Karnataka High Court

Dr. H. M. Mallikarjuna vs State By Puttenahalli Police ... on 26 July, 2022

Bench: M.Nagaprasanna

                                                     -1-




                                                           CRL.P No. 3319 of 2021


                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 26TH DAY OF JULY, 2022

                                                BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                                CRIMINAL PETITION NO. 3319 OF 2021


                      BETWEEN:

                      DR.H.M.MALLIKARJUNA
                      S/O H.MALLAPPA,
                      AGED ABOUT 47 YEARS
                      R/O. FLAT NO.D-110
                      BRIGADE GARDENIA APARTMENT
                      R.B.I. LAYOUT, J. P. NAGAR,
                      BENGALURU - 560 078.

                                                                    ...PETITIONER

                      (BY SRI C.V.NAGESH, SR.ADVOCATE A/W
                          SRI B.A.BELLIAPPA, ADVOCATE)

                      AND:

                      1.    STATE BY PUTTENAHALLI POLICE STATION
                            REP. BY ITS STATE PUBLIC PROSECUTOR
Digitally signed by
                            HIGH COURT BUILDING
PADMAVATHI B K
Location: HIGH
                            BENGALURU - 560 001.
COURT OF
KARNATAKA
                      2.    SMT.SMITHA M.J.
                            W/O C.S. PRAVEEN
                            AGED ABOUT 39 YEARS
                            R/O. NO.2, FLAT NO.261
                            R.R.RESIDENCY
                            PANDURANGA NAGAR
                            BANNERUGHATTA ROAD
                               -2-




                                       CRL.P No. 3319 of 2021


    BENGALURU - 560 076.

                                               ...RESPONDENTS

(BY SMT.K.P.YASHODHA, HCGP FOR R1;
    SRI B.M.HALASWAMY., ADVOCATE FOR R2)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE PROCEEDINGS IN
C.C.NO.5615/2020 (CRIME NO.345/2017), PENDING ON THE
FILE OF XXX ADDL CHIEF METROPOLITAN MAGISTRATE AT
BENGALURU, FOR THE OFFENCES PUNISHABLE UNDER
SECTION 420, 506 R/W 34 OF IPC.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 14.07.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
                       ORDER

The petitioner is before this Court calling in question

proceedings in C.C.No.5615 of 2020 arising out of Crime

No.345 of 2017 registered for offences punishable under

Sections 420, 506 r/w Section 34 of the IPC.

2. Brief facts, as projected by the prosecution, are as

follows:-

The 2nd respondent is the complainant. Husband of the

complainant was said to have been suffering from a chronic

kidney disease and was under treatment of the petitioner for

CRL.P No. 3319 of 2021

over two years. It appears that the petitioner had informed the

complainant that her husband's kidney will have to be replaced

and such replacement can happen only in any other country

i.e., Srilanka or Singapore as those countries do not insist that

the donor of the kidney for such transplantation should be

within the member of the family, while in India that is the

insistence. On the advice of the petitioner, the complainant

agreed to take her husband to Srilanka for transplantation of

kidney.

3. It is the allegation of the complainant that the

petitioner claiming that he knew accused No.2 suggested to the

complainant to take his help and the cost of transplantation in

Srilanka would be around Rs.75/- to Rs.80/- lakhs. In

furtherance of the said commitment, it appears, about Rs.10/-

lakhs was paid to accused No.2 by way of RTGS on reaching

Srilanka. But, as promised, nothing took place and the

complainant had to come back to India without any treatment.

Later, the husband of the complainant, who was suffering from

kidney disease, died. On the death of the husband of the

complainant, the complainant appears to have demanded

CRL.P No. 3319 of 2021

money that she had paid to the tune of Rs.75/- lakhs to the

petitioner, at which point in time, it is the allegation, that the

petitioner had threatened her with dire consequences in the

event the complainant would insist for money that she had paid

him. Based upon this, the complainant registered a complaint

on 15-09-2017 alleging that the petitioner who is a super

specialist has defrauded the complainant, induced the

complainant to shell out Rs.75/- lakhs to him and Rs.10/- lakhs

to accused No.2 and had committed offence under Section 420

of the IPC. The police, after investigation, filed a charge sheet

against the petitioner and accused No.2 for offences punishable

under Sections 420, 506 and 34 of the IPC. On filing of the

charge sheet, the petitioner has knocked the doors of this Court

in the subject petition. This Court by its order dated 20-04-

2021 stayed further proceedings. Therefore, trial has not

commenced in the case at hand.

