Karnataka High Court
M/S Humble Mobile Solutions Pvt Ltd vs State Of Karnataka on 23 January, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2025:KHC:2916
CRL.P No. 10349 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 10349 OF 2023
BETWEEN:
M/S. HUMBLE MOBILE SOLUTIONS PVT. LTD.,
WRONGLY MENTIONED AS HUMBLE
MOBILE SOLUTION IN FIR,
HAVING ITS REGISTERED OFFICE AT
NO. 112/2, KHB COLONY,
17TH MAIN, 5TH BLOCK,
KORAMANGALA - 560 095.
REPRESENTED BY ITS AUTHORISED
REPRESENTATIVE
MR. ASHOK NOAH SHASTRY,
S/O RAMPRASAD SHASTRY,
AGED ABOUT 32 YEARS,
OCC: CHIEF EXECUTIVE OFFICER.
Digitally
signed by ...PETITIONER
LEELAVATHI
SR (BY SRI. AIYAPPA K.G., ADVOCATE)
Location:
High Court
of Karnataka
AND:
1. STATE OF KARNATAKA
BY KADUGODI POLICE STATION, BENGALURU,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BENGALURU - 560 001.
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CRL.P No. 10349 of 2023
2. SRI. CHANDRAKANTH K.V.,
S/O VENKATESH,
AGED ABOUT 28 YEARS,
R/AT NO. 105/2, OLX AUTOS,
NEAR ADITYA KALYANA MANTAPA,
AISHWARYA CRYSTAL LAYOUT,
WILLINGTON PARADISE, SINGASANDRA,
BEGUR, BENGALURU,
KARNATAKA - 560 068.
...RESPONDENTS
(BY SRI. VINAY MAHADEVAIAH, HCGP FOR R1;
R2 SERVED, BUT UNREPRESENTED)
THIS CRL.P IS FILED U/S 482 OF CR.PC PRAYING TO
QUASH THE FIR IN CR.NO.10/2023, PENDING ON THE FILE OF
RESPONDENT NO.1 KADUGODI P.S., BENGALURU, FOR THE
OFFENCE P/U/S 408 AND 420 OF IPC (ALSO PENDING ON THE
FILE OF THE ADDL. CHIEF JUDICIAL MAGISTRATE,
BENGALURU RURAL DISTRICT).
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, the petitioner seeks the following reliefs:
"a. Call for the relevant records;
b. quash the FIR in crime No.10/2023 pending on
the file of respondent No.1-Kadugodi P.S., -3- NC: 2025:KHC:2916 CRL.P No. 10349 of 2023 Bengaluru for the offences punishable under Sections 408 and 420 of IPC (also pending on the file of the Addl. Chief Judicial Magistrate, Bengaluru Rural District);
c. Grant any such other reliefs as this Hon'ble Court may deem fit in light of the facts and circumstances of the case, in the interest of justice and equity."
2. Heard learned counsel for the petitioner and learned High Court Government Pleader for respondent No.1 and perused the material on record.
3. Respondent No.2/defacto complainant having been served with notice of this petition, has chosen to remain unrepresented and has not contested the petition.
4. Learned counsel for the petitioner would reiterate the various contentions urged in the petition and invite my attention to the material on record, in order to point that in the Prepaid Driver Service Subscription Agreement dated 21.05.2020 entered into between the petitioner and respondent No.2, the role of the petitioner is only that of the intermediary / platform and as such, any offence allegedly committed by the driver, would not tantamount to making the petitioner being liable for the alleged -4- NC: 2025:KHC:2916 CRL.P No. 10349 of 2023 offences committed by the driver. In this context, learned counsel would point out that Clause-4 of the said agreement, which specifically mandates that the petitioner intermediary/platform/company would not be liable and that Clause-4 excludes the liability of the petitioner insofar as the criminal offences are concerned.
