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2013 DIGILAW 2279 (RAJ)

Wolfgang Hatz v. State of Raj.

2013-12-14

NISHA GUPTA

body2013
Hon'ble GUPTA, J.—This Misc. Petition under Section 482 Cr.P.C. has been filed for quashing of complaint case No. 259/2012 and the order dated 30.10.2012 passed by Additional Chief Judicial Magistrate No.3, Jaipur whereby cognizance has been taken against the present petitioners for the offence under Section 384, 418, 420, 406 and 120B IPC and also order dated 10.10.2012 passed in Revision Pet. No. 105/2012 by Additional Sessions Judge No.3, Jaipur Metropolitan whereby revisional court has ordered for cognizance against the present petitioners in their absence. 2. The relevant facts of the case as contained in the petition are that a complaint has been filed by respondent No.2 alleging therein that petitioners entered into a Local Import Agreement on 8.6.2007 for supply of Porshe Cars, accessories and spare parts dealership in India. The said agreement was terminated vide notice dated 23.3.2011 on the basis of clause 13.2 of the agreement and it is also stated in the complaint that present petitioners has appointed a local dealer in violation of terms of agreement and caused wrongful loss to the respondent. The court below has declined to proceed on the complaint and it was dismissed under Section 204 Cr.P.C., against which a revision petition was filed and revisional court was of the opinion that prima facie there is evidence to take cognizance against the present petitioners on which the court below has took cognizance against the present petitioners, hence this petition. 3. The contention of the present petitioners is that this is the admitted case of the parties that agreement was entered between the parties on 8.6.2007 and it was terminated vide notice dated 1.3.2011 as per clause 13.2 of the agreement after the 12 months of service of notice, the termination notice was received by respondent No.2 on 7.3.2011 and it was accepted by respondent No.2 vide two e-mails dated 8.3.2011. The said termination was to be effective from 28.2.2012 but respondent No.2 requested that the termination period be extended upto 31.3.2012 to coincide it with the financial year closing of respondent No.2 which was agreed by the petitioner company and thereafter, the Volkswagen Group Sales India Ltd. has been made the exclusive local importer of the company with effect from 1.4.2012. The respondent then filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 (for short the Act of 1996) which was later on withdrawn as the court below has declined to give any interim relief to him. After withdrawing the aforesaid petition, respondent No.2 again filed a petition under Section 9 of the Act of 1996 for ex parte interim injunction without disclosing the fact that earlier one application under Section 9 of the Act of 1996 has been withdrawn by him. The court below has dismissed the application filed by respondent No.2, SB Civil Misc. Appeal has been filed before this Court which was also dismissed after that one suit through other company named M/s Shreyans Pvt. Ltd. has been filed against petitioner No. 2, 3 and Volkswagen Group Sales India Ltd. which was also dismissed under O.7 R.11 CPC and appeal has also been dismissed thereafter with malice and mala fide intention, criminal complaint has been filed and the court below has declined to issue process holding that the dispute was primarily of civil nature but the revisional court has ordered for taking cognizance. 4. The contention of the present petitioners is that respondent has deliberately concealed the material facts from the trial Court that after completing the innings of civil litigation, this complaint has been filed just to pressurize the present petitioners and to settle their scores, the only allegation against the petitioners is that during the subsistence of agreement, they have appointed local importer but the petitioners has not supplied any vehicles, accessories or spare parts to Volkswagen Group Sales India Ltd. The Volkswagen Group Sales India Ltd. has been appointed as importer w.e.f. 1.4.2012 only after termination of existing agreement with respondent No.2. The communication between petitioners and Volkswagen Group Sales India Ltd. in the year 2011 is with regard to training of employees to channalise the business of present petitioners and first consignment was received by Volkswagen Group Sales India Ltd. in August and September, 2012 much after the termination of the agreement between the present parties. 5. The communication between petitioners and Volkswagen Group Sales India Ltd. in the year 2011 is with regard to training of employees to channalise the business of present petitioners and first consignment was received by Volkswagen Group Sales India Ltd. in August and September, 2012 much after the termination of the agreement between the present parties. 