Karnataka High Court
Sri Vikas Mohan Rathod vs State Of Karnataka on 11 July, 2023
Bench: M.Nagaprasanna
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NC: 2023:KHC:23935
WP No. 1254 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 1254 OF 2023 (GM-RES)
BETWEEN:
1. SRI VIKAS MOHAN RATHOD
AGED ABOUT 40 YEARS
S/O MOHAN RATHOD
RESIDING AT NO.4001
A LODHA BELLISSIMO
40TH FLOOR
N.M.JOSHI MARG
MAHALAKSHMI
APOLLO MILLS COMPOUND
MUMBAI - 400 001.
2. SMT.ALPA SAUMIL BHAVSAR
Digitally signed
AGED ABOUT 40 YEARS
by PADMAVATHI W/O SRI SAUMIL UPENDRA BHAVSAR
BK RESIDING AT NO. 26
Location: HIGH
COURT OF BHAVSAR HOUSE
KARNATAKA BEHIND PANKAJ SOCIETY
NEHRU ROAD
VAKOLA BRIDGE
MUMBAI -400 055.
BOTH ALSO AT
REGIONAL OFFICE
NO. 3504/A, 3RD FLOOR
14TH MAIN, HAL II STAGE
JEEVANBHEEMANAGAR
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WP No. 1254 of 2023
BENGALURU - 560 038.
...PETITIONERS
(BY SRI BHARATH KUMAR S., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY JEEVANBHEEMANAGAR POLICE STATION
REPRESENTED BY
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
ANNEX HIGH COURT BUILDING
BENGALURU - 560 001.
2. SRI VINESH N.,
S/O NAGENDRAPPA
AGED ABOUT 35 YEARS
R/AT VSS ELECTRICALS
NO. 140/C
4TH MAIN ROAD, 3RD STAGE
WOC ROAD
NEAR PARK, MANJUNATHANAGAR
RAJAJINAGAR
BENGALURU - 560 010.
...RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R-1;
SRI ABHISHEK M.R., ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C., PRAYING TO QUASH THE PRIVATE
COMPLAINT NO. 55656/2022, DATED 27.07.2022 PENDING ON
THE FILE OF X ADDL CHIEF METROPOLITAN MAGISTRATE, AT
BENGALURU (ANNEXURE - A) AND ETC.,
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WP No. 1254 of 2023
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners are before this Court calling in question
proceedings in Crime No.263 of 2022 which arise out of a
private complaint in PCR No.55656 of 2022 for offences
punishable under Sections 506, 341, 504, 120B, 420 and 34 of
the IPC.
2. Heard Sri. Bharath Kumar S., learned counsel
appearing for petitioners, Sri Mahesh Shetty, learned High
Court Government Pleader appearing for respondent No.1 and
Sri Abhishek M.R., learned counsel appearing for respondent
No.2.
3. Petitioners have a transaction with the 2nd respondent.
The transaction is with regard to certain works to be completed
and the dispute in those works leads to several proceedings
sought to be initiated by the petitioners against the 2nd
respondent and by the 2nd respondent against the petitioners.
The petitioners seek to register a crime before the jurisdictional
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police which ends up in drawing up a non-cognizable report and
in the complaint so registered by the 2nd respondent it appears
that the police have shown some indulgence. All those are the
facts that are narrated in the petition.
4. The 2nd respondent/complainant then registers a
private complaint in PCR No.55656 of 2022 invoking Section
200 of the Cr.P.C. contending that the petitioners have
indulged in cheating, wrongful restraint of the complainant,
criminal intimidation and criminal conspiracy as is obtaining
under Sections 420, 341, 504, 506 and 120B and 34 of the IPC.
Learned Magistrate, on the private complaint, refers the matter
for investigation to the jurisdictional police, it then becomes a
crime in crime No.263 of 2022 for the aforesaid offences. The
moment the crime is registered, the petitioners are before this
Court calling in question the very registration of crime. This
Court having entertained the petition has interdicted further
investigation against the petitioners. Therefore, the
investigation has been stalled since then. The interim order so
granted is in subsistence even as on date.
