1. Present petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioners to quash and set aside the impugned criminal proceedings being Criminal Case No.2367 of 2003 pending in the court of learned Metropolitan Magistrate, Court No.13, Ahmedabad.
2. The the respondent No.2 herein – proprietor of Visharad Aqua Systems has filed a private complaint against the petitioners – original accused in the court of learned Metropolitan Magistrate, Ahmedabad for the offences punishable under sections 406 and 420 of Indian Penal Code which has been numbered as Criminal Case No.2367 of 2003 alleging inter-alia that the accused persons appointed the complainant as their Agent/Distributor in the year 1999 for their product Well mat and hydro pneumatic products and consequently complainant incurred expenditure for advertising and marketing the said products and for arranging mega show, however, the accused persons were selling the said products directly and therefore, it is alleged that the petitioners have committed offences punishable under sections 406 and 420 of Indian Penal Code.
3. The learned Magistrate by order dtd.25/11/2003 has directed to issue process against the petitioners for the offences punishable under sections 406 and 420 of Indian Penal Code. Being aggrieved by and dissatisfied with the aforesaid criminal proceedings and order passed by the learned Magistrate directing to issue process against the petitioners - original accused for the offences punishable under sections 406 and 420 of Indian Penal Code, the petitioners herein – original accused have preferred the present petition under section 482 of the Code of Criminal Procedure.
4. Mr.Jagirdar, learned advocate appearing on behalf of the petitioners has vehemently submitted that the petitioners have not committed offences punishable under sections 406 and 420 of Indian Penal Code, as alleged. It is further submitted that as such at the relevant time till 2001, the complainant was only a Dealer and was not appointed as a Distributor for the aforesaid products. It is submitted that the complainant has deliberately stated in the complaint that he was appointed as Dealer/Distributor. It is further submitted that for the first time the complainant was appointed as Distributor for the aforesaid products for the area in question on 18/4/2001. It is further submitted that even otherwise considering the communication dtd.18/4/2001 appointing the complainant as a Distributor as such there was no restriction imposed upon the petitioners that they cannot sell the products directly to any other person. It is submitted that as provided under the said agreement, at the most the complainant would be entitled to 10% commission on any sale and/or transaction.
5. It is submitted that as such the petitioners have never sold any goods directly to any purchaser, as alleged. It is submitted that as such no particulars are given by the complainant in the complaint to show that any transaction entered into by the petitioners with any purchaser. It is submitted that in absence of any other material, straightway and mechanically the learned Magistrate has directed to issue process against the petitioners which is nothing but abuse of process of law and court.
6. It is submitted by the learned advocate appearing on behalf of the petitioners that as such in the year 1999 when the complainant made such a complaint, the complainant was informed that as such his employee one Mr.Paresh Mehta has indulged into some illegal activities and against the interest of the complainant and thereafter even the complainant herein had filed complaint against said Mr.Paresh Mehta also.
7. It is further submitted by the learned advocate appearing on behalf of the petitioners that even otherwise, considering the averments and allegations in the complaint, the complaint does not constitute any cognizable offence for the offences punishable under sections 406 and 420 of Indian Penal Code for which the learned Magistrate has directed to issue process against the petitioner. He has further submitted that the impugned criminal proceedings are nothing but abuse of process of law and court and therefore, it is requested to quash and set aside the impugned proceedings in exercise of powers under section 482 of the Code of Criminal Procedure.
8. Mr.R.C. Jani, learned advocate appearing on behalf of the original complainant has tried to oppose the present petition by submitting that there are necessary averments and allegations in the complaint making out a specific case for the offences punishable under sections 406 and 420 of Indian Penal Code and therefore, the learned Magistrate has not committed any error and/or illegality in directing to issue process against the petitioners. It is submitted that as such the complainant was appointed as a Distributor for the area in question and the complainant incurred expenditure for marketing and advertising and therefore, it was not open for the petitioner Company to sell the products in question directly to the purchaser. Therefore, it is submitted that the learned Magistrate has not committed any error and/or illegality, which calls for the interference of this Court in exercise of powers under Article 482 of the Code of Criminal Procedure. By making above submissions it is requested to dismiss the present petition.
9. Mr.K.L. Pandya, learned Additional Public Prosecutor has requested to pass appropriate order considering the facts and circumstances of the case.
10. Heard the learned advocate appearing on behalf of the respective parties and considered the averments and allegations in the impugned complaint.
11. It appears that the original complainant has lodged the impugned complaint against the petitioners for the offences punishable under sections 406 and 420 of Indian Penal Code mainly on the ground that he was appointed as a Distributor since 1999 for the products in question and for the area in question and he incurred expenditure for marketing and advertising of the said product and despite the same the petitioner Company sold the product in question directly to the purchasers and therefore, it is alleged that there was breach of the agreement and therefore, the petitioners have committed offences punishable under sections 406 and 420 of Indian Penal Code. However, considering the averments and allegations in the complaint, it appears that no particulars are given by the complainant with respect to any transaction of sale done by the petitioners in favour of any purchaser. Mr.Jani, learned advocate appearing on behalf of the complainant is not in a position to show any material against the petitioners and/or any transaction directly entered into by the petitioners with other purchasers. Mr.Jani, learned advocate appearing on behalf of the complainant has fairly conceded that except one transaction, which was entered into 1999, as such there is no other material with the complainant against the petitioners. So far as the alleged transaction with Mr.Paresh Mehta is concerned, it is required to be noted that as such the said Mr.Paresh Mehta was the employee of the complainant and in fact the petitioners drew attention of the complainant with respect to the conduct and illegal activities and his activities of acting against the interest of the complainant and therefore, thereafter even the complainant has filed a complaint against said Mr.Paresh Mehta. It is also required to be noted that even otherwise, the transaction with Mr.Mehta, who was the employee of the complainant, is of the year 1999 and at the relevant time, the complainant was only Dealer and not Distributor and he was appointed as a Distributor for the first time in the year 2001 more particularly on 18/4/2001. Under the circumstances and in the facts and circumstances it cannot be said that the petitioners have committed offences punishable under sections 406 and 420 of Indian Penal Code, as alleged, for which the learned Magistrate has directed to issue process against the petitioners.
12. Even otherwise, considering the impugned order passed by the learned Magistrate directing to issue process against the petitioners for the offences punishable under sections 406 and 420 of Indian Penal Code, it appears that the learned Magistrate has mechanically directed to issue process against the petitioners for the offences punishable under section 406 and 420 of Indian Penal Code, as the said impugned order does not reflect that the learned Magistrate has even considered the averments and allegations made in the complaint. Under the circumstances also, the impugned order passed by the learned Magistrate directing to issue process against the petitioners for the offences punishable under sections 406 and 420 of Indian Penal Code cannot sustain and the same deserves to be quashed and set aside.
13. In view of the above and for the reasons stated above, present petition succeeds. The impugned criminal proceedings being Criminal Case No.2367 of 2003 at the relevant time pending in the court of learned Metropolitan Magistrate, Court No.13, Ahmedabad are hereby quashed and set aside. Rule is made absolute accordingly.
[M.R. SHAH, J.] rafik