IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No. 6741 /2016 BETWEEN:
Sri.T.Karibasappa S/o Thippeswamy, Aged about 42 years, Adi Mobile Shop, Opposite Prashanth Clinic, Ashoka Road, Davanagere City – 577 002.
... Petitioner (By Smt.Haleema Ameen, Advocate for Sri.S.Vishwajith Shetty, Advocate) AND:
Sri.E.Varaprasad S/o E.Venkatanarayana, Aged about 42 years, Owner, Sri.Sai Balji Enterprises, Near Ooramma Temple, Harihara Town – 577 218. ... Respondent (By Sri.M.Vinaya Keerthy and Sri.G.M.Sharath Kumar, Advocates) This Criminal Petition is filed under Section 482 of Cr.P.C praying to quash the entire proceedings in PCR No.20/2016 on the file of the Court of Prl. Civil Judge and JMFC, Harihara, Davanagere District for the offence under Sections 406, 417, 420 of IPC.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for petitioner and learned counsel for respondent. Perused the records.
2. Respondent herein filed a complaint under Section 200 of Cr.P.C before the Principal Civil Judge and JMFC, Harihara, Davanagere District seeking prosecution of the petitioner for the alleged offences punishable under Sections 406, 417 and 420 of IPC. The material allegations made in the complaint is that in respect of cell phones purchased by the petitioner from the complainant, a sum of Rs.90,000/- was due by the petitioner and in respect of the said outstanding, petitioner herein issued a cheque for Rs.90,000/-. When the said cheque was presented for encashment, the same was returned dishonoured as “account closed”.
3. A reading of the complaint on the face of it discloses that the transaction between the parties is commercial in nature. There are no averments whatsoever that the alleged transaction was entered into by the petitioner with fraudulent or dishonest intention. In order to constitute an offence punishable under Sections 406, 417 and 420 of IPC, fraudulent and dishonest intention must have been shown to exist at the commencement of the transaction. A reading of the averments made in the complaint go to show that there was a business transaction between the parties and the said cheque was issued towards the balance outstanding by the petitioner. There are no averments whatsoever in the complaint that the petitioner with dishonest or criminal intention had entered into the alleged transaction. In the absence of any basic averments constituting the ingredients of offences under Section 417 and 420 of IPC, the prosecution of the petitioner cannot be sustained.
4. In so far as offence under Section 406 of IPC is concerned, there are absolutely no averments in the complaint attracting the ingredients of the said offence. The whole transaction between the parties is civil in nature arising out of purchase of the cell phones by the petitioner. In the said circumstances, initiation of criminal action against the petitioner to recover the money alleged to have been due to the complainant cannot be permitted. The learned Magistrate without considering these basic facts, has taken cognizance of alleged offences and issued process to the petitioner. Since the averments made in the complaint do not disclose the ingredients of any criminal offence muchless the offences under Sections 417 and 420 of IPC, in my view, the cognizance taken by the learned Magistrate and issuance of process to the petitioner to face trial for the above offences being an abuse of process of court cannot be permitted.
Accordingly, the petition is allowed. The prosecution launched in PCR No.20/2016 on the file of Principal Civil Judge and JMFC, Harihara, Davanagere District is quashed.
Sd/- JUDGE UN