HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- CRIMINAL REVISION No. - 2025 of 2014 Revisionist :- Vipin Sharma Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Samit Gopal Counsel for Opposite Party :- Govt. Advocate,Kshitij Shailendra Hon'ble Harsh Kumar,J.
Heard Shri Siddharth Luthara, learned Senior Advocate assisted by Shri Samit Gopal, learned counsel for the revisionist, Shri Kshitij Shailendra, learned counsel for opposite party no. 2 as well as learned A.G.A.
The present criminal revision has been filed against order dated 30.5.2014 passed by Additional Chief Judicial Magistrate, Court No.6, Bareilly in Criminal Case No.3306 of 2010, Case Crime No.487 of 2008 "State Vs. Harish Manwani and others", under Sections 420/34 I.P.C., P.S. Prem Nagar, District Bareilly, rejecting application of accused/revisionist seeking discharge under Section 239 Cr.P.C. as well as against order dated 6.11.2008 passed by A.C.J.M., Court No.6, Bareilly taking cognizance upon submission of charge-sheet.
The brief facts relating to the case are that the opposite party no.2 Brijesh Kumar Singh lodged an F.I.R. on 9.5.2008 at Case Crime No.487 of 2008, under Sections 420 & 406 I.P.C. against Hindustan Uniliver Ltd. as well as its Chairman, Vice-Chairman, Managing Director, Finance Director and T.S.I. (Territory Sales In-charge) by their names as mentioned in F.I.R., with the allegations that the first informant is resident of Rajendra Nagar, Bareilly and used to purchase articles of domestic use from Uncle Shop in Mohalla Janakpuri; that he came to know through advertisement on television that there is some prize scheme on purchase of 'Surf Excel' washing powder which is quite costly and a prize of Rs.5,00,000/- will be awarded as scholarship for the education of children in case a Swatch of 10/10 is recovered from the pack of washing powder; that shop keeper of Uncle shop also encouraged him for purchase of Surf Excel detergent powder; that out of the packet of Surf Excel a "Swatch" was recovered upon washing which it was found to be a coupon of 10/10; that he asked the owner of Uncle shop for ascertaining delivery of prize money to him who told him that goods were purchased by him from distributor Sanjay Oil Traders, Shyamganj, Bareilly; that the information of prized coupon was sent to the company on the given address through registered post on 28.8.2006 upon which revisionist contacted the first informant claiming himself to be Territory Sales In-charge of company having been sent by company for enquiry and after examining the recovered "Swatch" he assured of delivery of prize and also provided the names of Chairman, Managing Director etc. who could have made enquiry from him; that the accused kept the matter postponing and since no prize was delivered to the first informant, who incurred heavy expenses on purchase of costly washing powder under the false and attractive scheme, necessary action be taken against the accused persons and all the papers as well as the wrapper and coupon/Swatch are with the first informant.
Upon investigation, charge-sheet was submitted by the Investigating Officer against all the named office bearers of company viz. Chairman, Vice-Chairman, Managing Director, Finance Director and T.S.I. under Sections 420/34 I.P.C. and cognizance was taken by the learned Magistrate. The copy of F.I.R. and charge-sheet have been filed at Annexures-1 and 10 respectively. The revisionist-accused moved an application seeking his discharge before the Magistrate on 10.2.2014 Annexure-21 which has been rejected by learned Magistrate vide impugned order, giving rise to the present revision.
