Karnataka High Court
Santhosh Chinnappa Reddy vs State Of Karnataka on 10 November, 2021
Author: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.5194 OF 2018
BETWEEN
1. SANTHOSH CHINNAPPA REDDY
TULASIRAM,
S/O MR.TULASIRAM
CHINNAPPA REDDY,
AGED ABOUT 34 YEARS,
RESIDING AT NO. 301,
3RD FLOOR,
FERNS NEST APARTMENT,
HENNUR MAIN ROAD,
BENGLAURU - 560 043.
2. ARUN KUMAR GAJARAJAN
S/O. MR. GAJARAJAN
ARCOT VASUDEVAN,
AGED ABOUT 34 YEARS,
RESIDING AT NO. 41,
16TH CROSS,
JAI BHARATHINAGAR,
BENGLAURU -560 033.
3. SANDEEP CHINNAPPA REDDY
TULASIRAM
S/O. MR. TULASIRAM
CHINNAPPAREDDY,
AGED ABOUT 31 YEARS,
RESIDING AT NO. 301, 3RD FLOOR,
FERNS NEST APARTMENT,
HENNUR MAIN ROAD,
2
BENGALURU 560 043.
... PETITIONERS
(BY SRI AMAR CORREA, ADVOCATE (PHYSICAL HEARING))
AND
1. STATE OF KARNATAKA
REPRESENTED THROUGH
STATE PUBLIC PROSECUTOR
INSPECTOR HENNUR POLICE STATION,
BENGALURU CITY - 560 001.
2. KIRAN KUTTAPPA A.J.,
S/O. A.K JOYAPPA,
AGED ABOUT 34 YEARS,
RESIDING AT NO. 310,
7TH 'C' MAIN, 1ST BLOCK,
HRBR LAYOUT,
KALYAN NAGAR,
BENGALURU - 560 043.
... RESPONDENTS
(BY SMT.NAMITHA MAHESH B.G., HCGP FOR R1
(PHYSICAL HEARING);
SRI M.RAVINDRANATH KAMATH, ADVOCATE FOR R2
(PHYSICAL HEARING))
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO A. QUASHING THE FIR IN CR.NO.199/2018
REGISTERED BY THE RESPONDENT NO.1 POLICE, HENNUR P.S.,
BANASWADI SUB-DIVISION, BANGALORE AGAINST THE
PETITIONERS FOR THE OFFENCES P/U/S 384,341,324,420 R/W 34
OF IPC AS PER ANNEXURE-A PRODUCED HEREIN BEFORE THE XI
A.C.M.M., MAYOHALL, BANGALORE.
B. CONSEQUENTLY QUASH THE COMPLAINT DATED
06.07.2018 FILED BY THE RESPONDENT NO.2 BEFORE THE
RESPONDENT NO.1 POLICE PRODUCED AS ANNEXURE-B HEREIN.
3
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.10.2021, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
ORDER
The petitioners are before this Court calling in question the
proceedings in Crime No.199 of 2018 pending before the XI
Additional Chief Metropolitan Magistrate, Mayohall, Bangalore
registered for the offences punishable under Sections 324, 341,
384 and 420 read with Section 34 of the IPC.
2. Brief facts leading to the filing of the present petition are
as follows:
Petitioners 1 and 3 being brothers are accused 1 and 3,
petitioner No.2 is the close acquaintance of petitioners 1 and 3,
in the proceedings before the trial Court. The 2nd respondent is
the complainant. Petitioners 1 and 2 are partners of M/s Design
55 Advertisement Limited Liability Partnership Firm ('Firm' for
short). Pursuant to constitution of the partnership firm,
petitioners 1 and 2 carried on the business of advertisement
through hoardings, marketing etc. in furtherance to the
objectives of the Firm.
3. The 2nd respondent who was an acquaintance of the
petitioners, approached the 1st petitioner and requested to
provide him employment in the firm which the petitioners
contend that it was a request on account of the complainant
facing financial difficulties. After repeated requests with regard
to employment, the petitioners resolved not to give employment
to the complainant but to enter into business with the
complainant of contracting for the firm and would be paid
commission based upon the service the complainant would
render. The complainant agreed to the terms and conditions
stipulated in such contract and later, the petitioners began to
utilize the services of the complainant by paying him from the
account of the Firm.
