Karnataka High Court
Dr.Veerander Kumar C Patil vs Vinod Lahoti And Anr on 23 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.200022/2021
BETWEEN:
DR.VEERANDER KUMAR C. PATIL
S/O CHANDRAO PATIL
AGE: 47 YEARS, OCC: DOCTOR
R/O VILLAGE RAJGIRA-585403
TQ. AND DIST.BIDAR
... PETITIONER
(BY SRI RAJA VENKATAPPA NAIK, ADVOCATE)
AND:
1. VINOD LAHOTI S/O OMPRAKASH
AGE: 37 YEARS, OCC: BUSINESS
R/O MARTHON MAX, OPP.NIMRAL LIFE STYLE
LTS MARG, MULUND WEST
MUMBAI-400080
2. MAYUR L. TAPADIYA
AGE: 24 YEARS
OCC: BUSINESS
R/O KASHI TADWALE-413501
DIST.OSMANABAD (MS)
... RESPONDENTS
(BY SRI NANDKISHOR BOOB, ADVOCATE)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO ALLOW THE
CRIMINAL PETITION SETTING ASIDE THE IMPUGNED
JUDGMENT AND ORDER PASSED BY PRL.DIST. AND SESSIONS
JUDGE, BIDAR DATED 07.08.2020 IN CRL.R.P.NO.10/2016 AND
RESTORE THE JUDGMENT PASSED BY LEARNED II ADDL. JMFC-
II COURT AT BIDAR IN PCR NO.25/2015 DATED 27.01.2016.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
30.11.2021 FOR ORDERS, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under section 482 of Cr.P.C., praying this Court to allow the criminal petition and set aside the impugned judgment and order passed by the Principal District and Sessions Judge at Bidar dated 07.08.2020 in Crl.R.P.No.10/2016 and restore the judgment passed by the learned II Additional JMFC-II Court at Bidar in PCR No.25/2015 dated 27.01.2016 and pass such other orders as deemed fit in the circumstance of the case.
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2. The factual matrix of the prosecution case is that the petitioner herein has filed a private complaint before the Trial Court under section 200 of Cr.P.C., against the respondents herein invoking the offences under Sections 504, 506, 120(B), 415, 417, 465, 486, 487, 488, 489 of IPC. The Trial Court having received the complaint proceeded to post the matter for enquiry and accordingly recorded the sworn statement of complainant and also sworn statement of witnesses and thereafter proceeded to issue process against the respondents herein relying upon the documents Exs.C1 to C15 and came to the conclusion to hold an enquiry under Section 200 of Cr.P.C., and on perusal of the said document it appears that there is prima facie evidence to proceed against the accused and material available on record clearly establish that Court can proceed against the accused persons and issued the process. Being aggrieved by the issuance of process, the respondents herein have filed the Criminal R.P.No.10/2016 and the Principal District and Sessions Judge, Bidar by exercising revisional power vide order dated 07.08.2020 set aside the 4 order in coming to the conclusion that the complainant in the complaint has stated that in good faith he has given formula in respect of which he had taken patent and having considered the Memorandum of Understanding (hereinafter referred to as 'the MoU' ) at Ex.C2, Clauses referred that each of the parties have agreed not to intervene in the process of the responsibility of the other in making good of the formula and the trial Court fails to take note of the same. In the said Ex.C2, it is mentioned that if any dispute arising between the parties, the parties have to resolve the issue before the Arbitrator in terms of Clause-24 of the MoU and hence, the trial Court has failed to take note of the same and without looking into the ingredients of the offences invoked against the respondents herein mechanically proceeded to issue the process. Hence, the present petition is filed before this Court.
