Nagendra N v Vs State of Karnataka

THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH FIR BEARING CR.NO.481/2023 DATED 23.11.2023 (ANNEXURE B) REGISTERED BY THE HENNUR POLICE STATION FIRST RESPONDENT FOR OFFENCES P/U/S.405, 406, 420 OF IPC 1860 AND U/S.3(1)(r)(s), 3(1)(v), 3(1)(w)(i)(ii), 3(2)(v-a) OF SC/ST (POA) ACT 1989 ARISING OUT OF PCR NO.36/2023 ON THE FILE OF THE HON’BLE LXX ADDITIONAL CITY CIVIL AND SESSION JUDGE, SPECIAL JUDGE, BENGALURU (CCH-71) AND QUASH ALL INVESTIGATION PURSUANT THERETO.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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Petitioners/accused Nos.1 and 2 are before the Court calling in question registration of a crime in Crime No. 481 of

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2023 registered for offence punishable under Sections 405, 406, 420 of the IPC and under Sections 3(1)(r)(s), 3(1)(v), 3(1)(w)(i)(ii), 3(2)(v-a) of the SC/ST Prevention of Atrocities Act, 1989 (‘Atrocities Act’ for short).

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2. The 2^nd respondent has remained absent throughout. Several opportunities are granted by this Court to the 2^nd respondent for appearance and making submissions. The orders are dated 03-04-2024, 04-12-2024, 06-01-2026, 20-01-2026 and 03-02-2026. Even today, there is no representation on behalf of the 2^nd respondent. Therefore, the learned counsel Sri Bola Vedvyas Shenoy appearing for the petitioners and the learned High Court Government Pleader Sri K Nageshwarappa are heard in the matter.

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3. Facts adumbrated are as follows:

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The petitioners get embroiled in the subject crime in Crime No. 481 of 2023. The 2^nd respondent is the complainant.

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The complainant invokes the jurisdiction of the learned Sessions Judge under Section 200 of Cr.P.C., and registers a private complaint alleging cheating and criminal breach of trust

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by the petitioners. The learned Sessions Judge refers the matter for investigation under Section 156(3) of Cr.P.C, which becomes the aforesaid crime for the aforesaid offences. Registration of the crime drove the petitioners to this Court in the subject petition and this Court has stalled the investigation 3 years ago and the said interim order is subsisting even as on date. In the light of the subsistence of the interim order, the investigation has not proceeded any further. The matter is thus heard.

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4. The learned counsel appearing for the petitioners would vehemently contend that the 1^st petitioner was an employee of the complainant Company headed by the complainant for about 8 years and the 2^nd petitioner, his wife, for about one year. Both the accused Nos.1 and 2 go in search of greener pastures and joint a different Company which is said to be a competitor in business to the complainant/Company. Then springs the impugned complaint. The impugned complaint alleges certain acts by these petitioners, which according to the complaint is to become the ingredients of Sections 406 and 420 of the IPC.

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5. The learned High Court Government Pleader would however refute the submissions of the learned counsel to the petitioner to contend that the matter is still at the stage of investigation, the ingredients of the complaint would clearly meet the ingredients of the offences under the criminal breach of trust or the offence of cheating. He would seek dismissal of the petition. As observed hereinabove, there is no representation on behalf of the complainant throughout.

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6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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7. The afore-narrated facts lie in a narrow compass. The 1^st petitioner is said to have joined the services of the 2^nd respondent/Company M/s. J.B.International as head of business development on 01-09-2015. The 2^nd petitioner joins the said Company on 01-10-2015 and resigns on 15-02-2016. Therefore the husband continues to work, the wife resigns. The 1^st petitioner then resigns on 16-07-2023 and also rescinds the

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sale agent's agreement pursuant to his resignation. Thus, the petitioners terminates their business agreement with the 2^nd respondent/Company. The 1^st petitioner then joins the rival Company, which generates certain heartburn to the 2^nd respondent/complainant who invokes the jurisdiction of the learned Sessions Judge on 10-11-2023 by filing a private complaint for aforesaid offences. The learned Sessions Judge refers the matter for investigation. The reference of the matter for investigation as observed has driven these petitioners to this Court. Since the entire issue has now sprung from the complaint, I deem it appropriate to notice the allegations that are made in the complaint, as to whether they would attract

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the ingredients of the offences under Sections 405 and 415 of the IPC for it to become an offence under Section 406 and 420 of the IPC.

