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Madhya Pradesh High Court · body

2008 DIGILAW 1038 (MP)

GENERAL MANAGER v. STATE OF M P

2008-08-19

R.S.GARG

body2008
Judgment ( 1. ) BY this petition under Section 482 of the Code of Criminal procedure, the applicants are challenging the process issued by the Judicial magistrate First Class, Ratlam against the present applicants on a complaint filed by one Ashok Chaurdia, S/o. Samrathmalji Chaurdia. ( 2. ) SHORT facts necessary for disposal of the present petition are that the complainant filed a complaint under Section 190 of the Code of Criminal Procedure against non-applicant Prabandh Sanchalak Mr. S. S. Lee of Samsung India electronics Limited submitting interalia that the accused persons had largely advertised their products and had issued brochures in support of their products. ( 3. ) ACCORDING to the complainant, he had purchased a television on 18. 4. 2003 from one M/s. Ibrahim Brothers, distributor/dealer of M/s. Samsung India Electronics Limited. According to the complainant, the complainant was told that the screen was 29 inches. The complainant, who was possessed a Soni Television of 21 inches was persuaded by the talks and advertisement and purchased a television having screen of 29 inches. After sometime, the complainant found that the screen was not 29 inches, therefore, he measured the screen and found that the screen was only 27 inches. It is to be noted that the length of the screen is measured diagonally and not horizontally. The case of the complainant was that the diagonal dimension of the screen was 27 inches. ( 4. ) IMMEDIATELY after getting the measurement, he issued the notices to the present applicants on 25. 5. 2003 and on 30. 9. 2003 but he could not receive any reply, therefore, on 21. 1. 2004, he sent a legal notice but unfortunately he could not receive any reply. The complainant, therefore, filed the complaint submitting interalia that the Company, Mr. S. S. Lee, the Managing Director have played a fraud upon the general public by advertising that they would be selling 29 inches television while in fact they were selling television of 27 inches. ( 5. ) IN support of the complaint, the complainant stated before the Court that he had purchased 29 inches television after going through the literatures and he had purchased the same from M/s. Ibrahim Brothers. He had measured the screen and found the same to be 27 inches. ( 5. ) IN support of the complaint, the complainant stated before the Court that he had purchased 29 inches television after going through the literatures and he had purchased the same from M/s. Ibrahim Brothers. He had measured the screen and found the same to be 27 inches. On a complaint to M/s. Ibrahim Brothers, the seller/dealer informed him that they had supplied him the television as it was received by them from the Company. He also stated that he had issued letters and the legal notice but could not receive any reply. On the basis of the statements, the non-applicant could persuade the Court to issue process against the present applicants. ( 6. ) IN the petition under Section 482 of the Code of Criminal Procedure, various submissions have been made including a submission that the Prabandh Sanchalak and Managing Director are the same but, however, the present petition under section 482 of the Code of Criminal Procedure has been filed for and on behalf of the General Manager and the Managing Director without even naming them. ( 7. ) I have already noted that the accused No. 2 was Mr. S. S. Lee and he was shown as Managing Director. I do not know that whether Mr. S. S. Lee continues to be Managing Director or not. ( 8. ) SHRI Jain, learned counsel for the applicants has placed his strong reliance upon Annexure P/1, a brochure issued by the Company and Annexure P/2 a comparison note prepared by the applicants. ( 9. ) PLACING reliance upon the comparison note, it is submitted that different models of L. G. , Phillips and Samsung though are specifying their products as 29 inches but in the catalogue, their viewing area is not specified. The actual viewing area as per the measurement is 26 inches. On strength of this comparison note, it is submitted that every Company is selling a television claiming it to be 29 inches screen while in fact the screen is always less than 29 inches because part of the picture tube is covered under the cabinet. It is also submitted that from the brochure aimexure P/1. it would clearly appear that it is nowhere stated that the actual viewing area would be 29 inches. ( 10. It is also submitted that from the brochure aimexure P/1. it would clearly appear that it is nowhere stated that the actual viewing area would be 29 inches. ( 10. ) IT is submitted by Shri Jain, learned counsel that the applicants have not committed any offence and registration of the offence, issuance of the process and filing of the complaint are sheer abuse of the process of the Court and the statutory