S.420 IPC Not Attracted In Absence Of Specific Allegation That Dishonest/ Fraudulent Intention Existed Since Inception: Karnataka High Court

A single judge bench of Justice Hemant Chandangoudar made the observation while allowing a petition filed by two accused seeking to quash the chargesheet filed for the offences punishable under Sections 420, 504, 506(B) read with Section 34 of IPC.

It was alleged that petitioner Mrs M Dhanalakshmi @ Lakshmi Rajan under the pretext of looking after the complainant got executed with a power of attorney and affidavit in her favour. Subsequently without taking care of the complainant, the petitioner No.1 entered into a sale agreement with one Mr.Ramachandraiah and received a sum of Rs.1,00,000 and thereby committed the aforesaid offence.

The counsel for petitioner submitted that as on the date of filing of the complaint, the complainant had divested herself of the subject property by executing a registered deed of cancellation in favour of the original owner. Further, the allegation made in the complaint even accepting on the face of it, does not constitute the commission of the offence alleged against the petitioners-accused.

The prosecution and the respondent no 2, opposed the plea saying that petitioner No.1 fraudulently got executed a power of attorney on the pretext of looking after her, but has not looked after her and has executed an agreement of sale by receiving a sum of Rs.1,00,000, as advance sale consideration, thereby committed the offences as aforesaid.

Court findings:

At the outset, the Court observed that the power of attorney indicates that it was executed by the complainant since she was not in a position to manage the property due to her old age.

"There is no recital in the power of attorney that the power of attorney was executed in favour of accused No.1 only on the ground that accused No.1 was required to look after her during her old age."

The Court further noted that there was no specific allegation in the complaint that from the date of execution of power of attorney in favour of accused No.1, there was dishonest intention on the part of petitioner No.1/accused. "In the absence of essential ingredients so as to constitute the offence punishable under Section 420 of IPC, the charge sheet filed against the petitioner No.1/accused is without any substance."

The court also noted that the complainant having not complied with Section 154(1)and 154(3) of CrPC, the complaint filed by the second respondent is not maintainable.

Moreover, the complainant has executed a registered cancellation deed dated 27.07.2013 divesting herself of all the rights over the subject property in favour of the original owner as on the date of filing of the suit. The court observed, "The complainant had no subsisting right interest over the subject property. In the absence of any loss or injury caused to the complainant, the filing of the complaint for the offences punishable under Section 420 of IPC is impermissible."

Case Title: Mrs M Dhanalakshmi @ Lakshmi Rajan & Anr. v. State of Karnataka

Case No: Criminal Petition No 2386/2019

Citation: 2022 LiveLaw (Kar) 272

Date of Order: July 4, 2022

Appearance: Advocate Dhanush M for petitioners; HCGP S Vishwamurthy for R1; Advocate Dharmapal for R2