Gujarat High Court
Jayvantbhai Amrutlal Jivrajani Sole ... vs State Of Gujarat & on 20 January, 2017
Author: A.J. Shastri
Bench: A.J. Shastri
R/CR.MA/11611/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 11611 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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JAYVANTBHAI AMRUTLAL JIVRAJANI SOLE PROPRIETOR &
1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PRATIK Y JASANI, ADVOCATE for the Applicant(s) No. 1 - 2
MR NIRAV C THAKKAR, ADVOCATE for the Respondent(s) No. 2
MR LR POOJARI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 20/01/2017
ORAL JUDGMENT
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1. The present petition is filed by the petitioners by invoking extra ordinary inherent jurisdiction under section 482 of the Code of Criminal Procedure for seeking quashment of First Information Report No.II- 153 of 2009 dated 18.9.2009 registered with Kothariya Naka Police Chowky of "A" Division Police Station, Rajkot.
2. The brief facts leading to the rise of present petition are as under:
2.1 Petitioner No.1 is doing the business of manufacturing and selling various types of spices in the name and style of M/s Star Enterprises at Rajkot since 1997 under the trade mark "SHENSHAH'.
Respondent No.2-original complainant claiming to be the user and proprietor of trade mark 'BADSHAH' in respect of spices issued a cease and desist notice dated 15.1.1999 to petitioner No.1 to discontinue the use of trade mark 'SHENSHAH', which is identical and/or deceptively similar to his trade mark 'BADSHAH'. It was also stated in the notice that all the pouches having the similar scheme for destruction, surrender them all blocks, labs, dies, etc. used to print the offending mark 'SHENSHAH' label be delivered to him for destruction. The petitioner No.1 was asked to pay Rs.2,00,000/- towards token damages for unauthorized use of trade mark label and also to give an undertaking that he shall not use similar colour scheme of the trade Page 2 of 23 HC-NIC Page 2 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT marks henceforth.
2.2 A detailed reply was sent by petitioner No.1 through advocate dated 2.2.1999 calling upon respondent No.2 to withdraw the said notice as being illegal threat within the meaning of section 120 of the Trade and Merchandise Marks Act, 1958 as the trade mark 'SHENSHAH' adopted and used by the petitioner cannot be said to be identical or deceptively similar to their trade mark 'BADSHAH'.
2.3 Petitioner No.1 thereafter applied for registration under Application No.844626 in Class-30 on 10.3.1999 before the Registrar of Trade Marks at Ahmedabad. It was processed and advertised in Trade Marks Journal MEGA-3 dated 14th October, 2003 at page No.3445 inviting objections/oppositions from concerned parties against grant of registration of said trade mark.
2.4 Respondent No.2 did not oppose the registration of said advertisement. However, M/s Satnam Overseas Ltd., New Delhi, claiming to be proprietor of mark 'SHEHANSHAH' in respect of rice etc. lodged notice of opposition under section 21 of the Trade Marks Act, 1999 (hereinafter referred to as "the Act" for short). However, said notice of opposition was withdrawn later on.
2.5 In view of the same, the Registrar of Trade Marks was pleased to accept the application of the petitioner Page 3 of 23 HC-NIC Page 3 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT No.1 for registration of the trade mark 'SHENSHAH' vide order dated 31.1.2006 and accordingly, the said trade mark was deemed to be registered from the date of application i.e. from 10.3.1999 as provided under section 23 of the Act.
2.6 Respondent No.2-original complainant, once again, knowingly and deliberately issued an illegal threat and notice dated 2.2.2009 to the petitioner calling him to desist forthwith from using the said trade mark 'SHENSHAH'.
2.7 A detailed reply was sent by petitioner No.1 on 18.2.2009 specifically stating that petitioner No.1 has been in honest and bona fide adoption and also in use of different and dissimilar trade mark and artistic work of 'SHENSHAH' with the device of Emperor since last more than a decade.
