Konduru Srinivasalu vs The State Of Karnataka
2021 Latest Caselaw 1268 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21st DAY OF JANUARY, 2021

                           BEFORE

            THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION No.2096 OF 2020

BETWEEN

SRI KONDURU SRINIVASALU
S/O. K. SEETHARAMAIAH,
AGED ABOUT 44 YEARS,
No.991, 2ND FLOOR,
K.V.S. COMPLEX, HRBR LAYOUT,
BANASWADI OUTER RING ROAD,
BENGALURU - 560 043.
                                                  ... PETITIONER
(BY SRI PRAKASH M.H., ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      BY MAHADEVAPURA POLICE STATION,
      BANGALORE CITY,
      REPRESENTED BY THE
      STATE PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA,
      BANGALORE - 560 001.

2.    SRI LOKESH S.
      S/O. LATE SRINIVASA M.C.,
      AGED ABOUT 44 YEARS,
      RESIDING AT No.95/1,
      RONAK BUILDING, SIDDAPPA LAYOUT,
      IMMANAHALLI MAIN ROAD,
      WHITEFIELD POST,
      BENGALURU - 560 066.
                                              ... RESPONDENTS
(BY SRI K.S. ABHIJITH, HCGP FOR R-1;
 SRI ANANTHA KUMAR, ADVOCATE FOR R-2.)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE CHARGE
SHEET IN C.C.No.51061 of 2017 ON THE FILE OF THE XXIX
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT MAYO HALL,
                                2

BENGALURU CITY FOR THE OFFENCE PUNISHABLE UNDER SECTION
420 OF THE INDIAN PENAL CODE.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

This petition is filed under Section 482 of Cr.P.C praying

this Court to quash the proceedings initiated against the

petitioner in C.C.No.51061/2017 pending on the file of the XXIX

Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru,

for the offence punishable under Section 420 of IPC.

2. The factual matrix of the case is that the

complainant/respondent No.2 herein had filed a complaint on

19.05.2016 and in the complaint, the allegation made against

the petitioner/builder is that he agreed to provide a flat and the

complainant paid Rs.35.00 lakhs by way of cash. As agreed, the

petitioner did not provide the flat instead a Memorandum of

Understanding (MoU) was entered into between the parties and

the petitioner agreed to pay Rs.50.75 lakhs, for which, the

petitioner issued five post-dated cheques and all the cheques

were dishonoured. It is alleged that the petitioner had promised

the complainant to honour those cheques signed by him on

02.05.2016, but to his shock and surprise, all the cheques were

dishonoured and the petitioner/builder knowing fully well that the

cheques would be dishonoured had issued those cheques and

thereby, committed the offence punishable under Section 420 of

IPC. Since he had played fraud and cheated the complainant, the

conduct of the petitioner amounts to an offence of cheating.

Based on the complaint, the Police have registered a case in FIR

No.249/2016 for the offence punishable under Section 420 of

IPC. The Police have also investigated and filed the charge sheet

against the petitioner.

3. The petitioner in the present petition would contend that in

respect of bouncing of cheques, proceedings were initiated under

Section 138 of Negotiable Instruments Act, 1881 (for short

'N.I.Act'). In the said case, the petitioner was convicted, against

which an appeal was filed and in the appeal also, the order of

conviction was confirmed. Against the said order, the matter is

pending before this Court. It is contended that respondent No.2

initiated parallel proceedings by filing a complaint with the Police.

It is contended that in the proceedings under Section 138 of the

N.I.Act, there was no averment with regard to dishonest

intention and only in the complaint such allegation is made. It is

also contended that when proceedings under Section 138 of the

N.I.Act is initiated, there cannot be any parallel proceedings

which amounts to abuse of process. Learned counsel would also

submit that in terms of the order of the Trial Judge and also in

the appeal, part payment was made. Learned counsel would

also submit that in the proceedings which is pending before this

Court also, there was a direction and part payment was made in

favour of respondent No.2. Learned counsel in support of his

arguments, relied upon the judgment of the Hon'ble Apex Court

in the case of G.Sagar Suri and another vs. State of U.P. and

others reported in AIR 2000 SC 754 and brought to the notice

of this Court paragraph 13 of the judgment and submit that the

Apex Court has discussed in detail that if dishonest intention is

not found in the transaction, there cannot be continuation of the

proceedings under Section 420 of IPC.

4. Learned counsel relied upon the judgment of the judgment

of the Hon'ble Apex Court in the case of Veer Prakash Sharma

vs. Anil Kumar reported in 2007 AIR SCW 4816 and brought

to the notice of this Court paragraph-8 of the judgment with

regard to bouncing of cheque constitutes an offence under

Section 138 of the N.I. Act not leading to invoking of Section 420

of IPC. Learned counsel also brought to the notice paragraph-9

of the judgment that only because the cheques he had issued

were dishonoured, the same by itself would not mean that he

had cheated the complainant. Assuming that such a statement

is made, the same, in our opinion does not exhibit that there had

been any intention on the part of the appellant herein to commit

an offence under Section 417 of the IPC.