5. It is also submitted that an intermediary cannot be liable for offences committed by the driver as held by the Apex Court, this Court and Delhi High Court, in the following judgments:
(i) Kunal Bahl v. State of Karnataka reported in 2021 SCC OnLine Kar 15706.
(ii) Flipkart Internet Private Ltd. v. State of NCT of Delhi & Anr. reported in 2022 SCC OnLine Del 2439.
(iii) National Small Industries Corporation Limited v.
Harmeet Singh Paintal and another reported in (2010) 3 SCC 330.
6. Per contra, learned HCGP submits that there is no merit in the matter and the same is liable to be dismissed.
7. Before adverting to the various contentions urged by the petitioner, it would be apposite to extract the Prepaid Driver Service Subscription Agreement dated 21.05.2020 entered into -5- NC: 2025:KHC:2916 CRL.P No. 10349 of 2023 between the petitioner and the respondent No.2, in particular Clause No.4, which reads as under:
"4. The Client understands that an independent Service provider ("DriveU Partner") shall provide the service at the prescribed location which is updated by the Client through the Portal. The Client expressly agrees that DriveU is merely a technology platform for the Client, to connect with DriveU Partners. Consequently, DriveU will not be liable for any of the services provided to the Client. DriveU does not guarantee the availability of independent service providers on the DriveU Platform. DriveU Partners are independent service providers, and as such, they reserve the right to refuse to accept any service in their sole discretion. The Client shall use the DriveU Partners to only fufil such purposes for which it has permission or license to service and deliver."
8. As is clear from the aforesaid covenant in the aforesaid Prepaid Driver Service Subscription Agreement, the petitioner cannot be held to be liable for any offences allegedly committed by the driver, who is engaged by respondent No.2 on the platform of the petitioner.
9. Under identical circumstances in relation to M/s. Snapdeal Private Limited, which is also a intermediary, the Co-ordinate Bench of this Court in Crl.P.No.4676/2020 and connected matter dated 07.01.2021, has held as under: -6-
NC: 2025:KHC:2916 CRL.P No. 10349 of 2023 "9. The answers to the above points formulated are summarized as under:
16.1. The order of Cognisance dated 8.6.2020 is not in compliance with the requirement of Section 191(1)(a) of the Cr.P.C. and further does not indicate the procedure under Section 204 of Cr.P.C. having been followed. At the time of taking Cognisance and issuance of process, the Court taking Cognisance is required to pass a sufficiently detailed order to support the conclusion to take cognisance and issue process, in terms of the discussion above. The judicious application of mind to the law and facts of the matter, should be apparent on the ex-facie reading of the order of Cognisance.
16.2. When the accused is having an office, branch office, corporate office, sales office or the like within the Jurisdiction of the Magistrate where the offence has been committed and or continues to be committed, there would be no requirement for any enquiry under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C. is not being held.
16.3. In the event of accused being an individual, if the said accused has a temporary residence within the Jurisdiction of the Magistrate, again merely because he does not have a permanent residence, there is no enquiry which is required to be conducted under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C. is not being held.
16.4. When the accused has no presence within the Jurisdiction of the Magistrate where the offence has been committed, then it would be mandatory for an enquiry under Section 202 of the Cr.P.C. to be held.
16.5. In the event of accused being aggrieved by the issuance of Summons, the said accused immediately on receipt of the Summons and/or on -7- NC: 2025:KHC:2916 CRL.P No. 10349 of 2023 appearance before the Magistrate is required to make out his grievance before the Magistrate Court and/or by petition under Section 482 Cr.P.C. If there is any delay, in such challenge and/or if challenge has not made within reasonable time, the accused would not be entitled to raise the grievance that the procedure under Section 202 of Cr.P.C. has not been followed on account of delay and latches.
16.6. Only a Court in which the accused has a presence, like registered office, branch office, corporate office or the like could exercise Jurisdiction as regards an offence relating to an e-commerce transaction.
16.7. This of course would not apply to a Cyber Crime, which comes under global jurisdiction according to the IT Act, 2000. This means that any cyber-crime complaint can be registered with any of the cyber cells in India, irrespective of where the crime was originally committed.
