KAUSHIK T.A. Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the petitioners' counsel and also learned HCGP for respondent No.1. The counsel representing respondent No.2 is absent. This matter is listed for final hearing and hence, taken up for final disposal.

(2.) The petitioners who started 2D and 3D animation course in the year 2009 and in pursuance of the said course, some of the students have taken admission and respondent No.2 paid an amount of Rs.55,666/- towards the said course and owner of the said premises entered into franchise agreement with these petitioners and taken over the franchise agreement with these petitioners and he cannot run the Institution and hence, the same made the students to file a complaint before the Police. In pursuance of the said complaint, the police have registered the case against these petitioners and also while filing the charge sheet arrayed accused No.3 and subsequently, respondent No.2 also filed complaint before the Consumer Redressal Forum, Ballari and in the said proceedings, compromise was entered into between the complainant/respondent No.2 and these petitioners made payment in favour of the complainant. The criminal case was already registered against these petitioners and the same is pending before the Court of I Addl. Civil Judge (Jr.Dn.) and JMFC, Ballari.

(3.) The counsel appearing for the petitioners relying upon judgment of the Apex Court in the case of Vesa Holdings Private Limited and Another Vs. State of Kerala and Others reported in (2015) 8 SCC 293 would contend that the Apex Court in order to invoke Section 420 of IPC held para-12 of the judgment that it is settled proposition of law that every breach of contract would not give rise to an offence of cheating and only deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words, for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. The counsel further also relying upon the another judgment of the Apex Court in the case of Uma Shankar Gopalika Vs. State of Bihar and Another reported in (2005) 10 SCC 336 brought to my notice para-6 of the judgment that whether on the facts discloses in the petition of complaint any criminal offence whatsoever is made out much less offences under Sections 420/120-B of IPC. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amount to Rs.4,20,000/-, they would pay a sum of Rs.2,60,000/- to the complainant out of that, but the same has never been paid. Further observed at para-7 of the judgment that the complaint does not disclose any criminal offence at all much less any offence of purely civil dispute between the parties for which remedy lies before a Civil Court, hence, invoked the Section 482 of Cr.P.C. The counsel relying upon this judgment contends that there was no any intention to cheat the complainant and only due to the franchisee agreement entered into between the petitioner and accused No.3 they could not run the institution and there was no any deception at the inception. Hence, this Court can invoke Section 482 of Cr.P.C.