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2004 DIGILAW 566 (PAT)

Nikhil Sen v. State Of Bihar

2004-05-20

NAVIN SINHA

body2004
Judgment 1. The present application has been filed for quashing the order of cognizance dated 17.12.2002 passed by the Judicial Magistrate, Munger in Complaint Case No. 811 (C) of 2001. 2. The opposite party no. 2 filed a complaint on 17.10.2001 against the present seven petitioners under Sections 418, 427, 420, 109, 120B and Section 34 of the Indian Penal Code. The complaint alleged that the Petitioner no. 1 published a scheme of contest on behalf of the Company for consumers of its products. The scheme offered a free trip to Sharjah for the successful contestants. The opposite party then purchased the product of the company from the accused no. 8, the local agent at Munger. Accused no. 8 gave a photocopy of the advertisement regarding the contest to the complainant. The opposite party believed the statements of accused no. 8, who was the local agent of the Company. On 28.3.2001, the accused no. 3 (presently petitioner no. 3) informed the complainant on telephone that the company appreciated the slogan sent by him and that the opposite party no.2/ Complainant figured as a successful contestant. The said petitioner no. 3 then advised the opposite party/Complainant to send his passport etc. within a day or two for completion of necessary formalities for the visit to Sharjah. The opposite party expressed his inability to act expeditiously in view of the non-availability of a passport with him. The petitioner no. 3 then asked the opposite party to nominate another person to avail the offer of the free trip to Sharjah. The Opposite party/Complainant then nominated his nephew who held a valid passport, for the trip to Sharjah. The petitioner no. 3 assured the opposite party/ Complainant that the nomination was valid and that there was no age bar in the contest. The fact that the nominee, the son of the sister of the opposite party was a minor was in consequential. The opposite party/ Complainant sent his nephews passport to petitioner no. 3 by courier on 28.3.2001. Petitioner no. 3 acknowledged receipt of the passport and telephonically assured that the air ticket and visa shall be sent by 10.4.2001. She further informed that the flight from Mumbai to Sharjah was on 14.4.2001 departing at 3.45 a.m. from Sahar Airport, Mumbai. 3. The opposite party/ Complainant sent his nephews passport to petitioner no. 3 by courier on 28.3.2001. Petitioner no. 3 acknowledged receipt of the passport and telephonically assured that the air ticket and visa shall be sent by 10.4.2001. She further informed that the flight from Mumbai to Sharjah was on 14.4.2001 departing at 3.45 a.m. from Sahar Airport, Mumbai. 3. On this assurance, the opposite party procured reservation on 29.3.2001 in a designated train, the Patna Kurla Express for departure to Mumbai on 11.4.2001 as also return journey ticket for both on 17.4.2001. On 4.4.2001 the petitioner no. 3 informed that the application had been submitted to the concerned authorities for procuring visa. 4. On 5.4.2001, the petitioner no. 3 telephonically intimated that the ticket and visa should be collected at the Airport at Mumbai from the companys representative if the same was not received at Patna by then. On 7.4.2001, the petitioner no. 3 telephonically replied to the opposite party that the ticket and visa should reach the opposite party by 10.4.2001. On 9.4.2001 petitioner no. 3 telephonically informed the opposite party/Complainant that the visa application of his nephew had been rejected. 5. The Petitioner no. 3 informed the complainant on enquiry that the visa application of his nominee was rejected on grounds of his age as a minor. The petitioner no. 3 advised the opposite party to contact petitioner no. 2. On 9.4.2001 itself the opposite party spoke to petitioner no. 2 who assured to look into the matter. The opposite party/Complainant then informed the said developments to petitioner no. 6 by fax on 9.4.2001 itself and requested that the ticket and visa be sent by 11.4.2001. On 10.4.2001 petitioner no. 2 informed the opposite party/Complainant that documents had been resubmitted for grant of visa to the nominee and that the opposite party/Complainant should contact on 11.4.2001. On 11.4.2001 petitioner no. 2 informed the opposite party that no information was available on the resubmitted application for visa but that the opposite party should proceed on the journey to Mumbai as programme and that the papers would be available with the representative of the company at the Mumbai Airport. In absence of any communication from the company or its officers the opposite party undertook the journey to Mumbai on 11.4.2001 and reached Mumbai on 13.4.2001. He proceeded to the Airport but none of the petitioners met him. In absence of any communication from the company or its officers the opposite party undertook the journey to Mumbai on 11.4.2001 and reached Mumbai on 13.4.2001. He proceeded to the Airport but none of the petitioners met him. After waiting at the Airport and staying at Mumbai the opposite party and his nephew returned to Patna reaching here on 19.4.2001 when they learn that petitioner no. 3 had sent a letter regarding rejection of visa in their absence. 