5. Learned counsel also relied upon another judgment of the

Hon'ble Apex Court in the case of Anil Mahajan vs. Bhor

Industries Ltd. and another reported in (2005)10 SCC 228

and brought to the notice of this Court paragraphs-6 and 10 of

the judgment. The Apex Court in this judgment has also

observed with regard to taking note of the intention of the

accused whether there was any inducement and subsequent

conduct is not the sole test. Mere breach of contract cannot give

right to criminal prosecution for cheating unless fraudulent,

dishonest intention is shown at the beginning of the transaction.

6. Learned counsel also relied upon the judgment of the

Hon'ble Apex Court in the case of Subhodh S. Salaskar vs.

Jayrakash M. Shah and another reported in AIR 2008 SC

3086 and brought to the notice of this Court paragraphs 6 and

29. The Apex Court in this judgment has also observed with

regard to invoking of Section 420 of IPC and has held that even

assuming that the account was closed, subsequently the same

would not mean that the appellant had an intention to cheat

when the post-dated cheques were issued. Even otherwise, the

allegations made in the complaint petition, even if given face

value and taken to be correct in its entirety do not disclose

commission of an offence under Section 420 of IPC and the same

do not satisfy the ingredients of the offence invoked.

7. Per contra, learned counsel for respondent No.2 submits

that this complaint was filed on 19.05.2016 and cheque bounce

case was filed on 25.05.2016, subsequent to the filing of the

complaint against the petitioner herein. Learned counsel would

submit that the very conduct of the petitioner herein manifest

that knowing fully well that the cheques would bounce, he had

issued the cheques. This shows that with dishonest intention he

had issued those cheques. Though the petitioner had entered

into a MoU, he has not come-forward even after bouncing of the

cheque to make payment though he acknowledged the amount

in 2016 to the tune of Rs.37.00 lakhs. Hence, it is clear that with

dishonest intention he did not honour the cheques and it was

also his intention to cheat the respondent herein.

8. Having heard the submission of learned counsel for the

parties, this Court has to examine the contents of the complaint.

On perusal of the complaint which was given prior to initiation of

proceedings under Section 138 of N.I.Act, a specific allegation is

made in paragraph 3 of the complaint that with dishonest

intention knowing fully well that cheques which he had issued

would be dishonoured, he had issued the cheques. The very

conduct of the petitioner amounts to cheating and fraud. Having

perused the complaint averments, a specific allegation is made

that with dishonest intention, he had issued those cheques in

order to siphon the amount which he had already received in

2016 itself. The Police have also investigated the matter and

filed the charge sheet and while filing the charge sheet also,

averred in the charge sheet that with dishonest intention the

cheques were not honoured. No doubt, the principles in the

judgment of the Apex Court is clear with that if there is no

averment in the complaint, then the Court can invoke Section

482 of Cr.P.C. to quash the same. Learned counsel for

respondent No.2 referring to the judgment of the Apex Court in

the case of Sagar Suri (supra) submits that it was a commercial

transaction and in the case on hand, the petitioner had agreed to

provide the flat, but failed to provide the flat and in terms of the

MoU, though he agreed to repay the amount which he had

received, the cheques were not honoured. It is the settled law

that while exercising the power under Section 482 of Cr.P.C., the

Court has to look into whether the proceedings initiated against

any person invoking the criminal law, continuing the criminal

proceedings amounts to abuse of process. In the case of hand,

when the factual circumstances are taken note of, it is noted that

the petitioner had agreed to provide flat which is not in dispute.

Learned counsel for the petitioner brought to the notice of this

Court that MoU was entered into subsequently. It is also not in

dispute that he had agreed to pay Rs.50.75 lakhs. The fact that

all the cheques issued by the petitioner were bounced is not in

dispute. It is also not in dispute that proceedings under Section

138 of N.I.Act was also initiated and he was convicted, against

which an appeal was filed and the appeal was also dismissed and

the matter is pending before this Court. When a specific

allegation is made in the complaint with regard to dishonest

intention, the cheques were not honoured and the transaction

took place in 2016, only on the direction of the Court, part

payment was made by the petitioner and hence, it is not a fit

case to exercise Section 482 of Cr.P.C. when the specific

allegation is made in the complaint and also the Police have

investigated into the matter and invoked Section 420 of IPC

against the petitioner. It cannot be contended that there is no

ingredients of Section 420 of IPC. Hence, it is not a fit case to

invoke Section 482 of Cr.P.C. to quash the proceedings. The

very conduct of the parties are to be taken note and it requires

full-fledged trial as to whether the petitioner had issued cheques

with dishonest intention or not. Unless the trial is conducted, the

same cannot be decided under Section 482 of Cr.P.C ascertaining

the truthfulness of the allegation made in the complaint and also

in the charge sheet.

9. In view of the discussions made above, I pass the

following:

Order

The criminal petition is dismissed.

In view of disposal of the petition itself, pending I.A.

stands disposed of.

Sd/-

JUDGE

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