Mrs. Kiran Agarwal vs The State Of Karnataka ...
2022 Latest Caselaw 12966 Kant

                            1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 14TH DAY OF NOVEMBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION NO.5352 OF 2021
                    CONNECTED WITH
            CRIMINAL PETITION NO.5710 OF 2021

IN CRIMINAL PETITION NO.5352 OF 2021

BETWEEN

1 . MRS. KIRAN AGARWAL
    W/O MR. KRISHNA KUMAR AGARWAL,
    AGED ABOUT 43 YEARS
    R/AT AD 82, SALT LAKE CITY
    KOLKATA - 700 064

2 . MR. DILIP MODI
    S/O. LATE KEDARNATH MODI,
    AGED ABOUT 67 YEARS
    R/AT 243G, BLOCK J
    NEW ALIPORE
    KOLKATA 700053
                                          ... PETITIONERS

(BY SRI B.C. THIRUVENGADAM, SENIOR ADVOCATE
 FOR SRI MANIK B T , ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      REPRESENTED BY KANKANDAY TOWN
      POLICE STATION SOUTH SUB DIVISION
      MANGALORE CITY
                             2


2.    MR. D VASUDEV KAMATH
      S/O D VAMAN KAMATH
      AGED ABOUT 57 YEARS
      PARTNER
      MANGALA CASHEW INDUSTRIES
      PADAVINANGADY
      MANGALORE CITY
                                          ... RESPONDENTS
(BY SRI R.D. RENUKARADHYA, HCGP FOR R1
 SRI RAJESH RAI K., ADVOCATE FOR R2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE PCR NO.2/2019 AT
ANNEXURE-A WHICH IS PENDING ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC MANGALURU
D.K., WHICH IS REGISTERED AS CR.NO.64/2019 BY
KANKANADY POLICE STATION DATED 27.06.2019.

IN CRIMINAL PETITION NO.5710 OF 2021

BETWEEN

MR. KRISHNA KUMAR AGARWAL
S/O MR. SURESH CHANDRA AGARWAL
AGED 47 YEARS
R/AT AD 82, SALT LAKE CITY
KOLKATA 700064                              ... PETITIONER

(BY SRI B.C. THIRUVENGADAM, SENIOR ADVOCATE
 FOR SRI MANIK B T , ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      REPRESENTED BY KANKANDAY TOWN
      POLICE STATION SOUTH SUB DIVISION
      MANGALORE CITY

2.    MR. D VASUDEV KAMATH
      S/O MR. D VAMAN KAMATH
      AGED ABOUT 57 YEARS
      PARTNER
                              3


    MANGALA CASHEW INDUSTRIES
    PADAVINANGADY
    MANGALORE CITY
                                            ... RESPONDENTS
(BY SRI R.D. RENUKARADHYA, HCGP FOR R1
 SRI RAJESH RAI K., ADVOCATE FOR R2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE PCR NO.2/2019 AT
ANNEXURE A WHICH IS PENDING ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANGALURU,
D.K., WHICH IS REGISTERED AS CRIME NO.64/2019 AT
ANNEXURE-C BY KANKANADY POLICE STATION DATED
27.06.2019.

     THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 02.11.2022 THIS DAY, THE COURT
MADE THE FOLLOWING:

                           ORDER

Crl.P.No.5710/2021 is filed by the petitioner-accused

No.1 and Crl.P.No.5352/2021 is filed by the petitioners-

accused Nos.2 and 3 under Section 482 of Cr.P.C. for

quashing the criminal proceedings in Crime No.64/2019

registered by the Kankanady Town Police Station,

Mangaluru on the P.C.R.No.2/2019 referred by the

Magistrate on the complaint filed by respondent No.2.

2. Heard the arguments of learned Senior counsel

for the petitioners, learned High Court Government Pleader

for respondent No.1-State and learned counsel for the

respondent No.2.

3. The case of the petitioners is that respondent

No.2 has filed a private complaint under Section 200 of

Cr.P.C. against the petitioners for the offences punishable

under Sections 409, 465, 468, 471,420, 506 of IPC. It is

alleged that the petitioners are said to be engaged in

export of raw cashew nuts running business in the name of

"Swarn Trading and Industries Sarl" at Kolkata and they

represented themselves. With an intention to cheat the

complainant, they undertook to supply cashew nuts worth

of Rs.2,77,500/- by receiving the amount and they issued

shipment certificate which were forged one, but, they have

not supplied the materials, thereby, cheated the

complainant. Hence, the complaint came to be filed. After

receipt of the complaint, learned Magistrate referred the

same to the Police under Section 156(3) of Cr.P.C. for the

investigating the matter and to file the charge-sheet. In

turn the Police registered the FIR which is under challenge.