2.8 However, respondent No.2-original complainant, lodged a false, frivolous, vexatious and malicious FIR against the petitioners on 4.8.2009 before the Police Commissioner, Rajkot against the use of said trade mark. The Investigating Officer after recording the statement of the complainant and petitioner No.1 and considering the notices issued by M/s Jhaveri Industries to the petitioner and reply filed thereto came to the conclusion that printing of boxes of both the parties is different and both the parties have obtained registration of their respective trade marks and as the dispute is of civil nature, no criminal Page 4 of 23 HC-NIC Page 4 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT offence is made out in the complaint. However, respondent No.2-original complainant still thereafter filed the impugned false, frivolous, vexatious and malicious complaint on 18.9.2009 with 'A' Division Police Station, Rajkot City, once again against the petitioner with oblique motive to harass the petitioners by abusing the process of law by suppressing and concealing the material facts of issuance of notices by him on 15.1.1999 and 2.2.2009 and reply filed therein on 2.2.1999 and 18.2.2009 by petitioner No.1 and also the fact of filing of eaerlier complaint dated 4.8.2009 for the same offence against the petitioner No.1.
2.9 Even though suppression of aforesaid material facts were disclosed by petitioner No.1 to the concerned police officials, petitioners were arrested and sent to custody before the Chief Judicial Magistrate First Class, Rajkot on 23.9.2009. However, the petitioners were released on bail on the same day.
2.10 It is submitted that as per the mandatory requirements of section 115(4) of the Act, any police officer not below the rank of Deputy Superintendent of Police on satisfying about the commission of any offence either under section 103 or section 104 shall have to obtain opinion of the Registrar of Trade Marks on the facts involved in the offence relating to trade mark before making any search and seizure, but the concerned police official at the instance of the complainant made search and seizure and arrested Page 5 of 23 HC-NIC Page 5 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT the petitioners by overriding the provisions of law. It is also submitted that a bare perusal of the impugned FIR does not disclose commission of any offence punishable under section 103 or section 104 of the Act nor any offence under sections 51,63 or 65 of the Copy Right Act,1957 and as the impugned complaint is contrary to the express provisions of section 28(3) as well as section 110 of the Act, the said complaint requires to be quashed and set aside. Hence, the present petition is filed by the petitioners for invoking extra ordinary inherent jurisdiction of this Court under section 482 of Cr.P.C. for quashment of the impugned FIR.
3. The aforesaid background of facts has initially persuaded the Court to examine the matter at length and therefore, the same was admitted by grant of interim relief. Subsequently, the matter has come up for final hearing before this Court.
4. Learned advocate, Mr. Pratik Jasani, representing the petitioners, has vehemently contended that the issue entangled in the present proceedings is purely of a civil nature and therefore, the criminal machinery cannot be allowed to be put to motion at the instance of the original complainant. He has contended that there is a non-disclosure on the part of the complainant in respect of first complaint which has been lodged and therefore, this conduct is an inclination to abuse the process of law and therefore, the same may not be encouraged. He has Page 6 of 23 HC-NIC Page 6 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT further contended that after dismissal of the first complaint, this present complaint came to be filed with a design to harass the petitioners and with that intention in mind, when the first complaint came to be lodged, the violation of the provisions of Copy Right Act were not pressed into service and this conduct itself is indication of the fact as to in what systematic manner respondent No.2-complainant has shown an inclination to misuse the process of law. He has further contended that there is a dispute about package and colour of the product which comes under the purview of the Act and therefore, the invocation of sections 63 and 65 of the Act is impermissible. He has further contended that looking to the averments taken in as it is form, then also, no offences are attracted as alleged in the complaint and therefore, to continue the prosecution in the background of these facts would tantamount to be an abuse of the process of law. While contending this, Mr. Jasani has drawn the attention of this Court to some of the provisions of the Copy Right Act more particularly Section 2(z)(B) as well as section 2(m) and by referring to these sections, it is contended that the complaint ex-facie is not reflecting any offence having been committed. He has pointed out that the circumstances are not narrated which can remotely attract violations of any of the sections which are alleged to have been breached and for that purpose, even section 28 of the Act as well as section 110 has also been pressed into service and thereby contended that use of the trade mark Page 7 of 23 HC-NIC Page 7 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT 'SHENSHAH' is not and cannot be said to be an offence