Learned counsel for the revisionist submitted that learned Magistrate has acted wrongly in rejecting discharge application for following reasons inter-alia others, "that charge-sheet has not been filed under Section 406 I.P.C. and has not been filed against the Hindustan Uniliver Ltd. and the applicant being employee of Hindustan Uniliver Ltd. may not be held liable as the principle of vicarious liability does not apply to criminal law; that the revisionist neither launched any prize scheme nor was capable of introducing any such scheme and being Territory Sales In-charge of company for a certain area he may not be held liable for shortcomings, if any, in the alleged prize scheme; that Investigating Officer did not conduct a fair investigation and has neither taken the original Swatch in question in his custody, nor got its genuineness tested at the company or any other laboratory; that the statements of first informant and his witnesses Harsh Grover, the owner of general store, Dr. Dharmendra Gupta, the landlord and employer of first informant, Harish Chandra the driver of above Dr. Dharmendra Gupta, Chandra Pal the gardener of Dr. Dharmendra Gupta and Dr. Pankaj Agrawal the witness of recovery memo of Swatch/coupons prepared by Investigating Officer, under Section 161 Cr.P.C., have been recorded by Investigating Officer, copies of which have been filed at Annexures-2 to 9 including the additional statements under Section 161 Cr.P.C. of the first informant and Harsh Grover; that from the statements of witnesses Annexures-2 to 9 recorded by Investigating Officer, no offence of cheating is made out against the revisionist; that in their statements, the first informant and his witnesses by way of improvements have developed the theory that original Swatch was handed over to the revisionist, who did not provide any receipt in lieu thereof and upon much pursuance he returned the original Swatch saying that company has not authorised him to issue receipt for the Swatch; that as per terms of scheme, the original Swatch was required to be sent at the given address of company in Mumbai which after due investigation if finds the Swatch genuine, makes payment of prize money as per scheme; that it is proved from the evidence on record as has also been mentioned in F.I.R. itself that original Swatch has not been sent by first informant to the company at the given address or to Alpha Data Centre in complete disregard to the rules of contest and was neither handed over to revisionist nor was taken into custody by the Investigating Officer; that as per scheme/contest in every Surf Excel packs, a box was kept containing a stained cloth (Swatch) having certain scores printed thereon between 1/10 to 10/10 and the person getting Swatch bearing print of score 10/10 was to get scholarship for his/her child's education worth Rs.5,00,000/-; that the Swatches containing score from 1/10 to 10/10, were got printed by an external agency and only four first prize winning Swatches, were stamped with an unique code with seal along with signatures of the Factory Manager of the company using special ink; that the terms and conditions of said contest were mentioned on wrappers of pack a copy of which is at Annexure-12 that for completing the entire process of receiving the winning cloth, Swatches from consumers their authentication, verification and helping in distribution of prizes, the company had engaged Alpha Data Centre; that only four Swatches containing high prize money were printed by screen printing with an intention to maintain uniformity/similarity between them; that Swatches claiming 10/10 score were carefully examined by Alpha Data Centre which found only two claims to be correct and based on genuine Swatch with the specific code and both the winners Ms. S. Pragatheeswari of Karaikal, Tamil Nadu and Sri Sunil Kumar Dubey from Kolkata, each were duly awarded Rs.5,00,000/- scholarship; that apart from above two Swatches, all other claims of getting 10/10 score Swatch were found to be false, incorrect and in-genuine; that the consumers who made claims, their Swatches were sent by company for analysis to "Interec" Laboratory in Mumbai which compared the Swatches against the "Gold Standard Swatch"; that even the Police/Investigating Officer, who allegedly seized two Swatches from opposite party no.2 did not send them to company for comparison with the original; that the present issue is purely of civil nature and has been given the colour of a criminal case in order to harm and harass the accused and put pressure on them; that the claims of several consumers filed before the District Consumer Protection Forum or its State or National Commission, have been rejected by the respective Forums or Commission; that the role attributed to revisionist is limited only to the extent that he visited Bareilly for verifying the genuineness of Swatch found by opposite party no.2, but since the Swatch handed over to him was taken back from him, he may not be held to have committed any mischief or cheating within the provisions of Section 415 I.P.C.; that the revisionist has neither deceived the opposite party no.2 fraudulently or dishonestly nor induced him to deliver any property or to consent that any person shall retain any property nor intentionally induced him to do or omit to do anything which he would not have done or omitted had he not been so deceived; that had the revisionist received the Swatch from first informant under assurance of providing him the prize money of Rs.5,00,000/- and after obtaining the Swatch had he not comply with the promise or had he denied the receipt of Swatch, only in those circumstances he could have been said to have committed wrong and since neither the Swatch was delivered to him nor he made any assurance to the first informant nor induced him in any manner, then he may not be held to have committed cheating with the first informant within the meaning of Section 415 I.P.C. and may not be said to have committed offence under Section 420 I.P.C.; that there is nothing on record to show that the company or revisionist launched the prize scheme only with an intention to boost their sale and earn more profit and since the very beginning had no intention to distribute any prize money under the scheme.
