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2002 DIGILAW 5 (PNJ)

Jimmy R. Jagtiani v. State Of Haryana

2002-01-03

JAGDISH SINGH KHEHAR

body2002
Judgment 1. Sanjay Patial claims to be a Taekwondo enthusiast. He is registered player for the aforesaid sport with the Kurukshetra District Taekwondo Association, which functions under the Haryana State Taekwondo Association. The Haryana State Taekwondo Association is affiliated to the Haryana Olympic Association and the Taekwondo Federation of India. The Taekwondo Federation of India is internationally affiliated to World Taekwondo Federation, Korea. A claim was made by Sanjay Patial (hereinafter referred to as the complainant) alleging that the petitioners herein, namely; Jimmy R. Jagtiani and his wife Komal Jagtiani (hereinafter referred to as the accused) visited Kurukshetra and accepted a sum of Rs. 3,500.00 from him as fee for the black belt examination in July, 1997. It is further alleged by the complainant that the aforesaid fee was charged in the presence of Virender Rawat, another registered player with the Kurushetra District Taekwondo Association. Consequent upon the receipt of the aforesaid deposit, the complainant was permitted to participate in a Taekwondo camp held at Lucknow from 2-8-1997 to 10-8-1997 for the Dan promotion tests. It is alleged by the complainant that the accused continued to charge money from the complainant as well as other players even at Lucknow. 2. The result of the Dan promotion test conducted in August, 1997 was declared on 11-12-1997. The accused sent a copy of the aforesaid result to the Haryana State Taekwondo Association, wherein, the name of the complainant had been mentioned as Sanjay Kumar, instead of Sanjay Patial. According to the result, the complainant was shown to have succeeded in qualifying the black belt examination. 3. It is alleged by the complainant that in spite of the declaration of the result, the complainant has not been issued a certificate by the accused in spite of the fact that the accused had undertaken that all those who qualify the Dan promotion test would be issued certificates by the World Taekwondo Federation, Korea. According to the complainant, the accused fraudulently cheated the complainant, and many others similarly situated as the complainant, so as to cause loss and injury to the complainant and others, for monetary gains. It is further alleged by the complainant that the accused have not been authorised either by the Taekwondo Federation of India or by the World Taekwondo Federation, Korea, to conduct the Dan promotion tests or to charge money on account of holding the said tests. It is further alleged by the complainant that the accused have not been authorised either by the Taekwondo Federation of India or by the World Taekwondo Federation, Korea, to conduct the Dan promotion tests or to charge money on account of holding the said tests. On the basis of the aforesaid factual position, it is alleged that the accused have cheated the complainant. 4. The record of the instant case discloses that in the first instance, the complainant had approached the Police Station, City, Thanesar. He was, however, required to produce an appropriate Court order. It is in the aforesaid circumstances that the complainant made a formal complaint under Sections 420, 465, 467, 468, 471, 109, 120-B and 34 of the Indian Penal Code in the Court of the Chief Judicial Magistrate, Kurukshetra. The Chief Judicial Magistrate, Kurukshetra vide his order dated 1-5-1999 forwarded the complaint to the police for registration and investigation, and for submission of a final report. In terms of the aforesaid direction, the complaint was referred to the Station House Officer, Police Station, Thanesar. The Station House Officer, Police Station City, Thanesar submitted the final report on 24-8-1999. On the presentation of the aforesaid report, the Chief Judicial Magistrate, Kurukshetra charged the petitioners herein on account of their common intention to cheat the complainant by dishonestly requiring him to pay a sum of Rs. 3,500.00 for an activity, for which the accused were not duly authorised. The petitioners were accordingly directed to be tried under Section 420 read with Section 34 of the Indian Penal Code. 5. It would be pertinent to mention that the petitioners on the basis of facts discussed above had first approached this Court by filing Criminal Miscellaneous Petition No. 26529-M of 2000. This Court disposed of the aforesaid petition with the following order (dated 17-8-2000) :- "The petitioners are raising an objection regarding the jurisdiction of the police in Kurukshetra to investigate the case and the Courts at Kurukshetra to try the lis. This Court disposed of the aforesaid petition with the following order (dated 17-8-2000) :- "The petitioners are raising an objection regarding the jurisdiction of the police in Kurukshetra to investigate the case and the Courts at Kurukshetra to try the lis. This petition is disposed of by granting liberty to the petitioners to raise this point and all other points raised in the petition before the trial Court." In compliance with the dierctions issued by this Court in Criminal Miscellaneous Petition No. 26529-M of 2000, the Chief Judicial Magistrate, Kurukshetra passed an order dated 18-8-2000 requiring the petitioners herein to be charge-sheeted for the commission of offences punishable under Section 420 read with Section 34 of the Indian Penal Code. The aforesaid order of Chief Judicial Magistrate, Kurukshetra has been impugned in the instant petition. 