KONDURU SRINIVASALU Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This petition is filed under Section 482 of Cr.P.C praying this Court to quash the proceedings initiated against the petitioner in C.C.No.51061/2017 pending on the file of the XXIX Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru, for the offence punishable under Section 420 of IPC.

(2.) The factual matrix of the case is that the complainant/respondent No.2 herein had filed a complaint on 19.05.2016 and in the complaint, the allegation made against the petitioner/builder is that he agreed to provide a flat and the complainant paid Rs.35.00 lakhs by way of cash. As agreed, the petitioner did not provide the flat instead a Memorandum of Understanding (Moll) was entered into between the parties and the petitioner agreed to pay Rs.50.75 lakhs, for which, the petitioner issued five post-dated cheques and all the cheques were dishonoured. It is alleged that the petitioner had promised the complainant to honour those cheques signed by him on 02.05.2016, but to his shock and surprise, all the cheques were dishonoured and the petitioner/builder knowing fully well that the cheques would be dishonoured had issued those cheques and thereby, committed the offence punishable under Section 420 of IPC. Since he had played fraud and cheated the complainant, the conduct of the petitioner amounts to an offence of cheating. Based on the complaint, the Police have registered a case in FIR No.249/2016 for the offence punishable under Section 420 of IPC. The Police have also investigated and filed the charge sheet against the petitioner.

(3.) The petitioner in the present petition would contend that in respect of bouncing of cheques, proceedings were initiated under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I.Act')- In the said case, the petitioner was convicted, against which an appeal was filed and in the appeal also, the order of conviction was confirmed. Against the said order, the matter is pending before this Court. It is contended that respondent No.2 initiated parallel proceedings by filing a complaint with the Police. It is contended that in the proceedings under Section 138 of the N.I.Act, there was no averment with regard to dishonest intention and only in the complaint such allegation is made. It is also contended that when proceedings under Section 138 of the N.I.Act is initiated, there cannot be any parallel proceedings which amounts to abuse of process. Learned counsel would also submit that in terms of the order of the Trial Judge and also in the appeal, part payment was made. Learned counsel would also submit that in the proceedings which is pending before this Court also, there was a direction and part payment was made in favour of respondent No.2. Learned counsel in support of his arguments, relied upon the judgment of the Hon'ble Apex Court in the case of G.Sagar Suri and another vs. State of U.P. and others reported in AIR 2000 SC 754 and brought to the notice of this Court paragraph 13 of the judgment and submit that the Apex Court has discussed in detail that if dishonest intention is not found in the transaction, there cannot be continuation of the proceedings under Section 420 of IPC.