He further contended that vide letter dated 25.12.2006 Annexure-15, the opposite party no.2 was informed that xerox copy of Swatch collected by him has been received, but this will not suffice to enter the contest and in order to collect the prize he has to attach the cloth received from inside the pack with xerox copy at the given address by 28.2.2007; that instead of complying with as above, the opposite party no.2 sent a legal notice on 28.3.2007 of which correct reply was sent on 28.5.2007 informing him the correct facts and that on clothes sent by him the code was absent and his claim could not be accepted; that since the applicant was not found entitled for the prize he has lodged the complaint with false and baseless allegations.
Per contra, learned A.G.A. and learned counsel for the opposite party no.2 submitted that impugned order is in accordance with law and there is no illegality or irregularity therein; that the revisionist had visited at Bareilly and had obtained the prize winning Swatch from first informant under assurance of payment of prize money to him without issuing any receipt and when he was asked to furnish receipt, after much pursuance, he returned the Swatch; that in connivance with co-accused persons and company he has not made payment of prize money and has thus cheated the first informant, who was lured to purchase costly washing powder in the garb of attractive prize scheme and despite finding of a gold Swatch by the applicant, he has been wrongly denied the prize money of scholarship to the tune of Rs.5,00,000/- for his children; that it is wrong to say that the matter is purely of civil nature and even in cases where a person may have a remedy of filing civil suit or application before the District Consumer Protection Forum, it may not bar the criminal proceedings; that it is wrong to say that principle of vicarious liability is not applicable to criminal proceedings; that F.I.R. was lodged against company and its office bearers and if company has not been charge sheeted by Investigating Officer, the trial may proceed and the company may be summoned for trial under the provisions of Section 319 Cr.P.C.
After hearing learned counsel for the parties and perusal of material on record as well as the statements of first informant and witnesses under Section 161 Cr.P.C. before proceeding further, it will be just and expedient to reproduce the provisions of Sections 415 & 420 I.P.C. as well as the factual position, which is not disputed between the parties.
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
The admitted or say undisputed facts brought before me are as follows.
(i) The Hindustan Uniliver Ltd. introduced a prize winning scheme in the market over its product "Surf Excel" washing powder under which inside the pack of "Surf Excel" box a stained cloth (Swatch) was to be found, which was required to be washed with new Surf Excel quick wash and in case it is found to bear 10/10, it had to win a scholarship of Rs.5,00,000/- for the child of consumer and in case it does not bear 10/10 then upon collection of pieces of clothes (several Swatches) and upon adding their score when a total score of more than 1 coupons/swatches reaches to 10/10, the person shall be entitled to win Scooby Doo sports bag, apart from his chances for winning ten thousand early bird prizes for the coupons/swatches of any of above category, bearing a prize of badminton racket.
(ii) It is alleged that watching this attractive scheme on television, the first informant was induced to purchase the costly washing powder with a hope to win scholarship for his children under the scheme.
(iii) That upon getting the impugned gold Swatch bearing 10/10, he was not given the due prize of Rs.5,00,000/- scholarship for his children and thus has been cheated by accused persons.
(iv) First informant, the opposite party no.2 does not say that the original coupon Swatch was sent by him at the given address of company as required under the scheme since the date of its getting in August, 2006 till 28.2.2007 as was required through letter dated 25.12.2006 (Annexure-5) or till lodging of F.I.R. on 9.5.2008 or afterwards.
