IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.4783/2017 BETWEEN:
MR. SUNIL KUMAR NO.107, 1ST MAIN KANAKA LAYOUT B.S.K. 2ND STAGE BANGALORE - 560 000.
PERMANENT RESIDENT OF ACHARYA STREET BAIREDDYPALLI CHITTOOR ANDHRA PRADESH – 517 415.
(BY SRI. UMESH B.N., ADVOCATE) AND:
... PETITIONER 1. THE STATE OF KARNATAKA BY HAL POLICE STATION BANGALORE REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE – 560 001.
2. MR. PANNER SELVAM S/O MR. GANESHAN AGED ABOUT 29 YEARS RESIDING AT 19/5-1 DOOR NO.8, 4TH FLOOR 6TH MAIN, "B BLOCK VINAYAKNAGAR MURUGESH PALYA BANGALORE - 560 017.
PERMANENT RESIDENT OF: KOLLANGADU, ODUVANKURATCHI POST, RASIPURAM TALUK NAMAKKAL DISTRICT TAMILNADU – 637 406.
... RESPONDENTS (BY SRI. S.T NAIK., HCGP FOR R-1; SRI. C.R. VENKATARAM., ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER/ACCUSED FOR AN OFFENCE P/U/S 417, 418, 420, 422 OF IPC PENDING ON THE FILE OF X A.C.M.M., BENGALURU CITY IN C.C.NO.52697/2016 (CRIME NO.938/2014) OF HAL POLICE STATION, BENGALURU CITY.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner who is arraigned as accused in C.C.No.52697/2016 (Crime No.938/2014 ) registered by HAL Police Station, Bengaluru pending on the file of X Additional Chief Metropolitan Magistrate, Bengaluru is before this Court for quashing of said proceedings.
2. Respondent No.2 herein filed a private complaint under Section 200 Cr.P.C. alleging that he and petitioner – accused were colleagues working with M/s.Soundarya Decorators during 2007-08; petitioner had left the said company with an intention to start his own business under the partnership and he used to pressurize complainant to join his venture as a partner, which was established by him under the name and style of ‘M/s.Sapthagiri Interiors’. It is further alleged that on account of persistent persuasion and force exerted by petitioner to leave the lucrative job which complainant was working or in the alternate to arrange funds for his business. Complainant agreed to arrange funds from friends and relatives in order to ward off the pressure exerted by the petitioner and accordingly transferred a total sum of Rs.15,09,400/- to the account of petitioner – accused. Complainant has further alleged that on receipt of said amount, accused started avoiding to pay interest as well as principal amount and though he agreed to repay a sum of Rs.7 lakhs by the end of 2012, same was postponed and he did not repay the amount with an intention of cheating the complainant and on these lines, a complaint came to be lodged which was registered in Crime No.938/2014 for the offences punishable under Sections 418, 417, 419, 420 & 422 IPC and on completion of investigation, charge sheet came to be filed in C.C.No.52697/2016 for the aforesaid offences. Hence, for quashing of said proceedings, petitioner is before this Court.
3. I have heard the arguments of Sri. Umesh B.N., learned Advocate appearing for petitioner, Sri S.T.Naik, learned HCGP appearing for respondent-1 and Sri C.R.Venkataram, learned Advocate appearing for respondent-2.
4. It is the contention of Sri Umesh B.N., learned Advocate appearing for petitioner that dispute is of civil nature and with an intention to coerce and pressurize petitioner, complaint in question has been filed on imaginary grounds. Hence he prays for quashing of proceedings. He would also reiterate the grounds urged in the petition by contending that essential ingredients for constituting an offence of cheating, mens rea should have been there right from the inception i.e., from borrowing of the amount and in the absence of same, proceedings cannot be continued on the basis of complaint lodged by second respondent as it would amount to abuse of process of law. Hence he seeks for quashing of the proceedings.
5. Per contra, Sri. C.R.Venkataram, learned Advocate appearing for second respondent – complainant would support the case of prosecution and contends that right from the beginning, petitioner had intention to defraud second respondent and even for recovery of the amount, suit which has been filed in O.S.No.5693/2017 which has been decreed and execution proceedings have been initiated in which, service of notice has been effected on the petitioner – accused - judgment debtor and to stave off the liability arising out of civil proceedings, this petition has been filed and as such, he prays for dismissal of the petition.
6. Having heard the learned Advocates appearing for parties and on perusal of records, it requires to be noticed at this juncture itself that allegations made in the complaint does not disclose the offence alleged, it would call for quashing of proceedings. However, it is not necessary at the stage of considering such prayer, a meticulous analysis of charge sheet material is required to be made. On the other hand, it appears from the charge sheet material if ingredients of offences are disclosed, then, there would be no justification for this Court to quash the proceedings. At the same time, defence that may be available or facts/aspects when established during trial may lead to acquittal of an accused are not the grounds on which proceedings can be quashed at the threshold. At this stage only question which would arise is, whether averments made in the complaint spell out the ingredients of a criminal offence or not? Further, criminal proceedings cannot be quashed only on the ground that allegations made therein appears to be of a civil nature. If the allegations made would constitute a criminal offence or in other words, allegations made in the complaint would be of both civil and criminal flavour, it would be open for the jurisdictional Court trying the criminal offence to proceed with and at that stage, it would not be apt and appropriate to stifle the proceedings by entering into adjudication on merits of the contentions raised or defence sought to be put up, as it is likely to prejudice rights of either parties.
7. In the above background of aforestated discussion, when material on record is perused, it would clearly indicate that complainant has specifically alleged that both he and accused were colleagues working in the same office and as such, petitioner had persuaded him to part with money amounting to Rs.15,09,400/- which came to be transferred to the account of the petitioner and his firm and immediately on receipt of said amount, petitioner – accused is said to have absconded or his whereabouts were not known. Hence, it is alleged by the complainant that from the initial stage itself accused had intention to dishonestly induce the complainant to part with the money and thereby he had an intention to deceive him. As to the existence of mens rea or not, trial Court would examine the same based on evidence that may be tendered by the parties, and if such an exercise is undertaken by this Court at this stage by scrutinising charge sheet material by microscopic examination, it would definitely prejudice the rights of either of parties, and any opinion expressed in this regard would be at the peril of either parties. Hence, this Court is of the considered view that it would not be appropriate to interject the trial by examining the probable defence of the accused at this stage.
8. For myriad reasons aforestated, this Court is of the considered view that it is not a fit case to interfere with by exercise of extraordinary jurisdiction vested in this Court to quash the proceedings. There are no other good ground to entertain this petition. Hence, it stands rejected.
In view of rejection of petition, I.A.No.1/2018 for vacating stay does not survive for consideration. Accordingly, it is dismissed.
SD/- JUDGE *sp