under section 103 or 104 of the Act and therefore, in view of the above provisions, since ex- facie no offence is made out, continuance of FIR would be nothing but a clear example of misuse of the process of law. He has also contended that the complainant is not entitled to lodge the complaint to settle the civil dispute which is otherwise impermissible in view of section 33 of the Act and the fact that acquiescence would lead to a situation where the FIR is not entertainable. It is also contended that for the alleged breach, the statutory provision has prescribed the period of limitation referred to in section 118 of the Act and therefore, the FIR being beyond the period of such limitation, no complaint could have been lodged and therefore, the entire complaint is nothing but a manifest example of vexatious and frivolous litigation. Even the offence under section 51, 63 or 65 of the Copy Right Act, 1957 are also not made out in any nature and therefore, in such a situation, to arraign the petitioners in criminal the prosecution is nothing but a travesty of justice. He has drawn the attention of this Court to a decision of the Hon'ble Supreme Court in the case of Thelapalli Raghavaiah Vs. Station House Officer reported in JT 2007(4) SC 493 and contended that the law has been laid down that FIR cannot be used as a lever to settle the score of civil dispute and similar other decisions are also taken in assistance by learned advocate to contend that FIR is not entertainable and therefore, deserves Page 8 of 23 HC-NIC Page 8 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT to be quashed in any circumstance and by referring to these and raising contentions, Mr. Jasani has requested the Court to allow the petition. In addition to the above, he has also drawn the attention of the Court on few other decisions in the case of Binita Rahul Shah Vs. State of Gujarat reported in 2009(3) GLR page 2688 and Nainesh Chinubhai Patel Vs. State of Gujarat reported in 2013 JX(Guj) 982 and has contended that ex-facie, no offence is made of any nature which would permit the complainant to drag the petitioner in the prosecution and ultimately requested the Court to allow the petition by granting the relief. No other submissions have been made.
5. To oppose the petition filed by the petitioners, learned advocate, Mr. Nirav C. Thakkar appearing on behalf of the respondent No.2 complainant has contended that first complaint was for alleged violation of the Trade Mark Act and therefore, it cannot be said in any manner that there is any conduct of not disclosing which may result into a serious prejudice and on the contrary, the second FIR which is impugned in the petition is related to the violation of the provisions of Copy Right Act and the said FIR is still to be investigated. He has further contended that had the dispute been of purely civil nature, then the Statute would not have provided the penal sections under the statutory provisions and therefore, this is not a simple issue relating to civil nature which would not permit the complainant Page 9 of 23 HC-NIC Page 9 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT to lodge the complaint. He has further contended that there are two types of deception which would attract the violation of the Copy Right Act namely, phonetic and visual and therefore, when such kind of serious allegations are already contained in the complaint, the same are required to be investigated through proper machinery and the same wold sub-serve the penal provision contained under the Statute. He has further contended that what has been contended by Mr.Jasani is at the best a defense of the petitioners and such defense cannot be made the subject matter of exercise of inherent jurisdiction under section 482 of Cr.P.C. which is a settled position of law by series of decisions. He has further contended that the petitioners were granted bail and therefore, if the complaint is investigated in detail, no serious prejudice will be caused to the petitioners and on the contrary, it would be in the interest of justice to ascertain the truth. It is also pointed out that there are no limitations prescribed under the statutory provisions of the Act and therefore, such hyper-technical plea taken by the petitioners cannot be said to be an answer to allow the petition. He has therefore contended that sufficient averments are contained in the complaint which reflect prima facie violation of statutory provisions and therefore, the same are required to be investigated in accordance with law. He has also contended that the complaint at the initial stage itself cannot be thwarted or intercepted and therefore, requested the Court not to allow the petitioners to invoke inherent jurisdiction Page 10 of 23 HC-NIC Page 10 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT of section 482 of Cr.P.C. He has also contended that there are several stages where adequate opportunity would be available to the petitioners to raise their defense and if ultimately, they are innocent, they will be released from trial and therefore, when alternate remedy is already available, at this stage of proceedings, the complaint may not be intercepted and therefore, the same is required to be investigated and this is not a case in which no exercise of inherent jurisdiction is necessary. In the background of these facts and circumstances, he has requested the Court to dismiss the petition as having no merit.