4. It is the case of the petitioners that on account of
acquaintance of the complainant with them, the complainant
requested the petitioners to lend money for
purchase/construction of a house property. The petitioners
appear to have lent money. It is the further case of the
petitioners that the money was made over to the account of the
father of the complainant one Mr. Joyappa who was a coffee
planter on the specific request of the complainant. The
complainant had agreed to repay the entire amount borrowed
within a short time. All these transactions were never reduced
into writing. It is in furtherance of the aforesaid fact, the
petitioners transferred a sum of Rs.44,16,604/- to the account
of the father of the complainant at intermittent intervals.
5. The complainant, as undertaken, did not repay the
amount that was taken. Not stopping at that, the petitioners
contend that all the Firm's clients and vendors were being
usurped by the complainant thereby diluting the business of the
Firm of the petitioners. It is then the complainant was
confronted with these allegations and also a demand was made
to repay the amount that was taken. When the relationship
between the complainant and the petitioners turned sore, the
contract was discontinued with the complainant.
6. On the complainant coming to know the act of
discontinuance of his services, it is the case of the petitioners
that the complainant began to approach the clients of the Firm
of the petitioners and maligned the reputation of the Firm which
also led to several correspondences between the petitioners Firm
and its clients. It is thereafter, the complainant sent an e-mail
on 13-04-2018 demanding payment of Rs.52,90,000/- under
various heads which included salary and other incidentals. The
complainant also caused a legal notice on 20-04-2018
demanding a sum of Rs.90,90,000/-. The complainant claimed
to be a partner of the Firm of the petitioners and also claimed
that he had paid Rs.40,00,000/- as investment to the petitioners
Firm through his father which had been returned to his father
by the petitioners.
7. The petitioners caused a reply notice on 07-05-2018
denying all the claims and allegations of the complainant and
also brought to the notice of the complainant that he had
worked as freelancer in the Firm and had been paid commission
from time to time. Reply was again replied and certain
correspondences took place between the petitioners and the
complainant.
8. The petitioners issued a notice upon the father of the
complainant directing repayment of a sum of Rs.44,16,604/-
borrowed by his son/complainant which had been deposited to
the account of the father. This notice was furnished to the 1st
respondent police by the complainant, pursuant to which, the
petitioners were asked to appear before the police and
statements were taken. After considering the statements of the
petitioners, the police filed a Non-Cognizable Report in NCR
No.274 of 2018 on 28-04-2018.
9. After several events as aforesaid, the complainant files a
private complaint under Section 200 of the Cr.P.C. on 6-07-2018
alleging that the petitioners have assaulted him and pursuant to
the said complaint a FIR in Crime No.199 of 2018 is registered
against the petitioners for offences punishable under Sections
324, 341, 384 and 420 read with Section 34 of the IPC. It is at
that juncture, the petitioners have knocked the doors of this
Court with the present petition.
10. Heard Sri Amar Correa, learned counsel for the
petitioners, Smt. B.G.Namitha Mahesh, learned High Court
Government Pleader for respondent No.1 and Sri
M.Ravindranath Kamath, learned counsel for respondent No.2.
11. Learned counsel appearing for the petitioners would
submit that it is a matter of contract between the parties that
had turned sore and the complainant is using the said tool to
contend that he has been harassed or assaulted by the
petitioners and is wanting to set the criminal law in motion to
settle his personal score. He would further contend that the
narration in the complaint would in no way link the events to
the offences punishable under the aforesaid provisions of the
IPC.
12. On the other hand, the learned counsel appearing for
the complainant would vehemently refute the said submissions
and contend that the petitioners have cheated the complainant
by not repaying the amount of Rs.90,90,000/- which is his
share of investment in the company and since the petitioners
have not repaid the investment it constitutes an offence of
cheating against the petitioners and would submit that this
Court should not interfere at this stage of the proceedings as it
is a matter for investigation as to who has cheated whom.
13. I have given my anxious consideration to the
submissions made by the learned counsel appearing for the
respective parties and have perused the material on record.
14. The contentions and contra-contentions of both the
petitioners and the complainant is to be considered by referring
to the complaint at the outset, as it is the complaint that has
triggered the criminal law in motion. The compliant reads as
follows:
"From: Date: 06-07-2018
Sri Kiran Kuttappa A.J.,
S/o Sri Joyappa,
No.310, 7th 'C' Main,
1st Flock, HRBR Lay-out,
Kalyan Nagar,
Bangalore-560 043,
Ph: 9902954303 SEEN
Sd/-
XI ACMM
To
The Police Inspector,
Hennur Police Station,
Hennur, Bangalore.