5. On a bare perusal of the complaint, it reveals that the allegations levelled therein taken on the face value do not constitute or disclose commi-ssion of any offence and complaint has been filed without any factual or legal basis with malafide intention and the Court should exercise extraordinary jurisdiction to advance real and substantial justice. It is not the case of the respondent that at the time of entering into the agreement i.e. 8.6.2007, the present petitioners were having any dishonest intention. The present petitioners has not threatened or intimidated the respondent in any way, the e-mails placed before the Court by the respondent speak itself that they confirms the commercial relations between the parties. The dispute is purely of civil nature and when the respondent lost his battle in civil proceedings just to harass the present petitioners, this false FIR has been lodged and the order passed by revisional court is per verse and present petitioners has not been made a party in the proceedings which was mandatory as per provisions of Sec. 401 Cr.P.C., hence the proceedings be quashed and the present petitioners should not be traumatized to face the trial. Per contra, the contention of the respondent is that no case is made out for quashing of the proceedings. His first contention is that the matter has been fixed only for admission and it cannot be disposed of finally. The petition has been submitted through power of attorney holder which is not maintainable. No permission has been sought for filing the petition through power of attorney holder. No affidavit has been filed in respect of the petition, cognizance order can be challenged by way of revision and when alternative remedy is available, this petition is not maintainable. The petition has been submitted through power of attorney holder which is not maintainable. No permission has been sought for filing the petition through power of attorney holder. No affidavit has been filed in respect of the petition, cognizance order can be challenged by way of revision and when alternative remedy is available, this petition is not maintainable. On facts, the contention is that user I.D to the Volkswagen Group Sales India Ltd. has been issued by the present petitioners way back on 6.5.2011 when admittedly, agreement between the parties was in subsistence and due to issue of user I.D. to Volkswagen Group Sales India Ltd. it could get access to the data base of respondent company. According to clause 9.7 of the agreement both the parties were under obligation for not disclosing confidential information to any third party and this condition has been broken by the present petitioners, they have disclosed information to the Volkswagen Group Sales India Ltd. When prima facie case is made out against the petitioners only due to assertion of mala fides, complaint cannot be thrown out at the threshold as the complicated question of fact and law arises by the averment in the complaint and defence version cannot be looked into, PPN Account of respondent No.2 has been de-activated and cars which he has received could not be put in motion. He has suffered wrongful loss, hence there is no ground for quashing the proceedings, this Court under inherent powers could not act as court of appeal or as a trial court, hence the petition is liable to be rejected. 6. Heard the learned counsel for the petitioners and learned Public Prosecutor as also counsel for the respondent and perused the impugned orders as well as the documents produced by both the parties. Both the parties have also submitted lengthy written submissions. 7. The first contention of the present petitioners is that the matter is posted for admission and it cannot be disposed of finally without a formal order but when both the parties are represented and counsel for both sides has addressed the Court on the merit at length, this contention is not sustainable. 8. 7. The first contention of the present petitioners is that the matter is posted for admission and it cannot be disposed of finally without a formal order but when both the parties are represented and counsel for both sides has addressed the Court on the merit at length, this contention is not sustainable. 8. The other contention of the present petitioners is that petition has been filed through power of attorney holder which is not permissible under the law and under Rule 136 of the High Court Rules, no affidavit has been filed in support of the petition. In Rule 136 of the High Court Rules, 482 petitions are not included and no affidavit is required to be filed in such petitions. On this point, the respondent has relied upon T.C. Mathai & Anr. vs. District & Sessions Judge, Thiruvananthapuram, Kerala (1999) 3 SCC 614 which relates to the issue of provisions incorporated under Section 205 and 303 Cr.P.C. which are in relation to right to defend of a person and dispensing with the personal attendance of the accused, hence this law has no bearing on the issue of present case. Further reliance has been placed on S. Pratap Singh vs. State of Punjab, AIR 1964 SC 72 where it was necessary to file an affidavit which could be filed by the person only who has personal knowledge of the facts and could testify the facts. Here in the present case, as per provisions of Rule 136 of the High Court Rules, there is no legal requirement to file an affidavit to support the contention alleged in the petition. Further reliance has been placed on Hari Shankar Rastogi vs. Girdhari Sharma & Anr., (1978) 2 SCC 165 which speaks about practice of the Supreme Court where a private person cannot represent any party without the prior permission. This is not the case of the present petitioners. Further reliance has been placed on Dr. (Mrs.) Daksha Sankhla vs. Jai Narain Vyas University, Jodhpur & ors., 2001(4) WLC Raj. 417 = RLW 2001(2) Raj. 1035 where practice and procedure of filing writ petitions has been explained. Reliance has also been placed on Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Anr. Further reliance has been placed on Dr. (Mrs.) Daksha Sankhla vs. Jai Narain Vyas University, Jodhpur & ors., 2001(4) WLC Raj. 417 = RLW 2001(2) Raj. 1035 where practice and procedure of filing writ petitions has been explained. Reliance has also been placed on Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd. & Anr. (2005) 2 SCC 217 and Mankaur (dead) by LRs vs. Hartar Singh Sangha, (2010) 10 SCC 512 wherein it has been held that power of attorney cannot depose on behalf of principal for the facts which are not in his personal knowledge. In the light of the above, the contention of the respondent is that this petition is not maintainable. Per contra, the contention of the present petitioners is that petitioner Nos. 2 and 3 are the companies which can file petition through power of attorney holder and otherwise there is no bar in any rule or law for filing petition under Section 482 Cr.P.C. through power of attorney holder. Apart from it, reference has been rightly been placed on the provisions of Section 305 Cr.P.C. which provides procedure when corporation, registered society is an accused and Section 305 sub-clause (2) speaks that Corporation can appoint a representative for the purpose of enquiry or trial. Looking to the provisions of Section 305 Cr.P.C., the contention of the respondent that petition through power of attorney holder is not maintainable, is without any basis and further in view of the fact that petitioner No.2 and 3 are company, hence the objection is not worth acceptance. 9. The other contention of the respondent is that alternative remedy of revision is available to the present petitioners, hence petition under Section 482 Cr.P.C. is not maintainable and reliance has been placed on Hamida vs. Rashid @ Rasheed & Ors., (2008) 1 SCC 474 . Per contra, the petitioners have relied upon Inder Mohan Goswami & Anr. vs. State of Uttarnchal & ors., (2007) 12 SCC 1 wherein it has been held that availability of alternative remedy is not a bar for exercising jurisdiction under Section 482 Cr.P.C. if the powers are exercised to give effect to an order under the Code or to prevent abuse of process or to otherwise secure the ends of justice. Further reliance has been placed on State of Karnataka vs. Muniswamy & ors. Further reliance has been placed on State of Karnataka vs. Muniswamy & ors. (1977) 2 SCC 699 where also question of alternative remedy has been explained by the Apex Court. Reliance has also been placed on Punjab State Warehousing Corporation, Faridkot vs. Shree Durga Ji Traders & Ors., (2011) 14 SCC 615 that availability of alternative remedy is not an absolute bar to entertain petition under Section 482 Cr.P.C. Further reliance has been placed on Pepsi Food Ltd. & Anr. vs. Special Judicial Magistrate & ors., (1998) 5 SCC 749 where also it has been held that remedy of revision is not absolute bar to invoke jurisdiction of High Court under Section 482 Cr.P.C. when the complaint does not make out any case against the petitioner and still he has to undergo agony of criminal trial. 10. In the light of above, it can safely be concluded that availability of alternative remedy is not a straight-jacket bar to entertain petition under Section 482 Cr.P.C. and the powers under Section 482 could be exercised to prevent abuse of process or to otherwise secure the ends of justice, hence the primary objection of the respondent that petition is not maintainable, is not acceptable. 