============================================== 1. The Usha Shriram Enterprises Pvt. Ltd. having its registered office at Block-A v. No. 180, Tara Tower, P.S.- Shastri Nagar, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.41779 of 2010 ============================================== 1. The Usha Shriram Enterprises Pvt. Ltd. having its registered office at Block-A, DDA Commercial Complex, Naraina Ring Road, New Delhi-28, through its Managing Director, Sri Anupam Bharat. 2. The Managing Director, Usha Shriram Enterprises Pvt. Ltd. Naraina Ring Road, New Delhi-28. .... .... Petitioners. 1. The State of Bihar. 2. Sri Surendra Prasad, Son of Sri Jugal Kishore Prasad, Flat Versus No. 180, Tara Tower, P.S.- Shastri Nagar, Patna. .... .... Opposite Parties. ============================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 8 11-11-2013 Heard learned counsels for the petitioners and the State. The present application has been filed for quashing the order of cognizance dated 21.11.2005, passed in Complaint Case No. 1242(C) of 2005, by the learned Judicial Magistrate, Ist Class, Patna, whereby the processes have been directed to be issued after cognizance being taken for the offences punishable under Sections 323, 420 and 504 of the Indian Penal Code. The prayer has also been made for quashing the orders dated 18.09.2009 and 15.10.2009 (whereby clerical errors in order dated 18.09.2009 has been made) passed in Cr. Revision No. 432 of 2006 whereby the
Legal Reasoning
order of cognizance dated 21.11.2005 has been affirmed and the Cr. Revision was dismissed. 2 Patna High Court Cr.Misc. No.41779 of 2010 (8) dt.11-11-2013 2 / 10 The prosecution case is that that the complainant purchased one sophisticated bed for a cost of Rs.10,542/- from
Legal Reasoning
M/s The Home Decore, an authorized show-room of Usha Shriram Lexus, a company which deals with furniture but subsequently the bed started making some noise, upon which the complainant/ O.P. No. 2 complained about the defect to the authorized dealer, i.e., accused no. 3. On 22.02.2005 the complainant went to the shop of accused no. 3 and requested to refund the price of the said bed but accused no. 3 insulted the complainant and threatened with dire consequences, using filthy language and refused to return the price of the alleged bed which led to the filing of Complaint Case No. 1242 (C) of 2005 on 03.05.2005 before the learned Chief Judicial Magistrate, Patna. The learned Chief Judicial Magistrate, Patna, after examining the complainant on solemn affirmation and recording the statement of enquiry witnesses, issued process vide order dated 21.11.2005 after taking cognizance under Sections 323,504 and 420 IPC. The order dated 21.11.2005 passed by the learned Chief Judicial Magistrate, Patna, whereby process was directed to be issued was challenged in Cr. Revision No. 432 of 2006 which was dismissed by the learned Additional Sessions Judge X, Patna, on 3 Patna High Court Cr.Misc. No.41779 of 2010 (8) dt.11-11-2013 3 / 10 18.09.2009. The said order was modified vide order dated 15.10.2009 passed by the learned Additional Sessions Judge X, Patna, whereby certain formal corrections were made in the order dated 18.09.2009. The present application was heard on 19.01.2011 when notices were issued to the complainant/O.P. no. 2. Fresh notices were issued to the O.P. No. 2 vide order dated 10.03.2011 and 16.08.2011. The notices were deemed to be validly served vide order dated 10.09.2013. Today also, none is appearing on behalf of O.P. No. 2. A supplementary affidavit has been filed to the effect that the matter has not travelled beyond cognizance level. Learned counsel for the petitioners submits that the petitioners are M/s Usha Shri Ram Enterprises Pvt. Ltd., through its Managing Director Anupam Bharat and the Managing Director himself. The contract, if any, was between the complainant and the authorized dealer, accused no. 3. The defect has not specifically been pointed. No notice or correspondence was made by the complainant with the petitioners. The nature of accusation suggests deficiency in service and such grievance can be redressed under the provisions of Consumer Protection Act. The petitioners cannot be held vicariously liable for minor deficiency in service of 4 Patna High Court Cr.Misc. No.41779 of 2010 (8) dt.11-11-2013 4 / 10 the dealer, accused no. 3. Considering the submissions of the counsels for the petitioners, State and the material on record, it appears that in paragraph no. 7 of the complaint, the complainant has stated that the purchased bed has gone highly problematic, whereas assurance and promises, to the contrary, were given by the authorized dealer, accused no. 3. From the averments made in paragraph no. 8, it appears that the bed was creating some noise. Hence, in view of this Court, the petitioners cannot be held responsible for such minor defect complained by the complainant. The jurisdiction of the High Court to quash the order of cognizance in exercise of the jurisdiction under Section 482 Cr.P.C. is well settled. The Court cannot enter into determination of disputed question of fact at that stage but if assuming the accusation, no offence is made out, then certainly the court