3. The learned counsel for the petitioner in his argument vehemently contended that this petitioner has invented the formula i.e., testing of homeopathic 5 medicines on the agricultural products. These formulations were used without fertilizer and compared with recommended doses of fertilizers on pigeon pea crop and to that effect Marathwada Agricultural University, Parbhani, appreciated that product was found effective on 100% formulations over the recommended doses of fertilizer for higher yield of pigeon pea crop produced at Annexure-H. The learned counsel also referred Annexure-J wherein Forein Crop Science Private Limited, Mumbai, also expressed their intent for standardization KIRTAPHAL, all categories in the field for their extensive marketing not only in the State of Maharashtra but all the States of Union of India and expressed their deep interest and radically satisfied with the field-test results of researched KIRTAPHAL Homeopathic system of medicines in Agriculture for its extensive marketing in the nation. The learned counsel also brought to the notice of this Court Annexure-K wherein Nizam Deccan Sugars Limited, Nizamabad also appreciated the invention made by the petitioner herein stating that the results are amazing both 6 in the quality and quantity. The learned counsel also would submit that the Directorate of Research Marathwada Krishi Vidyapeeth, Parabhani also addressed a letter in terms of the Annexure-L stating that product was found effective over recommended dose of fertilizer for higher grain yield. Recognizing the work of the petitioner herein the respondents have entered into the MoU dated 30.01.2012. The learned counsel brought to the notice of this Court Annexure-N i.e., Memorandum of Understanding which was marked before the trial Court as Ex.C2 wherein in Clauses 4, 8, 12, 13, 14 and 17 and referring those clauses he contended that the process of manufacture is vested with the petitioner and the respondents herein as against the MoU started their own manufacturing of the medicine in their own brand Geo-Forti and cheated the petitioner herein using the formula of the petitioner which was given in good faith in favour of the respondents herein by creating the documents. The specific averments are made in the complaint regarding nature of offence. The trial Court also having recorded the sworn statement of 7 complainant and witnesses rightly issued the process but revisional Court committed an error in exercising revisional power reversing the finding of the trial Court and consequently dismissed the complaint. The very approach of the revisional Court is erroneous.
4. The learned counsel for the petitioner would vehemently contend that the respondents have collected the formula from the petitioner with an intention to commit fraud to him and based on the said formula started their own brand within six months from the date of memorandum of understanding. Hence, complaint was given to the Superintendent of Police, Bidar, in terms of Annexure-P and endorsement was given by the Superintendent of Police, Bidar in terms of Annexure-Q stating that the issue is Civil in nature and the same be dealt before the appropriate forum. The petitioner left with no alternative but to file a private complaint. The sworn statements of P.Ws.1 and 2 is very clear that respondents have committed offence of cheating and criminal 8 conspiracy and indulged in manufacturing, using the formula of the complainant.
5. The learned counsel for the petitioner in support of his argument, he relied upon the judgment of the Hon'ble Apex Court in the case of S.W.Palanitkar and Others vs. State of Bihar and Another in Criminal Appeal No.1072/2001, brought to the notice of this Court the discussion made with regard to ingredients in order to constitute a criminal breach of trust and the ingredients of offence of cheating. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making promise. The learned counsel would vehemently contend that the agreement was entered dishonestly with fraudulent intention and thereafter in violation of the agreement started process of manufacturing of their own brand medicine it amounts to breach of trust as well as committing offence of cheating. Hence, learned counsel for the petitioner by referring the judgments would 9 contend that criminal prosecution has to be continued against the respondent herein.
The learned counsel brought to the notice of this Court, the judgment of the Hon'ble Apex Court in the case of State of Gujarat vs. Afroz Mohammed Hasanfatta in Criminal Appeal No.224 of 2019, and brought to the notice of this Court paragraph Nos.12, 13, 15, 16, 18 and contend that it is well settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused. Learned counsel brought to the notice of this Court discussion made in the judgment with regard to exercising of power under 10 section 190(1)(b) of Cr.P.C., for taking cognizance and also with regard to issuance of summons.
The learned counsel also referred the judgment of the Hon'ble Apex Court in the case of Prabatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others vs. The State of Gujarat and Another reported in 2017 AIAR (Criminal) 1071 and brought to the notice of this Court the scope of Section 482 of Cr.P.C., and the principles enumerated in the judgment and principles laid down in paragraph No.3 to 7 and 10 to 16 and also brought to the notice of this Court regarding distinction made as distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as exercise of the inherent power to quash the proceedings is concerned. The learned counsel by relying upon this judgment and also referring paragraph No.15 brought to the notice of this Court the inherent powers of High Court under section 482 of Cr.P.C., to prevent an 11 abuse of any process of any Court or to secure ends of justice.
He further relied upon the judgment in the case of Chilakamarthi Venkateswarlu and Another vs. The State of Andhra Pradesh and Another reported in 2019 AIAR, (Criminal) 905 wherein also the Hon'ble Apex Court in paragraph Nos.14, 15, 18, 19 and 20 discussed with regard to scope of section 482 of Cr.P.C. The inherent power under Section 482 of Cr.P.C., is intended to prevent abuse of process of the Court and to secure the ends of justice.
