no such agreement between the parties, there was absolutely no reason for accused No.1 to tender Rs.12,00,000/- by way of bankers cheque to the complainant. Even assuming that there was no such agreement between the parties with regard to the aforesaid sum in full and final settlement of the amount due to the complainant, in all probability, having regard to the business practices, the complainant would have issued a receipt acknowledging only the part of the amount due to him.
10. These circumstances, therefore, indicate that there was absolutely no fraud whatsoever as contended by the complainant. On the other hand, the records establish that prior to payment of the said amount of Rs.12,00,000/-, there was a mutual agreement between the parties and in terms thereof, bankers cheque was obtained by accused No.1 and same was handed over to the complainant. No doubt there is a dispute as to whether the said amount was received by the complainant in full and final settlement of the amount to the complainant, nevertheless the said dispute is purely civil in nature. If for any reason the amount paid by the accused No.1 was not the full payment of the amount due to the complainant, it was open to the complainant to recover the said amount by taking recourse to civil action. The very fact that the complainant has not initiated any civil action for recovery of the amount suggests that there was no such mischief or fraud as sought to be contended by the complainant. Even otherwise, there is no clear allegation as to the role played by the petitioner in the alleged fraud or deception.
11. In order to constitute an offence under section 420 of IPC, the element of deception and fraud should be present at the time of commission of the offence. The circumstances discussed above do not indicate that the petitioner herein had any such intention either to dupe or cheat the complainant. On the other hand, the allegation made in the complaint is that when the complainant approached the petitioner, he demanded Rs.1,00,000/- as a cut. The said allegation does not constitute the offence under section 420 or section 120B of IPC.
12. Thus considering the case from all angles, I am of the clear opinion that the charge alleged against the petitioner cannot be sustained. The circumstances discussed above clearly indicate that by applying pressure through criminal prosecution, an effort has been made by the complainant to settle the civil dispute.
13. In this context, the observations made by the Hon’ble Supreme Court in the case of ANAND KUMAR MOHATTA & Another vs. STATE (GOVT. of NCT of Delhi) Department of Home and Another, LAWS (SC) 2018(11) 14, relied on by the learned counsel for the petitioner may be apposite. In para 25 thereof, it is held as under:
25. In Indian Oil Corporation v. NEPC India and others this Court observed as follows:-
“13…. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged……”
The Court noticed a growing trend in business circles to convert purely civil dispute into criminal cases.
We find it strange that the complainant has not made any attempt for the recovery of the money of Rs. One Crore except by filing this criminal complaint. This action appears to be mala fide and unsustainable.
14. On consideration of the above facts and circumstances, I am of the view that the prosecution launched against the petitioner cannot be allowed to be continued as the same is an abuse of process of court.
Accordingly, the petition is allowed. The impugned order dated 26.10.2011 passed in C.C.No.32480/2011 pending on the file of the learned I Additional Chief Metropolitan Magistrate, Bengaluru is hereby quashed only insofar as the petitioner herein (accused No.4) is concerned.
Any observation made in this order is confined to the contentions raised by the petitioner seeking quashment of the proceedings. Therefore, any observation or finding recorded in this order shall not be considered by the trial court in whatsoever manner while dealing with the case of the accused Nos.1 to 3 in C.C.No. 32480/2011.
Sd/- JUDGE Bss