Point of law: Cheating – private complaint - Court has to examine whether the material on record is sufficient and whether the Magistrate is satisfied with the allegations in the complaint

ORDER :

1. This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the impugned order dated 22.04.2019 passed by the IV Additional Chief Metropolitan Magistrate, Bengaluru and also the proceedings in C.C. No. 16400/2019 and consequently quashing the criminal complaint registered as PCR No. 11811/20005 and pass such other order as deems fit in the circumstances of the case.

2. The factual matrix of the case is that the respondent No. 2 has filed the private complaint invoking Section 200 of Cr.P.C. against the petitioners herein and other accused persons for the offences punishable under Sections 109, 110, 406, 417, 419, 420 read with Section 34 of IPC. The complaint was registered as PCR No. 11811/2005, wherein the factual matrix of the case is that the complainant is a venture capitalist and its main object is to finance, assisting, development and commercialization of technology in general by granting loans, advances or grants in any other manner. The complainant had agreed to participate in the venture and accordingly the complainant was to have allotted 3,33,333 equity shares of value of Rs. 10/- each at a premium of Rs. 5/- per share in terms of the equity subscription agreement dated 20.10.2001 entered into with the first accused. Subsequently, supplementary agreement dated 20.02.2002 was entered into by the complainant with the accused Nos. 2 to 8 since accused No. 1 was supposed to be the promoter of the venture authorized accused No. 2 to act on behalf of them. Accused Nos. 3 to 8 being the principal of accused No. 2 are liable for the acts and omissions of accused No. 2. Accused Nos. 2 to 8 have conspired to cheat the complainant by dishonestly inducing the complainant to deliver Rs. 50,00,000/- at the instance of the accused No. 1. The complainant had advanced a consolidated sum of Rs. 50,00,000/- to various dates through accused No. 1. Though the complainant has subscribed to the equity shares of Rs. 3,33,333/- the accused No. 1 did not allot the shares in terms of clause 4.4 of equity subscription agreement dated 20.10.2001 and supplementary agreement dated 20.02.2002.

3. Due to the utter shock and dismay of the complainant, the project was not implemented by accused No. 1. But on the contrary, complainant learnt that there has been a total cessation of operations. The accused was induced to deliver a sum of Rs. 50,00,000/- by accused No. 1. The complainant called upon accused Nos. 1 and 2 to refund Rs. 50,00,000/- along with interest at the rate of 18% per annum. But inspite of repeated request and demand and the representation, the accused not thought it fit to refund the said amount. The accused No. 1 falsely represented to the complainant that he had the capacity and required expertise for setting up a project for the development and marketing of software for network and application managements. But the accused have cheated the complainant by impersonation, fraud and dishonestly inducing to part with his funds. Inspite of legal notice dated 03.02.2005 was caused, the accused No. 2 gave the reply stating that he will settle the issue in amicable manner, but not settled the same as per the reply and committed the offences. Hence, the complainant sought for taking action against the accused.

4. Learned Magistrate, after receiving the complaint, referred the matter to the jurisdiction police and after the investigation, the jurisdiction police have submitted the ‘B’ report. Learned Magistrate after recording the sworn statement, dismissed the complaint under Section 203 of Cr.P.C. observing that the matter in dispute is of civil in nature. The complainant has preferred the Crl. R.P. No. 12/2008 and the said petition also came to be dismissed vide order dated 20.03.2010. The complainant again preferred the criminal petition before this Court in Crl. Pet. No. 2704/2010. The said petition came to be allowed and set aside the orders passed by the Trial Courts and remanded back the matter to the