6. The complaint thus alleged that the petitioners in order to raise their sales published a false advertisement, a copy of which was enclosed to the complaint petition. The complaint thus alleged that by the advertisement the petitioners cheated the complainant for wrongful gain and that the petitioners were bound to protect the interest of the complainant. The advertisement did not contain any age bar. This fact was deliberately concealed in the advertisement to protect sale of their products. By such false inducement and intentional misrepresentation the petitioners induced the opposite party for undertaking the journey from Patna to Mumbai and spending Rs. 32,000/- thereby causing wrongful loss and cheating with mischief. This was followed by the order of cognizance-dated 17.12.2002 in compliance with the procedures of the Code under Sections 418, 427 and Section 34 of the Indian Penal Code. 7. Learned Senior Counsel Shri Rana Pratap Singh, appearing on behalf of the petitioners submitted that the order of cognizance-dated 17.12.2002 under Sections 418 and 427 was contrary to law. He submitted that prima facie on the face of the complaint itself no offence was disclosed under Sections 418 and 427 to justify the order of cognizance. Learned Senior Counsel continuing his submissions contended that from the advertisement itself, appended to the complaint, it will be apparent that the offer for a free trip to Sharjah was not an inducement or misrepresentation in any manner. The advertisement was a conditional offer subject to the availability and grant of a visa by the concerned authorities. This was incorporated in Clause (15) of the advertisement. He further submitted that under Clause (12) and (13) of the advertisement the prizes were neither transferable and that a successful contestant would be required to have necessary travel document ready before 5th April 2001. He submitted that the company had been magnanimous in offering the petitioner to nominate his minor nephew. He further submitted that under Clause (12) and (13) of the advertisement the prizes were neither transferable and that a successful contestant would be required to have necessary travel document ready before 5th April 2001. He submitted that the company had been magnanimous in offering the petitioner to nominate his minor nephew. Clause (21) of the said advertisement further stated that any travel to Mumbai had to be done by the contestant at his own cost. It was thus contended that a good gesture in fairness on part of the Company was being abused by the Complainant and that therefore the present prosecution was an abuse of the process of Court. 8. Learned Senior Counsel appearing on behalf of the petitioners submitted that according to the complaint itself the opposite party had planned his journey for departure from Patna on 11.4.2001. Admittedly, as averred in the complaint the opposite party was informed telephonically on 9.4.2001 itself that the visa had been rejected. He thus submitted that there was no occasion for the petitioners to misrepresent or induce thereafter. There was no occasion for the opposite party/Complainant to be cheated or induced as he was admittedly made aware before his departure to Mumbai that the visa had been refused. Learned Counsel thus argued that in terms of Clause (15) of the advertisement the petitioners stood absolved of all liability in view of the conditional offer. Alternatively, learned Counsel contended that the offer stood frustrated for reasons beyond the control of the parties. The learned Counsel also submitted that there were no allegations whatsoever against petitioner nos. 4 to 7, in the complaint. Petitioner no. 3 was a travel agent. There was no pleading that the petitioner no. 1 as the Vice President was responsible for the day to day working of the company and was primarily answerable for the contest scheme. In so far as petitioner no. 2 be concerned he was only an employee of the company and that there was no allegation against him except that the opposite party had spoken over to him on telephone seeking clarification under the scheme. The last submissions being that under the terms of the advertisement the parties by consensus were ad-idem that all disputes would be subject to the jurisdiction of the Courts at Bangalore only. 9. The last submissions being that under the terms of the advertisement the parties by consensus were ad-idem that all disputes would be subject to the jurisdiction of the Courts at Bangalore only. 9. Learned Counsel appearing for the opposite party/Complainant first contended that the letter-dated 1.4.2001 received by his client from petitioner no. 3 was a tampered document as the date had been corrected to read April 1, 2001 in place of April 10, 2001. He produced the original letter received by his client before the Court during the course of the proceedings. This Court after a perusal of the original copy of the letter does not see any reason or suspicion to concur with his submissions. The date of the letter was in fact April 1, 2001. Learned Counsel referring to Annexure B/1 of his counter affidavit next contended that the visa was in fact rejected by the concerned Embassy on 2.4.2001. He thus contended that the letter-dated 1.4.2001 was a fabricated document since there was no occasion for petitioner no. 3 to communicate the rejection of the visa before its actual rejection on 2.4.2001. It was primarily on this basis that the Counsel for opposite party submitted that these were matters for trial and therefore this Court should not interfere with the proceedings at this stage. Learned Counsel thus submitted that the rejection of the visa was of not much relevance as the advertisement did not stipulate any age bar and therefore denial of the trip to Sharjah on the ground of his nephew being a student was a misrepresentation and cheating on part of the petitioners constituting offences under Sections 418 and 427 of the Indian Penal Code. 10. Having heard the parties at length and after considering their submissions, this Court is unable to uphold the order of cognizance under Sections 418 and 427 of the Indian Penal Code. The advertisement in question was an open invitation. There was no compulsion on any person to per force purchase the product of the company. The