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2007 DIGILAW 624 (CHH)

MUKESH D. AMBANI v. STATE OF C. G.

2007-11-19

DHIRENDRA MISHRA

body2007
ORDER Dhirendra Mishra, J. ;_ 1. M.Cr.C. No. 486/06 filed by Mukesh D. Ambani (accused No. 1) and M.Cr.C. No. 586/06 filed by Vinod Kumar Singh (accused No.2) under Section 482 of the Code of Criminal Procedure (for brevity 'the Code') are being' disposed of by this common order as both the petitioners have prayed for quashing of entire proceedings including the order dated 13th January 2006 passed in complaint case No. 115/06 by learned Additional Chief Judicial Magistrate, Raipur (in short' A.C.J .M. '). 2. Complainant! respondent No.2 filed a complaint before the learned A.C.J.M. under Sections 420, 465. 468 and 474 of the Indian Penal Code with the averment that he obtained mobile connection from-the accused persons on 29"' February 2000 after depositing necessary requisite fee and the accused persons promised to extend certain services described in paragraph 3 of the complaint. After obtaining mobile connection, he enjoyed the services extended by the accused persons and regularly paid the bills raised for the same up to March 2004. However, the bill for the month of April 2004 was abnormally excessive whereupon he contacted the accused persons and tried to ascertain reasons for excessive billing and addressed written complaint for the excessive billing, but the same was never replied to and disconnection of the services was threatened in case the bills are not paid. The bill for the month of May 2004 was also abnormally exorbitant and the protest of the complainant did not invoke any response and in these circumstances, the complainant was made to pay the exorbitant bill on the threat of disconnection on 30th June 2004. Two employees of the accused persons came to the complainant and threatened disconnection if the bills are not paid and they orally informed that on the written application of the complainant there is a change in scheme under which the billing is being made and the same is being done with the written consent of the complainant, though no such written application for change in scheme was filed by the complainant nor any consent was given for the same. He lodged written report with Police Station Gol Bazar, Raipur, however, no cognizance was taken by the police. Thereafter, the complaint under Section 12 of the Consumer Protection Act was filed by the complainant before the District Consumer Redressal Forum, Raipur (for brevity 'the Consumer Forum '). He lodged written report with Police Station Gol Bazar, Raipur, however, no cognizance was taken by the police. Thereafter, the complaint under Section 12 of the Consumer Protection Act was filed by the complainant before the District Consumer Redressal Forum, Raipur (for brevity 'the Consumer Forum '). However, the Consumer Forum disposed of the complaint with an observation that there is an allegation of cheating and fraud in the application, which cannot be decided by the Consumer Forum under Section 14 of the Consumer Protection Act and the complainant may file complaint regarding the allegation of cheating before the competent Court. The photocopy of the alleged letter written by the complainant was filed before the Consumer Forum and original of the same is in possession of the accused persons. The complainant got examined his signature in the above document by the handwriting expert, whereupon the handwriting expert vide his report dated 20th April 2005 opined that the questioned document does not bear signature of the complainant and thus, it is clear that the accused persons fabricated the document by forging his signature and used the same as original with a purpose to cheat him. On the basis of above forged letter, a sum of Rs. 3,000/- was recovered from the complainant by cheating. 3. Learned AC.J.M. recorded statement of the complainant under Section 200 of the Code on 18.7.2005 and thereafter, the matter was posted for argument before registration on 24.8.2005. However, the matter was adjourned by the learned trial Court on six successive dates on one pretext or the other and ultimately, arguments were heard on 13th January 2006. Learned trial Court directed registration of the complaint under Sections 420, 465, 468 and 474 of the IPC with an observation that from perusal of the complaint, the accompanying documents and preliminary evidence sufficient grounds for proceeding under Section 420,465,468 and 474 against the accused persons are present and it was further directed that on payment of process fee within three days by the complainant, warrant of arrest be issued against the accused persons for their presence on 20th March 2006 before the Court. 4. Learned counsel for the petitioners argued that petitioner Mukesh Ambani is neither at present nor ever in the past was Chairman/Managing Director/ Director of the Reliance Telecom Ltd. and his description in the cause tile and complaint is false and misleading. 4. Learned counsel for the petitioners argued that petitioner Mukesh Ambani is neither at present nor ever in the past was Chairman/Managing Director/ Director of the Reliance Telecom Ltd. and his description in the cause tile and complaint is false and misleading. Learned Magistrate without verifying the allegations in the complaint and without applying his mind to the facts of the case and law applicable thereto, directed registration of the complaint on the basis of vague and bald allegations against the petitioners. There was no material before the learned A.C.J .M. for reaching to the conclusion that the petitioners were responsible for providing mobile connection to the complainant or for issuance of alleged bills or that they were responsible for the alleged forged document, which was produced by the Reliance Telecom Ltd. in the proceedings before the Consumer Forum. On the contrary, the FIR dated 21't July 2004 filed by the complainant with the police authorities, the order of Consumer Forum dated 4.12.2004 and notice of learned counsel for the complainant/respondent