4. Learned Senior counsel for the petitioners had

contended that the very FIR registered by the Police based

upon the private complaint is not sustainable under the

law and the private complaint has not accompanied with

the affidavit of the complainant regarding compliance of

Section 154(1) and (3) of the Cr.P.C. Thereby, violated

the guidelines issued in the judgment of the Hon'ble

Supreme Court in the case of Priyanka Srivatsava and

Another vs. State of Uttar Pradesh and Others

reported in (2015) 6 SCC 287 and therefore, conducting

investigation is abuse of process of law. The allegation

against the petitioners are pertaining to the commercial

transaction where the petitioners have already approached

the Kolkata Court for specific performance which is

pending. The respondent also filed a suit before the

Commercial Court at Bengaluru on the same allegation and

further contended that the civil as well as commercial

dispute has been converted as criminal case which is not

permissible. Accused Nos.2 and 3 are not at all signatory

to any of the document and involved in the transaction,

but, they are falsely implicated by the complainant as the

complainant is brother of the sitting MLA. Therefore,

prayed for quashing the proceedings.

5. Per contra, learned counsel for respondent

No.2 filed written objections stating that the petitioners

have misrepresented and cheated the complainant. They

previously agreed to send the consignment, received the

amount and sent the certificate regarding shipment and it

was verified that the complainant not received any cargo

or goods. The certificate sent by the petitioner are fake

one and bogus certificate, this amounts to a criminal

offence for recovery of the money. The complainant

already filed a suit before the Commercial Court and

matter requires for investigation. However, he has fairly

admitted that there is no affidavit filed accompanying the

complaint under Section 200 of Cr.P.C. and sought liberty

to proceed with the matter in accordance with law.

6. Having heard the arguments and on perusal of

the same, which reveals, there was commercial transaction

between respondent No.2 and the petitioner in respect of

importing raw cashew nuts. The petitioner is said to be

issued the letter and certificate for having shipment of the

goods and later the respondent waited for the receipt of

the shipment, but, it was not received, thereafter, there

was mutual agreement between the petitioner and

respondent where the petitioner agreed to pay Rs.20.00

lakhs and said to be paid Rs.8.00 lakhs to the respondent

and agreed to pay remaining amount. The petitioner is

also said to be filed a suit before the Kolkata Court which

is for specific performance. The respondent also said to be

filed a complaint to the Police where the Police had given

endorsement dated 20.02.2019 stating that they have to

settle their issues before the Civil Court as per the

submission made by the respondent. Subsequently, the

respondent filed private complaint under Section 200 of

Cr.P.C. for the offences alleged to have been committed by

the petitioners and sought reference to the Police under

Section 156(3) of Cr.P.C. It is an admitted fact that the

respondent has not filed any affidavit accompanying the

private complaint as per the guidelines issued by the

Hon'ble Supreme Court in the case of Priyanka

Srivatsava stated supra. The respondent counsel also

fairly admitted about non-filing of the affidavit and as per

the judgment of the Hon'ble Supreme Court in the case of

Babu Venkatesh and Others vs. State of Karnataka

and Others reported in (2022) 5 SCC 639, the Hon'ble

Supreme Court had also taken similar view and quashed

the criminal proceedings. The Co-ordinate Bench of this

Court has also taken similar view in the case of

Sheshanna B and another vs. State of Karnataka and

another in Crl.P.No.1627/2022 and connected

matters. The Hon'ble Supreme Court also quashed the

criminal proceedings in respect of criminal cases where the

commercial dispute was involved. Admittedly, the

respondent already filed a suit before the commercial

Court for recovery of the amount from the petitioner. In

view of the non filing of the affidavit along with the

complaint and there is no record to show that the

petitioner-accused Nos.2 and 3 were signatory to any of

the documents in respect of contract between accused

No.1 and respondent No.2. Such being the case,

continuing the investigation against the petitioners-

accused Nos.1 to 3 is nothing but abuse of process of law

and hence, the proceedings is liable to be quashed.

7. Accordingly, both the petitions are allowed.

The FIR against accused Nos.1 to 3 in Crime

No.64/2019 in PCR No.2/2019 pending on the file of III

Additional Senior Civil Judge and J.M.F.C., Mangaluru,

D.K., are hereby quashed.

8. However, liberty is granted to respondent No.2

to initiate proceedings against accused No.1 in accordance

with law, if so he desires.

Sd/-

JUDGE

GBB