4. Heard Sri C.V.Nagesh, learned senior counsel

appearing for the petitioner, Smt. K.P.Yashodha, learned High

Court Government appearing for the 1st respondent and Sri

CRL.P No. 3319 of 2021

B.M.Halaswamy, learned counsel appearing for the 2nd

respondent.

5. The learned senior counsel would submit that the

entire allegation is made against the petitioner on imaginary

lines. The husband of the complainant was a patient of the

petitioner for over two years and out of their own source they

went to Srilanka for treatment and the mission having failed,

blame is being laid against the petitioner. He would submit that

the offence punishable under Sections 420 or 506 IPC cannot

be made out in the case at hand, as the entire allegation do not

satisfy the ingredients of Section 420 of the IPC. He would

further contend that the order taking cognizance and issuing

process against the petitioner bears no application of mind, as

an order under Section 204 of the Cr.P.C. requires application

of mind.

6. On the other hand, the learned counsel representing

the 2nd respondent would refute the submissions to contend

that the husband of the complainant was an innocent patient

and the complainant did not know anybody anywhere for such

CRL.P No. 3319 of 2021

treatment. It is at the instance of the doctor/petitioner the

complainant travelled to Srilanka with her husband only to

come to know that it was a cheating racket. The complainant

has withdrawn huge amount from her account only to be paid

to the petitioner for his demand of Rs.75/- lakhs and Rs.10/-

lakhs was through RTGS to accused No.2. Therefore, in all, the

petitioner had defrauded for about Rs.85/- lakhs and the

husband of the complainant has not even survived.

7. The learned High Court Government Pleader would

seek to place on record the charge sheet papers to contend

that it is a matter of trial, as there is prima facie evidence

against the petitioner for having cheated the complainant and

her family.

8. I have given my anxious consideration to the

submissions of the respective learned counsel and perused the

material on record.

CRL.P No. 3319 of 2021

9. The afore-quoted facts are not in dispute and are

therefore not reiterated. The allegation of the complainant is

that when the doctor was treating the husband of the

complainant for over two years, it was his suggestion that a

transplant was to be done on her husband and if transplant had

to be done, the laws in India would prohibit any other donor

other than the family member for transplantation of the kidney

of the deceased. The further allegation in the complaint is that,

it is the suggestion of the petitioner to the complainant that if a

donor outside the family is to be sourced, the transplantation

can take place only in a country outside India and suggested

that it can be done at Srilanka. It is then the complainant and

her husband travelled to Srilanka and came back without any

treatment. After about 3 months of return from Srilanka and

death of the husband of the complainant on account of chronic

disease CKD, the complainant registers the complaint. Since

the entire issue springs from the complaint, it is germane to

notice the complaint in its entirety, which reads as under:

"«µÀAiÀÄ: £À£ÀUÉ £ÀA©¹, ªÀAa¹ ¨ÉzÀjPÉ ºÁQgÀÄªÀ §UÉÎ.

