Allowed

Jalaludin S/O. Abdulkarim Kittur v. the State of Karnataka

Karnataka HC24 Nov 2023CRL.P/100582/2022

Case brief

AI extract

What is this about?

This criminal petition under Section 482 CrPC sought quashing of a charge sheet and FIR against petitioners accused of cheating and criminal breach of trust. The High Court observed that allegations were solely against another accused, and no evidence or allegations implicated the petitioners, leading to the quashing of proceedings against them.

What did the court decide?

The charge sheet in CC No.237/2020 and the proceedings pending against the petitioners are quashed.

Jalaludin S/O. Abdulkarim Kittur Vs the State of… — Criminal Trial and Appeal | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:13934 CRL.P No. 100582 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 24^TH DAY OF NOVEMBER 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO. 100582 OF 2022

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BETWEEN:

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JALALUDIN S/O. ABDULKARIM KITTUR AGE. 85 YEARS, OCC. RETIRED HEADMASTER GOVT. U.B.S. SCHOOL 2 HUBBALLI, RESIDING AT TABIB LAND, 3RD CROSS, NEAR WATER TANK, HUBBALLI

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ARSALAN S/O. AFSARALI KITTUR AGE. 24 YEARS, OCC. CIVIL ENGINEER, RESIDING AT TABIB LAND, 3RD CROSS, NEAR WATER TANK, HUBBALLI

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…PETITIONERS

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(BY SRI. K M SHIRALLI.,ADVOCATE)

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AND:

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VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI M KANKUPPI Date: 2023.12.06 13:24:04 +0530

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THE STATE OF KARNATAKA BY KESHWAPUR POLICE, HUBBALLI, R/BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENCH DHARWAD

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SHRI. JAFFAR S/O. NISSARAHAMAD UPPIN AGE. 47 YEARS, OCC. PRIVATE SERVICE, R/O. MAKANDARGALLI, BANDIWAD BASE, HUBBALLI

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…RESPONDENTS

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(BY SRI. P.N. HATTI, HCGP FOR RESPONDENT NO.1. RESPONDENT NO.2 SERVED)

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING TO QUASH THE COMPLAINT AND FIR VIDE ANNEXURE A AND B WHICH IS REGISTERED AGAINST THEM IN KESHWAPUR POLICE STATION CRIME NO.111/2017 FOR THE OFFENCES

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2 - NC: 2023:KHC-D:13934 CRL.P No. 100582 of 2022

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PUNISHABLE U/S 420 OF IPC DATED 05.06.2017 AND CONSEQUENTLY QUASH THE ENTIRE CHARGE SHEET IN CC NO.237/2020 FILED AGAINST THEM AND WHICH IS PENDING ON THE FILE OF THE JMFC II COURT, HUBBALLI, REGISTERED FOR THE OFFENCES PUNISHABLE U/S 406, 420 R/W 34 OF IPC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners have sought for quashing of the charge sheet in CC No.237/2020 pending on the file of the learned JMFC II Court, Hubballi, registered for the offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘the IPC’, for short).

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Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for respondent No.1-State. In spite of service of notice, respondent No.2 remained absent and unrepresented.

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Respondent No.2 filed a complaint which came to be registered against these petitioners and another(accused No.1) for offence under Section 34, 420 of IPC. The Police after investigation filed a charge sheet against the

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3 - NC: 2023:KHC-D:13934 CRL.P No. 100582 of 2022

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petitioners and another (accused No.1) for offences under Sections 406 and 420 read with Section 34 of IPC. On the basis of the charge sheet, a case comes to be registered against these petitioners in CC No.237/2020 and it is pending on the file of the learned JMFC II Court, Hubballi. The petitioners have sought for quashing of the proceedings of the said criminal case. The petitioners are accused Nos.2 and 3 in the said case.