11. The contention of the respondent is that the petitioners have placed documents on record which could not be looked into as the defence documents cannot be relied upon for quashing the FIR. Per contra, the contention of the petitioners is that if documents are beyond suspicion, having bearing on the facts of the case and are being uncontroverted documents, they may be taken into consideration and reliance has been placed on Harshendra Kumar D. vs. Rebatilata Koley, (2011) 3 SCC 351 = 2011(2) RLW 1724 (SC); and Rajiv Thapar vs. Mandalal Kapoor, JT (2013) 2 SC 209. 12. 12. In view of the above, the defence documents could be looked into while invoking powers under Section 482 Cr.P.C. apart from this, here in the present case, respondent No.2 has also filed many documents before this Court which were not under consideration before the courts below but taking note of the fact that most of the facts and documents are not in dispute between the parties, the issue regarding consideration of documents here is futile, because both the parties are not in quarrel on the facts that agreement has been entered between the parties, there was a clause of termination by notice. Notice of termination was sent to respondent which was received and Volkswagen Group Sales Company has been issued the user ID on 6.5.2011. It is true that validity of the notice has been questioned by respondent, but it has no bearing on the case, hence the contention as regards to non consideration of the documents is having no bearing on the case. The contention of the respondent is that earlier this Bench has passed the order in SB Civil Misc. Appeal and the Court should not be guided by the findings of that order. This Court is vigilant about the fact that yardstick in criminal proceedings and civil proceedings are different and hence anxiety of the respondent is futile. 13. While scanning the merits of the case, it is not in dispute between the parties that they entered into a local import agreement on 8.6.2007. The contention of the respondent is that agreement was for an indeterminate period and explanation of the respondent is that it is for all the time to come but the Oxford English Dictionary gives the meaning of `indeterminate' as not fixed in extent, number, character or nature, uncertain and clause 13.2 of the agreement which is an admitted condition of the parties speaks that either party has the right to terminate this agreement subject to 12 months notice to the end of month. It is also not in dispute between the parties that the notice of termination was issued to respondent No.2 and it was received by him and on their request, the termination date was fixed as 31.3.2012, hence all these facts are not in dispute. It is also not in dispute between the parties that the notice of termination was issued to respondent No.2 and it was received by him and on their request, the termination date was fixed as 31.3.2012, hence all these facts are not in dispute. In complaint and statement under Section 200 Cr.P.C. The respondent has stated that petitioners has started the supply of cars to other company Volkswagen Group Sales India Ltd. and also gave him a user ID on 6.5.2011 whereas they were getting the delivery of vehicles upto 5.5.2012. The fact of issuing user ID has also not been denied by the present petitioners and they have categorically stated that user ID has been allowed to Volkswagen Group Sales India Ltd. only for training purposes and respondent has also placed documents Annex.R/2 and 6 to 11 (with written submissions signed by Punit Singhvi, Advocate) which go to show that PPN has been opened only for training relevant job role which fortifies the contentions of the present petitioners. The other allegation levelled by the complainant is that present petitioners has started supplying cars to Volkswagen Group Sales India Ltd. but no document has been placed on record to support this contention and present petitioners has specifically stated that before August and September, 2012 no vehicle has been supplied to new Importer Company and admittedly, allegation in the complaint is that complainant have received the vehicles upto 5.5.2012 and as per agreement clause 13.5, in the event of termination of agreement, the local importer will transfer orders which he has already received from the petitioners to third party named by the petitioners, hence after the termination of agreement, the complainant cannot complain for non-delivery of vehicles. It is the admitted case of the respondent himself that after placing of the order, six months time needed to reach the vehicle to the customer. It is the admitted case of the respondent