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“…. …. ….

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13. It is further submitted by the complainant that on 07/06/2023, It is further submitted by the complainant that the complainant had kept Rs. 05,00,000/-) a sum of rupees five lakhs in the office cupboard to pay all the contractors. When the complainant opened the cupboard to pay the contractor, to her shock, there was absolutely no money. Just two hours prior to the incident, the accused had stolen all the money and left the office premises in a hurry stating that he had health issues and

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need to rush home. When the accused was confronted, he totally refused to accept and insulted the complainant in front of her colleagues with words such as Soole, Bevarshi, Bosodike, Maadigaru etc. The complainant wanted to go to the police and place the complaint, but decided to first take out all the company data that was in the possession of the accused and then terminate him as per the company policy and bring it to Police Authority as the complainant feared that the accused would destroy the data.

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14. After this incident, on 16/06/2023, the accused sent his resignation letter to the complainant stating, "health issues and personal reason" and wants to get relieved by 1^st week of July 2023.

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15. It is further submitted by the complainant that ever since his resignation, he would follow up for his relieving letter and gave life threatening messages to the complainant saying that he won't spare the complainant if any complaint is preferred before the police and demanded that the relieving letter should be as he wanted, else he will give away all company data to the complainant's competitors and bring the complainant's business to zero. As the accused made the calls through WhatsApp the complainant is unable to produced and evidence in this regard. He held an office laptop that had all the details in it and it was very Important for the complainant that he handed over the same to her.

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16. Further to all the above-said incidents, as the complainant decided to meet the accused as she received complaints from her customers stating that the accused is trying to defame the complainant's name and is asking them not to give business to the complainant's company. Also, the customers of the complainant received a note stating that Aerosphere has terminated their contract with J B International and their business head is the accused.

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17. It is further submitted by the complainant that the complainant was shocked as during the tenure of employment of the accused with the complainant's company, he has been working with the foreign companyAerospheres Inc., who has partnership agreement with

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the complainant since 2015 and owe the complainant 25,000 dollars for her services.

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18. It is further submitted by the complainant that the complainant came to know that the accused has been cheating all along when he was still in employment under the complainant. This is a complete breach of trust for years. He has also stolen the complete data of the complainant's company and has handed it over to foreign company Aerospheres Inc.

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19. It is further submitted by the complainant that on 07/09/2023 the complainant visited his residence to discuss few issues, he was hesitant and his wife Shilpa N V started to curse the complainant continuously with all the possible foul language such as a low caste woman (keel Jathi Soole), prostitute, and the complainant sleeps around with men for business using her charm and many many ugly words on her birth, her widow status, caste etc. and asked the complainant to get out of her place.

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20. It is further submitted by the complainant that the complainant insisted on discussing the matter and he started continuously abusing the complainant calling the complainant a low caste bitch, and mentioned that Ambedkar should have been killed and he should not have garland around his neck, but Slippers mala and the complainant is a maadigarus and holeyarige huttidavalu and will remain the same and he will ensure the complainant that she will never come up in life. All this happened in public at the coffee shop and the complainant was completely humiliated. As the complainant was upset with the insult as well as humiliation & harassment meted out to her, she could not come out in public. Apart from the above as the complainant had prior fixed appointments out of station there was a delay of almost 20 days in lodging the complaint before the police authorities.

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21. It is further submitted by the complainant that the complainant has lost her reputation in the industry, lost business potential, the complainant has been humiliated, she has been losing all her business built since 2015 only because of the accused.

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22. It is further submitted by the complainant that as the Incident took place within the limits of the Hennur Police Station, the complainant raised the complaint before the Hennur police station.

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23. It is further submitted by the complainant that, as the police pertaining to the Hennur police station did not give any heed to the complaint of the complainant, the complainant had to approach the commissioner of police as per section 154(3) of the Cr.P.C.

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24. It is further submitted by the complainant that, in spite of the complainant approaching the commissioner of police the complaint of the complainant has not seen the light of the day. Hence, he is before this Honorable Court by way of this complaint.

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25. The complainant submits that, the accused person is very influential persons in the locality with money power and muscle power. Further they are politically Influential.

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26. The complainant submits that before this Hon'ble Court, as the accused person has committed the abovesaid offences within the jurisdiction of this Hon'ble Court, this Honorable Court has the jurisdiction to entertain this complaint.

