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2015 DIGILAW 718 (KAR)

Raghavendra v. State of Karnataka

2015-07-07

A.N.VENUGOPALA GOWDA

body2015
ORDER : A.N. Venugopal Gowda, J. 1. On a complaint filed by the second respondent, on 23.10.2008, the first respondent registered FIR in Crime No. 314/2008. After investigation, charge-sheet was filed. Cognizance having been taken for the offences punishable under S. 420 read with S.34 of IPC, C.C. No. 11008/2010 was registered and process was issued to Nagappa S/o. late Ramachandraiah and the petitioners herein. Seeking quashing of the said proceedings, this petition under S. 482 of Cr.P.C. was filed. The second respondent has instituted O.S. No. 26955/2010 on 18.11.2010 against all the accused, to pass a decree directing the defendants to pay jointly and severally Rs. 13,78,000/- with interest at 18% p.a. The suit is pending on the file of Addl. City Civil and Sessions Judge, Bengaluru City. 2. The cause of action for the abovesaid proceedings is an Agreement of Sale dated 19.11.2007, between the complainant and the first accused/first defendant - Nagappa S/o. Late Ramachandraiah, and the subsequent actions in relation thereto. 3. Sri. B.S. Prasad, learned advocate, contended that no case having been made out for the offence under S. 420, IPC and the essential ingrethents of cheating being not existing in the prosecution record i.e., as against the petitioners, the impugned proceedings is liable to be quashed. Learned advocate submitted that the allegations made in the complaint filed on 23.10.2008 and averments made in O.S. No. 26955/2010 being one and the same, the complainant having attempted to convert purely a civil dispute into a criminal case, there being abuse of process of law and also of the criminal court, thereby, causing illegal harassment to the petitioners, the impugned proceeding is liable to be quashed. 4. Sri. R. Shailesh Kumar, learned advocate appearing for respondent No. 2, on the other hand, contended that there being collusion amongst the accused, to cheat the complainant, S. 420 read with S. 34, IPC having been invoked, the petitioners should face trial. Learned counsel sought dismissal of this petition. 5. Perused the material on record and considered the rival contentions. 6. If the criminal complaint/record does not disclose any offence or the proceeding is frivolous, the same can be quashed in exercise of powers under S. 482 of Cr.P.C., so as to prevent abuse of process of law or of the Court and also its misuse. 7. In Indian Oil Corpn. 6. If the criminal complaint/record does not disclose any offence or the proceeding is frivolous, the same can be quashed in exercise of powers under S. 482 of Cr.P.C., so as to prevent abuse of process of law or of the Court and also its misuse. 7. In Indian Oil Corpn. v. NEPC India Ltd. and others, (2006) 6 SCC 736 : ( AIR 2006 SC 2780 ), Apex Court has summarized the principles relating to the exercise of jurisdiction under S. 482 of Cr.P.C., to quash complaint/criminal proceedings. Referring to the growing tendency of converting purely civil dispute into criminal case, it has been held as follows: "13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remethes are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. 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. In G. Sagar Suri v. State of U.P., 2000 (2) SCC 636 , ( AIR 2000 SC 754 ), this Court observed : (SCC p.643, para 8) : (P. 759 of AIR). "It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remethes available in law. Before issuing process, a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 14. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 14. While no one with a legitimate cause or grievance should be prevented from seeking remethes available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250, Cr.P.C., more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may." 8. A reading of the complaint dated 23.10.2008, based on which the FIR in Crime No. 314/2008 was registered on 31.12.2008, shows that there was a Sale Agreement between the complainant and Nagappa, on 19.11.2007 and the same having been subsequently cancelled and the cheque/s issued towards refund, when presented, was returned dishonoured due to insufficiency of funds. The petitioners are not parties to the said Agreement of Sale dated 19.11.2007 and its subsequent cancellation and to the refund of the earnest money deposit. Cheques in question having not been signed and issued by the petitioners, the whole allegation in the complaint and the material of the prosecution case is only against the accused No. 1 - Nagappa. Though, certain allegations were made in the complaint, based on which the FIR under S. 506, IPC was registered, while filing the charge-sheet, there is no mention of offence under S. 506, IPC. The charge-sheet having been filed for the offence under S. 420 read with S.34, IPC, cognizance was taken and process was issued. 9. S. 420, IPC deals with cheating. The essential ingrethents are: "i. Cheating. ii. Dishonest intention to deliver property to any person, or to make, or alter or destroy any valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security; and iii. 9. S. 420, IPC deals with cheating. The essential ingrethents are: "i. Cheating. ii. Dishonest intention to deliver property to any person, or to make, or alter or destroy any valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security; and iii. Mens rea of the accused at the time of making inducement." 10. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his/their promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under S. 420 of IPC can be said to have been made out. 11. In the present case, there is nothing to show that at the very inception, there was any intention on behalf of the petitioners, to cheat, which is a condition precedent for an offence under S. 420, IPC. 12. In the present case, looking to the above allegation in the charge-sheet and accompanying material, I do not find any allegation attracting cheating or dishonest intention on the part of the petitioners/accused Nos. 2 and 3, in retaining of the money, in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Since the petitioners are not parties to the said Agreement of Sale and as they have not issued cheque/s in question, there is no iota in the allegation of dishonest intention in misappropriating the property/money. Merely because accused No. 1 did not pay the money payable under the cheques issued by him to the complainant, it does not amount to criminal breach of trust by these petitioners. Even if all the allegations in the charge-sheet are taken at their face value as true, the essential ingrethents of S. 420, IPC against the petitioners being missing, the prosecution of the petitioners amounts to abuse of process of law and misuse of process of the Court. By the impugned proceedings, the second respondent has attempted to harass the petitioners by approaching more than one forum for remedy. By the impugned proceedings, the second respondent has attempted to harass the petitioners by approaching more than one forum for remedy. In the circumstances, the prosecution of the petitioners being abuse of process, this is a fit case to exercise the inherent power under S. 482, Cr.P.C. and grant relief. In the result, petition is allowed and C.C. No. 11008/2010 pending on the file of III ACMM, Bengaluru, "insofar as the accused Nos. 2 and 3 are concerned" is quashed. However, this order would not stand in the way of prosecution of O.S. No. 26955/2010 by Sri. Nagaraja Rao B.S. - the complainant.