6. Learned Additional Public Prosecutor, Mr. L.R.Poojari, has contended before the Court that there are disputed questions of facts involved in the present proceeding and therefore, the complaint may not be throttled at this stage of proceedings without being examined further. He has further contended that there are ample materials available on record and therefore, the complaint at this stage may not be allowed to be frustrated in view of this peculiar set of instance where several disputed questions of facts are entangled. He has contended that prima-facie, the offence is made out by the prosecution and therefore, at this stage, no interception be made to frustrate the very object of complaint. He has further pointed that during course of time, there will be several opportunities available to justify the petitioners' innocence and therefore, at this preliminary stage, Page 11 of 23 HC-NIC Page 11 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT the complaint may not be allowed to be throttled and therefore, this being an example of misuse of law at the behest of the petitioners, no interference be made in the process of complaint and therefore, ultimately requested the Court to dismiss the petition.
7. Having heard learned counsel appearing for the respective parties and having gone through the material on record, following circumstances are emerging from the record:
7.1 Initially, prior to filing of the impugned complaint, there was one another complaint filed by respondent No.2 in respect of such kind of incidental issue before the Police Commissioner, Rajkot in the month of August, 2009 for the offences punishable under sections 420, 485, 486, 487 and 488 of IPC read with sections 103 and 104 of the Act. This complaint, which was filed on 4.8.2009, was sent for investigation and the complaint was seriously taken up for consideration.
7.2 The aforesaid complaint, as it appears from the record, came to be investigated by Investigating Officer thoroughly and on 23.8.2009, a detailed report also came to be submitted wherein upon inquiry, it has been found that both the Companies have their separate logos registered before the appropriate authorities. It has also been reported upon inquiry that no criminal offences of any Page 12 of 23 HC-NIC Page 12 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT nature were reflecting. At the best, it can be said to be a dispute entailing civil consequences and the said complaint came to be summed up by report dated 23.8.2009. It is worth to be noted that against this filing of report, it is undisputed that nothing further is processed by respondent No.2-complainant.
7.3 It is further emerging from the record that in the year 1999 also, some grievance was raised by respondent No.2 under a communication dated 15.1.1999 and it appears that the same also came to be replied under a communication dated 2.2.1999.
7.4 In addition thereto, it is also emerging from the record that a public advertisement also came to be issued in the month of October, 2003 as well and the objection related to that also came to be disposed of vide order dated 31.1.2006 which is reflecting on page 76 of the petition compilation and against this, no litigation appears to be generated by any of the concerned parties including respondent No.2-
complainant.
7.5 It is further emerging from the record that thereafter, suddenly, another communication came to be generated in the form of registered notice dated 2.2.2009 which also appears to have been effectively replied on 18.2.2009 as well and thereafter also, no suit under the normal circumstances came to be filed. After the last notice dated 2nd February, 2009 was replied in February, 2009 itself, for a Page 13 of 23 HC-NIC Page 13 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT pretty long period, no action appears to have been initiated by respondent No.2 and it is only in the month of September, 2009, i.e. after almost a period of seven months that the present complaint came to be filed which is impugned in the present petition.
7.6 A fact also worth to be taken note of is that the averments, which are made in the complaint, are reflecting the cursory averments made pertaining to alleged offence being committed, but in what manner and how the same has been committed is not appearing in detail. Be that as it may, even the past exchange of correspondence, past objection which has been filed and the first complaint which was filed, which came to be closed down by detailed report, have not been mentioned at all and more particularly during this passage of time, no civil action is initiated. This fact is clinching the issue.
7.7 In addition to aforesaid circumstances, the statutory provisions and the effect of it are also reflecting that complaint came to be filed aimed at ventilating the grievance in a different manner altogether which cannot be said to be the usual method.
7.8 In view of section 28 of the Act, certain rights are statutorily conferred by virtue of registration and it is not in dispute that the petitioner is carrying out the work without registration and the effect of this registration which is recognized under the Act entails no criminal consequences.
