Opp. Parties v. With Cr.M.P. No

Legal Reasoning

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --------- For the Petitioners : Mr. Vishal Kumar Tiwary, Advocate Mr. Imran Beig, Advocate For the State : Mr. Mohammad Asghar, Advocate (Cr.MP. 2646 of 2020) Mrs. Ruby Pandey, A.P.P. ( Cr.M.P. 2055 of 2020) ……………… 06/Dated: 22/01/2024 In both the cases common F.I.R. and order taking cognizance are under challenge that is why both the petitions have been heard together with the consent of the parties.

2. Heard Mr. Vishal Kumar Tiwary learned counsel for the petitioners and Mr. Mohammad Asghar and Mrs. Ruby Pandey, learned counsel for the State in respective cases.

3. Both the petitions have been filed for quashing the F.I.R. being Gumla P.S. Case No. 318 of 2019, pending in the Court of learned Chief Judicial Magistrate, Gumla. During pendency of these petitions learned court has been pleased to take cognizance by order dated 09.08.2023 which was challenged by way of I.A. No. 10433/2023 in Cr.M.P. No. 2646/2020 and I.A. No. 10065/2023 in Cr.M.P. No. 2055 of 2020 and by order dated 19.12.2023 the said I.As were allowed and in view of that order taking cognizance is also under challenge.

4. Initially a complaint was filed which was sent under section 156(3) Cr.P.C. for registration of F.I.R. pursuant to that Gumla P.S. Case No. 318 of 2 2019 has been registered wherein it has been alleged that the "Noor" as a Trade Mark No. 50098, Class 7, which was registered in the name of Late Noorul Hoda Beg, the father of the complainant. It is further alleged that the Opposite Party No. 2 has never executed a partnership deed with the petitioners and petitioners and others have got a forged partnership deed for snatching away the Trade Mark "Noor". They have also tried to give a false affidavit before the Registrar of Trade Marks, I.P. Bhawan, C.P. 2, Sector 5, Salt Lake City, Kolkata. When these thing came to the knowledge of the informant she had gone to Dhanbad to meet her advocates then the advocate got her signature over the blank paper and said that they will use it as and when time comes. Thereafter she gave her signature on the blank paper. Thereafter she further came to know that the aforesaid advocate and one of his brothers namely Ehsan Ali Beg after giving his power has given his application to Registrar, Trade Marks, Kolkata. Thereafter she got S.M.S. sent by his Center instructing advocate not to send any notice or a letter to anyone without her permission. This SMS was sent to the advocate because the advocate along with accused no. 1 to 4 were in conspiracy and has taken signature on blank paper. It is further alleged that a false affidavit was notorised by impersonating the complainant/informant by the advocates and other accused persons. On coming to know about this the complainant started verifying the same from the Notary Public, who said that the accused persons had come from Dhanbad and they have asked the Notary Public to get the affidavit notorised and said that there is injury in the hand of the woman and as such the affidavit which was prepared earlier was notorised by the Notary Public and for this the concerned Notary Public has also sworn-in an affidavit on 07.09.2019. It is further stated that she had withdrawn the Vakalatnama given to the advocates for appearing before the Registrar of Trade Marks on 30.08.2019. It is further stated that the Registrar of Trade Marks had given order in favour of the accused persons on the basis of forged affidavit. 3 It is also stated that the informant had also gone to the Office of the advocates at Dhanbad, wherein she was maltreated and when she came back to Gumla she wanted to lodge a complaint against them but her complaint was not accepted by the concerned Police Station.