ªÉÄÃ®ÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ £Á£ÀÄ ªÉÄÃ®ÌAqÀ «¼Á¸ÀzÀ°è £À£Àß ¥ÀwAiÀÄªÀgÉÆA¢UÉ ªÁ¸ÀªÁVzÀÄÝ, £À£ï ¥ÀwAiÀÄªÀgÀÄ CmÁ¸ï PÀA¥À¤AiÀÄ°è ¸Á¥sïÖªÉÃgï

CRL.P No. 3319 of 2021

EAf¤AiÀÄgÁV PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛzÀÝgÀÄ. CªÀjUÉ FUÉÎ ¸ÀÄªÀiÁgÀÄ JgÀqÀÄ ªÀµÀðUÀ¼À »AzÉ C£ÁgÉÆÃUÀå¢AzÁV CªÀgÀ£ÀÄß ¥ÀjÃPÉëUÉÆ¼À¥Àr¹zÁUÀ, ¸ÀzÀjAiÀÄªÀjUÉ Qrß ªÉÊ¥sÀ®åªÁVgÀÄªÀÅzÁV w½zÀÄ §AvÀÄ. £ÁªÀÅ §£ÉßÃgÀÄ WÀlÖ gÀ¸ÉÛAiÀÄ°ègÀÄªÀ C¥ÉÆ¯ÉÆÃ D¸ÀàvÉæAiÀÄ°è aQvÉì ¥ÀqÉAiÀÄÄwÛzÉÝªÀÅ. C°è ªÉÊzÀågÁVgÀÄªÀ ªÀÄ°èPÁdÄð£À JA§ÄªÀªÀgÀÄ aQvÉìAiÀÄ£ÀÄß ¤ÃqÀÄwÛzÀÝgÀÄ. «zÉÃ±ÀzÀ°è Qrß §zÀ¯Á¬Ä¸ÀÄªÀÅzÀÄ PÁ£ÀÆ£ÀÄ §zÀÝªÁVzÉ. lQð, ¹AUÀ¥ÀÆgï ¸ÉÃjzÀAvÉ AiÀiÁªÀÅzÁzÀgÀÆ zÉÃ±ÀzÀ°è aQvÉì PÉÆr¸ÀÄvÉÛÃ£É. CzÀPÉÌ ®PÁëAvÀgÀ gÀÄ¥Á¬ÄUÀ¼ÀÄ RZÁðUÀÄvÀÛzÉ. CzÀ£ÀÄß ¤ÃªÀÅ ¨sÀj¸ÀÄªÀzÁzÀgÉ ¤ªÀÄUÉ aQvÉì PÉÆr¸ÀÄªÀÅzÁV ¨sÀgÀªÀ¸É ¤ÃrzÀgÀÄ. CzÀgÀAvÉ £ÁªÀÅ £ÀªÀÄäªÀÄ£ÉAiÀÄ£ÀÄß ªÀiÁj CzÀjAzÀ §AzÀ ºÀtªÀ£ÀÄß PÉÆnÖgÀÄvÉÛÃªÉ. £ÀªÀÄä §½ gÀÆ.75,00,000/-(J¥ÀàvÉÛöÊzÀÄ ®PÀë gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ)UÀ¼À£ÀÄß ««zsÀ PÀAvÀÄUÀ¼À°è ¥ÀqÉzÀÄPÉÆAqÀgÀÄ. MAzÀµÀÄÖ ºÀtªÀ£ÀÄß £ÀUÀzÀÄ ªÀÄÄSÁAvÀgÀªÁVAiÀÄÆ, G½zÀ ºÀtªÀ£ÄÀ ß ²æÃ¤ªÁ¸ï JA§ÄªÀªÀgÀ SÁvÉ £ÀA§gÀÄ. 50200014706325UÉ ªÀÄvÀÄÛ ZÉPÀÄÌ ªÀÄÆ®PÀªÀÇ ºÀt ¸ÀAzÁAiÀÄ ªÀiÁrgÀÄvÉÛÃªÉ. D £ÀAvÀgÀ ªÉÊzÀågÁzÀ ªÀÄ°èPÁdÄð£ÀgÀªÀgÀÄ £ÀªÀÄä£ÀÄß ¢£ÁAPÀ 17.05.2017gÀAzÀÄ ²æÃ®APÁUÉ PÀ¼ÀÄ»¹zÀÝgÀÄ. C°è £ÀªÀÄä£ÀÄß ¨sÉÃnAiÀiÁzÀ ²æÃ¤ªÁ¸ï JA§ÄªÀªÀgÀÄ gÀÆ.10,00,000/-UÀ¼À£ÀÄß ¥ÀqÉzÀÄ ªÉ¸ÀÖ£ïð ªÀÄvÀÄÛ ®APÁ D¸ÀàvÉæUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÀÝgÁzÀgÀÆ aQvÉì PÉÆr¸À°®è. §zÀ¯ÁV £ÀªÀÄä£ÀÄß ºÉÆÃl°£À°è G½¹ CzÀgÀ ©®è£ÀÄß ¸ÀºÁ PÀlÖzÉ ¥ÀgÁjAiÀiÁVzÀÝgÀÄ. PÀqÉUÉ £ÁªÀÅ ¸ÀÄªÀiÁgÀÄ ºÀ¢£ÉÊzÀÄ ¢£ÀUÀ¼À PÁ® ²æÃ®APÁzÀ°èzÀÄÝ ªÁ¥À¸ÀÄì §AzÉªÀÅ.