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7.9 It is also emerging from the record that by virtue of
section 118 of the Act which relates to prescription of the period of limitation for prosecution as three years after the commission of offence or two years after discovery thereof. The exchange of correspondence which is placed on record is clearly attracting the position that this center of controversy was generated way back in 1999 and respondent No.2 has remained silent. Even after the report on inquiry in the month of August, 2009, the same was not challenged and these correspondences, which are appearing in the form of notices and replies are, indicating that the dispute was not erupted in 2009 but was also a center of controversy in 1999 as well and therefore, this inaction on the part of respondent No.2 appears to oust respondent No.2 from launching even criminal prosecution. Be that as it may, even these contentions, which have been raised and the documents which are placed on record by the petitioners, have not been disputed by filing any affidavit-in-reply nor any contrary material is produced by respondent No.2 and therefore, in the absence of such contradiction and in view of tacit termination, it can safely be said that dispute was generated right from 1999.
7.10 An attempt was made to contend that the first complaint was with respect to violation of the provisions of the Act and violation of the offences under the Indian Penal Code and therefore, the same Page 15 of 23 HC-NIC Page 15 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT was not necessarily to be averred in the present complaint but, then, if the chronology is seen, it would appear that the said first complaint which was filed in the month of August, 2009 was investigated and summed up in August, 2009 by a specific report that no offence is made out and subsequently, without filing the civil suit or taking any civil action, simultaneous complaint came to be filed immediately thereafter on 2nd September, 2009 i.e. in the next month itself. This chronology would clearly indicate that an attempt is made to see that somehow the petitioners be entangled in criminal prosecution which would be an easy coercive remedy for respondent No.2 to curb the petitioner which is otherwise not amenable to him. This entire chronology of steps generated by respondent No.2 gives a clear indication that the civil action was not initiated but solely with a view to pressurise the petitioners, this complaint is tried to be used as a lever.
8. The aforesaid background of facts would clearly emerge that this dispute, which is tried to be generated by respondent No.2, is essentially of a civil nature and instead of taking a civil action, since criminal machinery is put to motion in such a light manner, the same reflects an intend of respondent No.2 to abuse the process of law and therefore, such an attempt is not possible to be encouraged more particularly when respondent No.2 has not controverted anything which has been contended by Page 16 of 23 HC-NIC Page 16 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT filing any specific reply in the present proceedings. In addition thereto, a bare look at the relevant provisions, which are pressed into service, are clearly reflecting that at least criminal offence as alleged is not made out. The effect of sections 28 and 110 of the Act coupled with section 33 would clearly indicate that present complaint is nothing but a clear example of misuse of the process of law and in addition thereto, if one see section 118 of the Act, which postulates a period of limitation for prosecution, it would also clearly indicate that this is nothing but a clear design by respondent No.2 to harass the petitioners. Apart from that, if the provisions of Copy Right Act, 1957 are also to be conjointly read in consonance with the averments made in the complaint, the same would clearly indicate that no offence as alleged is made out. Particularly if section 16 and section 45 of the Copy Right Act, 1957 are read, it would clearly indicate that at the best if any grievance is left out, the same would entail civil consequences and not the criminal ones and therefore, to allow respondent No.2 to use the criminal machinery to ventilate the grievances would amount to allowing respondent No.2 to abuse the process of law.
9. While coming to this conclusion, the Court has an assistance of some of the reported decisions of the Hon'ble Supreme Court which are worthy to be taken note of and they are quoted hereinafter in a summarised manner:
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i) Thelapalli Raghavaiah Vs. Station House Officer reported in JT 2007(4) SC 493, wherein it has been held in paragraphs 18 and 19 as under:
"18. We have carefully gone through the complaint made by the petitioner, and are convinced that the same primarily makes out a civil dispute relating to measurement, though an attempt has been made to give the same a criminal flavour. The High Court rightly held that the entire reading of the complaint does not disclose any offence except a civil dispute between the parties.