himself that after placing of the order, six months time needed to reach the vehicle to the customer. Documents R/22 and R/23 have been placed on record to show that prior to termination of agreement, delivery has been made to the Volkswagen Group Sales India Ltd. but the same has not been asserted before the court below and invoice date on R/22 is 28.2.2012, meaning thereby that after six months, the vehicle would be received by the local importer and in R/23, date of delivery is 3rd April, 2012 that is after the termination of agreement with the complainant, hence the contention of the respondent has not been fortified by any document and only a bald allegation has been levelled that petitioners started delivery to the another company. 14. What is the effect of issuing user ID has not been stated in the complaint or even in statements under Section 200 and 202 Cr.P.C. Before this Court it has been asserted that by giving user ID, the present petitioners has gave access to all his data based to the new importer but petitioners have stated that arrangement has been made that after delivery, activation and registration of warranty would be done by the new local importer and the present petitioners has rightly contended that PPN does not mean access to the customer data and this information was remained strictly prohibited as customer data is kept secured in a confidential and protected account and access to PPN does not give any right to the other importer to customer data base of the complainant and it has also not been alleged in complaint or in statements and when agreement has been terminated, it was within the province of the petitioners to close the PPN of respondent and respondent has also admitted the fact that PPN has been de-activated in the month of May, 2012 hence from the bare reading of the complaint or even the statement of complainant and his witness, no ingredients of cheating or any other offence is disclosed. 15. 15. The contention of the respondent is that powers under Section 482 Cr.P.C. could be used only in extremely rare cases where the complaint does not disclose even the basic facts which are absolutely necessary for making out the offence and it is not essential that any of the ingredients of the offence should be verbatim contained in the complaint and reliance has been placed on Rajesh Bajaj vs. State, NCT of Delhi & ors., (1999) 3 SCC 259 = RLW 1999(3) SC 452. There is no quarrel about this legal proposition but here in the present case no allegation of cheating has been disclosed in the complaint or even in the statement of complainant only two bald allegations have been lodged that user ID has been issued to Volkswagen Group Sales India Ltd. and petitioners company started supplying vehicles to them which has not been shown by any of the evidence or document. Further reliance has been placed on Zandu Pharmaceutical Works Ltd. & Anr. vs. Mohd. Sharaful Haque & Anr. (2005) 1 SCC 122 = RLW 2005(1) SC 135 where it has been held that if on consideration of allegations in the light of statement made on oath by the complainant, it appears that the ingredients of offence are disclosed then the proceedings cannot be quashed. No hard and fast rule can be laid down for exercise of jurisdiction but here in the present case as stated earlier, nothing has been stated as regards to extortion or cheating. It was also submitted that the High Court while invoking inherent powers would not embark upon an enquiry as to reliability of the evidence. Here in the present case, as noted earlier the facts are not in dispute that agreement has taken place between the parties which was terminated and notice was received by respondent and Volkswagen Group Sales India Ltd. has been given user ID on 6.5.2011 but taking these allegations on their face value, does not constitute any allegation which disclose that any offence has been committed. The highest case of the complainant is that contract has been violated and violation of terms of agreement cannot be treated as cheating. Further reliance has been placed on K. Ashoka vs. N.L. Chandrashekar & Anr., (2009) 5 SCC 199 . The highest case of the complainant is that contract has been violated and violation of terms of agreement cannot be treated as cheating. Further reliance has been placed on K. Ashoka vs. N.L. Chandrashekar & Anr., (2009) 5 SCC 199 . Reliance has also been placed on Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., (2006) 7 SCC 188 wherein it has been held that power under Section 482 Cr.P.C. could not be exercised to stifle a legitimate prosecution, power should be exercised to do real and substantial justice and to prevent abuse of power. There is no quarrel about this legal proposition. Further reliance has been placed on Oswal Fats & Oil Mills vs. Addl. Commr. (Admn.), Bareily Div., Bareily & ors. (2010) 4 SCC 728 = RLW 2000(1) SC 18 and Meghmala vs. G. Narshimha Reddy (2010) 8 SCC 383 . There is no dispute about the legal proposition that if complaint discloses commission of any cognizable offence, it could not be put to sudden death by invoking extraordinary jurisdiction but at the same time, powers should be used to stop abuse of the process of the court and for meeting ends of justice. 