Avijit Gosh vs State Of Karnataka
2021 Latest Caselaw 1424 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 27TH DAY OF JANUARY, 2021

                          BEFORE

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

              CRIMINAL PETITION No.7255/2020

BETWEEN:

1.     AVIJIT GOSH,
       S/O SUNIL KUMAR GOSH,
       AGED 47 YEARS,
       NO.229/8A/1 ROY BAHADAR ROAD,
       BEHALA, KOLKATA,
       WEST BENGAL-700 034.

2.     RAJANI KEDIA GOSH,
       D/O RATAN KEDIA,
       AGED 40 YEARS,
       NO.229/8A/1 ROY BAHADAR ROAD,
       BEHALA, KOLKATA,
       WEST BENGAL-700 034.

3.     RAJESH DEY,
       S/O DIPAK DEY,
       AGED 46 YEARS,
       NO.30, HARI SAVA LANE,
       PANASREE PALLY,
       CIRCUS AVENUE, KOLKATA,
       WEST BENGAL-60.                      ... PETITIONERS

            (BY SRI VEERANNA G. TIGADI, ADVOCATE
              AND SRI L. SUDHARSHAN, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       BY GIRINAGAR POLICE STATION,
                                  2



     REP BY SPP HIGH COURT,
     BENGALURU-560 001.

2.   RAGHAVA RAO K.,
     S/O LATE GOWRESHWAR RAO,
     AGED 55 YEARS,
     NO.4321, 14TH CROSS,
     VBHBCS LAYOUT, GIRINAGARA,
     BENGALURU CITY-560 085.                      ... RESPONDENTS

          (BY SMT. NAMITHA MAHESH B.G., HCGP FOR R-1,
          SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
               SRI DARPAN K.M, ADVOCATE FOR R-2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE FIR IN CR.NO.177/2020 ON THE
FILE OF THE GIRINAGARA P.S., BENGALURU AND PENDING ON THE
FILE OF THE XXXII A.C.M.M., AT BENGALURU FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 420, 504 AND 506 OF IPC.

      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 FIR registered in Crime No.177/2020 on

the file of Girinagar Police Station, Bengaluru for the offences

punishable under Sections 420, 504 and 506 of IPC.

2. The factual matrix of the case is that petitioner Nos.1

and 3 entered into an agreement for supply of machinery for

consideration of Rs.4,31,10,000/- in terms of Annexure-B. In

terms of Annexure-B, an amount of Rs.50,00,000/- was paid and

balance amount was payable at the time of delivery of

machinery. The complaint discloses that inspite of receiving

Rs.4,30,00,000/-, the petitioners have not come forward to

supply the machinery, as agreed.

3. The learned counsel for the petitioners would submit

that in terms of Annexure-B, it was agreed to complete the

transaction within 60 - 90 days from the date of entering into

the agreement. The amount was not paid within the time. The

learned counsel would also submit that petitioner No.2 is not a

party to the agreement and she retired in the year 2013 itself.

In support of his contentions, the learned counsel relied upon

the document available at page No.53 by producing Form No.32

as Annexure-E. The learned counsel would submit that in terms

of the agreement, there is an arbitration clause that if any

dispute arises, the matter shall be referred to arbitration to two

arbitrators. When the matter is pending before the arbitrator,

there cannot be a criminal proceedings against petitioner Nos.1

and 3. It is only a breach of contract.

4. Per contra, the learned Senior Counsel appearing for

respondent No.2 would submit that when this petition was filed

and the matter was argued, the petitioners herein have given an

undertaking before this Court on 04.12.2020 that since the

payments have been made, the petitioners have no objection

and are ready to supply the machinery agreed upon under the

agreement of sale dated 07.12.2018. The learned counsel also

brought to the notice of this Court that in paragraph No.8 of the

order dated 04.12.2020, this Court noted the submission of the

counsel and stayed the proceedings. Now the petitioners are

going back and not honoured the undertaking given to this

Court. Now they are contending that there cannot be any

criminal proceedings against the petitioners.

5. The learned counsel for respondent No.2 brought to

the notice of this Court that in terms of Annexure-B, it was

agreed to pay the balance amount of Rs.3,81,10,000/- at the

time of taking delivery of the plant and machinery. The

complaint is specific that inspite of the amount of

Rs.4,30,00,000/- was paid before 25.02.2020, petitioner Nos.1

and 3 have not supplied the machinery and hence the complaint

was given on 15.10.2020 almost after eight months of the

almost the full payment. The learned counsel would submit that

the balance is only Rs.1,10,000/- and in terms of the agreement,

there was no recital to pay the amount prior to supply of the

machinery. This clearly shows the dishonest intention of the

petitioners. Even on receipt of the amount, the petitioners have

not come forward to supply the machinery. The learned counsel

further submits that even inspite of the undertaking given before

this Court, they have not complied it. The learned counsel

brought to the notice of this Court e-mail sent to the petitioners

on 27.12.2020 subsequent to the order passed by this Court and

reply was given that the matter is pending before the Court of

law and it will not be fair to give any reply regarding their claim.