(v) In statement of Dr. Pankaj Agrawal at Annexure-9, it has been stated by him that two coupon/Swatches were taken into custody by police, which were given by opposite party no.2 after putting his signatures thereon along with empty wrapper of Surf Excel, of which the memo of recovery was prepared in his presence and he signed it as witness.
(vi) The Investigating Officer is not said to have sent above Swatches for examination to the company at given address or to any other laboratory for analysis for determining the genuineness of Swatch.
(vii) The revisionist is only the Territory Sales In-charge and the opposite party no.2 has not stated to have been induced by him for purchasing the costly washing powder under the scheme. As per averments made in F.I.R., the opposite party no.2 was induced by the advertisement of company product on television.
(viii) The first informant/opposite party no.2 was induced by advertisement of company product on television and thereafter by owner and shopkeeper of Uncle shop Harsh Grover, who has not been made an accused in F.I.R.
(ix) That upon getting the alleged winning Swatch the first informant/opposite party no.2, sent information to company and revisionist being T.S.I. visited the opposite party no.2 and obtained the winning Swatch from him without assigning any receipt and since no receipt was issued acknowledging the custody, the Swatch was taken back from him.
(x) Neither it is the case of opposite party no.2, nor the revisionist has been charge-sheeted, for the offence of cheating opposite party no.2, on the ground that after obtaining the winning Swatch he did not complied with the promise.
Section 239 of Cr.P.C. consists the provisions relating to discharge of accused which is reproduced hereunder:-
"239. When accused shall be discharged.-If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
In view of the above provisions, if the Magistrate considers the charge against accused to be groundless, he shall discharge the accused and record his reasons for so doing. It is also settled principle of law that at the time of considering application under Section 239 Cr.P.C. or Section 227 Cr.P.C. for discharge of accused the court concerned is not required to weigh the evidence and form opinion as to possibility of conviction of accused is there or not.
In 1979 (3) SCC 4 in the case of Union Of India Vs. Prafulla Kumar Samal and another, Hon'ble the Apex Court in a matter under Section 227 Cr.P.C. held:-
"that the Special Judge, should not act as a trial judge but should weigh evidence and form opinion only on the limited question of whether a prima-facie case made out and excepting the case of grave suspicion which the accused is unable to explain, he is empowered to discharge the accused."
In 2002 (2) SCC 135 in the case of Dilawar Balu Kurane Vs. State of Maharashtra, considering a matter under Section 227 Cr.P.C., it was held by Hon'ble the Apex Court:-
"that the Judge cannot act merely as a Post-Office or mouthpiece of prosecution- he has to sift and weigh the evidence for the limited purpose of finding out whether a prima-facie case has been made out- where two views are equally possible and evidence gives rise to some suspicion but not grave suspicion, he can discharge the accused."
The provisions of Sections 227, 239, 245 & 482 of Cr.P.C. have been enacted by the legislature in order to discourage the frivolous litigation and unwanted prosecution of a person on flimsy grounds for the purpose of harassing and pressurizing him, but the powers of discharge under Sections 227, 239 & 245 Cr.P.C. as well as powers of quashing the criminal proceedings under Section 482 Cr.P.C. are required to be exercised with caution and must be exercised rarely to discharge the accused or quash the proceedings only in appropriate cases, where the prosecution has failed to show a prima-facie case and the court finds that even in case the prosecution evidence remains undisturbed and same and without considering the defence version, the prosecution may not be able to establish the case for conviction of accused. In all such cases where prosecution has a prima-facie case, the court is not required to analyze the evidence as is required at the time of trial upon evidence or to consider the defence version.
In 2014 (11) SCC 709 in the case of State of Tamil Nadu Vs. N. Suresh Rajan, Hon'ble the Apex Court has held that:-
"Difference of language employed in different provisions of discharge under Sections 227, 239 & 245 Cr.P.C.- notwithstanding differences in provisions relating to discharge in different sections and whichever provisions may be applicable, at this stage court is required to see if prima-facie case is there to proceed against the accused.
