Dr.Veerander Kumar C Patil vs Vinod Lahoti And Anr
2021 Latest Caselaw 7089 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 23RD DAY OF DECEMBER, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

         CRIMINAL PETITION No.200022/2021

BETWEEN:

DR.VEERANDER KUMAR C. PATIL
S/O CHANDRAO PATIL
AGE: 47 YEARS, OCC: DOCTOR
R/O VILLAGE RAJGIRA-585403
TQ. AND DIST.BIDAR
                                         ... PETITIONER

(BY SRI RAJA VENKATAPPA NAIK, ADVOCATE)

AND:

1.     VINOD LAHOTI S/O OMPRAKASH
       AGE: 37 YEARS, OCC: BUSINESS
       R/O MARTHON MAX, OPP.NIMRAL LIFE STYLE
       LTS MARG, MULUND WEST
       MUMBAI-400080

2.     MAYUR L. TAPADIYA
       AGE: 24 YEARS
       OCC: BUSINESS
       R/O KASHI TADWALE-413501
       DIST.OSMANABAD (MS)

                                       ... RESPONDENTS

(BY SRI NANDKISHOR BOOB, ADVOCATE)
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    THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO ALLOW THE
CRIMINAL       PETITION   SETTING   ASIDE     THE   IMPUGNED
JUDGMENT AND ORDER PASSED BY PRL.DIST. AND SESSIONS
JUDGE, BIDAR DATED 07.08.2020 IN CRL.R.P.NO.10/2016 AND
RESTORE THE JUDGMENT PASSED BY LEARNED II ADDL. JMFC-
II COURT AT BIDAR IN PCR NO.25/2015 DATED 27.01.2016.


      THIS PETITION HAVING BEEN HEARD AND RESERVED ON
30.11.2021 FOR ORDERS, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:


                            ORDER

This petition is filed under section 482 of Cr.P.C.,

praying this Court to allow the criminal petition and set

aside the impugned judgment and order passed by the

Principal District and Sessions Judge at Bidar dated

07.08.2020 in Crl.R.P.No.10/2016 and restore the

judgment passed by the learned II Additional JMFC-II

Court at Bidar in PCR No.25/2015 dated 27.01.2016 and

pass such other orders as deemed fit in the circumstance

of the case.

2. The factual matrix of the prosecution case is

that the petitioner herein has filed a private complaint

before the Trial Court under section 200 of Cr.P.C., against

the respondents herein invoking the offences under

Sections 504, 506, 120(B), 415, 417, 465, 486, 487, 488,

489 of IPC. The Trial Court having received the complaint

proceeded to post the matter for enquiry and accordingly

recorded the sworn statement of complainant and also

sworn statement of witnesses and thereafter proceeded to

issue process against the respondents herein relying upon

the documents Exs.C1 to C15 and came to the conclusion

to hold an enquiry under Section 200 of Cr.P.C., and on

perusal of the said document it appears that there is prima

facie evidence to proceed against the accused and material

available on record clearly establish that Court can proceed

against the accused persons and issued the process. Being

aggrieved by the issuance of process, the respondents

herein have filed the Criminal R.P.No.10/2016 and the

Principal District and Sessions Judge, Bidar by exercising

revisional power vide order dated 07.08.2020 set aside the

order in coming to the conclusion that the complainant in

the complaint has stated that in good faith he has given

formula in respect of which he had taken patent and

having considered the Memorandum of Understanding

(hereinafter referred to as 'the MoU' ) at Ex.C2, Clauses

referred that each of the parties have agreed not to

intervene in the process of the responsibility of the other in

making good of the formula and the trial Court fails to take

note of the same. In the said Ex.C2, it is mentioned that if

any dispute arising between the parties, the parties have

to resolve the issue before the Arbitrator in terms of

Clause-24 of the MoU and hence, the trial Court has failed

to take note of the same and without looking into the

ingredients of the offences invoked against the

respondents herein mechanically proceeded to issue the

process. Hence, the present petition is filed before this

Court.