Sir,
Sub: Complaint against (1) Sri Santhosh
Chinnappa Reddy Tulasiram and (2) Sri Arun
Kumar Gajarajan of M/s Design-55
Advertisement LLP (3) SANDEEP.
--
I am child friend of the aforesaid Sri Santhosh
Chinnappa Reddy Tulasiram and Sri Arun Kumar
Gajarajan. I know them from their childhood days. We
have grown up together in the same locality. After my
graduation in Masters of Science (B.E. & M.S) was for
some time working for M/s Wipro, later was working for
M/s Cisco. Considering his skill and social contacts and
reputation of my father who is a H.R. Head for several
companies, the accused persons have requested me in
the year 2013 to join their advertisement company
known as Design-55. Since I had certain matrimonial
issues, I could not become a Registered Partner. I submit
that as I had certain matrimonial issues, my partnership
was not reduced into writing and I joined Design-55 as a
party investing about 40,00,000/- towards the initial
capital by handing over cash to the aforesaid accused
persons, the said cash was secured from the agricultural
income from my father, who was the coffee planer in
Kodagu District.
Once the amount of Rs.40,000/- was invested by
me, through my contacts the said firm Design-55 was
started getting the business mainly from my customers
clients like Mantri Developers, Purvankara Developers,
Rohan Builders, N.H. Hospital, Columbia Asia Hospital
and Century Developers, etc. and the firm started doing
extremely well due to my hard work.
The office premises where the office of firm is
situated at No.38, 1st floor, Hennur Bagalur Road, HRBR
Lay-out, Kalyannagar, Bangalore-560 043. The landlords
are Mrs. Hema Naidu and Sri Trivikram Naidu. The well
established firm with all interiors officially was
commenced from 11-09-2016 and towards the advance
to the landlord, 50% of the advance amount i.e.,
Rs.1,15,000/- was contributed by my client through his
cheque No.010376 drawn on Bank of Maharashtra. The
interior work expenses of the said office is
Rs.21,00,000/-, which was equally contributed between
by me and the aforesaid Accused persons. Though there
was an oral agreement between me and the accused
persons that the Desigh-55 Firm will be occupied with
advertisement work and all the three partners should not
venture for any new business of identical nature. The
accused No.1 started interior work business and
advertising business in the name of Red Butterfly &
Design-5 and Velox and for the said Firm Velox, Accused
No.1 Santhosh along with his brother, one Mr. Sandeep is
also became a partner in the premises. Mr. Sandeep is
also a Advocate by profession. The accounts of the firm
was operated by Accused No.1 through Axis Bank.
The Accused Nos. 1 and 2, as the firm became
prosperous joined hands to cheat me and started to
separate advertisement business by diverting the
customers of Design-55 to their new business venture.
Therefore, it resulted in a great loss to me and I became a
scapegoat in the process and my profits and income are
reduced. My father Mr. Joyappa became very much
worried, because initial investment of Rs.40,00,000/-
was the amount borrowed by my father Sri Joyappa . My
father questioned the accused persons about the above
happenings, the Accused persons apologized to my father
and the Accused stated that they will pay of my dues
after I can resign and to with all my profits and my
investment in the business. There are certain e-mails in
this regard sent by me. Though I have stated in one e-
mail Rs.52,90,000 is an amount due as per e-mail sent
by me, certain important liabilities I could not mention in
the e-mail. In actual the amount due by aforesaid two
accused persons to me are as follows:-
Initial investment amount.
Rs.40,00,000
Contribution towards office interiors
Rs. 7,00,000
Immediate 3 months profit amount
Rs. 7,00,000
6 months good will based on existing
Business Rs.21,90,000
Suspense amount. Rs.15,00,000
--------------------
Total. Rs. 90,90,000
---------------------
The accused persons have to pay Rs.90,90,000/- to
me. They have cheated me and they have committed a
criminal breach of trust and liable for offences punishable
under Sections 406, 418 & 420 r/w Section 34 of IPC.
Though I tried to call the accused persons over the
phone, requested them to settle my dues, the accused are
avoiding and sending threatening messages to me. In
this regard, I issue a legal notice to the accused to pay a
sum of Rs.90,90,000/-. On receipt of the said legal
notice, the accused have filed a caveat before the
Mayohall Sessions Judge at Bangalore. A copy of which
is enclosed herewith.