D £ÀAvÀgÀ C¥ÉÆ¯ÉÆÃ D¸ÀàvÉæ ªÉÊzÀågÁzÀ ªÀÄ°èPÁdÄð£ÀgÀªÀgÀ §½ F §UÉÎ «ZÁj¹zÁUÀ £ÀªÀÄUÉ ¨ÉzÀjPÉ ºÁQzÁÝgÉ. £ÀªÀÄUÉ FUÀ ¥ÀÄmÉÖÃ£ÀºÀ½î DgÀPÀëPÀ oÁuÉ¬ÄazÀ PÀgÉ §A¢zÀÄ, «ZÁgÀuÉUÉ ºÁdgÁUÀÄªÀavÉ ¸Àæa¹zÁÝgÉ. £ÀªÀÄä£ÀÄß £ÀA©¹ ®PáëAvÀgÀ gÀÆ¥Á¬ÄUÀ¼À£ÀÄß ¥ÀqÉzÀÄ, ªÀaa¹, FUÀ ¨ÉzÀjPÉAiÀÄ£ÉÆßqÀÄØwÛgÀÄªÀ ªÉÊzÀågÁzÀ ªÀÄ°èPÁdÄð£À ªÀÄvÀÄÛ CªÀgÀ eÉÆvÉVgÀÄªÀ ²æÃ¤ªÁ¸ï ªÀÄwÛvÀgÀgÀ «gÀÄzÀÞ ¥ÀæPÀgÀt zÁR°¹, ¸ÀÆPÀÛ vÀ¤SÉ £ÀqÉ¹ £À£ÀUÉ £ÁåAiÀÄ MzÀV¹PÉÆqÀ¨ÉÃPÉAzÀÄ vÀªÀÄä°è «£Àaw¹PÉÆ¼ÀÄîvÉÛÃ£É.

ªÀazÀ£ÉUÀ¼ÉÆA¢UÉ,

vÀªÀÄä «±Áé¹,

¸À»/-

(JA.f.¹ävÁ)."

The allegation in the complaint is that Rs.75/- lakhs was paid to

the petitioner at intermittent intervals and certain amount was

also paid to accused No.2 one Srinivas. It is the allegation in

the complaint that the complainant and her husband went to

CRL.P No. 3319 of 2021

Srilanka, stayed in a hotel for 15 days and there was no

arrangement made for transplantation of kidney as it was a

cheating racket. The police after investigation and recording of

statement have filed a charge sheet and summary of the

charge sheet as found in column No.7 reads as follows:

¸ÁQë - 1 gÀªÀgÀ UÀAqÀ ¥Àæ«Ãuï ¸ÀÄªÀÄgÀÄ 2 ªÀµÀðUÀ½AzÀ Qrß ªÉÊ¥sÀ®å¢AzÀ §¼À®ÄwÛzÀÄÝ, ©.f.gÀ¸ÉÛAiÀÄ C¥ÉÆ¯ÉÆÃ D¸ÀàvÉæAiÀÄ°è CAPÀt-2 gÀ°è £ÀªÀÄÆj¹gÀÄªÀ J-1 DgÉÆÃ¦ ªÉÊzsÀågÀ §½ aQvÉì ¥ÀqÉAiÀÄÄwÛzÀÄÝ, J-1 DgÉÆÃ¦AiÀÄÄ ¸ÁQë-1 gÀªÀgÀ UÀAqÀ¤UÉ CªÀgÀ JgÀqÀÆ QrßUÀ¼À£ÀÄß §zÀ¯Á¬Ä¹PÉÆ¼Àî¨ÉÃPÀÄ, ¨sÁgÀvÀzÀ°è ªÀiÁrzÀgÉ vÀÄA¨Á vÀqÀªÁUÀÄvÀÛzÉ. ¤ÃªÀÅ lQð, ¹AUÁ¥ÀÄgÀ CxÀªÁ ²æÃ®APÁ zÉÃ±ÀUÀ¼À°è ªÀiÁrPÉÆAqÀgÉ ¨ÉÃUÀ QrßAiÀÄ£ÀÄß §zÀ¯Á¬Ä¸À§ºÀÄzÀÄ, £À£ÀUÉ ²æÃ®APÁzÀ°è ¥ÀjZÀAiÀÄ«zÁÝgÉ, £Á£ÀÄ ºÀ®ªÁgÀÄ d£ÀjUÉ C°è Qrß mÁæ£ïì¥ÁèAmÉÃµÀ£ï ªÀiÁr¹zÉÝÃ£É, CzÀPÁÌV ¸ÀÄªÀiÁgÀÄ ºÀt RZÁðUÀÄvÀÛzÉ, ¤ÃªÀÅ ªÀiÁr¹PÉÆ½î JAzÀÄ ¸ÁQë-1 jAzÀ ¸ÁQë-4 gÀªÀjUÉ ºÉÃ½zÀÄÝ, ¸ÁQë-1 gÀªÀgÀÄ CzÀPÉÌ M¦àzÀ £ÀAvÀgÀ J-1 DgÉÆÃ¦AiÀÄÄ ¸ÁQë-1 jAzÀ 4 gÀªÀjUÉ ²æÃ®APÁzÀ°è £À£ÀUÉ ²æÃ¤ªÁ¸ï JA§ÄªÀªÀgÀÄ ¥ÀjZÀAiÀÄ«zÁÝgÉ CªÀgÀ eÉÆvÉ ªÀiÁvÀ£Ár ¤ªÀÄUÉ J¯Áè ªÀåªÀ¸ÉÜªÀiÁr¹PÉÆqÀÄvÉÛÃ£É, EzÀPÁÌV ¸ÀÄªÀiÁgÀÄ 75 jAzÀ 80 ®PÀë ºÀt RZÁðUÀÄvÀÛzÉ, ¤ÃªÀÅ DzÀµÀÄÖ ¨ÉÃUÀ Qrß §zÀ¯Á¬Ä¸À¢zÀÝgÉ ¥Àæ«Ãuï gÀªÀgÀ ¥ÁætPÉÌ C¥ÁAiÀÄ«zÉ, ¤ªÀÄUÉ ºÀtQÌAvÀ ªÀÄ£ÀÄµÀå£À ¥Áæt ªÀÄÄRå JAzÀÄ ºÉzÀj¹ ¸ÁQë-1 gÀªÀjAzÀ J-1 DgÉÆÃ¦AiÀÄÄ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ, ¥ÀÄmÉÖÃ£ÀºÀ½î ¥ÉÆ°Ã¸ï oÁ£Á ªÁå¦ÛUÉ M¼À¥ÀqÀÄªÀ ©.f gÀ¸ÉÛ, C¥ÉÆÃ¯ÉÆÃ D¸ÀàvÉæAiÀÄ°è J-2 DgÉÆÃ¦AiÀÄ eÉÆvÉ ¸ÉÃjPÉÆAqÀÄ ¸ÁQë-1 gÀªÀjUÉ ªÉÆÃ¸À ªÀiÁr CPÀæªÀÄ ¯Á¨sÀUÀ½¸ÀÄªÀ zÀÄgÀÄzÉÝÃ±À¢AzÀ ¸ÀÄªÀiÁgÀÄ 7-8 wAUÀ¼À »AzÉ ««zsÀ ¢£ÁAPÀUÀ¼ÀAzÀÄ ¸ÀÄªÀiÁgÀÄ 75 ®PÀë ºÀtªÀ£ÀÄß £ÀUÀzÀÄ gÀÆ¥ÀÀzÀ°è ¥ÀqÉzÀÄPÉÆArzÀÄÝ, J-1 DgÉÆÃ¦AiÀÄÄ 10,00,000/-ºÀtªÀ£ÀÄß J-2 DgÉÆÃ¦AiÀÄ ºÉZï.r.J¥sï.¹ ¨ÁåAQ£À CPËAmï £ÀA-50200014706325 UÉ ¸ÁQë-1 gÀªÀgÀ UÀAqÀ ¥Àæ«Ãuï gÀªÀgÀ ºÉZï.r.J¥sï.¹ ¨ÁåAQ£À CPËAmï £ÀA50100097525041 jAzÀ ªÀUÁðªÀuÉ ªÀiÁr¹PÉÆArzÀÄÝ, J-1 DgÉÆÃ¦AiÀÄ ¸ÀÆZÀ£É ªÉÄÃgÉUÉ ¸ÁQë-1 gÀªÀgÀÄ ¢£ÁAPÀ-17-05-2017 gÀAzÀÄ ¥Àæ«Ãuï gÀªÀgÀ£ÀÄß Qrß mÁæ£ïì¥ÁèAmÉÃµÀ£ï ¸À®ÄªÁV ²æÃ®APÁ zÉÃ±ÀPÉÌ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÀÄÝ, C°è ¸ÁQë-1 gÀªÀgÀ£ÀÄß ¨ÉÃn ªÀiÁrzÀ J-2 DgÉÆÃ¦AiÀÄÄ ¸ÁQë-1 gÀªÀjAzÀ 10 ®PÀë £ÀUÀzÀÄ ºÀtªÀ£ÄÀ ß ¥ÀqÉzÀÄPÉÆAqÀÄ AiÀiÁªÀÅzÉÃ Qrß mÁæ£ïì¥ÁèAmÉÃµÀ£ï ªÀiÁr¸ÀzÉÃ ªÉÆÃ¸À ªÀiÁr ºÉÆgÀlÄ ºÉÆÃVzÀÄÝ, F §UÉÎ J-1 DgÉÆÃ¦AiÀÄÄ ¸ÀºÀ ¸ÀjAiÀiÁV ¸ÁQë-1 gÀªÀjUÉ ¸ÀºÁAiÀÄ ¤ÃqÀzÉÃ ªÉÆÃ¸À ªÀiÁrzÀÄÝ, ¸ÁQë-1 gÀªÀgÀÄ ²æÃ®APÁ¢AzÀ ªÁ¥Á¸ï ¨ÉAUÀ¼ÀÆjUÉ §AzÀÄ ¸ÁQë-2 jAzÀ ¸ÁQë-4 gÀªÀgÀ eÉÆvÉ J-1 DgÉÆÃ¦AiÀÄ£ÀÄß ¨ÉÃn ªÀÄr ¤ÃªÀÅ £À«ÄäAzÀ ºÀt ¥ÀqÉzÀÄ AiÀiÁªÀÅzÉÃ PÉ®¸À ªÀiÁrPÉÆnÖ®è, £ÀªÀÄä ºÀtªÀ£ÀÄß £ÀªÀÄUÉ ªÁ¥Á¸ï PÉÆr JAzÀÄ PÉÃ½zÁUÀ J-1 DgÉÆ¦AiÀÄÄ ¸ÁQë-1 gÀªÀjUÉ ¥Áæt¨ÉzÀjPÉ ºÁQgÀÄªÀÅzÀÄ zÀÈqÀ¥ÀnÖgÀÄvÀÛzÉ.