3. The learned counsel for the petitioner in his

argument vehemently contended that this petitioner has

invented the formula i.e., testing of homeopathic

medicines on the agricultural products. These formulations

were used without fertilizer and compared with

recommended doses of fertilizers on pigeon pea crop and

to that effect Marathwada Agricultural University,

Parbhani, appreciated that product was found effective on

100% formulations over the recommended doses of

fertilizer for higher yield of pigeon pea crop produced at

Annexure-H. The learned counsel also referred Annexure-J

wherein Forein Crop Science Private Limited, Mumbai, also

expressed their intent for standardization KIRTAPHAL, all

categories in the field for their extensive marketing not

only in the State of Maharashtra but all the States of Union

of India and expressed their deep interest and radically

satisfied with the field-test results of researched

KIRTAPHAL Homeopathic system of medicines in

Agriculture for its extensive marketing in the nation. The

learned counsel also brought to the notice of this Court

Annexure-K wherein Nizam Deccan Sugars Limited,

Nizamabad also appreciated the invention made by the

petitioner herein stating that the results are amazing both

in the quality and quantity. The learned counsel also

would submit that the Directorate of Research Marathwada

Krishi Vidyapeeth, Parabhani also addressed a letter in

terms of the Annexure-L stating that product was found

effective over recommended dose of fertilizer for higher

grain yield. Recognizing the work of the petitioner herein

the respondents have entered into the MoU dated

30.01.2012. The learned counsel brought to the notice of

this Court Annexure-N i.e., Memorandum of Understanding

which was marked before the trial Court as Ex.C2 wherein

in Clauses 4, 8, 12, 13, 14 and 17 and referring those

clauses he contended that the process of manufacture is

vested with the petitioner and the respondents herein as

against the MoU started their own manufacturing of the

medicine in their own brand Geo-Forti and cheated the

petitioner herein using the formula of the petitioner which

was given in good faith in favour of the respondents herein

by creating the documents. The specific averments are

made in the complaint regarding nature of offence. The

trial Court also having recorded the sworn statement of

complainant and witnesses rightly issued the process but

revisional Court committed an error in exercising revisional

power reversing the finding of the trial Court and

consequently dismissed the complaint. The very approach

of the revisional Court is erroneous.

4. The learned counsel for the petitioner would

vehemently contend that the respondents have collected

the formula from the petitioner with an intention to commit

fraud to him and based on the said formula started their

own brand within six months from the date of

memorandum of understanding. Hence, complaint was

given to the Superintendent of Police, Bidar, in terms of

Annexure-P and endorsement was given by the

Superintendent of Police, Bidar in terms of Annexure-Q

stating that the issue is Civil in nature and the same be

dealt before the appropriate forum. The petitioner left with

no alternative but to file a private complaint. The sworn

statements of P.Ws.1 and 2 is very clear that respondents

have committed offence of cheating and criminal

conspiracy and indulged in manufacturing, using the

formula of the complainant.

5. The learned counsel for the petitioner in

support of his argument, he relied upon the judgment of

the Hon'ble Apex Court in the case of S.W.Palanitkar and

Others vs. State of Bihar and Another in Criminal

Appeal No.1072/2001, brought to the notice of this

Court the discussion made with regard to ingredients in

order to constitute a criminal breach of trust and the

ingredients of offence of cheating. To hold a person guilty

of cheating, it is necessary to show that he had fraudulent

or dishonest intention at the time of making promise. The

learned counsel would vehemently contend that the

agreement was entered dishonestly with fraudulent

intention and thereafter in violation of the agreement

started process of manufacturing of their own brand

medicine it amounts to breach of trust as well as

committing offence of cheating. Hence, learned counsel

for the petitioner by referring the judgments would

contend that criminal prosecution has to be continued

against the respondent herein.

The learned counsel brought to the notice of this

Court, the judgment of the Hon'ble Apex Court in the case

of State of Gujarat vs. Afroz Mohammed Hasanfatta

in Criminal Appeal No.224 of 2019, and brought to the

notice of this Court paragraph Nos.12, 13, 15, 16, 18 and

contend that it is well settled that at the stage of issuing

process, the Magistrate is mainly concerned with the

allegations made in the complaint or the evidence led in

support of the same and the Magistrate is only to be

satisfied that there are sufficient grounds for proceeding

against the accused. It is fairly well settled that when

issuing summons, the Magistrate need not explicitly state

the reasons for his satisfaction that there are sufficient

grounds for proceeding against the accused. Learned

counsel brought to the notice of this Court discussion made

in the judgment with regard to exercising of power under

section 190(1)(b) of Cr.P.C., for taking cognizance and

also with regard to issuance of summons.

The learned counsel also referred the judgment of

the Hon'ble Apex Court in the case of Prabatbhai Aahir @

Parbatbhai Bhimsinhbhai Karmur and Others vs. The

State of Gujarat and Another reported in 2017 AIAR

(Criminal) 1071 and brought to the notice of this Court

the scope of Section 482 of Cr.P.C., and the principles

enumerated in the judgment and principles laid down in

paragraph No.3 to 7 and 10 to 16 and also brought to the

notice of this Court regarding distinction made as

distinguished from serious offences, there may be criminal

cases which have an overwhelming or predominant

element of a civil dispute. They stand on a distinct footing

insofar as exercise of the inherent power to quash the

proceedings is concerned. The learned counsel by relying

upon this judgment and also referring paragraph No.15

brought to the notice of this Court the inherent powers of

High Court under section 482 of Cr.P.C., to prevent an

abuse of any process of any Court or to secure ends of

justice.