I submit that the aforesaid accused persons
without caring anyone have cheated me in the above
manner and have caused a loss to me by not paying my
share of investment and profit of Rs.90,90,000/-. The
accused persons have committed a cheating and criminal
breach of trust without caring any one. Therefore, the
accused persons may be dealt in accordance with law
and necessary criminal case may be registered against
them, for which I will justify.
Yours sincerely,
Sd/-
(KIRAN KUTTAPPA. A.J.)"
The complainant in the first paragraph adverts to the
relationship between him and the petitioners and later alleges
that the Firm which became prosperous joined hands to cheat
him and started separate advertisement business by diverting
the customers of Desigh-55 to their new business venture. It is
his case that he became a scapegoat in the process and his
profits and income were reduced. His father became very much
worried because of initial investment of Rs.40,00,000/- was
borrowed from his father and the accused never apologized to
his father and never stated that they will pay his dues so that he
could resign and go out of the company with all his profits and
investment in the business. The ultimate allegation is that the
accused without caring to the legal notice or e-mails to settle
dues have declined to pay his share of investment and
accordingly, have committed the offence of cheating or criminal
breach of trust. What is also to be noticed is a hand written
post script in the complaint which reads as follows:-
"Also please refer my initial complaint to your
station dated 07-06-2018, for which NCR 363/18 was
issued. Both these complaints club to cheating,
threatening and assault by Sandeep, Santhosh and
Arun. Please take the necessary action and do the
needful.
Yours sincerely,
Sd/-
(KIRAN KUTTAPPA)"
The complainant had earlier registered a complaint on
7.06.2018. After recording statements of the petitioners a NCR
was issued by the police in NCR No.363 of 2018.
15. Both these complaints related to cheating, threatening
and assault and a request was made by the complainant to take
necessary action and do the needful. What emerges from the
complaint and the post-script is that the complainant has made
repeated attempts to register a complaint. A perusal at the
complaint would clearly indicate that it is a dispute between the
petitioners and the complainant with regard to certain
transaction. Even if it is construed that the complainant had
invested in the company of the petitioners, it cannot be on
account of any inducement on the part of the petitioners on the
complainant for investment into the company with an intention
to cheat. If inducement is not present in the complaint none of
the ingredients under Section 415 of IPC can be alleged against
the petitioners as it is those ingredients under Section 415 of
IPC which make an accused punishable under Section 420 of
the IPC for cheating. Therefore, there is no ground made out in
the complaint or in the FIR on their perusal with regard to
cheating under Section 420 IPC.
16. The other offences that are alleged are the ones
punishable under Sections 324, 341 and 384 of the IPC which
read as follows:
"324. Voluntarily causing hurt by dangerous
weapons or means.--Whoever, except in the case
provided for by section 334, voluntarily causes hurt by
means of any instrument for shooting, stabbing or
cutting, or any instrument which, used as a weapon of
offence, is likely to cause death, or by means of fire or
any heated substance, or by means of any poison or any
corrosive substance, or by means of any explosive
substance or by means of any substance which it is
deleterious to the human body to inhale, to swallow, or to
receive into the blood, or by means of any animal, shall
be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or
with both."
... ... ... ...
341. Punishment for wrongful restraint.--
Whoever wrongfully restrains any person shall be
punished with simple imprisonment for a term which may
extend to one month, or with fine which may extend to
five hundred rupees, or with both.
... ... ... ...
384. Punishment for extortion.--Whoever
commits extortion shall be punished with imprisonment of
either description for a term which may extend to three
years, or with fine, or with both."
Section 324 of IPC deals with causing hurt by dangerous
weapon or means. There is no allegation in the complaint that
the complainant has been assaulted by using dangerous
weapons or any other means. Therefore, the said offence cannot
even be alleged against the petitioners.
Section 341 deals with punishment for wrongful restraint.
What is wrongful restraint is dealt with under Section 339 of
IPC. There is no allegation in the complaint or in the FIR that
the petitioners have wrongfully restrained the complainant.
Therefore, the said offence under Section 341 of IPC is not made
out in the complaint but is added in the FIR though the
complaint forms the basis of the FIR. The events that have not
been narrated in the complaint have been made part of the FIR.
Section 384 deals with punishment for extortion. Extortion
is defined in Section 383 of IPC viz., whoever intentionally puts
any person in fear or any injury and thereby dishonestly induces
the person to deliver any property or valuable security is liable to
be punished for extortion. The complaint does not even remotely
link to any extortion that is done by the petitioners. Even if it is
construed that the complainant has invested in the company, it
is neither out of inducement nor out of extortion.
