Shri N.V. Vinodh Kumar vs State Of Karnataka
2023 Latest Caselaw 5213 Kant

                          1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 3RD DAY OF AUGUST 2023

                        BEFORE

       THE HON'BLE MR. JUSTICE K.NATARAJAN

          CRIMINAL PETITION NO.4703 OF 2023

BETWEEN

SHRI N.V. VINODH KUMAR
AGED ABOUT 31 YEARS,
S/O VIJAYA RAGHAVAN
RESIDING AT NO.125/107,
MUNIYAPPAN STREET, PERAMBUR,
CHENNAI - 600 011.                    ... PETITIONER

(BY SRI ANIRUDH A. KULKARNI , ADVOCATE
 FOR SRI. NARAYAN BABU D.N., ADVOCATE)

AND

1 . STATE OF KARNATAKA
    BY WHITEFIELD POLICE STATION
    SATHYA SAI LAYOUT,
    BENGALURU,
    KARNATAKA - 560 066.
    BY SPP
    HIGH COURT BUILDING,
    BENGALURU - 560 001

2 . SHRI SANJAI KRISHNA
    AGED ABOUT 37 YEARS,
    S/O H. KRISHNA,
    R/AT NUMBER 102, SPRING SEA
    SUNSHINE APARTMENTS, VAASTU
                             2




    BHOOMI LAYOUT, OPP. SHELL
    PETROL BUNK, SEEGEHALLI,
    BENGALURU-560 067.
                                   ... RESPONDENTS
(BY SRI S. VISHWA MURTHY, HCGP FOR R1
 MS. GANGA BAI, ADVOCATE FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO A) QUASH THE COMPLAINT
AND FIR IN CR.NO.338/2019 BOTH DATED 16.07.2019
REGISTERED     BY  WHITEFIELD     POLICE  STATION,
BENGALURU FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 406 AND 420 OF IPC PENDING BEFORE THE
ADDITIONAL C.J.M., BENGALURU RURAL DISTRICT,
BENGALURU     IN  C.C.NO.633/2021,    ANNEXED   AS
ANNEXURE - A AND B AND ETC.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.7.2023, THIS DAY, THE
COURT MADE THE FOLLOWING:

                         ORDER

This petition is filed by the petitioner-accused No.3

under Section 482 of Cr.P.C. for quashing the charge sheet

in C.C.No.633/2021 arising out of Crime No.338/2019

registered by White Field police station, Bengaluru and

charge sheeted for the offences punishable under Sections

406, 420 read with Section 34 of IPC.

2. Heard the arguments of learned counsel for the

petitioner, learned High Court Government Pleader for

respondent No.1-State and learned counsel for the

respondent No.2.

3. The case of prosecution is that on the

complaint filed by the respondent No.2/complainant, the

police registered case on 16.07.2019. It is alleged in the

complaint that the accused persons defrauded and cheated

respondent No.2/complainant to the tune of Rs.20.00 lakhs

with promise to repay the same. It is alleged by the

complainant that accused No.1-Bharath was his

collegemate and he approached the complainant and

introduced accused Nos.2 and 3, who are said to be the

partners in Hene Traders, Chennai, and influenced him for

entering into a business and an agreement of partnership

firm was registered in the name of 'Innovative Traders'

