Delhi District Court
M/S Givo Retail Ltd vs State on 2 November, 2010
1
IN THE COURT OF SMT. BIMLA KUMARI
LD. ADDITIONAL SESSIONS JUDGE:NORTH
Criminal Revision No.39/10
I.D.No. 02401R0 333732010
M/s Givo Retail Ltd. ..... Revisionist
Versus
State ... ... Respondent
Date of Institution:31.07.10
Date of reserving judgment:20.10.10
Date of pronouncement: 2.11.10
ORDER
1 By the present order, I shall dispose of the revision filed by the revisionist U/S 397/398 Cr.P.C against the impugned order dated 01.05.10 passed by the Ld. Trial Court. Vide the said order, Ld. Trial Court dismissed the complaint filed by the revisionist U/S 200 in respect of offences U/S 406/420/506 read with Section 120B IPC and Section 3 & 5 of the Trade Marks and Copyrights Act.
2 Brief facts giving rise to the filing of petition are that the revisionist is a company incorporated under the Companies Act, 1956 having its registered office at B11/8127, Vasant Kunj, New Delhi. The company is engaged in the business of sale and distribution of readymade garments under the name and style of M/s Givo Retail Limited and has its operation throughout India. One Paramjeet had approached the complainant company at its Delhi office to do Crl. Revision No. 39/10 1/10 2 business with the company through Mr. J.S. Arora, the then 'Regional Manager Sales' and made tall claims of being a retailer of good repute and goodwill and having vast experience, knowledge and expertise in the field of garments. It was jointly represented by both the accused persons that Mr. Paramjeet was a man of means and would make timely payment of the goods supplied to him . It was stated by Paramjeet that he owned a shop in the prestigious Lajpat Nagar market in Jallandhar, Punjab. They (the accused persons) in conspiracy with each other, created such circumstances, based on tall claims, false representations and assurances, that the complainant was induced to supply the goods. The authorisation to supply the goods and make transactions rested with J.S Arora. Therefore, he without informing the company, started supplying the goods on credit to the accused No.1 Paramjeet, against the policy of the company to have a written agreement/Deed, which is a precondition. Goods were supplied to Paramjeet under the instructions of J.S. Arora, without informing the management of the complainant company. In order to win the trust of the management, initially, Mr. Paramjeet made some payments, towards the goods, supplied to him. However, slowly he started dillydally making the payment and also started siphoning off goods, by disputing the receipt, in which he was supported by J.S. Arora, as he did not acknowledge the receipt of all the goods, deliberately, nor it was insisted upon. Not only accused no.2 allowed the supplies to accused no.1 without informing the management but also allowed the supplies to Paramjeet in excess of the limit assigned to him, which fact was Crl. Revision No. 39/10 2/10 3 discovered by the complainant company. The Paramjeet, in conspiracy with J.S. Arora, even gained the trade secrets viz. sourcing of the raw material, designing, packing, quality and style of finished goods with a view to induce the General Public to buy their fictitious goods, believing them to be of complainant company. It was apprehended by the company that Paramjeet in connivance with J.S. Arora was indulging into manufacturing, supplying, marketing and selling of fake goods of inferior quality under the brand name "Givo". The company learnt from other dealers that Paramjeet had been indulging into such unscrupulous activities. It appeared that Paramjeet in fact started business with the company only to obtain designs, sizzels etc. of the company. It was apprehended that he was cheating the public at large by such illegal and dubious means by manufacturing illegally and selling fake goods of inferior quality under the name and style "GIVO". All the business activities were only with a view to cover and sell the fake goods in clear violation of Trademark and Copyright of brand "GIVO". Till date a sum of Rs.8,41,631/ is due upon the accused persons towards the complainant company for the goods already supplied to them. The complainant company got a legal notice issued against Paramjeet, whereby he was categorically informed that all contracts/arrangements between the company and him had ceased to exist because of his misconduct. Paramjeet was further asked by the company to stop indulging into any such unscrupulous activity of either manufacturing or selling inferior quality/fake goods under the name of "GIVO" and to immediately clear the outstanding amount. Crl. Revision No. 39/10 3/10 4 3 It is further case of revisionist that the coaccused Jatinder Arora not only supplied goods illegally to Paramjeet, but to various other dealers also and clandestinely, took cash payments from many other dealers of the complainant company and is incommunicado since then. That the complainant company aggrieved of the misconduct and dubious act of the accused persons filed a criminal complaint against the accused persons at police station Karol Bagh as on 18.4.09. But the local police till date, failed to take any action against the accused persons. That the intentions of the accused persons were dishonest and motivated to cheat and cause wrongful loss to the complainant. The accused are guilty and are liable to be punished for the commission of offences U/S 420/406/506 r/w Sec.120B IPC as well as section 3 of the Trademarks Act.