17. It is not that the relationship of the petitioners turned
sore immediately. The petitioners and the complainant have
been in the business for close to 5 years. If it was a case of
inducement or cheating, the business could not have gone on
between the petitioners and the complainant for such a long
time. There are plethora of correspondences between the
complainant and the petitioners and vice-versa with regard to
payment of certain amount and its dispute. Nowhere in the
complaint the complainant has alleged that he was lured into
the business or cheated by way of inducement by the petitioners
for investment, if any, in the firm of the petitioners. Therefore, it
is a clear case where the dispute with regard to money
transaction between the complainant and the petitioners is given
a colour of crime. Nowhere the complaint drives home the
allegations for offences punishable under Sections 324, 341, 384
or 420 of the IPC.
18. Criminal law cannot be used to settle the alleged dues
between the parties, as setting a criminal law in motion is a
serious matter and it cannot be used by the complainant to
settle his personal scores. Therefore, in the light of the facts
obtaining, as narrated hereinabove, in the case at hand, and in
the light of the complaint not linking any event that forms part
of FIR, the proceedings are rendered unsustainable, as it is
purely a matter of contract between the parties, where offences
as alleged cannot even be linked to the transaction between the
parties to attract criminal law.
19. The view of mine, in this regard, is in tune with the
judgments of the Apex Court right from the case of STATE OF
HARYANA AND OTHRES v. BHAJANLAL AND OTHERS to the
latest judgment in the case of JASWANT SINGH v. STATE OF
PUNJAB & ANOTHER. The Apex Court in the case of
BHAJANLAL1 has held as follows:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise
to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first
information report or the complaint, even
if they are taken at their face value and
accepted in their entirety do not prima
1992 Supp (1) SCC 335
facie constitute any offence or make out
a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same
do not disclose the commission of any
offence and make out a case against the
accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the
concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
(Emphasis supplied)
and in the latest judgment in the case of JASWANT SINGH Vs
STATE OF PUNJAB AND ANOTHER2 , wherein the Apex Court
holds as follows:
"15. The power under Section 482 Cr.P.C. is to be
exercised to prevent the abuse of process of any Court
and also to secure the ends of justice. This
Court, time and again, has laid emphasis that
inherent powers should be exercised in a given and
deserving case where the Court is satisfied that exercise
of such power would either prevent abuse of such power
or such exercise would result in securing the ends of
justice. In the case of S.W. Palanitkar and others. v.
State of Bihar and another ((2002) 1 SCC 241),
Shivraj V Patil, J., in paragraph 27 of the report, has
laid similar emphasis. The same is reproduced below:
Criminal Appeal No.1233 of 2021 disposed on 20.10.2021
"Para 27:
.......whereas while exercising power under
Section 482 CrPC the High Court has to look
at the object and purpose for which such
power is conferred on it under the said
provision. Exercise of inherent power is
available to the High Court to give effect
to any order under CrPC, or to prevent
abuse of the process of any court or
otherwise to secure the ends of justice.
This being the position, exercise of power
under Section 482 CrPC should be consistent
with the scope and ambit of the same in the
light of the decisions aforementioned. In
appropriate cases, to prevent judicial
process from being an instrument of
oppression or harassment in the hands of
frustrated or vindictive litigants, exercise of
inherent power is not only desirable but
necessary also, so that the judicial forum of
court may not be allowed to be utilized for
any oblique motive. When a person
approaches the High Court under Section 482
CrPC to quash the very issue of process, the
High Court on the facts and circumstances of
a case has to exercise the powers with
circumspection as stated above to really serve
the purpose and object for which they are
conferred."
16. A seven-Judge Bench in the case of
P. Ramachandra Rao vs State of Karnataka ((2002)
4 SCC 578), also laid down the same principles for use
of the power under Section 482 Cr.P.C. in a case where
the Court was convinced that such exercise was
necessary for whatever reason in order to prevent abuse
of the process of any Court or to secure the ends of
justice. Lahoti,J., speaking for him- self and
Bharucha, Quadri, Santosh Hegde, Ruma Pal and
Arijit Pasayat,JJ., observed as follows in paragraph
21:
"Para 21. "... In appropriate cases, inherent
power of the High Court, under Section 482
can be invoked to make such orders, as may
be necessary, to give effect to any
order under the Code of Criminal
Procedure or to prevent abuse of the process
of any court, or otherwise, to secure the ends
of justice. The power is wide and, if
judiciously and consciously exercised, can
take care of almost all the situations where
interference by the High Court becomes
necessary on account of delay in proceedings
or for any other reason amounting to
oppression or harassment in any trial,
inquiry or proceedings. In appropriate cases,
the High Courts have exercised their
jurisdiction under Section 482 CrPC for
quashing of first information report and
investigation, and terminating criminal
proceedings if the case of abuse of process of
law was clearly made out. Such power can
certainly be exercised on a case being made
out of breach of fundamental right
conferred by Article 21 of the
Constitution. The Constitution Bench in A.R.
