Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 253 (KAR)

Vipin Mittal v. State of Karnataka

2023-02-10

K.NATARAJAN

body2023
JUDGMENT/ORDER 1. The Crl.P.No.17768/2021 is filed by the petitioner/accused Nos.4, to 6 and the Crl.P.No.17562/2021 is filed by the accused Nos.1 to 3 filed under sec. 482 of Cr.P.C for quashing the FIR in Crime No.143/2021 registered by Jayaprakash Nagar police station, Jayanagar sub-division dtd. 22/7/2021 for the offence punishable under Ss. 406 and 420 of IPC pending on the file of 30th Additional Chief Metropolitan Magistrate, Bengaluru. 2. Heard the arguments of learned senior counsel for petitioners, learned HCGP for respondent No.1 and learned counsel for respondent No.2. 3. The case of the prosecution is that on the complaint of defacto-complainant namely Prasanna D., filed complaint to the police on 22/7/2021 alleging that he is running a Company called Naksha Enterprises and dealing with the scaffolding materials (construction material) and renting the same to the developers/builders. Accordingly, the accused/company contacted the complainant on 3/7/2017 for requesting the scaffolding material for rent for construction of 18 floor and 21 floor building constructing in the name of Peninsular Heights. Accordingly, they sent the emails and thereafter the petitioner supplied scaffolding materials consisting of 10, 000 square meters at the rate of Rs.63.00 per square meter totally for Rs.6, 30, 000.00 per month and required to pay Rs.5, 10, 00, 000.00 (Rupees 5 crores and 10 lakshs) as on 1/1/2018 but they paid only Rs.40.00 lakhs. Thereafter, they dragged on for the payment which they were liable to pay i.e, Rs.4, 70, 00, 000.00(Rupees 4 crores 17 lakhs) and they also returned 2300 square meters scaffolding and retained 7700 square meters scaffolding materials. In spite of requesting they neither paid the money, nor returned this scaffolding materials, thereby they misappropriated the materials and cheated the complainant for more than Rs.4, 70, 00, 000.00(Rupees 4 crores 17 lakhs), hence this complaint came to be filed against petitioners who are all Company, as well as the MDs, Managers, and Contractors. The police after registering the complaint registered the FIR which is under challenge. 4. The counsel for petitioner has contended the dispute between them a civil contract, hence criminal case cannot be sustainable. The accused Nos.1 and 2 were not at all Directors of the company and the company is not made as accused. The accused Nos.4 to 8 are employees of the company. There was delay of 1 1/2 years in lodging the complaint. The accused Nos.1 and 2 were not at all Directors of the company and the company is not made as accused. The accused Nos.4 to 8 are employees of the company. There was delay of 1 1/2 years in lodging the complaint. Only accused No.6 signed the agreement and that accused Nos.1 to 3 are not at all the Directors of the company, therefore criminal case cannot be sustainable against the petitioner. Hence prayed for quashing the FIR. 5. Per contra, learned counsel appearing for respondent No2. objected the petition and contended that the matter is under investigation. The company can be made as accused after the investigation. The petitioners have played mischief, criminal breach of trust and taken the scaffolding materials for the purpose of construction and after the construction they did not return the materials and also paid only part payment and went on dragging the remaining payment. Therefore, he has contended, if the petitioners are not Directors, they can be delete in the charge sheet after the investigation. The accused No.2 paid the cheque who is one of the Directors for payment and others are Directors of the company. Therefore, merely, the Company is not made as accused in the FIR, that cannot be ground for quashing the criminal proceedings. Hence, prayed for dismissing the same. 6. Learned HCGP also objected the petition and contented that the accused persons have cheated the complainant they also not returned the scaffolding materials, they are developers, therefore required to be investigated by the police. Hence prayed for dismissing the petition. 7. Having heard the arguments of learned counsel for the parties and perused the records. The learned counsel for the petitioner relied upon the various judgment in respect of dealing with the matter in quashing the FIR as below:- (i) ANEETA HADA VS GODFATHER TRAVELS AND TOURS PVT. LTD., (ii) SUNIL BHARTI MITTAL VS CENTRAL BUREAU OF INVESTIGATION, (iii) S.K.ALAGH VS STATE OF UTTAR PRADESH AND OTHERS I have gone through the judgment of Hon'ble Supreme Court in various cases and also keeping in the mind, the principle laid on by the Hon'ble Supreme Court in the case of Niharika Infrastructure Ltd. Vs. LTD., (ii) SUNIL BHARTI MITTAL VS CENTRAL BUREAU OF INVESTIGATION, (iii) S.K.ALAGH VS STATE OF UTTAR PRADESH AND OTHERS I have gone through the judgment of Hon'ble Supreme Court in various cases and also keeping in the mind, the principle laid on by the Hon'ble Supreme Court in the case of Niharika Infrastructure Ltd. Vs. State of Maharashtra reported in 2021 SCC Online SC 315 by Hon'ble Supreme Court and also State of Haryana and Others vs Bhajan Lal and Others reported in 1992 AIR 604 case wherein, it has been held that the FIR can quashed be only in the rarest of rare cases, considering the facts and circumstances of the case and on perusal of the record which reveals, it is not in dispute the petitioners are the Directors, Manager, Supervisor and Contractors of the petitioner's company who are developers constructing the high level apartments in the name of Peninsular Heights and they have