Tcl India Holdings Pvt. Ltd. and anr. Vs. Murtaza S/O SirajuddIn Malik - Court Judgment

Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - ravi shankar shrivastava reported in air 2006 sc 2872, wherein it is held that one of the many categories of cases where inherent power can and should be exercised to quash the proceedings is where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. while dealing with the such case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. when exercising jurisdiction under section 482 of the code, the high court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained.n.k. mody, j.1. this is a petition under section 482, cr.pc for quashment of proceedings of the order dated 21-7-07 in case no. 2925/07 pending in the court of jmfc, indore whereby the cognizance of the offence has been taken against the petitioners under section 420, ipc.2. short facts of the case are that a private complaint was filed by the respondent against the petitioners and other accused alleging that petitioner no. 1 is a company . it was alleged that the accused nos. 2 to 5 along with petitioner no. 2 are the directors of the petitioners no. 1-company and also the authorized signatory. it was alleged that an agreement took place between the parties whereby (clearing & forwarding) c & f agency was given to the respondent for a particular period. it was alleged that the agreement was renewed between parties on 1-6-05 and the period of agency was extended up to 31-3-08. it was alleged that respondent invested a huge amount as the c & f agency was given to the respondent up to 31-3-08. it is submitted that the agency of the respondent was cancelled and respondent was cheated by the petitioners and other accused persons, hence it was alleged that the petitioners has committed an offence which is punishable under sections 120-b, 384, 385, 182, 406, 417, 465, 468, 471 of ipc. it was prayed that cognizance of the offence be taken and the petitioners be prosecuted. upon the complaint filed by the respondent, after recording of evidence, cognizance was taken, against which a revision petition was filed by the petitioners which was numbered as cr.r. no. 658/07 and learned sessions judge, indore allowed the same vide order dated 29-7-07 whereby the order dated 21-7-07 whereby the cognizance was taken was set aside and the complaint was dismissed. against the order passed by learned sessions judge criminal revision was filed by the respondent before this court which was numbered as cr.r. no. 1312/07 and was allowed vide order dated 22-11-07 whereby this court set aside the order dated 29-1-07 whereby the complaint was dismissed. thereafter the present petition has been filed by the petitioners wherein the prayer is that the order dated 21-7-07 passed by jmfc, indore in criminal case no. 2925/07 be quashed.3. learned counsel for petitioners argued at length and submits that the impugned order passed by the learned trial court is illegal and deserves to be set aside. it is submitted that the respondent has attempted to convert the civil litigation into criminal litigation. it is submitted that as per the agreement there was a clause of arbitration and the respondent approached this court in arbitration appeal case no. 31/07, wherein it was prayed arbitrator be appointed. it is submitted that the appeal filed by the respondent was decided by this court vide order dated 21-11-07. it is submitted that in the circumstances the impugned order passed by the learned trial court whereby the cognizance was taken be quashed.4. learned counsel for the respondent submits that the petition filed by the petitioners is devoid of substance and deserves to be dismissed. it is submitted that after allowing of the petition filed by the respondent by this court the present petition is filed which is not maintainable. it is submitted that even if it is assumed that the act of the petitioners has given cause of action to the respondent to approach the civil court, then too respondent cannot be deprived to take action against the petitioners for their misdeeds under the criminal liability. learned counsel placed reliance on a decision in the matter of anil saran v. state of bihar reported in : air 1996 sc 204, wherein it was held that the allegations made in the complaint make out prima facie case, is relevant consideration and at that stage what defenses are available to the respondent is not to be considered. further reliance is placed on a decision in the matter of santosh choubey v. pankaj gulati reported in 2005 (1) mplj 190, wherein this court has held that registration of criminal case against petitioner under sections 406 and 420, ipc not improper or abuse of process of court, when the offence of cheating has been committed in course of commercial transaction. reliance is also placed on a decision in the matter of lalmuni devi v. state of bihar reported in 2001 (i) m.p. wn 167 (sc), wherein hon'ble apex court has held that there would be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. however, it is also settled law that facts may give rise to a civil claim and also amount to an offence. merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained. in this case, on the fact, it cannot be stated, at this prima facie stage that this is a frivolous complaint. the high court does not state that on facts no offence is made out. if that be so, then merely on the ground that it was a civil wrong the criminal prosecution could not have been quashed.5. learned counsel for the respondent further submits that it is not a case where inherent powers should be exercised by this court. for this contention reliance is placed on a decision in the matter of central bureau of investigation v. ravi shankar shrivastava reported in : air 2006 sc 2872, wherein it is held that one of the many categories of cases where inherent power can and should be exercised to quash the proceedings is where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. while dealing with the such case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. when exercising jurisdiction under section 482 of the code, the high court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. that is the function of the trial judge. it is submitted that in view of the aforesaid, the petition filed by the petitioners be dismissed.6. from perusal of the record, it is evident that there was an agreement between the parties and the c & f agency was given to the respondent. agreement was renewed between the parties for a particular time. agreement was cancelled by the petitioners. respondent approached the civil court for appointment of arbitrator and also filed a criminal case, in which cognizance was taken by the learned trial court but the order was set aside by the revisional court. upon a revision filed by the respondent this court set aside the order passed by the learned sessions court only on the ground that once the cognizance was taken by the learned judicial magistrate, then in view of the law laid down in the matter of adalat prasad, which was further confirmed in the matter of subramanium sethuraman v. state of maharashtra reported in 2005 (1) mplj 260 (sc), wherein it is held that the only remedy available to challenge issuance of process under section 204 of the code is by way of petition under section 482, cr.pc, sessions court committed error in quashing the criminal complaint. since the order passed by the revisional court was set aside only on this ground, therefore, no illegality has been committed by the petitioners in filing the present petition for quashment of the order whereby the cognizance was taken against the petitioners. it is true that it is settled position of law that facts may give rise to a civil claim and also amount to an offence. merely because a civil claim is maintainable does not mean that the criminal complaint cannot be maintained.7. in the present case from the correspondence which took place between the parties it appears that the transaction which took between parties, as per petitioners, respondent has not fulfill the conditions of agreement. as per the terms and conditions of agreement the petitioners were entitled to cancel the agreement in case of default on the part of respondent. in the circumstances it cannot be said that any offence has been committed by the petitioners in terminating the agency of the respondent. in view of this, this court is of the view that learned court below committed error in taking cognizance of offence against the petitioners under section 420, ipc vide order dated 21-7-07. in view of this petition filed by the petitioners is allowed and the proceedings initiated against the petitioners in criminal case no. 2925/07 vide order dated 21-7-07 by jmfc, indore stands quashed.8. with the aforesaid observations, petition stands disposed of.