Orissa High Court
Mukesh Dhirubhai Ambani vs Prafulla Kumar Mishra And Anr. on 21 March, 2006
Equivalent citations: 2006(I)OLR551
Author: R.N. Biswal
Bench: R.N. Biswal
JUDGMENT R.N. Biswal, J.
1. In this petition under Section 482 of Cr.P.C. the petitioner has prayed to quash the entire criminal proceeding, instituted in the Court of learned S.D.J.M. (P) at Uditnagar vide I.C.C. case No. 226 of 2004.
2. The petitioner is one of the accused and the Opp. party No. 1 is the complainant in the aforesaid complaint case. The facts as borne out from the complaint petition succinctly stated are that being influenced by the accused persons by their high profile media hype, the complainant became one of their customers under the scheme titled as "KARLO DUNIYA MUTHI MEIN" and made an application in the prescribed form to the accused company through their local dealer-accused No. 5. He deposited Rs. 5017- in the shape of demand draft drawn in favour of the company in the month of August, 2003 and was provided with a mobile set bearing cell phone No. 310611. It was assured by accused No. 5 that the communication net work through the mobile set under the aforesaid scheme would work round the clock. But when the complainant operated the mobile set, he found the local mobile phone services so also out side services quite unsatisfactory. The mobile set also developed mechanical troubles frequently, for which the complainant returned it to accused No. 5 for repairing, time and again. Finally he returned the same to accused No. 5 on 25th September 2003, which is lying with him since then. Despite it false and fabricated telephone bills are being raised and sent to the complainant on each month. On receipt of the fabricated bills, the complainant raised objections before the accused persons many a times, but to no effect. Hence, he filed the complaint case to initiate a proceeding under Sections 199/406/409/418/420/427/468/477(A) read with Section 34 of I.P.C. against the accused persons and to punish them as per law.
3. On 19.4.2005 after going through the complaint petition, initial statement of the complainant and statement of witnesses recorded under Section 202 of Cr.P.C, the S.D.J.M. (P) at Uditnagar took cognizance of the aforesaid offences against the accused persons including the petitioner. Being aggrieved with the said order, the petitioner has filed this criminal Misc. Case No. 1924/2005 to quash the entire criminal proceeding.
4. Mr. Gangadhar Rath, learned senior Counsel appearing for the petitioner submitted that earlier the complainant-opposite party-had filed I.C.C. Case No. 237 of 2003 in the Court of learned S.D.J.M. (P) at Uditnagar on the allegation that his mobile phone on being found defective was returned to the dealer and in spite of that bills were raised against him and on some other allegations for which cognizance was taken against the petitioner and some other accused persons for the offence under Sections 294/423/506/323, I.P.C. Being aggrieved with that order, the petitioner preferred CRL Misc. Case No. 963 of 2004 before this Court wherein the order of taking cognizance against the petitioner was quashed on 3.1.2005. During pendency of the Crl. Misc. case before this Court the complainant again filed this false and frivolous case with oblique purpose against the mandate of Article 20(2) of the Constitution. As such the entire proceeding in I.C.C. Case No. 226 of 2004 should be quashed. Article 20(2) of the Constitution of India envisages that no person shall be prosecuted and punished for the same offence more than once. The words "prosecuted and punished" do not mean prosecuted or punished. Both the factors must co-exist. Since in the earlier complaint case the accused-petitioner was not punished the provision under Article 20(2) of the Constitution cannot be attracted to the present case. So I am not able to persuade myself to accept the submission of Sri Rath, the Senior Advocate in this regard.
Mr. Rath further submitted that accused-petitioner Mukesh Dhirubhai Ambani previously was the Chairman of Reliance Infocom Limited. In the meantime a partition of the assets having been effected, he ceased to have any connection with reliance Infocom. So the criminal proceeding cannot continue against him. The plea that the accused-petitioner has no connection with Reliance Infocom cannot be taken into consideration at the stage of taking cognizance. So this submission of Mr. Rath also cannot be accepted. He furthermore submitted that even if the allegations as set out in the complaint petition are taken at their face value and accepted in their entirety, still then a prima facie case cannot be made out for any of the offences under Sections 199/406/409/418/420/427/468/477-A of I.P.C. Hence he pressed to allow the Criminal Misc. Case.
5. In the case of Madhavrao Jiwaji Scindia and Anr. v. Sambhajirao Chanbdrojirao Angre and Ors. it has been held as follows :
The legal position is well settled that when prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima-facie establish the offence. It is also for the Court to take into consideration any special features, which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose will likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
In the same line the Apex Court in the case of Zandu Pharmaceutical Works Ltd. and Ors. v. Mr. Sharaful Haque and Ors. 2004 (8) Supreme Today 31, also held :-.
In a proceeding instituted on complaint exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the Court to quash the same in exercise of the inherent powers under Section 482 of the Code.
6. Now it is to be seen whether the allegations made in the complaint petition if taken on their face value without adding or subtracting anything can prima facie constitute the offences under which cognizance has been taken, one by one.
The essential ingredients of Section 199 of I.P.C. are-
1. Making of a declaration, which a Court or a Public servant is bound or authorized by law to receive in evidence.
2. Making of a false statement in such declaration knowing or believing it to be false.
3. Such false statement should be touching any point material to the object for which the declaration is made or used.
7. Since there is nothing in the complaint petition, to show that the petitioner or the other accused made any such declaration which would be received as evidence of facts before any Court or public servant, the offence under Section 199 Cr.P.C. cannot be attracted.
