Sri Vipin Mittal vs The State Of Karnataka
2023 Latest Caselaw 1257 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 10 TH DAY OF FEBRUARY, 2023

                       BEFORE

       THE HON'BLE MR. JUSTICE K.NATARAJAN

      WRIT PETITION NO.17768 OF 2021(GM-RES)
                 CONNECTED WITH
      WRIT PETITION NO.17562 OF 2021(GM-RES)

IN WRIT PETITION NO.17768 OF 2021

BETWEEN

1 . SRI VIPIN MITTAL
    S/O SRI SURENDRA MITTAL
    AGED ABOUT 51 YEARS,
    R/A A-1103
    VICTORY HOUSE,
    PITAMBAR LANE
    NEAR MAHIM RAILWAY STATION,
    MAHIM WEST
    MUMBAI
    MAHARASTRA-400016

2 . SRI NITIN KUNDLIK TEMGIRE
    S/O SRI KUNDLIK
    AGED ABOUT 47 YEARS,
    R/A NO.206
    HOUSE NO.2898
    KUNDSHILA ROAD NO.2
    OPP. SP INFOCITY TUKAI
    DARSHAN
    PHURSUNGI FURSUNGI
    PUNE
    MAHARASTRA-412 308
                          2


3 . SRI AKASH KACHROO
    S/O SRI RAVINDER KACHROO
    AGED ABOUT 41 YEARS,
    R/A TEMPLE LANE,
    BEHIND GOVT TOPH QTRS
    H NO.12,
    SUBASHNAGAR
    EXTENSION, PHASE-I JANIPUR
    JAMMUR AND KASHMIR-180007
                                   ... PETITIONERS

(BY SRI SRINIVAS RAGHAVAN, SENIOR COUNSEL
 FOR DR. M. SUNIL SASTRY M , ADVOCATE)

AND

1 . THE STATE OF KARNATAKA
    J P NAGAR POLICE STATION,
    REP BY THE POLICE INSPECTOR
    BENGALURU-560078

2 . SRI PRASANNA D
    S/O SRI DAYANAND
    AGED ABOUT 35 YEARS,
    B GOWDAGERE KASABA HOBLI
    MANDYA-571404
                                   ... RESPONDENTS

(BY SRI R.D. RENUKARADHYA, HCGP FOR R1
 SRI H.C. SHIVARAMU, ADVOCATE FOR R2)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA READ WITH SECTION
482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
ALLOW THE PETITION AND QUASH COMPLAINT DATED
22.7.2021 AND FIR BEARING NO.143/2021 DATED
22.7.2021 PENDING ON THE FILES OF THE HONBLE 30TH
CHIEF METROPOLITAN MAGISTRATE, BENGALURU FOR
OFFENCES SECTION 34, 406, 420 OF THE IPC, 1860 AND
                            3


PENDING FOR INVESTIGATION OF COMPLAINT BEFORE
THE R-1 AND COMPLAINT DATED 22.7.2021 GIVEN BY THE
R-2 DATED 22.7.2021 VIDE ANNEXURE-A AND B IN SO
FAR AS THE PETITIONERS ARE CONCERNED. GRANT AN
AD-INTERIM STAY OF THE PROCEEDINGS IN CRIME/FIR
NO.143/2021 PENDING ON THE FILE OF 30TH
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
BENGALURU VIDE ANNEXURE-A AND B.

IN WRIT PETITION NO.17562 OF 2021

BETWEEN

1.   SMT. URVI ASHOK PIRAMAL
     W/O ASHOK PIRMAL
     AGED ABOUT 69 YEARS

2.   SRI, RAJEEV ASHOK PIRMAL
     S/O SRI ASHOK PIRMAL
     AGED ABOUT 44 YEARS

3.   SRI NANDAN ASHOK PIRAMAL
     S/O SRI ASHOK PIRMAL
     AGED ABOUT 40 YEARS

     ALL ARE R/AT NO.61,
     PIRAMAL HOUSE
     POCKHANWALA ROAD,
     WORLI, MUMBAI
     MAHARASTRA 400030

                                    ... PETITIONERS

(BY SRI SRINIVAS RAGHAVAN, SENIOR COUNSEL
 FOR DR. M. SUNIL SASTRY M , ADVOCATE)
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AND

1 . THE STATE OF KARNATAKA
    J.P NAGAR POLICE STATION
    REP. BY THE PUBLIC INSPECTOR
    BENGALURU 560078

2 . SRI. PRASANNA D
    S/O DAYANAND
    35 YEARS
    B. GOWDAGERE
    KASABA HOBLI,
    MANDYA 571404
                                   ... RESPONDENTS

(BY SRI R.D. RENUKARADHYA, HCGP FOR R1
 SRI H.C. SHIVARAMU, ADVOCATE FOR R2)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA READ WITH SECTION
482 OF THE CODE OF WRIT PROCEDURE, PRAYING TO
QUASH THE COMPLAINT DATED 22.07.2021 AND FIR
BEARING NO.143/2021 DATED 22.07.2021 PENDING ON
THE FILES OF THE HONBLE 30TH ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU FOR
OFFENCES PUNISHABLE UNDER SECTIONS 34, 406 AND
420 OF THE INDIAN PENAL CODE,1860 AND PENDING FOR
INVESTIGATION    OF    COMPLAINT    BEFORE     THE
RESPONDENT NO.1 AND COMPLAINT DATED 22.07.2021
GIVEN BY THE RESPONDENT NO.2 DATED 22.07.2021 IN
SO FAR AS THE PETITIONERS ARE CONCERNED VIDE
ANNEXURE-A AND ANNEXURE-B.

     THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 5.01.2023 THIS DAY, THE
COURT MADE THE FOLLOWING:
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                              ORDER

      The     Crl.P.No.17768/2021                  is   filed     by    the

petitioner/accused        Nos.4,              to        6       and     the

Crl.P.No.17562/2021 is filed by the accused Nos.1 to 3

filed under section 482 of Cr.P.C for quashing the FIR in

Crime No.143/2021 registered by Jayaprakash Nagar

police station, Jayanagar sub-division dated 22.07.2021

for the offence punishable under Sections 406 and 420 of

IPC pending on the file of 30th Additional Chief

Metropolitan Magistrate, Bengaluru.

2. Heard the arguments of learned senior counsel

for petitioners, learned HCGP for respondent No.1 and

learned counsel for respondent No.2.

3. The case of the prosecution is that on the

complaint of defacto-complainant namely Prasanna D.,

filed complaint to the police on 22.07.2021 alleging that he

is running a Company called Naksha Enterprises and

dealing with the scaffolding materials (construction

material) and renting the same to the developers/builders.

Accordingly, the accused/company contacted the

complainant on 03.07.2017 for requesting the scaffolding

material for rent for construction of 18 floor and 21 floor

building constructing in the name of Peninsular Heights.

Accordingly, they sent the emails and thereafter the

petitioner supplied scaffolding materials consisting of

10,000 square meters at the rate of Rs.63 per square

meter totally for Rs.6,30,000/- per month and required to

pay Rs.5,10,00,000/- (Rupees 5 crores and 10 lakshs) as

on 01.01.2018 but they paid only Rs.40 lakhs. Thereafter,

they dragged on for the payment which they were liable to

pay i.e, Rs.4,70,00,000/-(Rupees 4 crores 17 lakhs) and

they also returned 2300 square meters scaffolding and

retained 7700 square meters scaffolding materials. In

spite of requesting they neither paid the money, nor

returned this scaffolding materials, thereby they

misappropriated the materials and cheated the

complainant for more than Rs.4,70,00,000/-(Rupees 4

crores 17 lakhs), hence this complaint came to be filed

against petitioners who are all Company, as well as the

MDs, Managers, and Contractors. The police after

registering the complaint registered the FIR which is under

challenge.

4. The counsel for petitioner has contended the

dispute between them a civil contract, hence criminal case

cannot be sustainable. The accused Nos.1 and 2 were not

at all Directors of the company and the company is not

made as accused. The accused Nos.4 to 8 are employees

of the company. There was delay of 1 ½ years in lodging

the complaint. Only accused No.6 signed the agreement

and that accused Nos.1 to 3 are not at all the Directors of

the company, therefore criminal case cannot be

sustainable against the petitioner. Hence prayed for

quashing the FIR.

5. Per contra, learned counsel appearing for

respondent No2. objected the petition and contended that

the matter is under investigation. The company can be

made as accused after the investigation. The petitioners

have played mischief, criminal breach of trust and taken

the scaffolding materials for the purpose of construction

and after the construction they did not return the materials

and also paid only part payment and went on dragging the

remaining payment. Therefore, he has contended, if the

petitioners are not Directors, they can be delete in the

charge sheet after the investigation. The accused No.2

paid the cheque who is one of the Directors for payment

and others are Directors of the company. Therefore,

merely, the Company is not made as accused in the FIR,

that cannot be ground for quashing the criminal

proceedings. Hence, prayed for dismissing the same.

6. Learned HCGP also objected the petition and

contented that the accused persons have cheated the

complainant they also not returned the scaffolding

materials, they are developers, therefore required to be

investigated by the police. Hence prayed for dismissing

the petition.