cannot shut its eyes. The only accusation levelled against the Company is under Section 420 IPC as the accusation under Sections 323 and 504 IPC is specific against the accused no. 3 who is not petitioner before this Court. Section 420 IPC deals with cheating and dishonestly inducing delivery of property. Cheating has been defined under 5 Patna High Court Cr.Misc. No.41779 of 2010 (8) dt.11-11-2013 5 / 10 Section 415 IPC. The essential ingredients of the offence of cheating are (i) deception of a person either by making a false or misleading representation or by other action or omission (ii) fraudulent or dishonest inducement of the person either to deliver any property or to consent to the retention thereof by any person or intentionally inducing that person to do or omit to do any thing which he would not do or omit to do if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind and reputation or property. This is not the case of the complainant that any deception, by making a false or misleading representation by any action of the petitioner, has been made. The accusation does not suggest that fraudulent and dishonest inducement has been made by the petitioner for delivering any property or to consent to the retention thereof or intentionally induced the complainant to do or omit to do anything which he would not had done or omitted to do if he were not so deceived. Merely breach of contractual terms would not amount to cheating unless fraudulent and dishonest intention is shown right at the beginning of the transaction and in absence of the allegation that the accused has dishonest or fraudulent intention while making a promise, there is no cheating. In the present case, even the actual defect in the 6 Patna High Court Cr.Misc. No.41779 of 2010 (8) dt.11-11-2013 6 / 10 purchased bed has not been specifically pointed out. Since the complaint does not disclose the offence of cheating, no offence under Section 420 IPC is made out against the petitioner. More over, there is nothing in the complaint to suggest that even accused no. 3, the authorized dealer has any dishonest or fraudulent intention or there was any inducement on his behalf when the complainant purchased the bed. Redressal of civil nature or contractual nature of dispute through criminal forum has been deprecated by the Apex Court in a catena of decision. The Apex Court in the case of State of Haryana & others Vs. Bhajan Lal & others reported in 1992 Supp (1) Supreme Court Cases 335 lays down certain criteria by way of illustration on which the prosecution can be quashed and the present case comes within more than one such Clauses i.e. Clause nos. 1 and 7: “In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such 7 Patna High Court Cr.Misc. No.41779 of 2010 (8) dt.11-11-2013 7 / 10 power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2….. 3…… 4……. 5……. 6……. 7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” The Apex Court has also deprecated the summoning of an accused in a criminal case as a matter of course in the case of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others reported in (1998) 5 Supreme Court Cases 749. Paragraph 28 of the judgment reads as follows: “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegation made in the complaint and the evidence both oral and 8 Patna High Court Cr.Misc. No.41779 of 2010 (8) dt.11-11-2013 8 / 10 documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” The Apex Court, in the case of Indian Oil Corporation Vs. NEPC India Limited and ors., reported in (2006) 6 SCC 736, has deprecated the practice of resorting to criminal forum with the intent to settle civil disputes. Paragraph nos. 13 and 14 read as follows: Paragraph 13 - “While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri Vs. State of 9 Patna High Court Cr.Misc. No.41779 of 2010 (8) dt.11-11-2013 9 / 10 U.P. this Court observed. "It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." The Apex Court in the case of Zandu Pharmaceutical Works Ltd. Vs. Mohd. Sharaful Haque (2005) 1 Supreme Court Cases 122 observed that allowing any proceeding to continue which would result in injustice or prevent promotion of justice would be in abuse of process of the Court. “8. ……It would be an abuse of process of Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” 10 Patna High Court Cr.Misc. No.41779 of 2010 (8) dt.11-11-2013 10 / 10 The learned Magistrate, in my opinion, should have kept the aforementioned principles in mind while issuing the process against the petitioners. In view of the above discussion, allowing the present proceeding to continue would be an abuse of the process of the court. Hence, in order to secure the ends of justice, the entire prosecution of Complaint Case No. 1242(C)of 2005 including the cognizance order dated 21.11.2005 passed by the learned Judicial Magistrate, Ist Class, Patna, with regard to the petitioners as well as the revisional order dated 18.09.2009 passed in Cr. Revision No. 432 of 2006 by the learned Additional Sessions Judge X, Patna, are hereby quashed. This application is, accordingly, allowed. Let the order be communicated through fax to the learned court below at the cost of the petitioners. U.K./Anil/ (Dinesh Kumar Singh, J)