ORAL ORDER

The petitioner is before this Court calling in question the proceedings in C.C.No.6043/2023 registered for offences punishable under Sections 406, 420 read with Section 34 of the Indian Penal Code, 1860 ('the IPC' for short).

2. Heard Sri. Kiran S. Javali, learned Senior counsel along with Sri. Mohamed Zulfikhar Ahamed, learned counsel appearing for the petitioner; Sri. B.N. Jagadeesha, learned Additional Special Public Prosecutor appearing for respondent No.1/State and Sri. Akash B. Shetty, learned counsel appearing for the complainant/respondent No.2.

3. The facts adumbrated are as follows:

Respondent No.2 is the complainant. The petitioner is accused No.1. Petitioner is said to be a partner in one M/s. Provenio Capital Advisors, a company registered under the Companies Act. The said company is said to have arranged a conference, wherein it did project that it would get loans against Foreign Direct Investments (FDI) with lesser rate of interest. One such person, who attended the said conference was the complainant. The complainant was made known that if he would part with the processing fee of Rs.38,00,000/-, he would get Rs.25/-crores with lesser amount of interest. This triggered the complainant to enter into a transaction with the petitioner and transferred the amount of Rs.38,00,000/- to the coffers of the petitioner. The complainant waited for about a year or so, but did not get back his amount, communicated to the petitioners, the petitioners tacitly admitted that if 90 days time is granted, they would get the loan or return the money, a processing fee that was taken by the complainant.

4. Two years thereafter again the complainant did wait, no money came, except the processing fee that had gone to the account of the petitioner. Therefore, approaches the jurisdictional Police to register the crime. The registration of the crime in crime No.208/2022 for the offences punishable under Sections 406 and 420 read with 34 of the IPC led the jurisdictional Police to conduct investigation into the matter.The conduct of investigation leads to filing of the final report i.e., the charge sheet in C.C.No.6043/2023, again for the aforesaid offences of Sections 406 and 420 of the IPC read with Section 34 of the IPC. It is the filing of the charge sheet that has driven the petitioner to this Court in the subject petition.

5. Sri. Kiran S. Javali, learned Senior counsel appearing for the petitioner would project that the offence under Sections 406 and 420 of the IPC together could not have been initially laid nor later in the charge sheet also laid, as there is no substance or ingredients of Section 406 of the IPC is concerned. He would submit that insofar as the offence under Section 420 of the IPC is concerned, it was an agreement between the parties, a matter that is purely civil in nature and therefore, this Court must not permit further trial qua both Sections 406 and 420 of the IPC. He would further project that the transaction was with the company. The company is not made a party in these proceedings, while the proceedings under Section 138 of the Negotiable Instruments Act, 1881, the very complainant has made the company a party. Therefore, the aforesaid would become fatal to the continuance of the trial. He would seek quashment of the same.

6. Contrariwise, Sri. Akash B. Shetty, learned counsel appearing for the complainant would vehemently refute the submission in contending that the company is actually a shell company. The offices of these petitioners changed from time to time. The petitioners lured the complainant to part with Rs.38,00,000/- as the processing fee for a loan that he was promised to get Rs.25/-crores on lesser rate of interest. Rs.25/-crores amount never saw the light of the day, except the transfer of Rs.38,00,000/- to the coffers of the petitioner. The learned counsel submits that it clearly makes out an offence of both Sections 406 and 420 of the IPC. The company was alleged, the jurisdictional Police