Section 406 requires:-
(1) Entrusting any person with property or with any dominion over property.
(2) The person entrusted, (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation-
(i) of any direction of law prescribing the mode in which such trust is to be discharged, or
(ii) of any legal contract made touching the discharge of such trust.
8. The complaint petition does not disclose any thing to prima facie hold that accused No. 5 dishonestly misappropriated the mobile set or converted it to his own use. Even if it is presumed that he did not return the mobile set long after it was entrusted to him, that alone is not sufficient to fasten him with the criminal liability, it may, at best be a civil wrong.
9. The offence under Section 409 I.P.C. is an aggravated form of Section 406 of I.P.C. As already held earlier there is no material in the complaint petition to attract the offence under Section 406 of I.P.C. consequently the offence under Section 409 of I.P.C. also cannot be attracted.
10. To attract the offence under Section 418 of I.P.C. there should be material to show that :
(1) the accused cheated some person;
(2) he was under a legal obligation to protect the interest of that person;
(3) the cheating had relation thereto;
(4) he knew that he was likely to cause wrongful loss to such person.
11. Learned Counsel appearing for the opp. party-complainant submitted that the accused person advertised under the scheme "KARLO DUNIYA MUTHI MEIN" that they would provide best services with cheap rate, but in fact it was otherwise. So, the offence under Section 418 of I.P.C. can be attracted against the accused persons including the petitioner. On the facts and circumstances of the case it does-not appear that the accused petitioner or the co-accused acted fraudulently or dishonestly while floating advertisement. So, the offence under Section 418 of I.P.C. cannot be attracted against the accused persons including the petitioner. Moreover, the self same accusation had been made in the present complaint case which has already been quashed. Section 300 of Cr.P.C. incorporates the doctrine of 'autrefois acquit-no one shall be punished or put in peril twice for the same matter. No doubt, strictly speaking the accused-petitioner cannot be said to have been acquitted in the previous complaint case, as such the doctrine of autrefois acquit cannot be directly applicable to the present case; but still then the inherent power under Section 482 of Cr.P.C. can be invoked for quashing the offence under Section 418 I.P.C. in the subsequent case to prevent abuse of the process of Court.
12. Section 420 I.P.C. is an aggravated form of Section 418 of I.P.C. when it is held that there is no prima facie case under Section 418 I.P.C. against the accused persons, the offence under Section 420 I.P.C. cannot also be attracted against them.
To attract the offence under Section 427 I.P.C. there should be material to show that:
(1) the accused caused the destruction of some property or some change in such property or in the situation thereof.
(2) the above act destroyed or diminished the value or utility of such property or affected it injuriously;
(3) the accused did it with intention or knowledge that he was likely to cause loss or damage to the public or to any person, (4) the causing of such damage or injury was wrongful.
(5) the loss or damage caused amounted to Rs. 50/- or more.
Learned Counsel for the opp. party submitted that accused No. 5 is an agent of the present petitioner. When the mobile set was returned to him for repairing, instead of repairing it he damaged the same and thereby caused loss of more than Rs. 50/- to the complainant. There is nothing in the complaint petition to show that any of the accused persons with intent or knowledge that he was likely to cause loss or damage to the complainant-Opp. party damaged the mobile set or caused some change in it. So no prima facie case under Section 427 of I.P.C. is made out against any of the accused persons.
To attract the offence under Section 468 I.P.C. there must be material to show that (1) the document is a forged one;
(2) the accused forged the document;
(3) he did so intending that the forged document would be used for the purpose of cheating.
Learned Counsel for the complainant-opposite party submitted that the accused persons including the petitioner for the purpose of cheating forged the bills. So they would be liable for the offence under Section 468 I.P.C. Whoever makes any false document with intent to cause injury or damage to any person is said to have committed forgery. In the case at hand as per the complaint petition bills were raised against the complainant even during the period while the mobile set of the complaint was there with accused No. 5. Taking the fact of the case into consideration, it cannot be prima facie held that the accused forged the bills with intention to cheat the complainant. So the offence under Section 468 of I.P.C. cannot be attracted to any of the accused persons.
The offence under Section 477-A requires the following essentials:
(1) The person coming within its purview must be a clerk, officer, or servant or acting in the capacity of a clerk, officer or servant.
(2) He must wilfully and with intent to defraud-
(i) destroy, alter, mutilate, or falsify any book, paper, writing, valuable security or account which
(a) belongs to, or is in possession of, his employer, or
(b) has been received by him for or on behalf of his employer.
(iii) make or abet the making of any false entry in, or omit or alter or abet the omission or alteration of any material particular from or in, any such book, paper, writing, valuable security, or account.
There is nothing in the complaint petition ; that any of the accused persons destroyed, altered, mutilated or falsified any book, paper or account belonging to or in possession of his employer.
It is clear from the aforesaid discussions that no prima facie case is made out against any of the accused persons for any of the offences under Sections 199/406/409/418/420/427/468/477-A I.P.C. and as such the order of taking cognizance dated 19.4.2005 by the Court below and for that matter the entire criminal proceeding in I.C.C. No. 226 of 2004 deserves to be quashed.
In the result, the CRLMC is allowed and the entire criminal proceeding including the order of taking cognizance dated 19.4.2005 in I.C.C. case No. 226 of 2004 of the Court below is hereby quashed.