4 Vide order dated 01.5.10, Ld. Trial Court dismissed the complaint of revisionist U/S 203 Cr.P.C by holding that 'Facts do not disclose, prima facie offence alleged. The matter between the parties appears to be of civil nature. If the accused is not making payment, later on, after receiving the goods then it cannot be said that he was having any intentions to cheat the accused persons. As far as offences punishable under section 3 and 5 of the Trademarks and Copyrights Act are concerned, if accused persons have started manufacturing and selling of fake goods in the brand name of the complainant then the act being done at Jallandhar, Punjab, as such, this court has no jurisdiction to try and entertain the present complaint for Crl. Revision No. 39/10 4/10 5 such offences. Therefore, complaint is dismissed Under Section 203 Cr.P.C."
5 The grounds taken in appeal are that the Ld. Trial Court dismissed the complaint by a nonspeaking order, which was based on surmises and conjectures; that Ld. Trial Court lost sight of the particulars facts and circumstances of the case and erroneously observed that "dispute appears to be of civil nature"; that the Ld. Trial Court passed the impugned order in a cursory and mechanical manner without appreciating either the law or the facts; that Ld. Trial Court erred in dismissing both the complaint as well as the application U/S 156(3)Cr.P.C; that the impugned order is bad in the eyes of law and cannot be sustained being contrary to several judicial precedents; that ld. Trial Court did not appreciate that availability or pendency of a civil remedy does not bar the initiation of criminal proceedings; that Ld. Trial Court erred in law by not appreciating that cognizable offences U/S 404/420/506/120B IPC have been disclosed in the complaint; that the application U/S 156(3) Cr.P.C ought to have been allowed; that Ld. Trial Court, on his own whims and fancies, misconstrued the facts and the law and dismissed the complaint, which resulted in serious miscarriage of justice; that the manner in which the Ld. Trial Court passed the impugned order, without giving any opportunity of hearing to the complainant;that the nature of fraud, modus operandi, recovery of mis appropriated goods, locating, seizing and sealing of fake goods of inferior quality can be done through an impartial investigation either by the police or by the Crl. Revision No. 39/10 5/10 6 Magistrate.; that the Ld. Trial Court failed to appreciate that the accused persons, in conspiracy with each other, committed the offence of criminal breach of trust and cheating; that ld. Trial Court lost sight of the fact that all the offences, were local; that if after examination of evidence of the same, it was found that the offences were committed at Jallandhar, then Ld. Trial Court had the option to transfer the complaint to the court of competent jurisdiction at Jallandhar; that Ld. Trial Court should not have dismissed the complaint on the ground of territorial jurisdiction, especially, when the complaint disclosed the commission of cognizable offences;
6 I have heard Ld. counsel for revisionist and ld. Addl. P.P for State. I have perused the revision file as well as the Trial Court record. 7 Section 200 Cr.P.C is contained in the Chapter XV, which deals with the procedure regarding 'complaints to Magistrates'. It is reproduced hereunder: "A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate".
8 In Shakuntala V. State of UP, 2003 Cr.L.J (All)687, it was held that "a criminal case is not barred when civil remedy is available. Each case has to be decided on the basis of its peculiar facts and circumstances to find out whether on the facts of the case a criminal offence is made out or not."
Crl. Revision No. 39/10 6/10 7 9 In Gurudas Balkrishna V. Chief Judicial Magistrate, Panaji, Goa, 1994 Cr.LJ 444 (Bom.) it was held that "A private complaint is by its character very different from a case instituted on police report. There is no inquiry by the police, there are no statements under Section 162, and therefore, to safeguard innocent people it is necessary to record the statements of the complainant and his witness as soon as possible and then looking to the credibility of that evidence take a decision about the issuance of the process. It is the duty of the Magistrate to record the evidence of the complainant and his witnesses as is required under Section 200 of the Code."
10 In Asit Bhattachargee V. Hanuman Prasad Ojha and Ors., (2007)5 SCC 786, Hon'ble Supreme Court, while dealing with the issue of territorial jurisdiction of a court to entertain criminal matter held that the Chief Metropolitan Magistrate, Calcutta had jurisdiction in the matter in terms of Section 178 read with Section 181(4)Cr.P.C.
11 In that case appellant was awarded contracts for exporting wheat, rice etc. upon purchasing the same from Food Croporation of India and certain other State Corporations. Respondents No.1 and 2 allegedly approached him for appointment as its agent to arrange and supply foodgrains of Food Corporation of India on commission basis. Pursuant to the said agreement, Respondent No.1 under the directions of Respondent No.2 used to make arrangement of railway rakes at different railway stations in various States for export of rice and wheat from Food Corporation of India to Bangladesh for an on behalf of the appellant. Allegedly, in the course of rendition of such services, the respondents committed various acts of breach of trust, cheating, forgery etc. Hence, a complaint petition was filed under Section 156(3) Cr.P.C. by the appellant company before the Chief Metropolitan Magistrate, Calcutta. In that complaint, it was alleged that the accused entered into a criminal conspiracy with a view to cheat the complainant Crl. Revision No. 39/10 7/10 8 company and/or dishonestly misappropriated a huge amount by making forged and false documents. The accused fraudulently prepared the letterheads and seals of the appellant and used the same. They, thus, committed breach of trust and withdrew an amount of about 1.5 crores.