16. The contention of the petitioners is that earlier respondent has filed civil litigation under Section 9 of the Arbitration Act and through other company, civil suit has been filed and after loosing battle in civil side, criminal proceedings have been started. The contention of the respondent is that civil and criminal proceedings could go simultaneously and reliance has been placed on Lee Kun Hee, President, Samsung Corporation, South Korea & ors. The contention of the respondent is that civil and criminal proceedings could go simultaneously and reliance has been placed on Lee Kun Hee, President, Samsung Corporation, South Korea & ors. vs. State of U.P. & ors., (2012) 3 SCC 132 ; Iridium India Telecom Ltd. vs. Motorola Incorporated & ors., (2011) 1 SCC 74 ; Trisuns Chemical Industry vs. Rajesh Agarwal & ors., (1999) 8 SCC 686 ; Kamla Devi Agarwal vs. State of W.B. & ors., (2002) 1 SCC 555 ; M. Krishnan vs. Vijay Singh & Anr., (2001) 8 SCC 645 ; Lalmuni Devi vs. State of Bihar & ors., 2001 SCC (Cr) 275; and M/s. Medohl Chemicals & Pharma Pvt. Ltd. vs. Biological E. Ltd., RLW 2000(1) SC 165 wherein it has been held that criminal prosecution cannot be thrown away only on the ground that civil proceedings are pending, or there is any arbitration clause in the agreement as the yardstick in the two process are separate and onus of proving the allegation is different in criminal and civil cases. There is no dispute about this legal proposition but here in the present case, the respondent has not disclosed the facts before the court below that earlier civil litigation was pending and decided upto the Apex Court and these material facts have been concealed from the court below and petitioners has relied upon Satvinder Kaur vs. State (Government of NCT of Delhi) & Anr., (1999) 8 SCC 728 . There is no dispute about the fact that civil and criminal proceedings could go together if act committed constitute an offence then certainly one has to face the music of criminal proceedings but here in the present case, even taking into account the entire averments made in the complaint and statement recorded under Section 200 and 202 Cr.P.C, no offence is made out against the petitioners. The averments and allegations in the complaint are not disclosing commission of any offence by the petitioners and reliance has been placed on M.N. Ohja & ors. vs. Alok Kumar Srivastava (2009) 9 SCC 682 , Harmanpreet Singh Ahluwalia vs. State of Punjab, (2009) 7 SCC 712 wherein it has been held that if no prima facie case of cheating or criminal breach of trust is made out then in such exceptional cases exercise of powers under Section 482 Cr.P.C. is justified. vs. Alok Kumar Srivastava (2009) 9 SCC 682 , Harmanpreet Singh Ahluwalia vs. State of Punjab, (2009) 7 SCC 712 wherein it has been held that if no prima facie case of cheating or criminal breach of trust is made out then in such exceptional cases exercise of powers under Section 482 Cr.P.C. is justified. The contention of the petitioners is that company has acted in terms of agreement and in the circumstances of the case, no offence has been committed by the present petitioners and reliance has been placed on Thermax Ltd. vs. K.M. Johny, (2012) 13 SCC 412 where the facts were similar and company has acted in terms of agreement and in bonafide manner which did not amount to breach of contract. Further reliance has been placed on G.H.C.L. Employees Stock Option Trust vs. Kranti Sinha (2013) 4 SCC 505 = 2013(3) RLW 1965 (SC) where role of the petitioners has not been disclosed. Here in the present case also nothing has been stated as regards specific role of the present petitioners, in the complaint only it has been stated that present petitioners are the executive officers of the company and they are responsible for their business. It is also stated that officers of the company met the respondent at Jaipur but no dates or specific averment has been stated in the complaint or even in statement under enquiry. Further reliance has been placed on Muralilal Gupta vs. Gopi Singh, (2005) 13 SCC 699 wherein it has been held that party who failed to honour the agreement, cannot be said to have committed cheating and if on the facts, the dispute between the parties was civil dispute, the criminal prosecution would be abuse of process of the court. Further reliance has been placed on Ram Biraji Devi & Anr. vs. Umesh Kumar Singh & Anr., (2006) 6 SCC 669 . 