No.2 dated 22.12.2004 unmistakably shows that there is no allegation against the petitioners in regard to alleged offence of forgery and there is no link between the petitioners and the accusations. The complaint does not disclose any offence, however, learned A.C.J.M. has mechanically passed the impugned order and directed issuance of warrant of arrest against the petitioners at the very first instance for securing their presence in violation of the provisions contained in Chapter- VI of the Code of Criminal Procedure. The complainant has described the petitioner Mukesh Ambani as Chairman of Reliance Telecom Ltd., however, in his statement under Section 200 of the Code this witness has stated that he knows accused Mukesh Ambani by name and at the time of incident he was Chairman of the Reliance Telecom Company whereas petitioner Vinod Kumar was Circle Head of Reliance Telecom Company Raipur Through out the complaint only general and omnibus allegations have been made against the petitioners under description 'ahhiyuktgan' without specifying any personal involvement in the alleged offence. The essential ingredients for constituting the offence under Sections 420, 465, 468 and 474 of the JPC are absent in the complaint as there is no specific averment that the petitioners made a false document with intention to cause damage to the complainant or that the petitioners committed forgery on the basis of cheating and that there is no specific allegation that the petitioners are having possession of the document in question knowing it to be forged with intention to use it as genuine. There is no specific allegation in the complaint to show that the petitioners have deceived the complainant or dishonestly or fraudulently induced the complainant to part with the payment of the allegedly inflated bills and on the contrary, there is admission of the complainant that he never met petitioner Mukesh Ambani and knew him only by his name. LEGAL SUBMISSIONS ON BEHALF OF THE PETITIONERS 5. Relying on the decision in the matter of State Vs. Inder Mohan Goswami & others' it has been submitted that the Hon'ble Supreme Court after considering the scope of Section 482 of the Code and after discussing its various judgments, has held that the Court must ensure that the criminal prosecution is not used as an instrument of harassment or seeking private vendetta or with an ulterior motive to pressure the accused. It is neither possible nor desirable to lay down an inflexible rule that shall govern the exercise of inherent jurisdiction. 'Inherent jurisdiction of the High Court under Section 482 of the Code though wide, has to be exercised sparingly, carefully and with great caution and only when it is justified by the tests specifically laid down in the statute itself. Deprecating issuance of bailable and non-bailable warrant by some criminal Courts mechanically and in a casual manner without properly comprehending the nature of controversy involved and without exhausting the available remedies, it has been observed that the same interferes with the personal liberty as arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. It has been further observed that in complaint cases at the first instance the Court should direct serving of summons along with copy of the complaint. If the accused seem to be avoiding the summons, the Court, in the second instance should issue bailable warrant. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. It has been further observed that in complaint cases at the first instance the Court should direct serving of summons along with copy of the complaint. If the accused seem to be avoiding the summons, the Court, in the second instance should issue bailable warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding the Court's proceedings intentionally, the process of issuance of non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution the Courts at the first and second instance to refrain from issuing non-bailable warrants. 6. In the matter of State of Haryana and others Vs. Ch. Bhajan Lal and others the Hon'ble Supreme Court held in paragraph 108 & 109 as under: "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 7. In the matter of M/s Pepsi Foods Ltd and another Vs. Special Judicial Magistrate and others it has been held in paragraph 28 thus: "28. Summoning of an accused in a criminal case is a serious matter. In the matter of M/s Pepsi Foods Ltd and another Vs. Special Judicial Magistrate and others it has been held in paragraph 28 thus: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 8. In the case of Ashok Chaturvedi and others Vs. Shitul H. Chanchani and another a complaint was filed by the complainant alleging offences committed by the accused persons under Sections 406, 420, 467, 468 and 1208 of the IPC in respect of transfer of shares effected by the Flex Engineering Ltd. a public limited company. The learned Magistrate on the basis of allegations in the complaint, statement on oath of the complainant and his witnesses registered offences under the aforesaid sections and directed issuance of process against the accused persons. Their petition under Section 482 of the Code for quashing of the cognizance was rejected by the High Court with an observation that there are allegations that the shares have been transferred on the basis of forged and fabricated signatures and as such, prima facie case is made out. Their petition under Section 482 of the Code for quashing of the cognizance was rejected by the High Court with an observation that there are allegations that the shares have been transferred on the basis of forged and fabricated signatures and as such, prima facie case is made out. The Hon 'ble Supreme Court quashed the orders of the Magistrate and the High Court taking cognizance of the offence with an observation that the petition of complaint is a vague one and excepting the bald allegation that the shares of the complainant have been transferred on the forged signatures, nothing further has been stated and there is not an iota of material to indicate how all or any of