The said purported acts were committed outside the State of West Bengal and principally in the State of U.P. Various other criminal misconducts were also said to have been committed by the accused in the State of U.P. The Chief Metropolitan Magistrate, Calcutta upon consideration of the said complaint directed the officer in charge of the police station concerned, to make an investigation into the allegations contained in the complaint. Pursuant to the said direction, investigation was carried out. As the respondents did not appear before the court, warrants of arrest were issued by the said Magistrate. Thereafter, the respondents filed a criminal writ petition before the High Court of Judicature at Allahabad. The High Court allowed the said writ petition in part. While declining to quash the FIR, the High Court directed that the FIR lodged at the Calcutta police station be transmitted to the appropriate police station of U.P. In appeal Hon'ble Supreme Court held that the fact that major part of the offences took place outside the jurisdiction of the Chief Metropolitan Magistrate, Calcutta is not in dispute. But even if a part of the offence, committed by the respondents, related to the appellant Company, was committed within the jurisdiction of the said court, the High Court of Allahabad should not have interfered in the matter. A major part of the cause of action might have arisen in the State of U.P, but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever. If there had been a fraudulent misrepresentation by some of the respondents at Calcutta and a conspiracy was hatched to commit offences of cheating Crl. Revision No. 39/10 8/10 9 or misappropriation, indisputably, a part of cause of action arose within the jurisdiction of the Metropolitan Magistrate, Calcutta. 12 In Hiltop Capfin Pvt. Ltd. V. State & Anr., 2007(3)JCC 1937, it was held by the Hon'ble High Court of Delhi that the complainant, alleging the commission of offences, always has the right to proceed and adduce evidence including depositions of witnesses, in support of the allegations. That is the normal course available to every litigant under Section 200 of the Criminal Procedure Code. However, the Courts here lost sight of this and also closed this option, in my opinion, without any legal foundation. 13 In Shri Subhkaran Luharuka V. M/s Shree Ram Mills Ltd., Crl. M.C. No. 612223/2005 decided on 09.07.10, it was held by Hon'ble Delhi High Court that provisions of Chapter XV of the Code of Criminal Procedure provide for an alternative mode to the complainant, aggrieved from the inaction of the police. These provisions thus provide additional remedy to the complainant, aggrieved of inaction on the part of police by filing a complaint under Section 200 of the Code to seek redressal of his grievance. He can do so even when he is not satisfied with the police action under Chapter XII by approaching the senior officer under Section 154(3). However, when complaint is filed under Section 200 of the Code the Magistrate has a duty to record evidence led by the complainant and also to examine his witnesses and if necessary even to call for a police report, and then to decide as to whether he has to proceed under Chapter XV or has to dismiss the complaint.
14 In the present case, it is the case of the revisionist that the company filed a criminal complaint against the accused persons at P.S. Karol Bagh, but local police did not take any action against the accused persons. It is further case of revisionist that intention of the accused persons was dishonest Crl. Revision No. 39/10 9/10 10 and motivated to cheat and cause wrongful loss to the complainant. A perusal of complaint shows that the revisionist was having its registered office at Vasant Kunj, Delhi. In Para 11 of the complaint it is mentioned that all act of misrepresentation took place in Delhi where accused Paramjeet was introduced. 15 Since, no action was taken by the police, the revisionist filed a complaint U/S 200 Cr.P.C before Ld. Trial Court for summoning the accused in respect of offence U/S 406,420.506 & 120B IPC and U/S 3 & 5 of Trade Marks and Copyright Act. In view of the above facts, I am of the considered view that trial court should have adopted the procedure as provided in Chapter XV of the Cr.P.C and should not have dismissed the complaint by holding that matter between the parties appeared to be of civil nature that and he had no jurisdiction to try and entertain the complaint. I am of the considered view that there is illegality in the impugned order passed by Ld. Trial Court. Accordingly, the impugned order dated 01.05.10 passed by Ld. Trial Court is hereby set aside. Ld. Trial Court is directed to dispose of the complaint of revisionist in view of the law discussed above. Revisionist will appear before Ld. Trial Court on 13.12.10. 16 Trial court record alongwith copy of this order be sent back. Revision file be consigned to Record Room.
ANNOUNCED IN OPEN COURT TODAY on 2.11.2010 (SMT. BIMLA KUMARI) Addl. Sessions Judge : (North) Tis Hazari Courts: Delhi.
Crl. Revision No. 39/10 10/10