Antulay case referred to such power, vesting
in the High Court (vide paras 62 and 65 of its
judgment) and held that it was clear that
even apart from Article 21, the courts can
take care of undue or inordinate delays in
criminal matters or proceedings if they
remain pending for too long and
putting an end, by making appropriate
orders, to further proceedings when they are
found to be oppressive and unwarranted.""
17. A three-Judge Bench of this Court in Gian
Singh vs State of Punjab (2012) 10 SCC 303 again
summarized the legal position which emerged regarding
powers of the High Court in quashing criminal
proceedings in exercise of power under Section
482 Cr.P.C. R.M. Lodha, J., (as he then was)
speaking for the Bench, clearly observed in paragraph 61
of the report that criminal cases having overwhelmingly
and predominatingly civil flavour stand on a
different footing for the purposes of quashing,
particularly the offences arising from commercial,
financial, mercantile, civil, partnership or such like
transactions or the offences arising out of matrimony
relating to dowry, etc. or the family disputes where the
wrong is basically private or personal in nature and the
parties have resolved their entire dispute. The
relevant extract from paragraph 61 is reproduced
below:
"61. The position that emerges from
the above discussion can be summarised
thus: the power of the High Court in quashing
a criminal proceeding or FIR or complaint in
exercise of its inherent jurisdiction is distinct
and different from the power given to
a criminal court for compounding the
offences under Section 320 of the Code.
Inherent power is of wide plenitude with no
statutory limitation but it has to be exercised
in accord with the guideline engrafted in such
power viz.: (i) to secure the ends of justice, or
(in) to prevent abuse of the process of any
court. In what cases power to quash the
criminal proceeding or complaint or FIR may
be exercised where the offender and the
victim have settled their dispute would
depend on the facts and circumstances of
each case and no category can be prescribed.
However, before exercise of such power, the
High Court must have due regard to the
nature and gravity of the crime. Heinous and
serious offences of mental depravity or
offences like murder, rape, dacoity, etc.
cannot be fittingly quashed even though the
victim or victim's family and the offender have
settled the dispute. Such offences are not
private in nature and have a serious impact
on society. Similarly, any compromise
between the victim and the offender in
relation to the offences under special statutes
like the Prevention of Corruption Act or the
offences committed by public servants
while working in that capacity, etc.;
cannot provide for any basis for
quashing criminal proceedings involving
such offences. But the criminal cases
having overwhelmingly and predominatingly
civil flavour stand on a different footing
for the purposes of quashing, particularly the
offences arising from commercial, financial,
mercantile, civil, partnership or such
like transactions or the offences arising out of
matrimony relating to dowry, etc. or the
family disputes where the wrong is basically
private or personal in nature and the
parties have resolved their entire
dispute. In this category of cases, the High
Court may quash the criminal proceedings if
in its View, because of the compromise
between the offender and the victim, the
possibility of conviction is remote and bleak
and continuation of the criminal case
would put the accused to great
oppression and prejudice and extreme
injustice would be caused to him by not
quashing the criminal case despite full and
complete settlement and compromise with the
victim. In other words, the High Court must
consider whether it would be unfair or
contrary to the interest of justice to continue
with the criminal proceeding or
continuation of the criminal proceeding
would tantamount to abuse of process
of law despite settlement and
compromise between the victim and the
wrongdoer and whether to secure the ends of
justice, it is appropriate that the criminal case
is put to an end and if the answer to the
above question(s) is in the affirmative, the
High Court shall be well within its jurisdiction
to quash the criminal proceeding."
18. A three-Judge Bench of this Court in
Parbatbhai Aahir Alias Parbatbhai Bhimsinhbhai
Karmur and others v. State Gujarat and others
((2017) 9 SCC 641) laid down the broad principles for
exercising the inherent powers of the High Court
under section 482 Cr.P.C. Dr. D.Y.