5. By way of referring contents of complaint, Mr. Vishal Kumar Tiwary, learned counsel for the petitioners submits that the said complaint was sent by the learned court under section 156(3) of Cr.P.C. pursuant to that F.I.R. was registered. He submits that there are other accused persons in the F.I.R. including five advocates. He further submits that so far advocates are concerned, in the final form advocates have been exonerated however, the petitioners have been sent up for trial. He further submits that the complaint has been filed in absence of any affidavit and the learned court has not applied the judicial mind and sent the matter to the police under section 156(3) of Cr.P.C only by way of endorsement on the said complaint. He submits that the case of the petitioners is covered in the light of “ Priyanka Srivastava & Another Vs. State of Uttar Pradesh & Others” reported in (2015) 6 SCC 287. He further submits that the said ‘Noor’ Sewing Machine was being made by the father of these petitioners namely, Noorul Hoda. He submits that during the life time of the father, the partnership deed was entered on 26.03.2012 wherein these petitioners have been made partners. He submits that there is specific clause 13 which speaks that after the death of father, these petitioners will take over the said partnership and trade mark will continue. He further submits that allegations are there of filing of false affidavit of the complainant by Ehsan Ali Beig (petitioner in Cr.M.P. no. 2646 of 2020) and not against the petitioners in Cr.M.P. No. 2055 of 2020 and during investigation the police has sought information from the office of the Registrar Trade Mark at Calcutta about the said trade mark being used by these petitioners and office of the Registrar Trade Mark has informed that it was legally used and there is no objection filed with regard to the said trade mark with the said office by the complainant. He further submits that in these background the title suit being Title Suit No. 247/2015 is going on between the 4 parties at Hazaribag and another suit at Kolkata. He further submits that even the fact with regard to pendency of the suit was suppressed by the complainant and the complaint case has been filed. He further submits that suppression itself suggests that for civil dispute, criminal case has been filed and to buttress this argument he relied in the case of “Usha Chakraborty and Anr. Vs. State of West Bengal and Anr.” 2023 LiveLaw (SC) 67. He relied on para 10 of the said judgment which is quoted hereinbelow:- “10. By non-disclosure the respondent has, in troth, concealed the existence of a pending civil suit between him and the appellants herein before a competent civil court which obviously is the causative incident for the respondent's allegation of perpetration of the aforesaid offences against the appellants. We will deal with it further and also its impact a little later. There cannot be any doubt with respect to the position that in order to cause registration of an F.I.R. and consequential investigation based on the same the petition filed under Section 156(3), Cr.P.C., must satisfy the essential ingredients to attract the alleged offences. In other words, if such allegations in the petition are vague and are not specific with respect to the alleged offences it cannot lead to an order for registration of an F.I.R. and investigation on the accusation of commission of the offences alleged. As noticed hereinbefore, the respondent alleged commission of offences under Sections 323, 384, 406, 423, 467, 468, 420 and 120B, IPC against the appellants. A bare perusal of the said allegation and the ingredients to attract them, as adverted to hereinbefore would revea! that the allegations are vague and they did not carry the essential ingredients to constitut the alleged offences. There is absolutely no allegation in the complaint that the appellants herein had caused hurt on the respondent so also, they did not reveal a case that the appellants had intentionally put the respondent in fear of injury either to himself or another or by putting him under such fear or injury, dishonestly induced him to deliver any property or valuable security. The same is the position with respect to the alleged offences punishable under Sections 406, 423, 467, 468, 420 and 120 B, IPC. The ingredients to attract the alleged offence referred to hereinbefore and the nature of the allegations contained in the application filed by the respondent would undoubtedly make it clear that the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of civil nature, The appellants and the respondents have given a cloak of criminal offence in the issue. In such circumstance when the respondent had already resorted to the available civil remedy and it is pending, going by the decision in Paramjit Batra (supra), the High Court would have quashed the criminal proceedings to prevent the abuse of the process of the Court but for the concealment.”

6. Relying on the aforesaid judgment, he submits that for a civil wrong if any criminal case has been filed. He further submits that if the case is purely civil in nature, criminal case is unwarranted. He relied in the case of “Paramjeet Batra Vs. State of Uttarakhand and Others”(2013) 11 SCC 673. He relied on para 12 of the said judgment which is quoted hereinbelow:- “12.While exercising its jurisdiction under Section 482 of the 5 Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice, Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be Judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.”