procedure. ( 11. ) SHRI Mehta, learned counsel for the complainant, however, submitted that the reliance on Annexure P/2 is misconceived because the facts are yet to be proved by the applicants/accused before the Trial Court. Condemning Annexure p/1, it is submitted that when it is contended by the Company that a particular television is of particular measurement and dimension then the television should be of that measurement and dimension. A manufacturer cannot come before the court and say that the actual size of the picture tube is 29 inches but part of the same is covered under the cabinet. According to him, if the applicants were not cheating the other consumers then they could straightway say that the total length of the picture tube is 29 inches. Part of the same is covered under the cabinet and the actual viewing area is 26-27 inches. It is submitted by him that even otherwise, all these questions are required to be raised in defence and not at this stage under section 482 of the Code of Criminal Procedure. ( 12. ) AFTER hearing learned counsel for the parties and on going through the allegations made in the complaint and the statements of complaint Ashok Chaurdia, it would clearly emerge that he had purchased a television advertised to be 21)inches and infact the same was found to be 27 inches. The question before this court is whether the brochure-cum-advertisement published by the Company was to mislead the party/purchaser or to create an impression in the mind of consumer that he was purchasing an article as projected in the brochure or advertisement. ( 13. ) TRUE it is that in the advertising world, things are sold on the strength of a fact, which is projected in its high spirit but in the consumer world, it would not be so because a consumer would be entitled to the article projected for sale on the price fixed by the seller. ( 13. ) TRUE it is that in the advertising world, things are sold on the strength of a fact, which is projected in its high spirit but in the consumer world, it would not be so because a consumer would be entitled to the article projected for sale on the price fixed by the seller. Once a Company says that it is selling a particular item/article then the products so sold must certify to and meet to the standard as provided in the brochure/advertisement. A Company cannot be allowed to say that though they advertised that the product was of 29 inches but they would be entitled to sell 26 inches television with an explanation later that part of the picture tube is covered under the cabinet. ( 14. ) THE brochure Annexure P/1 on which reliance is placed by the applicants would clearly show that each and every product is shewn to be of a particular measurement. On the last page of the brochure, the length of the picture tube is shown to be 74 cm, 64 cm, 53 cm, 43, 38 cm etc but it is nowhere mentioned that that would be the total length of the picture tube and a part of the same would be covered under the cabinet. When a person purchases an article, he relies upon the honesty and sincerity of a Company, which proposes to sell its article in the market. When a Company of the repute submits in the market that they are selling a television, which has 74 centimeter screen then they are obliged to sell a television of 74 centimeter screen and after the sale is over, they cannot be allowed to say that in fact the television screen is not 74 centimeter but is only 68/69 centimeter. If they were to sell it honestly, they could have clearly shown in the advertisement/brochures that 74 centimeter is the total length of the picture tube and at least 5 centimeter or 2 inches of the picture tube is covered under the cabinet and the covered area would not be showing any picture. If they were to sell it honestly, they could have clearly shown in the advertisement/brochures that 74 centimeter is the total length of the picture tube and at least 5 centimeter or 2 inches of the picture tube is covered under the cabinet and the covered area would not be showing any picture. When a person, relies upon an assurance made by the other parties, pays him money to purchase the article and later on finds that articles sold to him is not what was assured then obviously an offence punishable under Section 420 of the Indian Penal Code is made out. ( 15. ) SO far as Annexure P/2 is concerned, this Court at this juncture cannot rely upon the same because it is an ipse dixit in favour of the applicants. The defence of the applicants is yet to be established by leading cogent evidence. ( 16. ) IN the present case, if the allegations made by the complainant are not rebutted or disproved by the present applicants then the Trial Court would be justified in convicting the applicants. If that be so, issuance of the process cannot be condemned just on the say of the applicants. ( 17. ) THE application is rejected. The Trial Court shall proceed with the trial immediately. Interim relief, if any is vacated. Petition dismissed.