17. Hence in view of the above facts, the averment in the complaint and statement does not disclose ingredients of any cognizable offence. 18. Admittedly, parties entered into the agreement way back on 8.6.2007. Further reliance has been placed on Ram Biraji Devi & Anr. vs. Umesh Kumar Singh & Anr., (2006) 6 SCC 669 . 17. Hence in view of the above facts, the averment in the complaint and statement does not disclose ingredients of any cognizable offence. 18. Admittedly, parties entered into the agreement way back on 8.6.2007. At that time it is not the allegation of the respondent that intention of the petitioners was to cheat the respondent and if at the very inception of the transaction, intention of cheating is missing, it would not amounting to cheating and reference has been placed on Uma Shankar Gopalika vs. State of Bihar & Anr., (2005) 10 SCC 336 wherein it has been held: “It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is condition precedent for an offence Under Section 420 of the Indian Penal Code.” Further reliance has been placed on Devendra & Ors. vs. State of U.P., (2009) 7 SCC 495 wherein it has been held that to constitute an offence of cheating misappropriation from the beginning is a sine qua non. In the present case, it is not the case of the respondent that from inception of the transaction, the intention of the petitioners was to cheat them. From 2007 till notice of termination, the relations between the parties were sweet sounding and no complaint of cheating has been lodged by the present petitioners earlier. 19. In the present case, it is not the case of the respondent that from inception of the transaction, the intention of the petitioners was to cheat them. From 2007 till notice of termination, the relations between the parties were sweet sounding and no complaint of cheating has been lodged by the present petitioners earlier. 19. In view of this, it can safely be concluded that the present complaint has been lodged just to harass the present petitioners and reliance has been placed on Ravindra Singh vs. Sukhdev Singh & ors., JT 2012(1) SC 515 wherein it has been held: “The hallmark of a vexatious proceeding is that it has no basis in law (or at least no discernible basis); and that whatever the intention of the proceeding may be, its only effect is to subject the other party to inconvenience, harassment and expense, which is so great, that it is disproportionate to any gain likely to accrue to the claimant; and that it involves an abuse of process of the court. Such proceedings are different from those that involve ordinary and proper use of the process of the court.” 20. The facts cannot be denied that notice for termination of agreement was received by the petitioners in March, 2011 but at that time, no criminal prosecution was started and after two years of dispute, FIR has been lodged and on facts, it can be inferred that criminal proceedings initiated by the complainant amounts to abuse of process and reliance has been placed on Suneet Gupta vs. Anil Triloknath Sharma, (2008) 11 SCC 670 . 21. The contention of the respondent is that initiation of civil proceedings is not a bar to invoke jurisdiction of criminal administration of justice. There is no dispute about this fact but here in the present case, the important factor is that on receiving notice of termination, the respondent moved under Section 9 of the Arbitration Act twice and that litigation went upto the Apex Court. There is no dispute about this fact but here in the present case, the important factor is that on receiving notice of termination, the respondent moved under Section 9 of the Arbitration Act twice and that litigation went upto the Apex Court. A civil suit was also filed for the same controversy which was also dismissed, experience shows that if any criminal offence has been committed with a person, without delay he will approach to the criminal administration of justice and for civil remedy, there is a span of limitation under which he can apply but here in the present case, after loosing the battle in civil side, the present proceedings has been lodged which shows that purely civil dispute is sought to be given the colour of criminal offence to wreck vengeance against the present petitioners and reliance has been placed on Joseph Salvaraj vs. State of Gujarat, (2011) 7 SCC 59 . Further reliance has been placed on Dr. Sharada Prasad vs. State of Bihar, (1977) 1 SCC 505 wherein it has been held that where the allegations set out in the complaint do not constitute any offence, the High Court in exercise of its inherent jurisdiction may quash the order of cognizance. 