Criminal Petition No. 9549 of 2023 · The High Court
Case Details
- 1 - NC: 2025:KHC:15007 CRL.P No. 9549 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CRIMINAL PETITION No. 9549 OF 2023 BETWEEN: CLIFOORD MASCARENHAS S/O MASCARENHAS AGED ABOUT 65 YEARS No.204/4, 2ND FLOOR 3RD MAIN, DEFENSE COLONY INDIRANAGAR BANGALORE - 560 038. (BY SRI MUZAFFAR AHMED, ADVOCATE) …PETITIONER AND: 1.
Legal Reasoning
THE STATE OF KARNATAKA INDIRA NAGAR P S, STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BANGALORE - 560 001. 2. M N SHIVARAJ S/O M N NAGARAJ AGED ABOUT 61 YEARS No.3, 1 MAIN ROAD 5TH BLOCK, KUMAR PARK WEST BANGALORE - 20.
Legal Reasoning
(BY SRI M R PATIL, HCGP FOR R1 …RESPONDENTS Digitally signed by R HEMALATHA Location: High Court of Karnataka - 2 - NC: 2025:KHC:15007 CRL.P No. 9549 of 2023 SRI M R BALAKRISHNA, ADVOCATE FOR R2) THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO QUASH THE ENTIRE PROCEEDINGS AS ANNEXURE-A IN C.C.No.1162/2016 IN CR.No.28/2013 OF INDIRANAGAR P.S.,FOR ALLEGED OFFENCE P/U/S 120(B),406 OF IPC PENDING ON THE FILE OF THE LEARNED IV A.C.M.M, BENGALURU CITY IN WHICH THIS PETITIONER IS SHOWN AS ACCUSED No.1 AND ETC., THIS PETITION, COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR ORAL ORDER Petitioner/accused No.1 has been charge sheeted for the offence punishable under Sections 120(B), 406 of IPC is before this Court, seeking relief. The prosecution alleging that accused No.1 is the owner of the subject property and he had availed loan from the Co-operative Bank by mortgaging the subject property. The accused No.1 defaulted in the re-payment of the loan. The accused No.1, accused Nos.2 to 4 conniving with each other induced the complainant to purchase the subject property and also for transfer of CL-9 license granted in favour of accused No.1. Believing the said accused, the complainant purchased the subject property by depositing the entire sale consideration in the loan account of the accused No.1 and following the same, a registered sale - 3 - NC: 2025:KHC:15007 CRL.P No. 9549 of 2023 deed was executed in favour of the complainant and was also took in possession of the subject property. However, after the terms of the Memorandum of Understanding, the accused No.1 failed to transfer the same CL-9 license in favour of the complainant and also not returning the amount of Rs.60 lakhs, which was received towards transfer of CL-9 license. 2. Learned counsel for the petitioner submitted that in the memorandum of understanding there is a clause to permit the accused No.1 to run Bar and Restaurant in a portion of the subject property and the complainant having not permitted the petitioner to run the Bar and Restaurant in the said portion of the property, the CL-9 license was not transferred to the complainant. 3. He further submitted that the allegation even accepting on the face of it does not satisfy the essential element to constitute the commission of offence punishable under Section 406 of IPC. 4. In response, learned counsel for respondent No.2 submitted that the allegation made in the first information report and the charge sheet material clearly discloses that the petitioner misappropriated the money received for transfer of CL-9 license and the same satisfy - 4 - NC: 2025:KHC:15007 CRL.P No. 9549 of 2023 the essential element to constitute the commission of offence under Section 406 of IPC. He further submitted that the veracity of the allegation can be considered at the time of trial, cannot be gone into in this petition and sought for dismissal of the petition. 5. Learned High Court Government Pleader for State would reiterate the submission made by learned counsel for respondent No.2. 6. The arguments of learned counsel for the parties have been duly considered. 7. Admittedly, the subject property was conveyed to the complainant through a registered sale deed and causing the registered sale deed, the complainant was put in possession of the subject property. A Memorandum of Understanding was entered into between the accused No.1 and the complainant and as per the terms of Memorandum of Understanding, the petitioner/accused No.1 was required to transfer CL-9 license. In the said Memorandum of Understanding, there is a reference that the property has been leased out in favour of accused No.1 in relation to the 3rd and 4th floor of the building purchased by the complainant. The petitioner/accused No.1 had also issued an acknowledgment in the event the - 5 - NC: 2025:KHC:15007 CRL.P No. 9549 of 2023 CL-9 license is not transferred within a period of 10 days he will return back the amount of Rs.60 lakhs with interest at the rate of 1.5% per annum. There is no allegation much less any material to substantiate that petitioner induced the complainant to enter into a memorandum of understanding with an intention to deceive which is an essential element to constitute the commission of offence of cheating. However, the petitioner is sought to be prosecuted for the offence punishable under Section 406 of IPC. 8. To constitute an offence under Section 405 of the Indian Penal Code, which defines “criminal breach of trust,” the provision states: "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 willfully suffers any other person so to do, commits "criminal breach of trust". 9. In the present case, there is no entrustment of any property by the complainant to accused No.1, except for the alleged payment of Rs.60 lakhs made for the transfer of the CL-9 license. The said payment, made in the course of a contractual agreement, cannot be - 6 - NC: 2025:KHC:15007 CRL.P No. 9549 of 2023 construed as entrustment of property so as to attract the offence punishable under Section 406 IPC. Even assuming the allegations to be true, at best, they amount to a breach of the terms and conditions of the Memorandum of Understanding. However, giving such a civil dispute a criminal color appears to be an attempt to pressurize accused No.1 into arriving at a settlement. 10. In light of the foregoing, the continuation of criminal proceedings against accused No.1 would amount to an abuse of the process of law. 11. Accordingly, I pass the following:
Decision
ORDER i. The Criminal Petition is allowed. ii. The impugned proceedings in C.C.No.1162/2016 on the file of IV Additional Chief Metropolitan Magistrate, Bengaluru City, insofar it relates to accused No.1 is hereby quashed. Sd/- (HEMANT CHANDANGOUDAR) JUDGE AG List No.: 1 Sl No.: 45