Bombay High Court
J. Smith Clothing (Pvt.) Ltd. A Private ... vs Mr. Anil Kumar Jain, Partner Of Anil ... on 25 April, 2003
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT J.C. Chitre, J.
1. The petitioners are hereby assailing the correctness, propriety and legality of the order passed by the Metropolitan Magistrate, Court Room No. 23rd, Esplanade, Mumbai in Criminal Case No. 82/S/98 whereby he issued the process against the petitioners in respect of offence punishable under Section 420 r.w. Section 34 of I.P.C.
2. The petitioners had an agreement with M/s. Anil Kumar Jain & Co. in respect of supply of underwear garments as sole distributors. It was alleged that at the time of entering into an agreement, it was not mentioned that respondent No. 1 Anil Kumar Jain would be required to pay a sum of Rupees Five Lakhs towards deposit but after he was appointed as distributor, a demand was made by the petitioners that respondent M/s. Anil Kumar Jain & Co. should give them a sum of Rupees Five Lakhs towards deposit. That amount was given and thereafter some articles were sent to M/s. Anil Kumar Jain & Co. and out of them some were found to be defective which were returned back. It was alleged in the complaint that the payment of returned goods would be sent to M/s. Anil Kumar Jain & Co. within one week from the date of receipt of the goods but inspite of the demand, such amount was not paid to M/s. Anil Kumar Jain & Co. by the petitioners. On the contrary, respondent No. 1 proprietor was abused in vulgar language. Respondent No. 1 alleged that the said firm has been deprived of its money to the tune of Rs. 2,75,000/-.
3. The complainant alleged in the complaint in paragraph 5 that the petitioners promised them during the initial discussion of the meeting that High Class (superior) quality of products would be maintained. To promote the sale of undergarments, wide publicity would be given. It was promised that advertisement would be given in all leading newspapers of India as well as in Mumbai in respect of those undergarments and to encourage the sale and to promote the business, discount coupons would be published in all leading newspapers and street rock shows would be arranged near colleges and discount coupons would be distributed to college students. It has been alleged that after first meeting, second meeting was held in Oberoi Hotel somewhere in the first week of December, 1997 and the talks were held at length. Third meeting was held in Hotel Ambassador and distributor status sheet was signed by accused No. 5 in person and on behalf of Accused No. 1 in presence of Accused Nos. 2 and 6 on 24.12.1997. It has been alleged in the said complaint that a promise was given to them that the said sum of Rupees Five Lakh would be adjusted towards the goods. Thus the complaint alleged that the accused practised cheating in respect of him and committed the offence punishable under Section 420 r.w. Section 34 of I.P.C.
4. Shri Pungliya, learned Counsel, appearing for the petitioners submitted that the averments made in the complaint show that the transactions were of civil nature and for a breach of contract, the respondent No. 1 had already filed a civil suit in this High Court. He submitted that in view of that pending suit, the respondent No. 1 did not have any right to file the complaint in Criminal Court. It is submitted by Shri Pungliya that the transactions which have been the basis of the complaint are of civil nature and therefore no offence punishable under Section 420 r.w. Section 34 I.P.C. has been spelled out. He submitted that the Court committed an error in taking cognizance of the said complaint and repeated the said error while issuing the process against the petitioners. He submitted that this petition be allowed and the said prosecution be quashed and non bailable warrant issued against the petitioners be quashed. In addition to that he submitted that the amount of Rupees Two Lakhs deposited by the petitioners in this Court be permitted to be refunded to them.
5. None appears for the respondent No. 1. Mr. Adsule, learned A.P.P. appearing for the State of Maharashtra submitted that this Court does not have any authority and power to quash the said prosecution. According to him the petitioner should go to the trial Court praying for recalling the said order.
6. The powers conferred on this Court in view of Section 482 of the Cr.P.C. (hereinafter referred to as the Code) are wide and exhaustive. It has got a power and authority to quash the proceedings initiated and pending in the sub ordinate Criminal Courts, if such proceedings is meant for abusing the process of law. It is not necessary in each and every case that the accused person should move an application before the trial Court first for recalling its order and then only to approach the High court. It would be misconstruing the provision of Section 482 of Cr.P.C. and misinterpreting the authority and jurisdiction conferred on this Court in view of Article 226 of the Constitution of India. But as a matter of prudence and for avoiding incoming spate of such petitions in High Court, the High Court would be exercising its power in special cases only where it is satisfied that there is misuse and abuse of the process of law or perverse application of the provision of law. In such cases it would quash the proceeding which has been initiated for its oblique purpose.
7. In the present case if paragraphs 5 and 12 are read carefully, there are allegations in the complaint made wherein a systematic line of promise has been indicated which according to the allegations made in the complaint is in the form of giving inducement. Those false promises and inducements, prima facie, are public advertisement in leading newspapers of India and newspapers of Mumbai for the purpose of promoting the sale. It has been alleged in the complaint that promise was given to the original complaint that the petitioners would arrange street rock shows near the colleges for attracting the customers. Promises were given for distributing discount coupons for the purpose of encouraging the sale promotion. The allegations made in the complaint in respect of these promises and inducement have to be read together. Arrangements of discussion made in big hotels where something was discussed in the nature of an agreement. It is pertinent to note that original complaint alleged that during such talks it was never said that the original complainant would be required to pay to the petitioners a sum of Rupees Five Lakhs as deposit. When Mr. Pungliya was asked to read the agreement and he read it, it was clear that the said clause was left open and it cannot be ignored at this stage.
8. The Court has to consider the allegations made in the complaint for the purpose of coming to the conclusion, prima facie, whether the offence alleged has been made out or not. As and when the High Court is called on to deal with the prayer of quashing such prosecution, High Court would not go for appreciating the nicety of the defence which is likely to be raised by such accused in the said prosecution. High Court would be judging the strength of the allegations made in the complaint qua the offence alleged. In this case, the allegation made in the complaint will have to be considered and not appreciated, qua the provisions of Section 415 of I.P.C. Taking over all consideration of the allegations made in the complaint and without expressing any opinion, which would create prejudice of either side at the time of trial, this Court come to the conclusion that this is not a case in which this Court should exercise its jurisdiction under Section 482 Cr.P.C. and Article 226 of the Constitution of India. Thus the prayer for quashing the prosecution is hereby turned down. In the result, the petition stands dismissed. The amount of Rupees Two Lakhs which has bene deposited by the petitioners in the High Court be refunded to them. The petitioners shall attend the trial Court in obedience of the process issued against them. The observations made in this judgment and order shall not weigh in any way at the time of trial. The petitioners are at liberty to move the trial Court in view of Section 205 of Cr.P.C. praying for exemption and at that time the trial Court should consider sympathetically the age of some of the petitioners.
Issuance of certified copy is expedited.