The learned counsel relied upon the judgment in the case of P.S. Meherhomji vs. K.T.Vijay Kumar and Others reported in 2015 AIAR (Criminal) 91 wherein also Hon'ble Apex Court held that consideration of the allegations in the complaint and if they are supported by a statement of the complainant on oath and the necessary ingredients of the offence are disclosed, High Court should not normally interfere in the order of taking cognizance. 12
6. Per contra, learned counsel for the respondents in his argument vehemently contended that the agreement was entered into between the parties in the year 2012 and no such formula was given and in terms of the agreement, the petitioner only to produce and supply and he had not supplied as specified and hence, notice was given and reply was also given. It is further contended that notice and reply were exchanged between the parties. The learned counsel would submit that petitioner herein has received the amount and without returning the excess amount which he had received, a false complaint is given before the Superintendent of Police, Bidar and Superintendent of Police has given the endorsement stating that it is a civil dispute and inspite of that in order to harass the respondents herein, the petitioner has filed the present complaint. It is nothing but an abuse of process and learned counsel would submit that revisional Court taking note of the agreement between the parties that if any dispute arises the parties to approach the 13 Arbitrator, the revisional Court has rightly set aside the order of taking cognizance and issuance of process. In reply to the same, the learned counsel for the petitioner would submit that there is an agreement between the parties for over a period of ten years and respondents not to use the brand, whereas the business was started within 16 months and started selling the product, it amounts to cheating.
7. Having heard the learned counsel for the petitioner and the learned counsel for respondents, this Court has to examine the contents of the complaint first and no doubt in the complaint itself, specific allegation is made that respondents herein have cheated the complainant and nature of offences also stated in the complaint. It is to be noted that there is an MoU between the parties and which is marked as Ex.C2 before the trial Court and the learned Magistrate while taking cognizance though referring the documents which have been marked by the complainant as exhibits failed to take note of the 14 contents of the Ex.C2 and in Clause-13 it is very clear that if any act is done as against the MoU, the same will be considered as breach of understanding and will be liable to penalty to either of violating party as may be awarded by the Arbitrator and in Clause-14, it is categorically mentioned that all disputes and differences in between the parties shall be subject to Bidar jurisdiction. In Clause-24, it is specifically stated that any disputes and or differences of all kinds in between the parties shall be referred to an Arbitrator and the decision of such an Arbitration shall be final and binding upon both the parties. The contents of the complaint also discloses that there was a breach of memorandum of understanding and it is the specific contention of the complainant that the said breach amounts to criminal breach of trust and cheating. No doubt, the said allegation is in respect of criminal prosecution but when the parties have agreed upon in terms of the documents, particularly in Clause-13, with regard to marketing activities as well as procedures as stipulated in Clause-13 and specific averments are made 15 by mutual agreement between the parties in explicit way that if any violation is done, it should be treated as breach of understanding and will be liable to penalty to either of violating parties as may be awarded by the Arbitrator. When such averments are made and when the document Ex.C2 is marked before the trial Court as rightly observed by the revisional Court, the learned Magistrate ought not to have taken cognizance and it is nothing but giving criminal colour to the civil dispute between the parties. It is settled law that if any criminal colour is given to the civil dispute, the Court can exercise power under section 482 of Cr.P.C. In this case, the revisional Court taking into note of the document which is marked along with complaint Ex.C2 rightly came to the conclusion that if there is any violation of breach of contract between the parties, particularly in Ex.C2, MoU, the petitioner ought to have approached the Arbitrator, instead a criminal complaint is filed. It is also important to note that endorsement was also given when the complaint was given to the Superintendent of Police that it is a civil dispute. The learned Magistrate ought to 16 have applied his judicious mind while issuing the process, whereas the same has been considered by the revisional Court. Hence, I do not find any error committed by the revisional Court in setting aside the order of taking cognizance and it does not require interference by this Court invoking section 482 of Cr.P.C., to quash the order of revisional Court and restore the complaint.
8. In view of the discussion made above, I pass the following:
ORDER The petition is dismissed.
Sd/-
JUDGE VNR