19. We, therefore, see no reason to interfere with the order of the High Court impugned in this Special Leave Petition, though the High Court after noticing its earlier order dated 7th October, 2005, in Writ Petition No. 21594 of 2005, could have stayed its hands till the Final Report was filed in connection with F.I.R. 83 of 2005 of Kovur Police Station. :
ii) Hotline Teletubes and Components Ltd. Vs. State of Bihar reported in (2005)10 SCC 261 wherein it has been held in paragraphs 2 and 3 as under:
"This appeal by special leave has been filed by the appellants against the order passed by the Patna High Court, refusing to quash their the prosecution under Ss.406 and 420 of the Indian Penal Code (for short "IPC"). In the complaint petition, it has been alleged that the complainant supplied goods to the accused persons, but they failed to pay the price therefor. There is no whisper in the complaint that at the very inception of the contract between the parties, there was any intention to cheat. It appears from a bare perusal of the complaint that it is a case of purely civil liability and no criminal offence is disclosed, much less offences either u/s 406 or 420 o the Indian Penal Code. So far as the High Court is Page 18 of 23 HC-NIC Page 18 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT concerned, it has not considered this aspect of the matter, but has refused to quash the the prosecution observing that it was a fit case where parties should take steps for settlement. In our view, allowing such the prosecution to continue would amount to an abuse of the process of court and to prevent the same it would be just and expedient to quash the same.
3. Accordingly, the appeal is allowed and the prosecution of the appellants is hereby quashed."
iii) Uma Shankar Gopalika Vs. State of Bihar reported in (2005)10 SCC 336 wherein it has been held by the Hon'ble Supreme Court in paragraph 7 as under:
"7. In our view, petition of complaint does not disclose any criminal offence at all much less any offence either u/s 420 or Sec.120-B of the Indian Penal Code and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same, it was just and expedient for the High Court quash the same by exercising the power u/s 482 Criminal Procedure Code which it has erroneously refused."
iv) State of Haryana Vs. Bhajanlal & Ors reported in AIR 1992 SC 604, wherein it has been held in paragraph 108 as under:
"108. 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 Page 19 of 23 HC-NIC Page 19 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT 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 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. Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding Page 20 of 23 HC-NIC Page 20 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
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."
10. In view of the aforesaid position prevailing by series of decisions of the Hon'ble Supreme Court, it appears to this Court that the complaint which has been lodged by respondent No.2 is not allowed to be precipitated further. In addition thereto, learned advocate, Mr.Pratik Jasani, has also drawn attention of this Court to some of the decisions delivered by a Coordinate Bench of this Court in Binita Rahul Shah (supra) and Nainesh Chinubhai Patel (supra), which are also considered and in light of the proposition of law laid down in those decisions also, the Court is of the opinion that criminal machinery may not be allowed to be utilised by respondent No.2 as a lever to ventilate the business rivalry.
11. From the entire position prevailing on record, factually as well as legally, it appears to this Court that in no circumstance the present complaint which is impugned in the present petition be allowed to be utilised as a lever. Consistent pronouncements of the Hon'ble Supreme Court are holding that if an attempt is made to misuse the criminal machinery, the Court has not to hesitate in quashing the complaint.
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Here, an attempt is made by the respondent No.2 to convert the civil dispute into a criminal one and the same is not to be allowed in view of proposition of law laid down in the case of P.S. Meherbhomji Vs. K.T.Vijay Kumar and Others reported in (2015)1 Supreme Court Cases 788 wherein it has been held by the Hon'ble Supreme Court in paragraph 14 as under:
"13. It is equally well settled that summoning of an accused in a criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court and to quash the proceeding instituted on complaint but such power could be exercised only in cases where the complaint does not disclose any offence or is vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of power under Section 482."
12. In view of the aforesaid proposition of law, the Court is of the considered opinion after going through in detail the entire material on record that complaint in question deserves to be quashed in the larger interest of justice and criminal machinery may not be allowed so easily to be utilised by respondent No.2 to squeeze the petitioners and to settle the business rivalry. The Court has considered the entire material at length and after considering it, there appears to be no exception to allow respondent No.2 Page 22 of 23 HC-NIC Page 22 of 23 Created On Tue Jan 24 02:27:29 IST 2017 R/CR.MA/11611/2009 JUDGMENT to maintain the complaint and therefore, accordingly, in the interest of justice, the complaint is hereby quashed. Accordingly, Criminal Misc. Application is allowed. Rule is made absolute.
(A.J. SHASTRI, J.) RADHAN Page 23 of 23 HC-NIC Page 23 of 23 Created On Tue Jan 24 02:27:29 IST 2017