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27. It is further submitted by the complaint and that, initially the complaint approached this Honourable Court with the complaint has she was instructed to approach the honourable court of magistrate the complainant approach the magistrate by Filing PCR. Since the private complaint was not accepted and not even numbered, the complaint had to withdraw the complaint and once again approach this honourable court by way of this complaint.

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28. It is further submitted by the complainant that, the complainant has complied with the guidelines laid down by the Honorable Supreme court in Priyanka Srivastava's Case.

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29. That the complainant prays that the complainant may be reserved with liberty to raise additional grounds to be urged at the time of argument.

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30. That the complaint has not filed any other complaint before any other police or authority.

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PRAYER

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WHEREFORE , the complainant most humbly prays this Hon'ble Court may be pleased to register the P.C.R. and refer the same to the police pertaining to the Hennur police station by invoking the powers under section 156(3) of the Cr.P.C. for investigation for the offence punishable under sections 406, 405, 420 of IPC and section 3(1)(r)(s)(u)(w)(i),(ii),2(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as well as under the provisions, of the Information Technology Act for misappropriating the date of the complainant company and take cognizance and thereafter deal with the accused persons in accordance with law, in the interest of Justice and equity.”

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The complaint is filed without an affidavit appended to it, as is necessary in law. Be that as it may. The learned Magistrate refers the matter for investigation for the aforesaid offences including the offence under the Atrocities Act.

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8. A perusal at the complaint would clearly indicate it is a counter blast to the petitioners joining a Company which owes the complainant about $25,000. This has generated certain hatred towards these petitioners by the complainant and the aforesaid complaint is registered. Sections 406 and 420 have its ingredients in 405 and 415 of the IPC. They read as follows:

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“ 405. 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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406 [ Explanation 407 [1].—A person, being an employer⁴⁰⁸ [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.]

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409 [ 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 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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Illustrations

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( a ) A , being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriates

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them to his own use. A has committed criminal breach of trust.

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( b ) A is a warehouse-keeper. Z , going on a journey, entrusts his furniture to A , under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust.

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( c ) A , residing in Calcutta, is agent for Z , residing at Delhi. There is an express or implied contract between A and Z , that all sums remitted by Z to A shall be invested by A , according to Z 's direction. Z remits a lakh of rupees to A , with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.

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( d ) But if A , in the last illustration, not dishonestly but in good faith, believing that it will be more for Z 's advantage to hold shares in the Bank of Bengal, disobeys Z 's directions, and buys shares in the Bank of Bengal, for Z , instead of buying Company's paper, here, though Z should suffer loss, and should be entitled to bring a civil action against A , on account of that loss, yet A , not having acted dishonestly, has not committed criminal breach of trust.

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( e ) A , a revenue officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust. ( f ) A , a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.

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415. 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

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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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Explanation .—A dishonest concealment of facts is a deception within the meaning of this section.

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Illustrations

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( a ) A , by falsely pretending to be in the Civil Service, intentionally deceives Z , and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.

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( b ) A , by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.

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( c ) A , by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for the article. A cheats.

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( d ) A , by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z , and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.

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( e ) A , by pledging as diamonds articles which he knows are not diamonds, intentionally deceives Z , and thereby dishonestly induces Z to lend money. A cheats.

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( f ) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.

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( g ) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery, A cheats; but if A , at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.

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( h ) A intentionally deceives Z into a belief that A has performed A 's part of a contract made with Z , which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.

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( i ) A sells and conveys an estate to B. A , knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z , without disclosing the fact of the previous sale and conveyance to B , and receives the purchase or mortgage money from Z. A cheats.”

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Section 405 would get attracted only when a property is entrusted to the hands of the accused and the said property is misappropriated with dishonest intention. The ingredients of Section 415 would indicate that the accused should lure the complainant into a transaction with dishonest intention from the inception. None of these ingredients are found in the case at hand. Therefore, permitting investigation even, in the case

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at hand, for the offences under Sections 406 and 420 of the

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IPC would become an abuse of the process of the law.

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9. What remains is the offences under the Atrocities Act.

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Not a single document is produced to demonstrate whether the 2^nd respondent belongs to the Scheduled Caste or Scheduled Tribe, as the case would be. Even otherwise, hurling of abuses that is alleged in the case at hand is neither in a public place nor a place of public view. The law is too well settled by plethora of judgments rendered by the Apex Court with regard to hurling of abuses should be in the public place or a place of public view. Neither of the things present in the case at hand would not mean that the said offence must be permitted to be investigated into.

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