16.8. An intermediary as defined under Section 2(w) of the Information Technology Act or its directors/officers would not be liable for any action or inaction on part of a vendor/seller making use of the facilities provided by the intermediary in terms of a website or a market place.
16.9. An intermediary would not be responsible and/or liable for sale of any item not complying with the requirements under the Drugs and Cosmetics Act, 1949 on its platform since the essential ingredients of Section 18 (1)(c) of the Act not having been fulfilled. Neither Snapdeal nor its Directors can be prosecuted for the offence under Section 27(b)(ii) of the Act.
16.10. There being no acceptable explanation for the highly belated lodging of the Complaint, the delay is fatal to these proceedings.
10. In the result, both the petitions are allowed. The proceedings in C.C. No.156/2020 pending before the Court of the Principal Senior Civil Judge andCJM, Mysuru are quashed."
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10. A similar view has been expressed by the High Court of Delhi in the case of Flipkart supra in relation to offences under the Copyright Act, 1957 and Trade Marks Act, 1999, by holding as under at para Nos.25 and 31:
"25. It is trite that the standard for fixing criminal liability is far higher than that under civil law, one requiring proof "beyond reasonable doubt‟ and not just a "balance of probabilities‟. For instance, to establish criminal liability for negligence, the standard of proof is set much higher than for "civil liability‟ under the law of Torts for negligence. There is no reason why that higher standard should not be available to courts to determine whether an intermediary would be liable under the criminal law for action or inaction. It would also stand to reason that when the intermediaries have been granted the "safe harbour" qua civil liability, and when a higher standard of culpability is required for a criminal prosecution, such "safe harbour" should be available even in respect of criminal prosecution. Thus, unless an active role is disclosed in the commission of the offences complained of, the intermediary, such as the present petitioner, would be entitled to claim protection under Section 79 of the I.T. Act. In other words, the question must be answered in the affirmative that when compliance with the "due diligence"
requirement under Rule 3 of the I.T. Guidelines is evident, ex facie, the exclusion of liability under Section 79 of the I.T. Act would include exclusion from criminal prosecution.
31. This is one such case where the registration of an FIR against an intermediary would lead to miscarriage of justice. Therefore, this Court finds itself justified in allowing the present petition and quashing the FIR qua the petitioner. However, further investigations are not barred in order to ascertain the identity of those who are infringers and/or unauthorized sellers of the products of the Czech company." -9-
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11. In respect of offences under Sections 138, 141 and 142 of the Negotiable Instruments Act, 1881, the Apex Court in the case of NATIONAL SMALL INDUSTRIES CORPORATION LIMITED V. HARMEET SINGH PAINTAL AND ANOTHER reported in (2010) 3 SCC 330, at para No.39, has held as under:
"39. From the above discussion, the following principles emerge:
(i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction.
(ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company.
(iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with.
(iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred.
(v) If the accused is a Managing Director or a Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with.
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(vi) If the accused is a Director or an officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in the complaint.
(vii) The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases. "
12. As stated supra, a perusal of the material on record clearly establishes that the petitioner being an intermediary / platform / simplicitor cannot be held to be liable for the offences allegedly committed by the driver so as to incriminate the petitioner for the aforesaid offences especially in the light of Clause No.4 of the said agreement and the aforesaid judgments.
13. Under these circumstances, continuation of the impugned proceedings would amount to the abuse of the process of the law, warranting interference by this Court in the present petition.
14. In the result, I pass the following:
ORDER
(i) Criminal petition is allowed; and
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(ii) The impugned proceedings in Crime No.10/2023 registered by Kadugodi Police Station Bengaluru, for the offences punishable under Sections 408 and 420 of IPC on the file of the Addl. Chief Judicial Magistrate, Bengaluru Rural District, is hereby quashed qua the petitioner.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE SJK List No.: 1 Sl No.: 13 CT: BHK