Karnataka High Court
Rasmeet Singh Kohli vs The State Of Karnataka on 28 February, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.8458 OF 2023
CONNECTED WITH
CRIMINAL PETITION NO.8928 OF 2023
CONNECTED WITH
CRIMINAL PETITION NO.10970 OF 2023
IN CRIMINAL PETITION NO. 8458 OF 2023
BETWEEN:
SRI. MANESH V S
S/O SRI. SIVAN PALLAI,
AGED ABOUT 47 YEARS,
MANAGING DIRECTOR,
ARS, TRAFFIC AND TRANSPORT,
TEC NO.-1131-135 NILA,
TECHNO PARK, TRIVANDRUM,
THIRUVANANTHAPURAM CITY,
KERALA - 695 581.
...PETITIONER
(BY SRI. SUDHARSHAN L., ADVOCATE)
AND:
1 . STATE BY JAYANAGAR POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT, BENGALURU,
BENGALURU - 560 001.
2. SRI. RAMANJULU NAIDU,
S/O VENKATARAMANA,
2
AGED ABOUT 45 YEARS,
M/S ALLIANCE GLOBAL SYSTEM SOLUTIONS,
NO.34, 31ST A CROSS, 7TH BLOCK,
JAYANAGAR,
BENGALURU CITY - 560 011.
...RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1/STATE;
SRI. N. ADINARAYANA REDDY, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR
IN CR.NO.236/2023 BY THE JAYANAGAR POLICE
STATION, BENGALURU AND PENDING ON THE FILE OF IV
ADDITIONAL CMM COURT AT BENGALURU, FOR THE
OFFENCE P/U/S 120B, 406, 415, 417, 418 AND 420 OF
IPC.
IN CRIMINAL PETITION NO. 8928 OF 2023
BETWEEN:
RASMEET SINGH KOHLI
S/O MS KOHLI,
AGED ABOUT 48 YEARS,
MANAGING DIRECTOR OF
ENVOYS ELECTRONICS PVT LTD.,
HAVING OFFICE AT NO.482,
PHASE-V, GURGAON, NCR DELHI,
HARYANA - 122 016,
MOB: NO.9811119020,
EMAIL NO. [email protected]
(R/AT 39/21, DLF PHASE-3,
NOLTHUPUR (67)NOTHUPUR
GURGOAN, HARYANA - 122 002)
...PETITIONER
(BY SRI. DHANUSH M., ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA
3
THROUGH THE STATION HOUSE OFFICER,
JAYANAGAR POLICE STATION,
BENGALURU - 560 011.
REPRESENTED BY ITS SPP,
HIGH COURT BUILDING.
2. MR. RAMANJULA NAIDU
AGED ABOUT 45 YEARS,
PARTNER M/S ALLIANCE GLOBAL SYSTEMS
SOLUTIONS,
HAVING OFFICE AT NO.34,
1ST FLOOR, 31ST A CROSS, 7TH BLOCK,
JAYANAGAR, BENGALURU CITY,
KARNATAKA - 560 011.
...RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1/STATE;
SRI. N. ADINARAYANA REDDY, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C. PRAYING TO QUASHING IN
RESPECT OF THE PETITIONER THE (i)
COMPLAINANT/RESPONDENT NO.2 DATED MARCH O3,
2023 REGISTERED AS PCR 2746/2023 BEFORE THE 4TH
A.C.M.M, BENGALURU.
IN CRIMINAL PETITION NO. 10970 OF 2023
BETWEEN:
MR. JAN LINSSEN
CEO,
AGED ABOUT 46 YEARS,
M/S ARS TRAFFIC AND TRANSPORT
TECHNOLOGY (INDIA PVT. LTD.,)
OFFICE AT NO. 1131-135 NILA,
TECHNO PARK,
TRIVANDRUM,
THIRUVANANTHAPURAM CITY,
4
KERALA - 695 581.
ALSO AT:
B.V. NETHERLANDS, P.O.BOX 85911.
2508 CP, DEN HAAG,
NETHERLANDS.
...PETITIONER
(BY SRI. SUDARSHAN L., ADVOCATE)
AND:
1. STATE BY JAYANAGAR POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT, BENGALURU,
BENGALURU - 560 001.
2. SRI. RAMANJULU NAIDU,
S/O VENKATARAMANA,
AGED ABOUT 45 YEARS,
M/S ALLIANCE GLOBAL,
SYSTEM SOLUTIONS,
NO.34, 31ST A CROSS,
7TH BLOCK, JAYANAGAR,
BENGALURU CITY - 560 011.
...RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1/STATE;
SRI. N. SOMASHEKAR, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR
IN CR.NO.236/2023 OF JAYANAGAR POLICE STATION,
BENGALURU AND PENDING ON THE FILE OF IV
ADDL.C.M.M., BENGALURU FOR THE OFFENCE P/U/S
120B, 406, 415, 417, 418 AND 420 OF IPC
THESE CRIMINAL PETITIONS HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 20.02.2024 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
5
ORDER
Crl.No.10970/2023 is filed by the
petitioner/accused No.1, Crl.P.no.8458/2023 filed by the
petitioner/accused No.2, and Criminal.P.No.8928/2023
filed by the petitioner/accused No.3 under Section 482 of
Cr.P.C., for quashing the FIR in Crime No.236/2023
registered by the Jayanagar Police station, Bengaluru for
the offences punishable under Sections 120(B), 406, 415,
417, 418 and 420 of IPC.
2. Heard the arguments of learned counsel for the
petitioners and learned counsel for respondent No.2 and
learned HCGP for the State.
3. The case of the prosecution is that on the
complaint filed by the respondent No.2, under Section
200 of Cr.P.C., before the IV ACMM, Bengaluru in PCR
No.2746/2023 and got it referred to the police under
Section 156(3) of Cr.P.C. In turn, the police registered
the FIR. It is alleged by the complainant that himself and
one Syed Akbar Riza Wasti are partners of a firm namely
M/s.Alliance Global Systems and Solutions (AGS. The
complainant and one Syed Akbar Riza Wasti, were into
business of system integration, Digital infra and smart
city solution for industrial, public/government and
commercial sectors. M/s.ARS Traffic and Transport
Technology (India) Pvt., Ltd., represented by accused
Nos.1 and 2 who are the principal contractors. The
accused No.2 is Managing Director with intention to cheat
and wrongful gain approached the complainant company
for investment in the execution of the said project and a
partnership agreement was entered on 19.3.2019, which
was signed by accused No.2 on behalf of M/s.ARS Traffic
and Transport Technology (India) Pvt., Ltd. The accused
No.1 was guarantor, the accused Nos.1 and 2 have paid
Rs.1 crore as advance believing the representation. The
complainant and his partner were investees and
executing the project. The accused Nos.1 and 2 agreed
to pay the amount for the work carried out by the
complainant's firm when it was completed in terms of the
agreement.
4. It is further alleged that the complainant firm
invested in the form of money, material and manpower
etc., to the tune of Rs.8,37,14,192.12/- for material and
civil work. The accused Nos.1 and 2 certified the same.
The completion certificate was also issued. The
complainant's firm prepared the invoices and after
deduction of the advance amount, the accused had to
pay Rs.7.73 crores. When the complainant demanded
the amount from the accused, they postponed the
payment. The accused No.3 is the Managing Director of
M/s.Envoys Electronic Pvt., Ltd., Delhi. The complainant,
believing the reprehension in terms of agreement, placed
orders to the accused No.3 . The complainant issued the
cheque for security. The accused No.3 received the
entire amount for supply of goods. The accused Nos.1
and 2, cheated and defrauded the complainant in
collusion with the accused No.3. Even though accused
No.3 received the money for supply of the materials, the
accused No.3 filed the criminal case against the
complainant and his partner to harass them. But, when
the complainant insisted for the payment, the accused
No.2 terminated the contract on 9.9.2019. The accused
had to make full payment.
5. It is further alleged that on 18.1.2020, the
complainant issued demand notice to the accused Nos.1
and 2 as per the Envoys in terms of the agreement as
they terminated the contract . The accused No.2 invited
the complainant for verification of the invoices to
Trivandrum on 24.2.2020. The complainant and his
partner and accused No.2 entered into Memorandum of
Understanding for payment and settlement. However,
with intention to cheat the complainant, they induced the
accused No.3 to file false case against complainant at
Gurugram and FIR also was filed against the complainant
by accused No.3. After having settlement on 24.2.2020,
the accused required to pay Rs.7.37 crores to the
complainant. The accused No.1 is main beneficiary . The
accused No.3 received money, after supplying the goods
but in collusion with accused Nos.1 and 2 filed complaint
against him and his partner. Thereby, they committed
criminal breach of trust and cheating. Hence, prayed for
taking action. The police registered FIR, which is under
challenge.
6. Learned counsel for the petitioner has seriously
contended that the dispute between the parties are civil
in nature. The agreement was entered into parties at
Trivandrum, Kerala. The work entrusted to the
complainant for Smart city project for Surat in Gujarat.