He further relied upon the judgment in the case of

Chilakamarthi Venkateswarlu and Another vs. The

State of Andhra Pradesh and Another reported in

2019 AIAR, (Criminal) 905 wherein also the Hon'ble

Apex Court in paragraph Nos.14, 15, 18, 19 and 20

discussed with regard to scope of section 482 of Cr.P.C.

The inherent power under Section 482 of Cr.P.C., is

intended to prevent abuse of process of the Court and to

secure the ends of justice.

The learned counsel relied upon the judgment in the

case of P.S. Meherhomji vs. K.T.Vijay Kumar and

Others reported in 2015 AIAR (Criminal) 91 wherein

also Hon'ble Apex Court held that consideration of the

allegations in the complaint and if they are supported by a

statement of the complainant on oath and the necessary

ingredients of the offence are disclosed, High Court should

not normally interfere in the order of taking cognizance.

6. Per contra, learned counsel for the respondents

in his argument vehemently contended that the agreement

was entered into between the parties in the year 2012 and

no such formula was given and in terms of the agreement,

the petitioner only to produce and supply and he had not

supplied as specified and hence, notice was given and

reply was also given. It is further contended that notice

and reply were exchanged between the parties. The

learned counsel would submit that petitioner herein has

received the amount and without returning the excess

amount which he had received, a false complaint is given

before the Superintendent of Police, Bidar and

Superintendent of Police has given the endorsement

stating that it is a civil dispute and inspite of that in order

to harass the respondents herein, the petitioner has filed

the present complaint. It is nothing but an abuse of

process and learned counsel would submit that revisional

Court taking note of the agreement between the parties

that if any dispute arises the parties to approach the

Arbitrator, the revisional Court has rightly set aside the

order of taking cognizance and issuance of process. In

reply to the same, the learned counsel for the petitioner

would submit that there is an agreement between the

parties for over a period of ten years and respondents not

to use the brand, whereas the business was started within

16 months and started selling the product, it amounts to

cheating.

7. Having heard the learned counsel for the

petitioner and the learned counsel for respondents, this

Court has to examine the contents of the complaint first

and no doubt in the complaint itself, specific allegation is

made that respondents herein have cheated the

complainant and nature of offences also stated in the

complaint. It is to be noted that there is an MoU between

the parties and which is marked as Ex.C2 before the trial

Court and the learned Magistrate while taking cognizance

though referring the documents which have been marked

by the complainant as exhibits failed to take note of the

contents of the Ex.C2 and in Clause-13 it is very clear that

if any act is done as against the MoU, the same will be

considered as breach of understanding and will be liable to

penalty to either of violating party as may be awarded by

the Arbitrator and in Clause-14, it is categorically

mentioned that all disputes and differences in between the

parties shall be subject to Bidar jurisdiction. In Clause-24,

it is specifically stated that any disputes and or differences

of all kinds in between the parties shall be referred to an

Arbitrator and the decision of such an Arbitration shall be

final and binding upon both the parties. The contents of

the complaint also discloses that there was a breach of

memorandum of understanding and it is the specific

contention of the complainant that the said breach

amounts to criminal breach of trust and cheating. No

doubt, the said allegation is in respect of criminal

prosecution but when the parties have agreed upon in

terms of the documents, particularly in Clause-13, with

regard to marketing activities as well as procedures as

stipulated in Clause-13 and specific averments are made

by mutual agreement between the parties in explicit way

that if any violation is done, it should be treated as breach

of understanding and will be liable to penalty to either of

violating parties as may be awarded by the Arbitrator.

When such averments are made and when the document

Ex.C2 is marked before the trial Court as rightly observed

by the revisional Court, the learned Magistrate ought not

to have taken cognizance and it is nothing but giving

criminal colour to the civil dispute between the parties. It

is settled law that if any criminal colour is given to the civil

dispute, the Court can exercise power under section 482 of

Cr.P.C. In this case, the revisional Court taking into note of

the document which is marked along with complaint Ex.C2

rightly came to the conclusion that if there is any violation

of breach of contract between the parties, particularly in

Ex.C2, MoU, the petitioner ought to have approached the

Arbitrator, instead a criminal complaint is filed. It is also

important to note that endorsement was also given when

the complaint was given to the Superintendent of Police

that it is a civil dispute. The learned Magistrate ought to

have applied his judicious mind while issuing the process,

whereas the same has been considered by the revisional

Court. Hence, I do not find any error committed by the

revisional Court in setting aside the order of taking

cognizance and it does not require interference by this

Court invoking section 482 of Cr.P.C., to quash the order

of revisional Court and restore the complaint.

8. In view of the discussion made above, I pass

the following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

VNR