these appellants are involved in the so-called allegation of forgery. The statement of the complainant on oath as well as his witnesses do not improve the position in any manner, and therefore, in our considered opinion even if the allegations made in the complaint petition and the statement of complainant and his witnesses are taken on their face value, the offence under Sections 406, 420, 467, 468 and 1208 of the IPC cannot be said to have been made out. 9. On the other hand, learned counsel for the respondent No. 2/ complainant argued that there are sufficient allegations in the complaint that the complainant obtained mobile connection from the accused persons after paying the requisite fee for the same, the inflated bills were issued to the complainant by the petitioners from the month of March 2004 and on enquiry it was revealed that the bills were raised on the basis of billing under changed scheme. The billing under changed scheme was done by the accused persons on the basis of alleged application of the complainant - filed before the Consumer Forum - by which he had consented for change of scheme and billing according to the changed scheme. The Reliance Telecom Ltd. filed the alleged application for change of scheme given by the complainant, though no such application was filed by the complainant and in these circumstances, the complaint was disposed of by the Consumer Forum with an observation that the allegations of fraud and cheating can be gone into in a criminal complaint by appropriate forum. The Reliance Telecom Ltd. filed the alleged application for change of scheme given by the complainant, though no such application was filed by the complainant and in these circumstances, the complaint was disposed of by the Consumer Forum with an observation that the allegations of fraud and cheating can be gone into in a criminal complaint by appropriate forum. The signature present in the said application, allegedly filed by the complaint, does not tally with the signature of the complainant as opined by the handwriting expert and thus, there was a prima facie evidence before the learned A.C.J.M. of forging the document (i.e. application for change of scheme) with a purpose to use the same as genuine for the billing of mobile connection issued to the complainant by the petitioners. LEGAL SUBMISSIONS ON BEHALF OF THE RESPONDENTS 10. Placing reliance in the matter of Rajesh Bajaj Vs. State NCT of Delhi and others4 it has been submitted that the complaint cannot be quashed merely because one or two ingredients of the offence have not been stated in detail. The complaint can also not be quashed on the ground that the complaint does not disclose commercial or money transaction and it is not essential that the complaint should verbatim contain all the ingredients of the offence alleged, so long as factual foundation of the offence has been alleged. 11. In the matter of Jagdish Ram Vs. State of Rajasthan and another5 it has been held by the Hon'ble Supreme Court that it is well settled law that the Magistrate is empowered to take cognizance of if the material on record makes out a case for the said purpose. The investigation, is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage a Magistrate has to be satisfied whether there is sufficient ground to proceed and not, whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry. Further, at the stage of issuing process to the accused, the Magistrate is not required to record reasons. 12. In the matter of State of Karnataka Vs. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry. Further, at the stage of issuing process to the accused, the Magistrate is not required to record reasons. 12. In the matter of State of Karnataka Vs. M Devendrappa and another the Hon'ble Supreme Court while dealing with the scope of Section 482 of the Code after discussing its various judgments, has held that it is not necessary that there should be meticulous analysis of the case before the trial Court to find out whether the case wound end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. 13. I have heard learned counsel for the respective parties and have perused the complaint as also the documents filed along with the petitions, which form part of the criminal complaint. 14. Briefly stated allegations against the petitioners in the complaint are that; (i) that petitioner Mukesh Ambani is Chairman of the Reliance Telecom Ltd. whereas petitioner Vinod Singh is Circle Head of Reliance Telecom Ltd. The complainant obtained mobile connection from the accused persons and at the time of giving connection certain services were promised; (ii) that the complainant started receiving highly inflated bills for the month of March, April, May and June, 2004. He enquired about the reasons for abnormally increased bills, whereupon employees of the accused persons informed him that he had applied for change of scheme and billing was done on the basis of new scheme with consent of the complainant, though no such application for change of scheme was made by the complainant and no consent was given for the same; (iii) that when the police did not take cognizance on the report of the complainant, he filed a complaint before the Consumer Forum and the same was disposed of by the Consumer Forum with an observation that the complaint is based on the allegations of cheating and forgery, which cannot be decided as per provisions of section 14 of the Consumer Protection Act and the complainant is free to file a case in the Court of competent jurisdiction against the alleged forgery and then only it could be established whether change in scheme was effected on the basis of application of the complainant or not?; (iv) that signature of the complainant present in the photocopy of the alleged application for change of scheme submitted before the Consumer Forum was examined by the handwriting expert, who opined that the said document does not bear signature of the complainant. 