No mini trial is contemplated at the stage of considering discharge application- Court to proceed with assumption that materials brought on record by prosecution are true- only probative value of materials has to be gone into to see if there is a prima-facie case against the accused. The court is not expected to go deep into the matter and hold the materials would not warrant a conviction- If court on the basis of materials thinks that accused prima-facie might have committed offence, it can frame the charge."
It is pertinent to mention that it is settled principles of law as has been laid down in catena of decisions that:-
"for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent and dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently such a culpable intention right at the beginning i.e. at the time when the promise was made cannot be presumed".
The revisionist has relied on one such pronouncement in the case of Anil Mahajan Vs. Bhor Industries Ltd. and another reported in (2006) 1 SCC (Crl.) 746 in which the three judges Bench of Hon'ble the Apex Court held that:-
"fraudulent and dishonest intention must be shown to be existing from the very beginning of the transaction - from mere failure to keep the promise at a subsequent stage, offence of cheating cannot be made out and distinction between offence of cheating and mere breach of contract has to be kept in mind".
Allowing appeal and restoring the order of Additional Sessions Judge, on ground that Magistrate committed error in issuing process, it set aside the order passed by High Court by which order issuing process for offence under Section 415, 418 & 420 I.P.C. passed by Magistrate was upheld, holding that:-
"from mere failure of a person to keep promise subsequently, a culpable intention right at the beginning, i.e. when he made the promises cannot be presumed. A distinction has to be kept in mind between breach of contract and the offence of cheating. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of transaction. The substance of the complaint is to be seen and mere use of the expression "cheating" in complaint is of no consequence."
It is settled principle of law that "at the time of disposal of application seeking discharge by accused, only the prosecution version is to be looked into and the defence version as well as the documents put by accused may not be taken into consideration".
In support of his arguments that the revisionist is an employee of the company and may not be held vicariously liable for the affairs of company, the learned counsel for the revisionist has paid reliance on 2009 (1) SCC 516 where in the case of R. Kalyani Vs. Janak C. Mehta and others, Hon'ble the Apex Court held that:-
"in a case where F.I.R. was not lodged against company, the respondents who were charged in their individual capacity for commission of offence of cheating, criminal breach of trust and forgery, the prosecution may not proceed on the premise that they were vicariously liable for the affairs of company."
The above case law has no force being not applicable to the facts of the case, as in the case in hand F.I.R. was lodged against Hindustan Uniliver Limited also and merely for the fact that it has not been charge-sheeted, it may not be said that prosecution against it may not proceed, in view of provisions of Section 319 Cr.P.C.
Undisputedly, the revisionist is said to be Territorial Sales Incharge of the company and the F.I.R. has been lodged against the Hindustan Uniliver Limited as well as its Chairman, Vice-Chairman, Managing Director and Finance Director and T.S.I. by their names. It is not disputed that leaving the company all its office bearers including the revisionist have been charge-sheeted. It is noteworthy that being T.S.I. the revisionist may not be the person dealing with or participating in the process of taking decisions for launching of different schemes by the company as the schemes or business policies of the company are to be decided by the Chairman, Vice-Chairman, Managing Directors or Finance Director etc. and not the T.S.I. The T.S.I. may not be considered to have any say in deciding the schemes of company or to play any active role in decisions of the company and at the same time may not be held liable for shortcomings if any in such schemes or policies. The T.S.I. appears to have been assigned with the duty of fixing and achieving target of sales for a particular territory and different persons could have been made Territory Sales Incharge, for different territories throughout the business area, which is considered to be whole India in the case.
In view of the above facts, even on assuming that the prize scheme was launched by company with some dishonest intentions, the possibility of participation of revisionist in making the scheme may not be there and so even in case the other office bearers of company may have acted dishonestly, the revisionist may not be considered to have initially acted dishonestly in launching the scheme, with an intention to deprive the opposite party no.2 from the prize allegedly won by him. On this score in view of the principle of vicarious liability, on facts, prosecution has failed to throw any prima-facie case of suspicion against the accused-revisionist, irrespective of the fact that it may have better prima-facie case throwing suspicion or grave suspicion against co-accused persons.
