IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16th DAY OF AUGUST 2019 BEFORE:
THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.7702 of 2018 BETWEEN MURTHY S.N., S/O. SIVAGANGIAH, AGED ABOUT 33 YEARS, AUTHORIZED SIGNATORY-
FLIPKART INTERNET PRIVATE LIMITED, HAVING ITS REGISTERED OFFICE AT VAISHNAVI SUMMIT, GROUND FLOOR, 7TH MAIN, 80 FEET ROAD, KORAMANGALA, BANGALORE, KARNATAKA - 560 034.
(BY SRI CHINMAY J. MIRJI, ADVOCATE) AND 1. THE STATE OF KARNATAKA HALASURU POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BUILDING, BENGALURU – 560 001.
2. LT.COL. D.K. HAVANOOR (RETD), MAJOR IN AGE, RESIDENT OF C-12/71, BDA MIG FLATS, DOMLUR II STAGE, BANGALORE - 560 071.
(BY SRI S. RACHAIAH, HCGP FOR R1;
... PETITIONER ... RESPONDENTS SRI LT.COL. D.K. HAVANOOR PARTY-IN-PERSON-R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER IN C.C.No.7825 of 2018 REGISTERED AGAINST THE PETITIONER VIDE ORDER DATED 08.03.2018 PASSED BY THE COURT OF IX ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU TAKING COGNIZANCE UNDER SECTION 66 OF I.T. ACT AND SECTIONS 63 AND 51 OF COPYRIGHTS ACT AND SECTIONS 406, 420 AND 511 READ WITH 31 OF IPC AND REGISTRATION OF C.C.No.7825 of 2018 AGAINST THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTIONS MENTIONED HEREINABOVE, PENDING BEFORE THE IX ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGLAURU.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is presented by accused No.2 in C.C.No.7825 of 2018. Respondent No.2-Lt. Col. D.K.Havanoor (Retired) got registered FIR No.180 of 2015 on 09.05.2015 alleging that Flipkart Internet Private Limited, Bengaluru, was unauthorisedly selling the book titled ‘March of a Foot Soldier’, authored by him. After investigation, Police have filed charge-sheet against five accused and the present petitioner-accused No.2 is the authorized signatory.
2. Shri Chinmay J.Mirji, learned advocate for the petitioner submitted that the petitioner is only an authorized signatory. Charge-sheet has been filed without arraying the Company - M/s. Flipkart Internet Private Limited, Bengaluru. Therefore, criminal proceedings against the petitioner is not maintainable in view of the law laid down by the Hon’ble Apex Court in the case of Aneeta Hada –vs- Godfather Travels and Tours Private Ltd1.
3. Lt.Col. D.K. Havanoor, Party-in-person, submitted that he has no grievance against the petitioner, but his grievance is against the Company - M/s. Flipkart Internet Private Limited, Bengaluru, which was selling his book between 2014 and 2016, unauthorisedly. The said Company was selling the book at Rs.937/-, Rs.987/- and Rs.1042/-, whereas he was selling his book at Rs.500/-. Despite his request, M/s. Flipkart Internet Private Limited did not stop selling his book. Therefore, he got himself registered as the vendor with M/s. Flipkart Internet Private 1 (2012) 5 SCC 661 Limited in June 2016. After three months i.e. in September 2016, he withdrew his enrollment. However, M/s. Flipkart Internet Private Limited has continued to sell his book online. He further submitted that his grievance being against the Company - M/s. Flipkart Internet Private Limited, Bengaluru, appropriate directions be issued to the prosecution to rectify the defect.
4. Sri S.Rachaiah, learned High Court Government Pleader appearing for respondent No.1-State, in his usual fairness, submitted that in view of the law laid down by the Hon’ble Apex Court in Aneeta Hada, the prosecution may be granted liberty to rectify the defect.
5. I have carefully considered the submissions of learned advocate for the petitioner, learned High Court Government Pleader for the State and respondent No.2 appearing as party-in-person and perused the records.
6. Admittedly, the Company M/s. Flipkart Internet Private Limited, Bengaluru, which is alleged to be selling the aforesaid book is not arraigned as an accused. In view of the law laid down by the Hon’ble Apex Court in Aneeta Hada, prosecution against an officer of the company without the said company being made as a party, is not maintainable.
7. In the circumstances, criminal proceedings against the petitioner is unsustainable in law. Hence, the following:
ORDER i) Criminal petition is allowed.
ii) Criminal proceedings in C.C.No.7825 of 2018 pending on the file of IX Additional Chief Metropolitan Magistrate, Bengaluru are quashed insofar as the petitioner is concerned.
iii) Liberty is granted to the respondent-State to rectify the charge-sheet, if permissible in law.
Sd/- JUDGE mv