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2023 (1) TMI 1355 - HC - Indian LawsSeeking to invoke the inherent powers of this Court under Section 401 read with Section 482 Cr.P.C. for recalling, quashing of the proceedings pending before the learned Metropolitan Magistrate, 9th Court, Calcutta - defective products and their replacements - HELD THAT - The Magistrate was wrong in his findings/reasons that as the accuseds had not entered their appearance (meaning personal appearance) before the court, the application under Section 205 Cr.P.C. be dismissed - the said powers of a Magistrate can be exercised at any stage of proceedings or throughout the said proceedings and as such the said prayer can be considered right from the stage of commencement of the proceedings even at the stage of issuing summons and the accused need not appear personally. Admittedly the Arbitration clause has not been invoked by the parties. The opposite party has chosen to put the criminal law into motion by initiating the proceedings in this case, alleging breach of contract/trust by the petitioners. The parties to the agreement still have the option to use the Arbitration clause or may seek relief from the appropriate forum, the dispute being civil in nature and also a commercial dispute being given a criminal colour to pressurize the petitioners. In the present case there is no case against the petitioners that they dishonestly induced the complainant to deliver any property. There was neither any inducement nor any delivery of property as required. As such an essential ingredient required to constitute an offence under Section 420 IPC being prima facie not present, the offence alleged cannot be held to be proved against the petitioners/accused. From the petition of complaint, no such materials has been produced to prima facie show that the petitioners intentionally with knowledge cheated the complaint. The dispute between the parties is regarding defective products and their replacements (within time). As such the ingredient required to constitute the said offence under Section 418 IPC is also absent against the petitioners - The Supreme Court in Mitesh Kumar J. Sha vs. The State of Karnataka Ors. 2021 (10) TMI 1423 - SUPREME COURT while considering an appeal against an judgment and order of the High Court of Karnataka in an application under Section 482 of the Cr.P.C. wherein the prayer of the petitioners for quashing of proceedings of offence punishable under Section 406, 419, 420 read with Section 34 of the IPC was dismissed, held existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. In the instant case, cognizance has been taken and process has been issued (including attachment and warrant of arrest) by the Magistrate concerned - The materials in the present case including the written complaint clearly shows that there was no dispute from the year 2012 to 2017 (initial period). The ingredients of 'entrustment', dishonest intention leading to delivery of property and cheating with knowledge to cause wrongful loss are not on record. The dispute is clearly civil in nature, may be even a commercial dispute but the ingredients required to constitute the criminal offences alleged are totally absent. In the Present case there is no substance in the allegations and no material exists to prima facie make out the complicity of the applicants in cognizable offences. As such the proceedings in this case should be quashed by exercising its inherent powers for ends of justice and to prevent the abuse of process of the court. The criminal revisional application stand allowed.
Issues Involved:
1. Invocation of inherent powers under Section 401 read with Section 482 Cr.P.C. 2. Quashing of proceedings in C/28190/2019. 3. Setting aside of orders dated 22.03.2022, 25.04.2022, and 11.05.2022. 4. Applicability of Section 205 Cr.P.C. regarding exemption from personal appearance. 5. Nature of the dispute: civil vs. criminal. Detailed Analysis: 1. Invocation of Inherent Powers under Section 401 read with Section 482 Cr.P.C.: The petitioners sought to invoke the inherent powers of the High Court to recall and quash the proceedings in C/28190/2019 and set aside the orders dated 22.03.2022, 25.04.2022, and 11.05.2022. The petitioners contended that the orders were against the weight of the materials on record and were bad in law. The Court held that the inherent jurisdiction under Section 482 Cr.P.C. is designed to achieve a salutary purpose and that criminal proceedings ought not to be permitted to degenerate into a weapon of harassment. 2. Quashing of Proceedings in C/28190/2019: The Court examined whether the allegations in the complaint, if accepted at face value, constituted any offense under Sections 406/418/420 read with Section 120B IPC. The Court found that the dispute was essentially civil in nature, related to a distributor agreement, and did not prima facie constitute any criminal offense. The Court relied on the Supreme Court's judgment in M/s. Indian Oil Corporation vs. M/s Nepc India Ltd. & Ors., which emphasized that civil disputes should not be given a criminal color to pressurize the parties. Consequently, the proceedings were quashed. 3. Setting Aside of Orders Dated 22.03.2022, 25.04.2022, and 11.05.2022: The Court found that the orders issuing warrants of arrest against the petitioners were contrary to the law laid down by the Supreme Court and were an abuse of the process of the court. The orders were set aside as they were passed mechanically and without application of judicial mind. The Court emphasized that the discretion of the Magistrate in refusing exemption from personal appearance was not exercised judiciously. 4. Applicability of Section 205 Cr.P.C. Regarding Exemption from Personal Appearance: The Court held that Section 205 Cr.P.C. allows the Magistrate to dispense with the personal attendance of the accused and permit them to appear through their pleader. The Magistrate's refusal to consider the applications for exemption from personal attendance on the ground that the petitioners had to appear before him first was found to be incorrect. The Court referenced the Supreme Court's ruling in Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd., which clarified that personal appearance is not mandatory for seeking exemption under Section 205 Cr.P.C. 5. Nature of the Dispute: Civil vs. Criminal: The Court concluded that the dispute was purely civil in nature and related to a commercial transaction governed by a distributor agreement. The Court noted that the arbitration clause in the agreement had not been invoked by the parties, and the criminal proceedings were initiated to pressurize the petitioners. The Court relied on the Supreme Court's judgments, which discourage converting civil disputes into criminal cases to settle scores or exert pressure. The Court found that the ingredients required to constitute the alleged criminal offenses were absent. Conclusion: The High Court allowed the criminal revisional application, quashed the proceedings in C/28190/2019, and set aside the orders dated 22.03.2022, 25.04.2022, and 11.05.2022. The Court emphasized that criminal proceedings should not be used as instruments of harassment and that civil disputes should not be given a criminal color. The Court directed that a copy of the judgment be sent to the learned Trial Court for necessary compliance.
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