DzÀÝjAzÀ DgÉÆÃ¦UÀ¼À «gÀÄzÀÝ ªÉÄÃ®ÌAqÀ PÀ®AUÀ¼À jÃvÁå F zÉÆÃµÁgÉÆÃ¥ÀuÁ ¥ÀnÖ."

- 10 -

CRL.P No. 3319 of 2021

In the light of the complaint and the charge sheet, what is

germane to be considered is, whether it would make out an

offence that would become punishable under Section 420 of the

IPC.

10. Section 420 of the IPC to be proved in an allegation,

ingredients as found in Section 415 of the IPC are to be

present. Sections 415 and 420 of the IPC read as follows:

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."

... ... ...

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."

- 11 -

CRL.P No. 3319 of 2021

Section 415 mandates that the accused with a dishonest

intention should lure the victim or induce the victim for parting

with any property. Therefore, dishonest intention is necessarily

to be present right from the inception of a transaction.

Whether this is present albeit, prima facie in the case at hand,

is to be noticed.

11. The complaint narrates in graphic details as to what

has happened between the doctor and the family of the

complainant. WhatsApp chats are a part of the charge sheet

material. There are communications between the doctor and

the complainant right from 18-05-2017 till 28-05-2017.

Nowhere in the chat the petitioner has denied in his reply that

he is not aware of the fact that the complainant and her family

have gone to Srilanka. The investigation papers also reveal that

conversation between the doctor and the agent at Srilanka has

gone on for long hours during this period. Nowhere the

petitioner in his reply to the chats questions the complainant as

to why they did go to Srilanka, who was the agent that they

were talking about or the agony that the petitioner and her

husband faced when they were in Srilanka. Having not denied

- 12 -

CRL.P No. 3319 of 2021

anything in the Whatsapp conversation, it would not become

open to the petitioner to now contend that he is not in the

know of any of the facts. The complainant in fact brings about

graphic details of such correspondences and assurances that

the petitioner has rendered to the family in agony. The

contention of the learned senior counsel that there is no

evidence produced for transfer of money to the petitioner to

tune of Rs.75 lakhs, that too a payment by cash, would clearly

indicate that it is blatant falsehood is unacceptable, as it is for

the petitioner to demonstrate in the trial with regard to sources

and transfer, as prima facie material is alrealy placed before

this Court. Even otherwise, Rs.10 lakhs is transferred through

the RTGS to the alleged agent with whom the petitioner has

had long conversations.

12. In the complaint registered by the petitioner which

was two days prior of the registration of the crime by the

complainant, he narrates in entirety the conversation between

him and the complainant and no where denies the fact that the

complainant's husband was his patient and was being treated

for a chronic kidney disease and the fact of transplantation

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being the subject matter of conversation. Therefore, all these

factors would lead to an inevitable conclusion that the

petitioner has to face trial to come out clean, since the

Investigating Officer has also secured account details whereby

huge amounts were drawn at the same period which the

complainant narrates that it was for the purpose of payment to

the petitioner/doctor as also several other material which would

need full blown trial for the petitioner to prove his innocence.

With the seriously disputed questions of fact, this Court would

not interfere at this juncture and if this Court would interfere, it

would fall foul of the judgment of the Apex Court in the case of

KAPTAN SINGH v. STATE OF UTTAR PRADESH1 wherein the

Apex Court has held as follows:

"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the

(2021) 9 SCC 35

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learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded.

If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such

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material as to how far and to what extent reliance can be placed on such material.

9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has

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failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27-10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said

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alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.

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14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."

In the light of the afore-narrated facts and existence of

seriously disputed questions of fact, it becomes a matter of trial

for the petitioner to come out clean.

13. Insofar as the contention of the learned senior

counsel that the order taking cognizance suffers from want of

application of mind, as it does not contain reasons for taking

cognizance, also does not hold water in the light of the

judgment of a Three Judge Bench of the Apex Court in the case

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PRADEEP S.WODEYAR v. STATE OF KARNATAKA - 2021

SCC OnLine SC 1140.