6. After the issuance of notice, the Inspector, Police Station City Thanesar has filed a written statement along with which, he has appended a registered letter addressed by petitioner No. 1 dated 8-5-1999 and another registered letter dated 17-5-1999 addressed by the Haryana State Taekwondo Association to petitioner No. 1. Copies of the latter communication have been forwarded to all Presidents of the State Taekwondo Association in India. In the communication dated 8-5-1999 addressed by petitioner No. 1, it is stated as under :- "The Certificate from the WTF may take some more time to come. We are in contact with the WTF for the same, if your players can wait, then the provisional Certificate can be given to them, if they do not want to wait, they may claim refund, which can be made under the Rules of TAI. Because of the disputes in TFI and unforeseen circumstances thrust upon us, we are unable to get the WIF Certificate in time, the inconvenience caused is regretted. In the communication addressed by the Haryana State Taekwondo Association to the petitioner No. 1 dated 17-5-1999, it has been asserted as under :- "...................The execuse taken by you for delay in sending independent Academy has nothing to do with the elections of TFI. The elections of TFI were held in the month of November, 98 whereas you had conducted the Dan Promotion Tests in the months of January, 1997 and August, 1997 and had collected fee much before the tests. The elections of TFI were held in the month of November, 98 whereas you had conducted the Dan Promotion Tests in the months of January, 1997 and August, 1997 and had collected fee much before the tests. We have confirmed from the WTF Secretariat about the WTF Certificate and it was informed that you have not paid the WTF fee till date. When the fee has not been paid, how you would have got the Certificates from WTF. It indicates that you are misusing the huge money of players for more than two years. I would like to inform you that the present TFI had conducted Dan Promotion Tests on 5/04/1999 and we have received the WTF Certificates on 20/04/1999 i.e. within a period of 15 days. These WTF Certificates have been handed over to the concerned players during the National Taekwondo Championship by Shri Suresh Kalmadi, President, I0A on 25/04/1999. In case your intention would have been on right path, you would have sent the WTF fee immediately after conducting the tests. Leave aside the money, now who will be responsible for two years late seniority of the players. "I would also like to intimate you that you are writing on the letter-head of TFI that it is recognised by Government of India. Affiliated with World Taekwondo Federation. Asian Taekwondo Union and Indian Olympic Association and you are yourself is 7th Dan, which are absolutely incorrect and misguiding the innocent players. Your Academy is neither recognised by Government of India, nor affiliated to World Taekwondo Federation, Asian Taekwondo Union and Indian Olympic Association and you are only 6 Dan (intimated by WTF). Yours this act also attracts action under Indian Penal Code." 7. At this juncture, it would also be pertinent to highlight the fact that the petitioners presently claim that they are in possession of the certificate issued by the World Taekwondo Federation in favour of the complainant. The aforesaid certificate was allegedly despatched to petitioner No. 1 on 5-10-2000. The averments made in the instant petition, however, reveal that the aforesaid certificate has till date not been despatched by the accused to the complainant. In this behalf, the averments made in paragraph 16 of the petition are being extracted hereunder :- "16. The aforesaid certificate was allegedly despatched to petitioner No. 1 on 5-10-2000. The averments made in the instant petition, however, reveal that the aforesaid certificate has till date not been despatched by the accused to the complainant. In this behalf, the averments made in paragraph 16 of the petition are being extracted hereunder :- "16. That now the DAN CERTIFICATE of the complainant has been received by the petitioners from World Taekwondo Head Quarters having been issued by UN Yong Kim President Kukkiwon. The certificate along with Identity card of the complainant is ready with the petitioner No. 1. The aforesaid Certificate and Identity Card were despatched to the petitioner No. 1 only on 5th Oct., 2000. The certificate and Identity card can be given to the complainant with the intervention of the Hon ble Court and with a view to compound the controversy." 