undertaken construction at JP Nagar Bangalore. The accused persons had placed an order for requesting the supply of scaffolding materials for the purpose of construction of 18 and 21 floors of buildings and there was cover note also produced to show what are the materials and work orders in respect of the contract. Of course, it amounts to a service contract between the complainant and petitioner. However, the work of complainant is supplying the scaffolding materials at the rate of Rs.63.00 per square meter for 10, 000 square meter. In this case, the accused persons utilized scaffolding materials and returned only 233 square meters materials and retained 7700 square meter materials and did not return. It is also contended that as per calculation, the accused company is payable Rs.5, 10, 00, 000.00 (Rupees Five crore and Ten laksh) but they have paid only Rs.40.00 lakhs. The accused No.2 said to have issued cheques which was received and encashed by the respondent towards part payment. Therefore, the contention of the petitioner accused No.2 cannot be acceptable that he is not the Director of the Company. The accused persons are responsible for day-to-day affairs of the Company which is construction company and they are the developers. Another accused is Vice President, Manager-Nitin Temgire and Akash Kachroo who was contractor are all of them were jointly liable under the contract. The accused persons are responsible for day-to-day affairs of the Company which is construction company and they are the developers. Another accused is Vice President, Manager-Nitin Temgire and Akash Kachroo who was contractor are all of them were jointly liable under the contract. It is not the civil agreement entered between the parties for the purpose of working the contractors shall independently work. The work order given by the Good Home Reality Ltd., but not a individual contractor and the company belongs to these petitioners. 8. The work order contract between the accused company as well as contractor, but not this complainant. This complaint supplied only scaffolding materials for the purpose of construction of the building constructed by the petitioners who are running the company, therefore, they cannot escape from the liability. That apart a legal notice also issued by the petitioner to the accused persons and it was replied by the Good Home Reality Ltd., which belongs to the petitioner. The petitioners in the legal notice have not at all denied the work contract and receiving of the scaffolding materials from the respondent. It is nothing but a service oriented contract between the parties. The petitioners also not stated in the reply notice that if any dispute arises, it shall have to be decided by any Arbitrator or shall be recovered through Civil Court, by filing the suit. Therefore, the contention of the petitioner counsel cannot be acceptable, that it is a civil contract and it has to be recovered by filing civil suit. It is only service contract where the material was supplied by the Company in favour of the another developing company for construction purpose. After the construction, the petitioner required to return the contract materials along with the rents agreed by them. Admittedly, they paid only Rs.40.00 lakhs, the remaining amount not paid. Therefore, not returning scaffolding material amounts to criminal breach of trust and misappropriating of materials belonging to complainant and without paying the amount it amounts to cheating. As regards to the contention of the petitioner counsel that the company is not made as an accused in the FIR and relied upon the judgment of ANEETA HADA VS GODFATHER TRAVELS AND TOURS PVT. LTD., and other cases mentioned supra. As regards to the contention of the petitioner counsel that the company is not made as an accused in the FIR and relied upon the judgment of ANEETA HADA VS GODFATHER TRAVELS AND TOURS PVT. LTD., and other cases mentioned supra. But the matter is in investigation state, even the police can investigate the matter and if the petitioner is found that he is not a Director, the police can drop the any of the Directors from the charge sheet and Company can be made as accused No.1 in the charge sheet and even if the accused is not made in the charge sheet, the company can be impleaded as accused as per Sec. 305 of Cr.P.C. Therefore in the investigation stage, the petitioner Company merely not made as accused No.1, that itself is not a ground for quashing the FIR and it will not come under the rarest of the rare cases. 9. The learned counsel also contended the perusal of Peninsular Spenta company is different from Good home reality Pvt Ltd etc., but the documents reveals that they are all same company and they are all developers. Therefore, if at all it is found that the petitioners are not the Directors of the Company, they are permitted to produce documents before the investigating officer, if they are not connected with either Good home reality Pvt Ltd or Peninsular Spenta company. On the other hand in the notice issued to the Peninsular Spenta company, reply notice was given by the Good home reality Pvt Ltd which reveals that they are all one and the same companies. Therefore, matter requires for investigation and Investigation Officer is at liberty to file the final report and charge sheet against the accused. While filing final report the police can also file 'B report' against the persons who are not responsible and can file charge sheet against persons who have actually committed the offence. Therefore, the FIR cannot be dismissed at this state. Accordingly, both the petitions filed by the accused Nos.1 to 3 and accused nos.4 to 6, are hereby dismissed.