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2019 Supreme(MP) 278
J. P. Gupta, J.
Neeraj Makker and another v. State of M. P. and another
Miscellaneous Criminal Case No. 26875 of 2017 (Jabalpur); Decided on 14.3.2019.
Subject
Criminal Law - Cheating
Act Referred
INDIAN PENAL CODE : S.420
Headnote
(1) Penal Code, 1860 -- S. 420 -- affixing price of goods by seller despite exhibition of MRP by manufacturer -- not an offence in absence of any statutory provision in that regard - sale of goods on higher price hiding engrafted MRP fixed by manufacture or marketing agency -- amounts to cheating. [Para 8]
(2) Practice -- alternative remedy -- remedy available under Consumer Protection Act is additional -- not in derogation of any other remedy available under any other law -- does not debar criminal action if available. (2011) 10 SCC 316 followed. [Paras 5 & 11]
(3) Penal Code, 1860 -- S. 420 -- sale of goods on higher price hiding engrafted maximum retail price fixed by manufacturer -- certainly transaction is of civil nature -- but manner of transaction bring it in purview of cheating -- seller can be held liable under criminal law. [Para 10]
(4) Criminal P. C., 1973 -- S. 156 (3) -- complaint of cheating with affidavit and necessary documents with regard to transaction -- Magistrate directed registration FIR -- cannot be said to have acted mechanically without applying his mind -- no infirmity in procedure followed by Magistrate. (2015) 6 SCC 287 followed. [Para 12]
(5) Penal Code, 1860 -- S. 420 -- cheating by seller of goods -- proved -- criminal liability arising out of action of seller cannot be fastened on another person merely on account of his being owner of shop, unless his involvement in criminal act is averred. [Para 13]
¼1½ naM lafgrk] 1860 & /kkjk 420 & fofuekZrk }kjk vf/kdre QqVdj dher Ánf'kZr fd, tkus ds ckotwn foØsrk }kjk eky dh dher fpidk;k tkuk & bl laca/k esa fdlh dkuwuh mica/k ds vHkko esa vijk/k ugha & fofuekZrk ;k foi.ku vfHkdj.k }kjk fu;r dj eqfær dh xbZ vfËkdre QqVdj dher fNikdj mPprj dher ij eky dk foØ; & Ny dh dksfV esa vkrk gSA ¼iSjk 8½
¼2½ ÁFkk & vkuqdfYid mipkj & miHkksDrk laj{k.k vf/kfu;e ds v/khu miyC/k mipkj vfrfjDr gS & vU; fdlh fof/k ds v/khu miyC/k vU; fdlh mipkj ds vYihdj.k esa ugha & nkafMd mipkj] ;fn miyC/k gks] fooftZr ugha djrkA ¼2011½ 10 ,l lh lh 316 vuqlfjrA ¼iSjk 5 ,oa 11½
¼3½ naM lafgrk] 1860 & /kkjk 420 & fofuekZrk }kjk fu;r eqfær dh xbZ vfËkdre QqVdj dher fNikdj mPprj dher ij eky dk foØ; & laO;ogkj fuf'pr :i ls flfoy Á—fr dk gS & ijarq laO;ogkj dh jhfr bls Ny ds {ks= esa ys vkrh gS & foØsrk dks nkafMd fof/k ds v/khu nk;h Bgjk;k tk ldrk gSA ¼iSjk 10½
¼4½ naM ÁfØ;k lafgrk] 1973 & /kkjk 156¼3½ & Ny dk ifjokn 'kiFki= rFkk laO;ogkj ds laca/k esa vko';d nLrkost lfgr ÁLrqr & eftLVªsV us ÁFke bfRryk fjiksVZ jftLVªh—r djus dk funs'k fn;k & euksfo;ksx fd, fcuk ;kaf=d :i ls dk;Z fd;k x;k ugha dgk tk ldrk & eftLVªsV }kjk vuqlfjr ÁfØ;k esa dksbZ 'kSfFkY; ughaA ¼2015½ 6 ,l lh lh 287 vuqlfjrA ¼iSjk 12½
¼5½ naM lafgrk] 1860 & /kkjk 420 & eky foØsrk }kjk Ny & lkfcr & foØsrk ds dk;Z ls mn~Hkwr nkafMd nkf;Ro fdlh vU; O;fDr ij] nqdku dk Lokeh gksus ds dkj.k ek= ls ugha yknk tk ldrk] tc rd fd nkafMd —R; esa mlds varZofyr gksus dk ÁdFku ugha fd;k x;k gksA ¼iSjk 13½
Ajay Mishra with Atul Nema for applicants; Chandrabhan Singh, Government Advocate for respondent No. 1/State; Aseem Trivedi and Ashish Pandey for respondent No. 2.