There was pre-termination of the notice by the accused
persons dated 9.9.2019 itself. Therefore, the case is
totally civil in nature. Apart from that, Bengaluru court
has no jurisdiction to entertain any complaint, since the
agreement was entered into between the parties at
Trivandrum and work entrusted and executed by the
complainant at Surath. Therefore, the complaint is not
maintainable in Bengaluru either before the Police or the
Magistrate.
7. The accused No.3 already filed complaint
against the respondent No.2, apart from a civil case and
138 of Negotiable Instruments Act, 1881, (hereinafter
referred to as "NI Act") at Gurugram. As a counter blast
the complainant filed this case against the petitioner.
There was agreement between accused Nos.1 and 2 and
3 and they have settled their issues in criminal case
before the Gurugram court. The accused No.3
undertaken to withdrawn the complaint against the
complainant and filed petition under Section 482 of
Cr.P.C, the petition filed by the High court of Allahabad.
Therefore, the FIR and the complaint is not sustainable.
Hence, prayed for quashing the same.
8. Learned counsel for the accused No.3 also taken
similar contention and filing of the complaint against the
complainant under Section 138 of NI Act and 420 of IPC
which is pending before the Gurugram Court. Hence,
prayed for allowing the petition.
9. Per contra, learned counsel for the respondent
No.2 has contended the complainant was sub-contractor
with accused NoS.1 and 2. They have to pay Rs.8.37
crores to the complainant, but they have cheated, but he
has filed complaint against the respondent for recovery of
the money before the Commercial court. There is no
jurisdiction fixed in the agreement. The complainant
carried out the work. Therefore, the amount was payable
by the petitioners. Though the contract was terminated
in 2019, but notice was given in the year 2020. Hence,
the matter is required for investigation.
10. Learned HCGP also contended the
Memorandum of Understanding was executed at
Trivandrum, the complainant company is at Bengaluru.
If the court allowed to investigate the matter, the police
will investigate the case.
11. Having heard the arguments, perused the
records, on perusal of the records, which reveals the
petitioners/accused Nos.1 and 2, took up the sub
contract for Surath Smart City Development Ltd., and
entered into agreement through Memorandum of
Understanding with the complainant firm, for supply of
goods, men and materials. The respondent said to have
performed their contractual work under the agreement.
However, the respondent No.2 and his partner also
placed orders with the accused No.3 for supply of some
goods and he said to be repaid the same. It is an
admitted fact, the accused Nos.1 and 2 paid Rs.1 crore to
respondent No.2 under the agreement (Memorandum of
Understanding dated 9.3.2019). It is also admitted fact,
the contract was terminated by the accused Nos.1 and 2
on 19.9.2019 and a legal notice was issued. The
respondent also claimed Rs.7.37 crores as balance for
the petitioner and it is also an admitted fact, the
petitioner have filed commercial suit against the
respondent for recovery of 12 crores in commercial suit
No.200204/2021 pending before the Commercial court
Trivandrum. The respondent has not yet appeared in
that said case.
12. It is also an admitted fact, the partnership
agreement dated 19.3.2019 was entered into between
accused Nos.1 and 2 and the respondent No.2 at
Trivandrum, and as per the said agreement clause 8
which refers as under;
"This agreement shall be governed by
and interpreted in accordance with the
laws in India. The courts of Mumbai shall
have exclusive jurisdiction to settle any
dispute which may arise between the
parties".
Further, the agreement provides the right of termination
that
"The termination right also mentioned at clause
14 where the parties can terminate any case of
prohibited payments etc., The parties are
entitled for termination of the engagement."
13. On bare reading of the agreement which
empowers the parties for terminating the agreement in
case of any default and dispute if any arises. The Mumbai
court having jurisdiction to entertain the dispute.
Therefore, when the agreement was entered into between
the parties at Trivandrum and work was executed at
Surat, Gujarat but as per the covenants of the agreement
Mumbai Court is having jurisdiction to entertain any
dispute.
14. Therefore, the police at Bangalore or Magistrate
have no jurisdiction to receive any complaint from the
complainant, merely the complainant company is at
Bangalore. That apart, on bare reading of the agreement
and the documents, the invoices, payment made and non
payment of the accused are all arising out of contractual
dispute especially, the commercial transaction between the
parties and it is nothing but recovery of money by the
complainant from the accused. Such being the case, it is
purely civil in nature. The criminal case cannot be fostered
against the petitioner.