Chandrachud,J., speaking for the bench, enumerated
the principles in paragraph 16 and in sub paragraphs.
The same are reproduced below:
"16. The broad principles which emerge from
the precedents on the subject, may be
summarised in the following propositions:
16.1. Section 482 preserves the inherent
powers of the High Court to prevent an abuse
of the process of any court or to secure the
ends of justice. The provision does not confer
new powers. It only recognises and preserves
powers which inhere in the High Court.
16.2. The invocation of the jurisdiction of the
High Court to quash a first information
report or a criminal proceeding on the
ground that a settlement has been arrived
at between the offender and the victim is not
the same as the invocation of jurisdiction for
the purpose of compounding an offence. While
compounding an offence, the power of the
court is governed by the provisions of
Section 320 of the Code of Criminal
Procedure, 1973. The power to quash under
Section 482 is attracted even if the offence is
non-compoundable.
16.3. In forming an opinion whether a
criminal proceeding or complaint should be
quashed in exercise of its jurisdiction under
Section 482, the High Court must evaluate
whether the ends of justice would justify the
exercise of the inherent power.
16.4. While the inherent power of the High
Court has a wide ambit and plenitude it has
to be exercised (0) to secure the ends of
justice, or ) to prevent an abuse of the process
of any court.
16.5. The decision as to whether a complaint
or first information report should be quashed
on the ground that the offender and victim
have settled the dispute, revolves ultimately
on the facts and circumstances of each case
and no exhaustive elaboration of principles
can be formulated.
16.6. In the exercise of the power under
Section 482 and while dealing with a plea
that the dispute has been settled, the High
Court must have due regard to the nature and
gravity of the offence. Heinous and serious
offences involving mental depravity or
offences such as murder, rape and dacoity
cannot appropriately be quashed though the
victim or the family of the victim have settled
the dispute. Such offences are, truly
speaking, not private in nature but have a
serious impact upon society. The decision to
continue with the trial in such cases is
founded on the overriding element of public
interest in punishing persons for serious
offences.
16.7. distinguished from serious offences,
there may be criminal cases which have an
overwhelming or predominant element of a
civil dispute. They stand on a distinct footing
insofar as the exercise of the inherent power
to quash is concerned.
16.8. Criminal cases involving offences which
arise from commercial, financial, mercantile,
partnership or similar transactions with an
essentially civil flavour may in appropriate
situations fall for quashing where parties
have settled the dispute.
16.9. In such a case, the High Court may
quash the criminal proceeding if in view of the
compromise between the disputants, the
possibility of a conviction is remote and the
continuation of a criminal proceeding would
cause oppression and prejudice; and
16.10. There is yet an exception to the
principle set out in propositions 16.8, and
16.9. above. Economic offences involving the
financial and economic well-being of the State
have implications which lie beyond the
domain of a mere dispute between private
disputants. The High Court would be justified
in declining to quash where the offender is
involved in an activity akin to a financial or
economic fraud or misdemeanour. The
consequences of the act complained of upon
the financial or economic system will weigh in
the balance."
19. From the above discussion on the settled legal
principles, it is clear from the facts of the present case
that there was a clear abuse of the process of the Court
and further that the Court had a duty to secure the ends
of justice. We say so for the following reasons:
a) The allegations made in the FIR
had an overwhelmingly and
predominatingly a civil
flavour inasmuch as the complainant alleged
that he had paid money to Gurmeet Singh,
the main accused to get employment for
his son abroad. If Gurmeet Singh failed
the complainant could have filed a suit for
recovery of the amount paid for not fulfilling
the promise.
b) Initially, the investigating officer and
two superior officers of the economic
wing has found that there is no substance in
the complaint making out even a prima facie
triable case and had therefore,
recommended for closure. However, on
the orders of the Senior Superintendent
of Police, the FIR was registered and
the matter was investigated. No criminal
breach of trust was found and the charge
sheet was submitted only against Gurmeet
Singh under section 420 I.P.C.
c) The complainant Nasib Singh had clearly
deposed that he had paid Rs 4 lacs cash to
Gurmeet Singh and had also given a
cheque of Rs 2 lacs favouring Gurmeet
Singh which he had encashed.
d) During trial the present appellant as
also the other co-accused Gurpreet
Singh were summoned in April 2014
invoking powers of Section 319 Cr.P.C., for
being tried under Section 420 I.P.C. It
may be noted that no specific
allegations of cheating are made against
these two accused as they were both settled
abroad in Italy.