between the complainant and accused Nos.1 and 2. While

meeting at Forum Mall, Whitefield, accused No.1 said an

aluminum scrap tender was crossing the date and the

investor was delaying the payment for Hene traders owned

by accused Nos.2 and 3 and hence, accused No.1 insisted

respondent No.2-complainant to transfer an amount of

Rs.20.00 lakhs to Hene Traders by keeping the cheque

given by accused No.1- Bharath and it was said that as

soon as the investors pay them back within a month, then

they would proceed to start the business in Innovative

Traders. Accused No.1-Bharath was known to him and

therefore, with his assurance, the complainant transferred

the amount of Rs.20.00 lakhs to the account of Hene

Traders. Later, they did not give any money back. In the

month of March 2018, on demand, the accused persons

agreed to pay the amount, part by part, as they failed to

pay the profit of Rs.60,000/- per month. Accused No.2

transferred Rs.5.00 lakhs to the complainant in March. In

the month of April, 2018 the complainant demanded to

return the amount, he has returned Rs.2.40 lakhs and

Rs.2.00 lakhs in the month of April, 2018 and Rs.40,000/-

in the month of May, 2018. It is further alleged in the

complaint that to create a false hope and to stop the

complainant from taking action, an Investment cum

Guarantee Agreement was entered into between the

complainant and the accused persons on 17.09.2018, on

the pretext of securing interest of the complainant, the

agreement was made for the payment of Rs.90,000/- per

month to the complainant from September, 2018 to

January, 2019 and repayment of the full amount of

Rs.20.00 lakhs by the end of January, 2019, but they have

not paid any payment. The accused persons

misappropriated the amount and cheated the complainant.

Hence, prayed for taking action against the accused

persons. After registering the FIR, the police investigated

the matter and filed charge sheet. Hence, the petitioner-

accused No.3 is before this Court challenging the charge

sheet.

4. Learned counsel for the petitioner has contended

the dispute between the parties are pertaining to the civil

transaction and in order to attract section 420 of IPC,

there must be inducement from the initial stage to cheat

the complainant. There is no breach of trust or cheating is

attracted. The ingredients of section 406 and 420 of IPC is

not made out. They entered into Memorandum of

Understanding and partnership firm and invested the

money. The respondent already filed commercial suit for

recovery of Rs.20.00 lakhs which is pending. A portion of

the amount already received by him, and cheque also

issued by the accused No.1 which attracts seciton138 of NI

Act. Therefore, continuing the proceedings is nothing but

abuse of process of law. Hence prayed for allowing the

petition. In support of his contention, he has relied upon

the judgment of the Hon'ble Supreme Court reported n

(2019) 9 SCC 148 in the case of Satishchandra

Ratanlal Shah Vs State of Gujarat and Another.

5. Per contra, learned counsel for the respondent

has contended the accused No.1 and the respondent No.2

are classmates in the college. The accused No.1 induced

the complainant to invest the money in a firm, but the firm

was not started, then he asked the complainant to invest

the money in the firm run by the accused Nos.2 and 3.

The accused No.1 though issued the cheque, but he has

closed the account which is nothing but intention to cheat

the complainant, the firm was not at all in existence. The

matter was investigated by the police and filed the charge

sheet for misappropriation. Therefore, prayed for

dismissing the petition.

6. Having heard the arguments and perused the

records, which reveals it is not in dispute the respondent

invested Rs.20.00 lakhs by transferring the amount to the

accused firm, where they are running business in the name

of Heena traders and the accused No.1 though induced the

complainant to invest Rs.20.00 lakhs for starting the

partnership firm in the name of innovative traders, but

later with the influence of accused No.1, the complainant

transferred the amount belonging to the accused Nos.2

and 3, the Hene Traders. They also paid some amount to

the complainant and undertaken to return the amount by

fixing the date, but the same was not returned to the

complainant. Though the respondent already filed PCR for

the offence under Section 138 of NI Act and also a

commercial suit is also pending before the commercial

court, but the fact remains, the accused persons received

the amount under the guise of investing money in the

business, but they have not returned and misappropriated

the amount belonging to the respondent. If at all, there is

no intention, the accused No.1 could have started the

business in the name of "Innovative Traders" but without

starting he has requested the complainant to invest the

money in the firm belonging to accused Nos.1 and 3,

Heena traders on the ground there was an auction sale of

scrap and respondent would get more money. From the

beginning the accused no.1 induced the complainant to

invest the money and if at all he has no intention to cheat

the complainant the question of issuing cheque to the

complainant in one hand and in another hand he has

closed the bank account, is nothing but cheating the

complainant. The accused Nos.2 and 3 are partners of the

accused no.1, they are involved in the commission of

offence. Absolutely, there is no false implication by the

complainant in these matter. The accused persons

misappropriated the amount and cheated the complainant

by making part payment and not paid the entire amount.

Therefore, there is cognizable offence made out against

accused for framing the charge and going for the trial.

Therefore, I am of the view the petitioner has not made

out case for quashing the criminal proceedings.

Accordingly, the petition filed by accused No.3 is

dismissed.

Sd/-

JUDGE

AKV