7. Having heard the arguments of learned counsel

for the parties and perused the records. The learned

counsel for the petitioner relied upon the various judgment

in respect of dealing with the matter in quashing the FIR

as below:-

(i) ANEETA HADA VS GODFATHER TRAVELS AND TOURS PVT. LTD.,

(ii) SUNIL BHARTI MITTAL VS CENTRAL BUREAU OF INVESTIGATION,

(iii) S.K.ALAGH VS STATE OF UTTAR PRADESH AND OTHERS

I have gone through the judgment of Hon'ble Supreme

Court in various cases and also keeping in the mind, the

principle laid on by the Hon'ble Supreme Court in the case

of Niharika Infrastructure Ltd. Vs. State of

Maharashtra reported in 2021 SCC Online SC 315 by

Hon'ble Supreme Court and also State of Haryana and

Others vs Bhajan Lal and Others reported in 1992 AIR

604 case wherein, it has been held that the FIR can

quashed be only in the rarest of rare cases, considering

the facts and circumstances of the case and on perusal of

the record which reveals, it is not in dispute the petitioners

are the Directors, Manager, Supervisor and Contractors of

the petitioner's company who are developers constructing

the high level apartments in the name of Peninsular

Heights and they have undertaken construction at JP

Nagar Bangalore. The accused persons had placed an

order for requesting the supply of scaffolding materials for

the purpose of construction of 18 and 21 floors of buildings

and there was cover note also produced to show what are

the materials and work orders in respect of the contract.

Of course, it amounts to a service contract between the

complainant and petitioner. However, the work of

complainant is supplying the scaffolding materials at the

rate of Rs.63 per square meter for 10,000 square meter.

In this case, the accused persons utilized scaffolding

materials and returned only 233 square meters materials

and retained 7700 square meter materials and did not

return. It is also contended that as per calculation, the

accused company is payable Rs.5,10,00,000/ (Rupees Five

crore and Ten laksh) but they have paid only Rs.40 lakhs.

The accused No.2 said to have issued cheques which was

received and encashed by the respondent towards part

payment. Therefore, the contention of the petitioner

accused No.2 cannot be acceptable that he is not the

Director of the Company. The accused persons are

responsible for day-to-day affairs of the Company which is

construction company and they are the developers.

Another accused is Vice President, Manager-Nitin Temgire

and Akash Kachroo who was contractor are all of them

were jointly liable under the contract. It is not the civil

agreement entered between the parties for the purpose of

working the contractors shall independently work. The

work order given by the Good Home Reality Ltd., but not a

individual contractor and the company belongs to these

petitioners.

8. The work order contract between the accused

company as well as contractor, but not this complainant.

This complaint supplied only scaffolding materials for the

purpose of construction of the building constructed by the

petitioners who are running the company, therefore, they

cannot escape from the liability. That apart a legal notice

also issued by the petitioner to the accused persons and it

was replied by the Good Home Reality Ltd., which belongs

to the petitioner. The petitioners in the legal notice have

not at all denied the work contract and receiving of the

scaffolding materials from the respondent. It is nothing

but a service oriented contract between the parties. The

petitioners also not stated in the reply notice that if any

dispute arises, it shall have to be decided by any Arbitrator

or shall be recovered through Civil Court, by filing the suit.

Therefore, the contention of the petitioner counsel cannot

be acceptable, that it is a civil contract and it has to be

recovered by filing civil suit. It is only service contract

where the material was supplied by the Company in favour

of the another developing company for construction

purpose. After the construction, the petitioner required to

return the contract materials along with the rents agreed

by them. Admittedly, they paid only Rs.40 lakhs, the

remaining amount not paid. Therefore, not returning

scaffolding material amounts to criminal breach of trust

and misappropriating of materials belonging to

complainant and without paying the amount it amounts to

cheating. As regards to the contention of the petitioner

counsel that the company is not made as an accused in the

FIR and relied upon the judgment of ANEETA HADA VS

GODFATHER TRAVELS AND TOURS PVT. LTD., and other

cases mentioned supra. But the matter is in investigation

state, even the police can investigate the matter and if the

petitioner is found that he is not a Director, the police can

drop the any of the Directors from the charge sheet and

Company can be made as accused No.1 in the charge

sheet and even if the accused is not made in the charge

sheet, the company can be impleaded as accused as per

Section 305 of Cr.P.C. Therefore in the investigation

stage, the petitioner Company merely not made as

accused No.1, that itself is not a ground for quashing the

FIR and it will not come under the rarest of the rare cases.

9. The learned counsel also contended the perusal

of Peninsular Spenta company is different from Good home

reality Pvt Ltd etc., but the documents reveals that they

are all same company and they are all developers.

Therefore, if at all it is found that the petitioners are not

the Directors of the Company, they are permitted to

produce documents before the investigating officer, if they

are not connected with either Good home reality Pvt Ltd or

Peninsular Spenta company. On the other hand in the

notice issued to the Peninsular Spenta company, reply

notice was given by the Good home reality Pvt Ltd which

reveals that they are all one and the same companies.

Therefore, matter requires for investigation and

Investigation Officer is at liberty to file the final report and

charge sheet against the accused. While filing final report

the police can also file 'B report' against the persons who

are not responsible and can file charge sheet against

persons who have actually committed the offence.

Therefore, the FIR cannot be dismissed at this state.

Accordingly, both the petitions filed by the accused

Nos.1 to 3 and accused nos.4 to 6, are hereby dismissed.

Sd/-

JUDGE AKV