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5. Learned counsel appearing for petitioners taking this
Court through the complaint so registered by the 2nd
respondent would contend that a matter which is purely
contractual in nature is sought to be given a colour of crime by
registering a private complaint. Learned Magistrate, according
to the learned counsel, ought not to have referred the matter
for investigation, as no ingredients of any of the offences
alleged were even found in the complaint. He would seek
quashment of registration of the crime.
6. Learned counsel for the 2nd respondent/complainant
would refute the submissions to contend that the petitioners,
who had a transaction of certain works, ought to have shared
the profit with the complainant in terms of what was agreed.
Several times the complainant has asked the petitioners to
share the amount that was to be given to him. That having not
been done, left with no choice, the complainant has registered
a private complaint seeking the amount that is to be paid by
the petitioners. He would submit that investigation is yet to
complete, the Court should permit investigation and further
proceedings in the least and seeks dismissal of the petition.
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7. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record.
8. The afore-narrated facts are not in dispute. They lie in
a narrow compass. The complainant was engaged to execute
two projects of electrical contracts, one in Karnataka and one in
Kerala. Both these are referred to as 2 sites. In both these
sites, the works are said to be short completed by the
complainant and therefore, the amount is not paid to the
complainant. In turn, the complainant takes this Court through
the objections filed to the petition to demonstrate that the work
is completed and despite the work being completed, the
petitioners have not paid the amounts that is due to the
complainant.
9. What would emerge in terms of the aforesaid
submission is that, there is a dispute between the petitioners
and the 2nd respondent regarding payment of money and in
that regard, private complaint is filed by the 2nd respondent
seeking recovery of that money. Since the entire issue now
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springs from the private complaint, I deem it appropriate to
quote certain paragraphs of the private complaint for the
purpose of quick reference:
".... .... ....
5. The Complainant submits that after
getting the contract, the Complainant has
started the works along with his labourers.
During the work progress, the accused
persons have paid some amount to the
Complainant. Thereafter, the Complainant has
completed the works within the agreed period
and requested the accused persons to pay the
balance amount of Rs.7,70,522/-, but the
accused went-on postponing the time for one
or the other reason. But, failed to pay the
balance amount.
6. The Complainant submits that the
Complainant several times requested and
demanded the accused to pay the balance amount,
but the accused refused to pay the same. That on
29.06.2022, the Complainant went near the
aforesaid ENSEMBLE INFRASTRUCTURE INDIA LTD.,
and requested the accused persons to pay the
balance amount towards the completion of the
aforesaid works. At that time, the accused have
refused to pay the same, instead of which, they all
abused the Complainant in filthy language and
threatened the Complainant with dire consequences
to his life and limbs and also told that if once call
over phone, they will do away with his life. The
Complainant got feared and worried about his
money. Moreover, the Complainant ought to
disburse the salaries to his Labours / Employees
who were discharged the works with the
Complainant.
7. The Complainant submits that immediately
on 29.06.2022 went to the jurisdictional Police
Station and lodged Police Complaint, but the police
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have not received the Complaint. That on the same
day i.e., on 29.06.2022 lodged complaint before the
Commissioner of Police, Infantry Road, Bengaluru
and the office have issued acknowledgement for
having received the complaint. But, the
jurisdictional police have not taken suitable action
against the accused and rendered proper justice to
the Complainant in accordance with law.
8. The Complainant submits that the accused
are highly influential persons having man, money
and muscle power and also political influence and
therefore the jurisdictional police till today have not
taken suitable action against the, but not rendered
proper justice to the Complaint.
9. The Complainant submits that without
alternative approached this Hon'ble Court seeking
for necessary relief in the above matter and this
Hon'ble Court has got jurisdiction to entertain the
complaint and render proper justice to the
complainant in accordance with law in the above
matter.
10. For the above said act the Accused Nos.1 to
3 has committed the offences punishable u/s.420,
341, 504, 506, 120(B) r/w. sec.34 of IPC."