In view of the allegations made in F.I.R. being T.S.I. the revisionist may not be considered to be the person involved in making or launching of prize scheme with dishonest intentions, rather he would have been assigned with role for achieving the target of sales, for the territory of which he was T.S.I. The other role assigned to revisionist is of contacting the opposite party no.2 upon information sent by him, and after obtaining the impugned Swatch, of assuring him the delivery of prize. Undisputedly the impugned Swatch which was delivered to revisionist was taken back from him and it is not the case of prosecution that the revisionist obtained the impugned Swatch with dishonest intentions or deceived the opposite party no.2 fraudulently or dishonestly by inducing him to hand over the impugned Swatch with a malafide intention to usurp the prize money and deprive the opposite party no.2 from the prize money.
As far as the role of revisionist, as has been assigned by the prosecution, it does not throw any suspicion much-less a grave suspicion against him so as to come to the conclusion that there is a prima-facie case to presume that he deceived the opposite party no.2 fraudulently or dishonestly and induced him to deliver any property or cheated him in any manner whatsoever within the provisions of Section 415 I.P.C. Without considering the defence version made by revisionist and only upon consideration of prosecution case, the prosecution appears to have failed to show any prima-facie case against the revisionist and even if the prosecution evidence remains un-rebutted, no offfence under Section 420 I.P.C. may be found to have been made out against him, irrespective of the case which may be different in respect of co-accused persons who are alleged to be the Chairman, Vice-Chairman, Managing Director and Finance Director etc. In view of the discussions made above, I have come to the conclusion that learned court below acted wrongly in considering the prosecution case as a whole without considering the specific role assigned to the revisionist. It further failed to consider that since the revisionist is Territory Sales Incharge, an employee of the company assigned with achieving the target of sale for a particular area or territory, and may not be considered to be involved in the mechanism of deciding the policies and launching of schemes by the company. The court below has failed to consider that even on making visit after finding of the winning Swatch by the opposite party no.2, he is not alleged to have committed any act of cheating the opposite party no.2 or of retaining the impugned Swatch. Learned court below appears to have failed to consider the case of revisionist separately from other co-accused and company and on account of finding a prima-facie case against other co-accused persons the office bearers of company, appears to have also declined to discharge the revisionist. It may not be disputed that legally discharge of one of several accused persons may not invariably result in discharge of rest co-accused as out of several accused persons, different roles assigned to each of the accused has to be considered and the possibility of discharge of one or few amongst several does not necessarily mean to discharge all and there may be cases where out of several accused, certain may be discharged and trial may proceed against rest. Otherwise also upon trial in every case the possibility of conviction of some of them and acquittal of the others, may not be ruled out.
On the basis of the discussions made above, I have come to the conclusion that learned court below has failed to consider the case of revisionist in real prospective, separately in view of the different role assigned to him and acted wrongly and illegally in rejecting his application for discharge. In view of the facts brought on record, prima-facie case for offence under Section 420 I.P.C. is not made out against the revisionist and the charge against him under Section 420 I.P.C. would be groundless. The fact that since opposite party no.2 has been cheated by the company or its office bearers as well as the co-accused persons or any of them as the case may be, the revisionist may not be considered to be equally responsible for the alleged act of cheating. The impugned order is wrong, incorrect and is liable to be set-aside and the revision is liable to be allowed.
The revision is allowed, accordingly. The impugned order dated 30.5.2014 rejecting application of revisionist for discharge is set-aside, the application of revisionist for discharge is allowed and the revisionist Vipin Sharma, T.S.I. stands discharged of the offence under Section 420/34 I.P.C.
It is made clear that the observations made in the body of judgment will not be binding on court below at the time of considering the discharge application of co-accused persons which is reported to be pending before the court below and the same will be required to be disposed of on its merits considering the role assigned to them.
Order Date :- 18.11.2015 Kpy