e) The complainant Nasib Singh entered
into a compromise with the main
accused Gurmeet Singh which was filed
before the learned Magistrate and the
same was accepted vide order dated
26.09.2014 and the alleged offence
being of financial transaction stood
compounded. Proceedings against Gurmeet
Singh were closed.
f) Right from 2014, the present appellant and
other co-accused Gurpreet Singh who were in
Italy were being summoned by the
Court. The appellant was declared
proclaimed offender. The appellant applied
before the High Court challenging the order
declaring him proclaimed offender and
also filed a 482 Cr.P.C. petition for
quashing of the proceedings wherein, he also
filed the compounding order of 26.09.2014.
g) The High Court merely perused the
FIR and noting the fact that the name
of the appellant was mentioned in the
FIR, declined to exercise the inherent
power under Section 482 Cr.P.C.
20. In our considered view, the High Court
erred in firstly not considering the entire material on
record and further in not appreciating the fact that
the dispute, if any, was civil in nature and that the
complainant had already settled his score
with the main accused Gurmeet Singh against
whom the proceedings have been closed as far back
as 26.09.2014. In this scenario, there remains no
justification to continue with the proceedings against
the appellant."
(Emphasis supplied)
20. Yet another circumstance is that, against the claim of
the complainant that the complainant is a partner in the Firm of
the petitioners, the petitioners Firm had instituted a civil suit in
O.S.No.6668 of 2018 against the complainant seeking relief of
perpetual injunction against the complainant in claiming that he
is a partner of the petitioners Firm. The suit is partly decreed,
observing as follows:
"23. The stand of defendant is that, he invested an
amount of Rs.40,00,000/- in cash as share capital in the
business of plaintiff-firm and he also a partner to the
plaintiff-firm. The said stand of defendant is not worth for
belief for the simple reason that, without any
documentation, it is not possible for investing the said
heavy amount of Rs.40,00,000/-. There is no any
documentary proof in that regard. The reasons given in
this regard are not believable. Therefore, it can be stated
that defendant was not a partner to the plaintiff-firm.
24. Plaintiff-firm also produced the e-mail
conversation dated 11-04-2018 and the said e-mail is
marked as Ex.P5. The said documentary evidence
discloses that, plaintiff-firm appealed her customers and
clients not to deal with defendant in respect of her
business cautioning them that defendant misrepresenting
himself as her authorized person and dealing with
negotiations and etc. Defendant not disputed the said
documentary evidence. The oral evidence of PW-1 also
corroborates with the said documentary evidence. Thus,
the plaintiff-firm by adducing oral evidence and also by
producing the documentary evidence at Ex.P5 proved that
defendant is trying to impersonate himself as partner of
the plaintiff-firm.
... ... ... ...
33. However as observed already, plaintiff-firm in
respect of partnership proved that defendant though he is
not her partner, but illegally posing himself as her
partner and thereby tried to divert her business and
hence in respect of partnership, plaintiff-firm is entitled to
the relief of injunction. Accordingly my answer to point
No.1 is partly in affirmative.
... ... ... ...
ORDER
The suit of plaintiff-firm is hereby partly decreed.
Defendant is hereby restrained by an order of
perpetual injunction not to claim as a partner of and to
the plaintiff-firm and thereby not to enter into any
business transaction, negotiations and carry out any
business by impersonating as a partner of plaintiff-firm."
The order of the civil Court is extracted only to show that the
transaction between the parties is purely civil in nature and not
to consider merits of the proceedings in O.S.No.6668 of 2018.
Therefore, it is for the petitioners and the complainant to avail of
such civil remedies available in law against each other for the
alleged transaction and cannot be seen to set the criminal law in
motion.
21. In view of the aforesaid reasons, if the present
proceedings are permitted to continue against the petitioners on
the aforesaid facts, in my considered view, it would result in
miscarriage of justice. In the result, I pass the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Proceedings in Crime No.199 of 2018 pending before
the XI Additional Chief Metropolitan Magistrate,
Mayohall at Bangalore stand quashed qua the
petitioners.
It is made clear that the observations made in the course
of this order or the consideration of the case is only for the
purpose of consideration under Section 482 of the Cr.P.C. and
will not in any way influence or be binding on any other pending
proceedings or any civil proceedings that the respective parties
would initiate.
Sd/-
JUDGE
bkp
CT:MJ