ORDER
1. This petition has been preferred under section 482 of CrPC for quashment of impugned order dated 17.11.2017 passed by JMFC, Jabalpur whereby the application filed under section 156 (3) of CrPC by respondent no. 2 was accepted and directed to Police station Lardganj, Jabalpur to register FIR and submit final report, on the ground that prima facie no cognizable offence is made out from the averment in the application and the impugned order has been passed mechanically without applying judicial mind and the mendatory procedure as laid down by the Apex Court.
2. Facts giving rise to this petition in brief are that the respondent No. 2 filed an application under section 156 (3) of CrPC on 13.11.2017 before JMFC, Jabalpur stating that on 13.10.2017 he went to the applicant’s shop Karan Shoes situated at Malviya Chowk, Jabalpur to purchase a pair of chappal and he purchased a pair of chappal made by Softy Company on which a paper slip was impressed by the seller on the place where MRP Rs. 499/- was engraft by the company. On the slip in the name of Karan Shoes MRP Rs. 790/- was printed and after negotiation it was given on consideration of Rs. 740/-. Thereafter, when he detached the slip of price it was emerged that on behalf of Softy Company, MRP Rs. 499/- was engraft on the goods and the bill given by the seller was also deceived. Neither the name of the purchaser was mentioned nor the description of the company was given and GST number was also wrong. Accordingly, the seller has deceived to the respondent to pay him more money than fixed by the Softy Company as maximum retail price (MRP) believing that the exhibited price is the MRP fixed by the company. In this way the applicant has cheated him. Further stated that when about aforesaid act complaint was made to the applicant No. 1, he disclosed himself that he is the proprietor and in this regard on 13.10.2017 written information was given to the police station Lardganj but no action was taken, thereafter, he by communication dated 29.10.2017 and 31.10.2017 made complaint to the higher official of the police but on account of political and economic influence, the police did not take any action. Therefore, the police be directed to register criminal case against the applicant under sections 420, 467, 468, 471, 481, 482, 486 read with section 34 and 120B of IPC. The application was filed along with affidavit and other relevant document and by the impugned order learned JMFC came at the conclusion that from the application, prima facie, cognizable offence is made out and directed the police to register the FIR.
3. Learned counsel for the applicant No. 2 has submitted that in the application against the applicant No. 2, there is no averment in the application under section 156 (3) of Cr.P.C., therefore, against him no direction for registration of FIR can be given. He is only the owner of Karan Shoes. As per the averments, no alleged deal was taken place between the applicant No. 2 and respondent No. 2 and there is no averment with regard to commission of offence under sections 467, 468, 471, 481, 482, 486/34 and 120B of IPC and there is also no allegation to constitute the offence of cheating under section 420 of IPC. Further submitted that without making priliminary inquiry about the veracity of the facts, in mechanical way, direction has been given to the police to register an offence which is not in accordance with law and caused injustice to the applicants and further submitted that if the allegation be considered as it is, hardly it can be said that seller is responsible for unfair trade practice about which complaint can be made before the Consumer Court under the Consumer Protection Act and the criminal Court is not the right place to raise the question which is purely civil nature dispute. Hence the aforesaid order be quashed.
4. Learned counsel appearing on behalf of the respondent has submitted that when the application under section 156 (3) of Cr.P.C. filed by th