22. The other contention of the counsel for the petitioners is that petitioners are not the party to the agreement, no specific role has been assigned to them, even in the complaint nothing has been stated that what specific role has been done by the present petitioners. There is nothing to show that the present petitioners made any mis-representation in their personal capacity, hence they cannot be made vicariously liable only because they are officers of the company and reliance has been placed on Sharon Michael & ors. vs. State of Tamil Nadu & Anr., (2009) 3 SCC 375 . The contention of the respondent is that present petitioners has a right to plead at the time of framing charge and hence invoking of inherent jurisdiction is not necessary. It is true that at the time of framing of charges present petitioners can allege all his grievances but here in the present case the facts are peculiar. Complaint was filed without disclosing any allegations of cognizable offence. It is true that at the time of framing of charges present petitioners can allege all his grievances but here in the present case the facts are peculiar. Complaint was filed without disclosing any allegations of cognizable offence. Court below has rightly dismissed the complaint and revisional court has ordered for taking cognizance against the present petitioners without giving the petitioners a chance of hearing which was essential under Section 401 Cr.P.C. now if the present petitioners would left again to invoke jurisdiction of revisional court, the highest relief which they could get is to set aside the order of revisional court and right of hearing would be granted to the petitioners, again he has to travel to the court below and again if cognizance has been taken he has to assail that order by way of revision and matter will go on. Hence to do real justice, invoking of inherent powers are necessary and reliance has been placed on Ashok Chaturvedi & ors. vs. Shitul H. Chanchani & Anr. (1998) 7 SCC 698 ; and Popular Muthiah vs. State, (2006) 7 SCC 296 . Criminal complaint has been prima facie frivolous and is filed with an oblique motive hence inherent powers under Section 482 Cr.P.C. are necessary and reliance can be placed on Gorgie Pentaiah vs. State of A.P., (2008) 12 SCC 531 . The petitioners has also relied upon Manhbaribhai vs. Shailesh Bhai (2012) 10 SCC 517 where provisions under Section 401 sub-clause (2) Cr.P.C. has been explained and there is no dispute about the fact that the revisional court should have given an opportunity of hearing to the present petitioners which was wrongly not given. 23. The contention of the respondent is that only on the ground that allegations are levelled malafidely cannot be a ground for quashing of the FIR and reliance has been placed on C.S. Rowjee vs. State of Andhra Pradesh, AIR 1964 SC 962 but here in the present case, the prosecution has been initiated not only with mala fide or improper motive but apart from this, complaint does not disclose any allegations for constituting any offence. The respondent is not having any privity of agreement with the present petitioners, nothing has been stated that how the present petitioners are liable or any cheating or misrepresentation has been done by them. 24. The respondent is not having any privity of agreement with the present petitioners, nothing has been stated that how the present petitioners are liable or any cheating or misrepresentation has been done by them. 24. In the light of the above, looking to the specific facts that FIR has been lodged after delay of about two years that too after loosing battle in civil cases, nothing has been stated in the complaint or in statement as regards allegations which constitute ingredients of offence, the case is squarely covered by Bhajan Lal (supra) where it has been held that if the complaint taken on its face value and accepted in their entirety do not constitute any offence or make out a case against the accused then proceedings must be quashed and further if the criminal proceedings are manifestly attended with mala fide or where the proceedings is malafidely instituted with an ulterior motive for wrecking vengeance then also the criminal proceedings should be quashed and petitioners could not be held liable to suffer the trauma of trial. In view of the above, this petition is liable to be accepted and is accordingly allowed. The order dated 30.10.2012 passed by Additional Chief Judicial Magistrate No.3, Jaipur whereby cognizance has been taken against the present petitioners for the offence under Section 384, 418, 420, 406 and 120B IPC is quashed. The order passed in Revision Pet. No. 105/2012 by Additional Sessions Judge No.3, Jaipur Metropolitan is also quashed and set aside.