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2016 DIGILAW 44 (KAR)

Shubha v. B. G. Jagadish

2016-01-12

RATHNAKALA

body2016
ORDER : Rathnakala, J. 1. Heard the learned Counsel appearing for parties. 2. The petitioners being the daughter and father are prosecuted by the respondent on a private complaint filed in respect of the offence under Sections 384, 420 and 500 of IPC. 3. The facts not in dispute between the parties is, the first petitioner is the widow of one Shivananda/brother of the respondent, who expired on 25.11.1999. The family of the respondent runs various businesses and trades. On the death of Shivananda, there was disturbance in the family atmosphere. The respondent filed a private complaint alleging that the properties, which were to be allotted to deceased Shivananda, are already given to the first petitioner/first accused. Still she is demanding for more money. Even after receiving Rs. 69,000/- on 3.6.2000, she had filed a complaint to the local Police. However on subsequent dates, agreements were entered into between the parties. Compromise Decree was passed in the civil suit in O.S. No. 85/2000, in view of the compromise entered into between the parties. Still she filed a complaint before the Chief Minister and she again filed a complaint before the CCB, Mysore and also before the Governor of Karnataka. She is filing complaints at the abetment of her father/second petitioner herein to extract money. The CCB, Mysore, are exerting pressure on the family members to settle illegal claim of the first petitioner. They ill-treated the complainant and his brother at her instance. 4. The learned Magistrate on presentation of the application, after recording the sworn statement of the complainant ordered to register the criminal case under Sections 384, 420and 500 of IPC. 5. Sri M.R. Rajagopal, learned Counsel appearing for the petitioners submits that, it is already eight years since the complaint was filed before the Court. The interim stay order passed in this case is operating. Since the complainant and other family members did not comply the terms of the settlement arrived inter se and did not part with the properties in accordance with the decree of the Civil Court, first petitioner was compelled to file the complaint before various authorities. She being a young widow having responsibility of raising two minor kids, had no other option except to file the complaint. There was no mala fide on her part to defame the in-laws/complainant. She being a young widow having responsibility of raising two minor kids, had no other option except to file the complaint. There was no mala fide on her part to defame the in-laws/complainant. None of the offences for which the criminal case is registered is attracted from the complaint allegation. Hence, the entire proceedings is liable to be quashed. 6. Sri G.S. Prasanna Kumar, learned Counsel appearing for the respondent submits that, instead of taking recourse under the due process of law, the first petitioner has coerced the complainant and other family members before various authorities thereby maligning complainant's and his family members' reputation before the society. The learned Magistrate having been satisfied with the sufficiency of the material to proceed against the accused has ordered summons and the contentions raised in this petition may be availed by her as defence during the trial and this is not a fit case to exercise the jurisdiction of this Court under Section 482 of Cr.P.C. 7. The penal provisions vexed in the present petition are under Sections 384, 420 and 500 of IPC. Section 384 of IPC is the penal provision for the commission of offence of "extortion" as defined under Section 383 of IPC, which reads thus: "383. Extortion.--Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion". Section 420 of IPC reads thus: "420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine". "Defamation" as defined in Section 499 of IPC requires to be proved for punishment under Section 500 of IPC. Section 499 reads thus: "499. "Defamation" as defined in Section 499 of IPC requires to be proved for punishment under Section 500 of IPC. Section 499 reads thus: "499. Defamation.--Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person". 8. The Apex Court in the case of Bishan Dass Vs. State of Punjab and Another, reported in (2014) 15 SCC 242 , has held thus: "The essential ingredients to attract Section 420 of IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security and (iii) mens rea of the accused at the time of making the inducement". 9. In V.Y. Jose vs. State of Gujarat and Another, (2009) 3 SCC 78 , the Apex Court observed thus: "An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied: i) deception of a person either by making a false or misleading representation or by other action or omission. (ii) fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. 10. In Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Another. (2000) 4 SCC 168 , the Apex Court held: "14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not to or omit to do if he were not so deceive. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 15. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 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 to 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 11 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". 11. Section 500 of IPC is the penal provision for commission of the offence under Section 499 of IPC. To constitute "defamation" under Section 499 of the IPC, there must be an imputation and such imputation must have been made with intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged. 12. The complaint allegation sans any averment attracting the commission of offences under the above three penal provisions. The learned Magistrate though has referred to the gist of the allegation has not applied his mind as to how commission of these offences under Sections 384, 420 and 500 of IPC is made out against the petitioner, that vitiates the order. 12. The complaint allegation sans any averment attracting the commission of offences under the above three penal provisions. The learned Magistrate though has referred to the gist of the allegation has not applied his mind as to how commission of these offences under Sections 384, 420 and 500 of IPC is made out against the petitioner, that vitiates the order. Further, the parties being the members of one family, much has flown in their lives from the date of the complaint till now. When they are proceeding with their lives without interference in their private life, it is appropriate under the jurisdiction of Section 482 of Cr.P.C. to quash the proceedings. The petition is allowed. The proceedings in P.C.R. No. 241/2008 pending on the file of Civil Judge (Jr. Dn.) and JMFC., Arasikere, is quashed.