6. In reply to the arguments of the learned counsel for

respondent No.2, the learned counsel for the petitioners would

submit that in terms of agreement Annexure-B, full payment

should be made to the tune of Rs.4,31,10,000/- and an amount

of Rs.1,10,000/- is due. Hence, there cannot be any criminal

proceedings against petitioner Nos.1 and 3 and respondent No.2

has not made the full payment.

7. Having heard the arguments of the learned counsel

for the petitioners and the learned counsel for respondent No.2

and having perused the complaint, which is annexed as

Annexure-A, specific allegation is made that there was an

agreement. In terms of the agreement, respondent No.2 made

the payment of Rs.50,00,000/- and subsequently also paid the

amount in total to the tune of Rs.4,30,00,000/-. Even inspite of

receipt of entire amount, the petitioners have not supplied the

machinery. This clearly shows the dishonest intention of the

petitioners to cheat respondent No.2. Hence, sought to initiate

the proceedings both in respect of cheating, abuse and causing

life threat. A specific allegation is made that when respondent

No.2 went to Kolkata, he was abused in a filthy language and

also threatened that if they come repeatedly to the office, they

are going to take away their life and they have not supplied the

machinery. Based on the allegations made in the complaint, the

offences under Sections 420, 504 and 506 of IPC are invoked.

8. Having perused the documents, particularly

Annexure-A complaint, it discloses prima-facie offences invoked

against petitioner Nos.1 and 3. It is rightly pointed out by the

learned counsel for the petitioners that petitioner No.2 is not a

party to the agreement and also there is no allegation against

petitioner No.2. It is also rightly pointed out that she resigned

the Company in the year 2013 itself. Having taken note of the

document and also Annexure-B, there is no material to proceed

against petitioner No.2.

9. The Apex Court in the judgment in the case of

DINESHBHAI CHANDUBHAI PATEL v. THE STATE OF

GUJARAT reported in 2018 (3) SCC 104 summarised how to

deal with when the proceedings has been initiated based on the

complaint i.e., FIR. The Apex Court in this judgment,

categorically held that when the contents of the FIR prima facie

material if any, requiring no proof, High Court cannot appreciate

the evidence nor can it draw its own inferences from contents of

the FIR and the material relied on. Once the Court finds that the

FIR does disclose prima facie commission of any cognizable

offence, it should stay its hand and allow the investigating

machinery to step in to initiate the probe to unearth the crime in

accordance with the procedure prescribed in the Cr.P.C.

10. In the case on hand, only based on the complaint,

case has been registered. The specific allegation in the

complaint is that with dishonest intention, even though the

amount has been received, petitioner Nos.1 and 3 have not

come forward to supply the machinery. The only contention is

that an amount of Rs.1,10,000/- is due. Having perused the

document Annexure-B, in terms of the agreement, the balance

amount was payable at the time of delivery of plant and

machinery and the complainant made the payment to the tune

of Rs.4,31,00,000/- even when there was no stipulation in the

agreement. Inspite of receiving of the entire amount, the

machinery has not been supplied. Apart from that, while

seeking discretion before this Court to stay the proceedings, the

petitioners herein have made the submission before the Court

that in terms of clause 6 of the said agreement, the payment

had to be completed and the machinery to be lifted within 60 -

90 days from the date of agreement i.e., by March 2019.

However, it is the complainant who delayed to make the

payment thereby delay in supply. The learned counsel further

submits that since the payments have been made, the

petitioners have no objection and are ready to supply the

machinery agreed upon under the agreement of sale dated

07.12.2018. Further, the Court taking into account the facts

that transaction entered into between the parties and the

payment having been made in February 2020, the petitioners

being ready to supply the machines on receipt of the entire

consideration, ordered to stay the criminal proceedings, till the

next date of hearing.

11. Having considered the submissions made by the

learned counsel for the petitioners, this Court exercised its

discretion staying the further proceedings. Now, the learned

counsel for the petitioners would submit that it is not an

undertaking and the petitioners are not ready to supply the

machinery and the steps were taken to refer the matter for

arbitration. Having considered the factual aspects of the case,

when specific allegation has been made in the complaint with

regard to dishonest intention they have not supplied the

materials and abused in a filthy language and also when they

repeatedly asked to supply the machinery, caused life threat, the

ingredients of Sections 420, 504 and 506 of IPC are prima facie

apparent on record. The Apex Court in the judgment referred

supra, has categorically held that when the complaint averment

prima facie disclose, it is the duty of the investigating machinery

to step in to initiate the probe to unearth the crime in

accordance with the procedure prescribed in the Cr.P.C. Hence,

I do not find any merit in the petition to quash the registration of

FIR. If it is interfered with, it amounts to interfering with the

investigation and it amounts to premature.

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

following:

ORDER

(i) The petition is allowed in part.

(ii) FIR is quashed against petitioner No.2 and rejected in respect of petitioner Nos.1 and 3.

Sd/-

JUDGE

MD