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The learned counsel appearing for the petitioners would contend that, except in the averments of the complaint, there is no mention of the names of the petitioners by other witnesses namely CWs.6 to 11. CW.1 and CWs.6 to 11 are stated to be cheated by accused No.1. The alleged amount given by CW.1 and others is to accused No.1, who is stated to have issued receipts under his signature. There is no allegation of money given to these petitioners. On perusal of the entire charge sheet material, there are no ingredients for offences under Sections 406 and 420 of IPC being attracted against these petitioners.

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4 - NC: 2023:KHC-D:13934 CRL.P No. 100582 of 2022

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With this he prayed to allow the petition and quash the proceedings against these petitioners.

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Per contra, the learned High Court Government Pleader for respondent No.1 would contend that the averments of the complaint itself shows that there is involvement of these petitioners in cheating the complainant and others. The petitioners are the grandfather(accused No.2) and the grandson(accused No.3) and accused No.1 is the father of accused No.3. Accused No.1 is yet to be secured by the police. There are no grounds to quash the proceedings. With this, he prayed to reject the petition.

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Having heard the learned counsels for the parties, the Court has perused the charge sheet records.

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On perusal of the averments made in the complaint filed by respondent No.2, the names of the petitioners are mentioned, as they were present in the office along with accused No.1 when the complainant and others visited the office and they told the complainant that Sy.No.77 measuring 3 acres 24 guntas belongs to them and

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5 - NC: 2023:KHC-D:13934 CRL.P No. 100582 of 2022

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they had fixed the rate of site measuring 40 x 60 at Rs.15,00,000/- and payment was to be made in installments and they allotted him site No.11. In the said complaint, there is averment that the complainant gave a cheque for Rs.1,61,540/- and cash of Rs.3,50,000/- and Rs.50,000/on different dates and accused No.1 has issued cash receipt with respect to the same. It is stated in the said complaint that, on 03.03.2017 when complainant went to the office, it was closed and nobody responded to his phone call made to the mobile number. CWs.6 to 11 are also the persons who have stated that they have been cheated by accused No.1 and they have not been allotted any site even after receiving the money. There is no allegation by CWs.6 to 11 against the present petitioners/accused Nos.2 and 3.

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The offences alleged against these petitioners are under Sections 406 and 420 of IPC. Section 406 of IPC provides punishment for offence of criminal breach of trust. Criminal breach of trust has been defined under Section 405 of IPC which reads thus:

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6 - NC: 2023:KHC-D:13934 CRL.P No. 100582 of 2022

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Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.

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[Explanation 1].—A person, being an employer 3 [of an establishment whether exempted under section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952) or not] who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] 4

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[Explanation 2.—A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and administered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the

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NC: 2023:KHC-D:13934 CRL.P No. 100582 of 2022

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amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]

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On close reading of the aforesaid provision, there is no entrustment of the property and misappropriation or conversion of the said property by the petitioners.

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The other offence alleged against the petitioners is Section 420 of IPC. Section 420 of IPC provides punishment for cheating. Cheating is defined under Section 415 of IPC. Section 415 of IPC reads thus:

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Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

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Section 420 of IPC reads thus:

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Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby

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8 - NC: 2023:KHC-D:13934 CRL.P No. 100582 of 2022

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dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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There is no allegation of the petitioners inducing the complainant and others to deliver any property to any person. The main allegation is against accused No.1, who is alleged to have received money from CW.1 and CWs.6 to 11, by promising them of allotting sites and subsequently without allotting sites, he absconded.

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12. Considering all these aspects, there is no case

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made out against the petitioners for the offences under Sections 406 and 420 of IPC.

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13. In the result, the following:

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ORDER

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The petition is allowed.

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NC: 2023:KHC-D:13934 CRL.P No. 100582 of 2022

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The proceedings in CC No.237/2020 pending on the file

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of the learned JMFC II Court, Hubballi, are quashed so far as the petitioners are concerned.

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Sd/JUDGE

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kmv

Jalaludin S/O. Abdulkarim Kittur v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Jalaludin S/O. Abdulkarim Kittur v. the State of Karnataka

Case brief

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What did the court decide?

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