8. The first contention of the learned counsel for the petitioner is that the petitioner had not undertaken to issue certificate to the complainant within the specified period of time. In this behalf, it is also contended that the complainant had agreed to be regulated by the constitution of the Taekwondo Academy of India. Relying on the constitution of the Taekwondo Academy of India (copy of which has been placed on the record of this case as Annexure P11), learned counsel for the petitioners drew the pointed attention of the Court to Article 5(v) thereof, which is being reproduced hereunder :- "v) Students appear in the Black Belt examination, National Instructor, Referesher Courses shall submit a complete application Form and declare themselves waiving all prerogative rights as per Rules and Regulations and Terms of Conventions etc. set forth by TAI." Learned counsel also relied on Article 11(ii), which is also being extracted hereunder :- "11(ii). Normally the Dan Certificate will be awarded after one year from the date of examination it can be extended for another year in case technical problem arises." On the basis of the aforesaid provisions of the constitution of the Taekwondo Academy of India, learned counsel for the petitioners, submitted that the petitioners cannot be stated to have cheated the complainant by not awarding him a certificate for having qualified the black belt test held in August, 1997. It is not possible for this Court to accept the aforesaid contention of the learned counsel for the petitioner for two reasons. It is not possible for this Court to accept the aforesaid contention of the learned counsel for the petitioner for two reasons. Firstly, the constitution of the Taekwondo Academy of India does not postulate the issuance of qualifying certificate at the hands of the world Taekwondo Association, Korea and secondly even according to the provisions relied upon by the learned counsel for the petitioners, qualifying certificate must be furnished under all circumstances within two years from the date of the examination. Since the test in question was conducted in August, 1997, it is obvious that the maximum period expired in August, 1999. According to the averments made in the instant petition itself, the qualifying certificate has till date not been furnished by the petitioners to the complainant. While drawing the aforesaid conclusion, this Court has also taken into consideration the communication addressed by petitioner No. 1 dated 8-5-1999 to the Haryana State Taekwondo Association, an extract of which has been reproduced above, wherefrom, it is evident that the petitioners had undertaken to furnish qualifying certificates issued by the World Taekwondo Federation, Korea. 9. The second contention of the learned counsel for the petitioners is that the order dated 18-8-2000 is beyond the territorial jurisdiction of the Chief Judicial Magistrate, Kurukshetra, who is the author of the aforesaid impugned order. In this behalf, learned counsel for the petitioners has relied upon Article 3 of the Constitution of the Taekwondo Academy of India. Article 3 is being reproduced hereunder :- "3. Jurisdiction : (i) All claims or actions by or against the Academy shall be at Lucknow only and Courts situated at Lucknow shall have the jurisdiction to adjudicate at the claim or action by or against the Academy. Article 3 is being reproduced hereunder :- "3. Jurisdiction : (i) All claims or actions by or against the Academy shall be at Lucknow only and Courts situated at Lucknow shall have the jurisdiction to adjudicate at the claim or action by or against the Academy. (ii) Jurisdiction of the Academy over all the activities related to the Sports of Taekwondo shall extend to the entire territory of the Union of India, having its head-quarters at Lucknow." While dealing with the issue of jurisdiction, reliance was placed on the provisions of Section 182(1) of the Criminal Procedure Code, which provides as under :- "Any offence which includes cheating may, if the deception is practised by means of letters or tele-communication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or message were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person. 10 So far as Article 3 of the Constitution of the Taekwondo Academy of India is concerned, the same applies to only civil claims/actions. A provision in the nature of Article 3 of the Constitution of the Taekwondo Academy of India, which is a society registered under the Societies Registration Act, 1860, cannot have the effect of negating the provisions of Section 182(1) of the Criminal Procedure Code, so as to oust the jurisdiction of a Criminal Court. It is the case of the complainant that the petitioners/accused demanded a sum of Rs. 3,500.00 from the complainant in July, 1997 at Kurukshetra on the assurance that he would be permitted to participate in the black belt examination, and if found successful, he would be issued a qualifying certificate by the World Taekwondo Association, Korea. On the basis of the aforesaid inducement, the complainant alleged that he paid a sum of Rs. 3,500.00 to the petitioners/accused at Kurukshetra in the presence of Virender Rawat, who is also a Taekwondo player registered with the Kurukshetra District Taekwondo Association. In view of the aforesaid factual position alleged by the complainant, there remains no doubt that the impugned order has been passed by a Court having territorial jurisdiction over the subject-matter of the accusations levelled by the complainant. 11. In view of the aforesaid factual position alleged by the complainant, there remains no doubt that the impugned order has been passed by a Court having territorial jurisdiction over the subject-matter of the accusations levelled by the complainant. 11. No other point was raised. 12. In view of the conclusion drawn above, I find that the instant petition is meritless and is accordingly dismissed. Parties are directed to appear before the Chief Judicial Magistrate, Kurukshetra, on 22nd of March, 2002. Observations made herein-above or conclusion drawn in this order shall not be taken as expression of any opinion. The trial Court would decide the matter only on the basis of evidence recorded by it in the course of the trial of the instant case.