(Emphasis added)
The complainant demands that the petitioners have to
pay the complainant balance of Rs.7,70,522/- for the works
that have been completed and that is the share the
complainant seek from the hands of the petitioners. In fact,
the petitioners also admits that it is the share that the
complainant is entitled to. Therefore, if the complainant is
wanting to recover any amount from the hands of the
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petitioners/accused, setting the criminal law into motion is not
the remedy, as held by the Apex Court in plethora of
judgments. The Apex Court in the case of SARABJIT KAUR v.
STATE OF PUNJAB AND ANOTHER reported in 2023 SCC
OnLine SC 210 has elucidated the principles with regard to
setting the criminal law in motion by the several pleadings for
recovery of money.
10. The offences that is alleged against the petitioners is
the one punishable under Section 420 of the IPC. For an
offence to become punishable under Section 420 of the IPC, its
ingredients as found in Section 415 of the IPC are necessary to
be present in a transaction. The transaction between the
parties is a works contract between them. If the works
contract is a mutually agreed contract, the question of
deception on the victim/complainant by the petitioners right
from the beginning of the transaction cannot be laid, as the key
ingredient for an offence under Section 415 of the IPC is
deception from the beginning. Therefore, Section 420 of the
IPC cannot be laid against the petitioners.
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11. The only offence that remains is Section 341 of the
IPC. For an offence to become punishable under Section 341 of
the IPC, the ingredients as obtaining under Section 339 of the
IPC is necessary to be present. Section 339 of the IPC reads as
follows:
"339. Wrongful restraint - Whoever voluntarily
obstructs any person so as to prevent that person from
proceeding in any direction in which that person has a
right to proceed, is said wrongfully to restrain that
person.
Exception.--The obstruction of a private way over
land or water which a person in good faith believes
himself to have a lawful right to obstruct, is not an
offence within the meaning of this section."
In terms of Section 339 of the IPC (supra) for a wrongful
restraint to be proved, the foundation should be that the
person against whom such wrongful restraint is made should
not be permitted to move around in any direction. That is not
the issue in the case at hand. The complaint narrates that
when he wanted to step into the office of the accused he was
stopped and not let in. This is not wrongful restraint as
obtaining in Section 339 of the IPC for it to become an offence.
The Apex Court in the case of KEKI HORMUSJI GHARDA V.
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MEHERVAN RUSTOM IRANI1 has delineated as to what
would amount to wrongful restraint under Section 341 of the
IPC. The Apex Court holds as follows:
"12. "Wrongful restraint" has been defined under
Section 339 IPC in the following words:
"339. Wrongful restraint.--Whoever voluntarily
obstructs any person so as to prevent that person from
proceeding in any direction in which that person has a
right to proceed, is said wrongfully to restrain that
person.
Exception.--The obstruction of a private way over
land or water which a person in good faith believes
himself to have a lawful right to obstruct, is not an
offence within the meaning of this section."
The essential ingredients of the aforementioned
provision are:
(1) Accused obstructs voluntarily;
(2) The victim is prevented from proceeding in any
direction;
(3) Such victim has every right to proceed in that
direction.
13. Section 341 IPC provides that:
"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."
14. The word "voluntary" is significant. It connotes
that obstruction should be direct. The obstructions must
be a restriction on the normal movement of a person. It
should be a physical one. They should have common
intention to cause obstruction."
(2009)6 SCC 475
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12. In the light of the judgments of the Apex Court
quoted (supra) and also in view of none of the facts meeting
the ingredients that are necessary to drive home the offences
as alleged, permitting further proceedings against the
petitioners would amount to abuse of the process of law and
result in miscarriage of justice.
13. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Impugned proceedings in Crime No.263 of 2022
(PCR No.55656/2022) pending before the X
Additional Chief Metropolitan Magistrate, Bengaluru
stands quashed qua the petitioners.
Consequently, I.A.No.2 of 2023 also stands disposed.
Sd/-
JUDGE
BKP