advertisement invited a purchaser to enter a contest. It cannot be said that the purchase was an inducement or misrepresentation to enter the contest. After such purchase there remained an element of uncertainty to win or lose in the contest. The Complainant/Opposite party was under no compulsion to participate in the contest. The advertisement invited a purchaser to enter a contest. It cannot be said that the purchase was an inducement or misrepresentation to enter the contest. After such purchase there remained an element of uncertainty to win or lose in the contest. The Complainant/Opposite party was under no compulsion to participate in the contest. He chose to enter the contest voluntarily without any inducement or misrepresentation on part of the petitioners. The question of mens rea at the inception therefore simply does not arise. Likewise the advertisement itself was conditional in nature dependent on availability of visa for travel to a foreign country and that the contestant had to pay himself for the visa and for the travel to Mumbai. It is thus apparent that the Company in accordance with its promise, after the opposite party purchased its product and was successful in the contest duly forwarded the papers of his nominee for visa. The visa having been refused by the destination country, the offer stood frustrated for reasons beyond the control of the petitioners. This could certainly not be said to be an offence under Section 418 or 427 of the Penal Code. 11. Coming to the argument of the opposite party that the visa having been refused on 2.4.2001, the communication of such refusal by the petitioner no. 3 on 1.4.2001 itself was a matter of suspicion and was required to be determined at the trial. The argument appears to be completely fallacious. A bare perusal of Annexure B/1 to the counter affidavit of the opposite party would per se demolish this argument. The date of refusal is in Arabic or such other language as may be prevalent in Sharjah printed on the right hand column of the document at the top. The date 2.4.2001 referred to by the opposite party mentions the time 10.20.55 a.m. next to it. This is repeated at the top of the document along with the telephone number etc. Learned Counsel obviously and erroneously relies upon the dates of communication of the rejection order by fax. It must be remembered that the travel agent, as per the complaint itself had telephonically informed the petitioner of the rejection of his visa on 9.4.2001. As per the case of the complainant itself, obviously there was no occasion for him to insist on his travel to Mumbai on 11.4.2001 thereafter. 12. It must be remembered that the travel agent, as per the complaint itself had telephonically informed the petitioner of the rejection of his visa on 9.4.2001. As per the case of the complainant itself, obviously there was no occasion for him to insist on his travel to Mumbai on 11.4.2001 thereafter. 12. This Court, in the facts and circumstances of this case is compelled to observe that the offer of a free trip to Sharjah obviously aroused fond hopes in the opposite party or his nephew. The same having failed it appears to have aroused the ire of the opposite party. Perhaps in anxiety and enthusiasm the journey to Mumbai may have been undertaken notwithstanding the telephonic communication. The same could hardly constitute an offence of inducement or misrepresentation on the part of the petitioners. Criminal proceedings cannot be permitted to be used as a short cut method to recover damages and expenses for travel that may have been incurred. 13. Apart from the aforesaid, this Court comes to the conclusion that the complaint makes out no case against the petitioners for want of any allegation. Undoubtedly even the jurisdiction issue cannot be lost sight of, where the opposite party had consented to confine disputes to the courts at Bangalore only. Reference may be made to the judgment reported in A.I.R. 1989 SC 1239. From the foregoing decisions it can be reasonably deduced that where such an, ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. When the clause is clear unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like alone, only, exclusive, and the like have been used there may be no difficulty. 14. The law with regard to quashing of a criminal prosecution at the very inception in exercise of powers under Section 482 Cr. P.C. now stands fairly well decided by judicial pronouncements finally set at rest by the Apex Court. Applying the said principles, this Court comes to the considered conclusion that continuance of the present prosecution shall only be a cause for harassment to the petitioners and shall constitute an abuse of the process of Court. P.C. now stands fairly well decided by judicial pronouncements finally set at rest by the Apex Court. Applying the said principles, this Court comes to the considered conclusion that continuance of the present prosecution shall only be a cause for harassment to the petitioners and shall constitute an abuse of the process of Court. A bare perusal of the complaint without further more, would not lead any reasonable person to arrive at a conclusion that the complaint discloses a prima facie case which would be the subject matter of a duly constituted trial and which was required to be adjudicated and decided after considering the respective contentions and evidences of the parties. 15. In the aforesaid facts and circumstances, after having considered the rival submissions of the Counsel for the parties, this Court comes to the conclusion that the order of cognizance dated 17.12.2002 cannot be sustained in law. The same is accordingly quashed. The entire proceedings in Complaint Case no. 811 (C) of 2001 also stands quashed with regard to the petitioners. The application stands allowed.