15. The Hon'ble Supreme Court has held in the case of
Mitesh Kumar J. Sha Vs State of Karnataka in
Crl.A.No.1285/2021 arising out of SLP (Crl)
No.9871/2019 by considering the offences under Section
406, 419, 420 and has held by considering various
judgments that, giving criminal colour to a civil dispute
arising out of contractual civil dispute court shall quash the
criminal proceedings. Wherein the Hon'ble Supreme Court
relied in respect of Crl.A.No.932/2021 dated 2.9.2021
has held as under:
"discloses criminal offence or not depends
on the nature of the allegation and whether the
essential ingredients of a criminal offence are
present or not has to be judged by the High
Court. There can be no doubt that a complaint
disclosing civil transactions may also have a
criminal texture. The High Court has, however, to
see whether the dispute of a civil nature has
been given colour of criminal offence. In such a
situation, the High Court should not hesitate to
quash the criminal proceedings as held by this
Court in Paramjeet Batra (supra) extracted
above."
16. In another case, the Hon'ble Supreme Court in
professor RK Vijayasarathy & Anr Vs Sudha Seetharam
& Anr Hon'ble Supreme Court in Crl.A.No.238/2019, Special
Leave Petition (Crl) No.1434/2018 taken similar view at
paragraph No.24 as under;
"24. In the present case, the son of the
appellants has instituted a civil suit for the
recovery of money against the first
respondent. The suit is pending. The first
respondent has filed the complaint against the
appellants six years after the date of the
alleged transaction and nearly three years
from the filing of the suit. The averments in
the complaint, read on its face, do not disclose
the ingredients! necessary to constitute
offences under the Penal Code. An attempt
has been made by the first respondent to
cloak a civil dispute with a criminal nature
despite the absence of the ingredients
necessary to constitute a criminal offence. The
complaint filed by the first respondent against
the appellants constitutes an abuse of process
of court and is liable to be quashed.
17. Therefore, in view of the judgment of the Hon'ble
Supreme Court and fact of the case it clearly goes to show
that the dispute between the parties arising out of
commercial civil contract and there was violation of the
contractual obligation and payment of contractual work done
by the complainant and it is nothing but recovery of the
money. Therefore, it is purely civil in nature and commercial
transaction, criminal case cannot be registered and
investigated by the police.
18. Apart from that, Bengaluru courts have no
jurisdiction to entertain the complaint or dispute since the
agreement was entered into between the parties at
Trivandrum, Kerala and work was done at Gujarat and the
Mumbai court has jurisdiction for consideration of the dispute
between the parties as per the agreement. Therefore,
complaint against accused Nos.1 and 2 is not sustainable.
19. As regards to the allegation against the accused
No.3 the complainant said to be given some work
entrustment and paid money to the accused No.3 and it was
executed but behind the back accused No.3 filed the
complaint against the respondent No.2 at Gurugram for 138
of NI Act, as well as 420 IPC. Therefore, he has been tagged
in this complaint . Ofcourse, the accused Nos. 1 and 2 were
sub contractor for smart city project, where they engaged
service of complainant from accused Nos.1 and 2, but inturn
the complainant given some work to the accused No.3 and
there was dispute between them. Hence accused No.3 filed
complaint against respondent No.2 and accused Nos.1 and 2
as his company situated at Gurugram. There was a
settlement between accused Nos.1. 2 and 3 on 15.11.2021
the accused No.3 undertaken to cooperate with the
complainant for quashing the FIR registered against the
complainant at Haryana court in the case CRM - M
5732/2022 and CRM 5665/2022. There is an FIR registered
against the respondent No.2 in crime No.233/2021 at Udyog
Vihar Police station under Section 420 of IPC as against
respondent No.2 and against accused Nos.1 and 2, apart
from 138 of NI Act. Thereafter the accused No.3 has been
implicated by the complainant at Bengaluru. Therefore, it is
nothing but counter blast case by the respondent No.2
against the accused No.3.
20. The submission of the learned counsel for the
accused No.3 is clear that he has undertaken to withdraw the
complaint against accused No.1 , 2 and the respondent No.2
at Haryana police as well as 138 of NI Act. Therefore, if the
respondent No.2 move the petition before the Haryana High
Court the accused no.3 will cooperate for quashing the
criminal proceedings. Such being the case, continuing the
proceedings against accused Nos.1 to 3 and investigating
against them is nothing but abuse of process of law, due to
facts and circumstances of the case. Therefore, the petitions
are deserved to be allowed.
Accordingly, all three petitions are allowed.
The FIR against accused Nos.1 to 3 in Crime
No.236/2023, registered by Jayanagar police station,
Bengaluru, is hereby quashed.
Sd/-
JUDGE
AKV
CT:SK