7. Relying on the said judgement he submits that entire criminal proceeding may be quashed.

8. Mr. Niranjan Kumar, learned counsel for the O.P. No.2 submits that the police has investigated the matter and submitted chargesheet in view of that the entire arguments are fit to be appreciated by the learned trial court and this Court many not interfere at this stage under section 482 of Cr.P.C.

9. Mr. Mohammad Asghar and Mrs. Ruby Pandey, learned counsels for the State submit that the learned court has rightly taken cognizance.

10. It is an admitted position that the dispute is with regard to the trade mark namely “Noor”. The partnership deed is on record contained in annexure-2 (Cr.M.P. No. 2055/2020) wherein there are four partners namely, Nurul Hoda Beg, Shamimul Haque Beg, Jawed Ali Beg and Iftekhar Ali Beg. The Clause 13 of partnership deed reads as under:- “13. That it is further agreed that in the event of the retirement of the First Parner or of his death, the business of the present partnership shall be carried out by the remaining partners ie. Second Partner, Third Partner and Fourth Partner and none of the other legal heirs of the Partner No.1 shall have any claim whatsoever in respect of the present Partnership as the First Partner has already given them their share in other business.

11. The above clause of the partnership deed clearly speaks that after the death of Nurul Hoda Beg the rest of the partners shall take over the business of the said partnership and pursuant to that they have applied before the Registrar, Trade Mark to carry out the said trade mark with regard to said partnership which was allowed by the Registrar, Trade Mark. The document on record brought by way of filing supplementary affidavit in Cr.M.P. No.2646 of 2020 suggests that the Deputy Superintendent of Police, Gumla has enquired about the trade mark from the office of the Registrar Trade Mark and pursuant to that he has replied that in accordance with 6 law the trade mark was registered in favour of these petitioners till date no objection is filed on behalf of anybody with regard to that trade mark. In Trade Mark Act, 1999 complete procedure is there and even objection are invited and if any objection is being made that is being dealt with by the Registrar Trade Mark. Further dispute is already being agitated before the Court of Civil Jurisdiction at Hazaribag and Kolkata.

12. Further two suits are going on one at Hazaribagh and second at Kolkatta with regard to dispute as well as the partition. Thus, it is crystal clear that if any dispute is there that is civil in nature and for that criminal case has been filed and even in the complaint case the pendency of suits was suppressed by the complainant and the learned court only by way of endorsement in first page of the complaint referred the matter to the police under section 156(3) of Cr.P.C. Once the complaint case is filed the learned court is required to apply its judicial mind for sending before the police under section 156(3) of Cr.P.C. It appears that mechanically the said complaint was referred to the police under section 156(3) of Cr.P.C. If such a dispute is there and if it is brought to the knowledge of the High Court the High Court is having more responsibility to find out the truth and if such a situation is there the requirement is there to read the thing in between the lines to find out the truth as has been held in the case of Haji Iqbal @ Bala Vs. State of U.P. and others reported in 2023 SCC Online 946.

13. Further coming to the contents of the complaint petition the Court finds that there are no allegation so far petitioners in Cr.M.P. No. 2055 of 2020 are concerned. If any allegations are that is against petitioner -Ehsan Ali Beig (in Cr.M.P. No. 2646 of 2020). Accordingly, Cr.M.P. No. 2646 of 2020 is dismissed. Pending I.A. if

Decision

any disposed of. Interim order is vacated.

14. So far petitioners in Cr.M.P. No. 2055 of 2020 are concerned, the Court finds that the judgments relied by the counsel for the petitioners are in favour of the petitioners.

15. In view of above to allow the criminal proceeding will amount the abuse of process of law. According the entire criminal proceeding including order taking cognizance dated -09.08.2023 in connection with Gumla P.S. Case No. 318 of 7 2019, pending in the Court of learned Chief Judicial Magistrate, Gumla, so far petitioners in Cr.M.P. No. 2055 of 2020 is concerned, are quashed.

16. Cr.M.P. No. 2055 of 2020 is allowed and disposed of. Pending I.A, if any, stands disposed of. Interim order is vacated. Satyarthi/ ( Sanjay Kumar Dwivedi, J.)