15. Thus, from perusal of the complaint it is evident that the complainant has not made any specific allegation against the individual accused persons as to what role they played individually in providing mobile connection to him or any specific role played by them in issuance of inflated bills. The alleged document was filed on behalf of the Reliance Telecom Ltd. before the Consumer Forum and there is no allegation against the petitioners/accused persons that they were responsible for filing the said document before the Consumer Forum or they personally forged the application for change of scheme and thereafter, filed the same before the Consumer Forum. General and omnibus accusations have been made in the complaint as also in the statement under Section 200 of Code against the petitioners with their description as 'accused persons' without attributing any specific act to them. There is inconsistency in the averments in the complaint and in his deposition before the Court in which he admits that he knows accused Mukesh Ambani only by name. There is inconsistency in the averments in the complaint and in his deposition before the Court in which he admits that he knows accused Mukesh Ambani only by name. There is no evidence on record to substantiate the claim of the complainant that petitioner Mukesh Ambani is Chairman or is holding any post in the Reliance Telecom Ltd. On the other hand, the complainant has himself described him as Chairman of Reliance Telecom Company. From the close scrutiny of the First Information Report it is manifestly clear that the complainant has made no allegation against the petitioners that they were responsible for forging his signature in the application for change of scheme. The petitioners have not even been named in the said complaint and the allegations are made against the employees of the Company that they forged the said application with intention to illegally recover the inflated bill amount. From the order of the Consumer Forum dated 4.12.2004 also it transpires that no specific allegations were made against the petitioners in the said proceedings. 16. The settled principle of law enunciated by the Hon'ble Supreme Court in a series of decisions for exercising inherent powers under Section 482 of the Code, some of which have been cited by the parties herein and the same have been referred to hereinabove, is to give effect to an order under the Code to prevent abuse of process of the Court and to otherwise secure the ends of justice, it has to be exercised sparingly, cautiously and with great care and only when such exercise is justified by the tests specifically laid down in this section itself. Powers under section 482 of the Code are very wide, however, the Courts have to be very careful and the same should not be exercised to stifle a legitimate prosecution. 17. Powers under section 482 of the Code are very wide, however, the Courts have to be very careful and the same should not be exercised to stifle a legitimate prosecution. 17. In the light of above settled principles of law laid down by the Hon'ble Supreme Court if we refer to the facts of the case before us, it is clear that allegations in the complaint merely show that mobile connection was given by the Reliance Telecom Ltd. petitioner Mukesh Ambani was Chairman of the said Company whereas petitioner Vinod Singh was Circle Head, billing of the telephone connection of the complainant was subsequently issued under the changed scheme allegedly on the basis of some forged application on behalf of the complainant as the same does not bear signature of the complainant as opined by the handwriting expert. There is no averment in the complaint as to how the complainant alleges that at the first place the mobile connection was given by the petitioners and thereafter, inflated bills were issued with the active connivance of the petitioners and what role the petitioners have individually played in forging the signature of the complainant in his application for change of scheme except vague and omnibus allegation. On the contrary, there are allegations in the complaint and the documents annexed with the complaint that employees of the Reliance Telecom Ltd. forged the said application with intention to illegally recover the amount of inflated bills and no allegation has been made personally against the petitioners in the FIR lodged by the complainant before the police. Therefore, in the considered opinion of this Court, in the instant case allegations made in the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused persons. The allegations that the Chairman of a public limited company providing cellular connection to millions of its consumers would forge an application on behalf of the complainant so that the scheme under which the cellular connection is provided to the said consumer, is changed and thereby illegally recover few thousands of rupees per month in the shape of excess billing, is so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 18. 18. Before parting with the case, we are constrained to note that the learned A.C.J .M. not only registered the offence without application of mind in a casual manner but also issued non-bailable warrant against the accused persons at the first instance without making any efforts to secure their presence by issuance of summons. We take note of the arguments advanced by learned counsel for the petitioners that before issuance of non-bailable warrant learned A.C.J.M. postponed the case on six occasions and ultimately ordered registration of the complaint. From perusal of certified copy of the order sheet dated 13.1.2006 it is apparent that initially on payment of process fee summons was directed to be issued along with copy of the complaint by ordinary as well as registered post for appearance of the accused, however, words 'summons' have been scored out and handwritten words 'arrest warrant' have been substituted and the same does bear initials of the presiding officer. 19. In the result, both the petitions are allowed. Complaint Case No. 115/ 06 and the order dated 13th January 2006 passed in the above complaint case by the learned Additional Chief Judicial Magistrate is hereby quashed. Petition Allowed.