Jagdish Prasad Gupta ORDER
Jagdish Prasad Gupta, J.
1. This petition has been preferred under Section 482 of Cr.P.C. for quashment of impugned order dated 17.11.2017 passed by JMFC, Jabalpur whereby the application filed under Section 156 (3) of Cr.P.C. 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 mandatory 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 Cr.P.C. 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 Section 420, 467, 468, 471, 481, 482, 486 read with section 34 and 120-B 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 120-B of IPC and there is also no allegation to constitute the offence of cheating under Section 420 of IPC. Further submitted that without making preliminary 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 the respondent no. 2, prima facie cognizable offence under Section 420 of IPC is made out. Every ingredients required to constitute the offence of cheating are available and the complaint was filed with the affidavit and necessary document of the transaction, therefore, it cannot be said that trial Court has not followed the requisite procedure or wrongly directed the police to register the offence and it is said that as the applicant no. 2 was the owner of Karan Shoes, hence he is also responsible for the transaction. Hence the petition be dismissed.
5. So far the remedy available under the Consumer Protection act is concerned, it does not debar criminal action, if available as held by the Apex Court in the judgment of Trans Mediterranean Airways vs. Universal Exports and another MANU/SC/1126/2011 : (2011) 10 SCC 316. Hence on that account the order cannot be assailed.
6. Having heard the conditions of learned counsel for the parties and on perusal of the record, in this case there is no dispute that from the averment of the application under Section 156 (3) of Cr.P.C., prima facie no offence punishable under Section 467, 468, 471, 481, 482, 486/34 and 120-B of IPC is not made out.
7. Learned counsel for the respondent no. 2 has pointed out that prima facie offence punishable under Section 420 of IPC, which is cognizable offence is made out. Contrary to it learned counsel for the applicants has contended that the seller has right to fix his price despite of exhibition of MRP by manufacturer as there is no law to prohibit the seller to sell the goods Chappal on the higher price than the MRP fixed by the manufacturer.
8. In view of this court, in absence of statutory provision the selling of any goods on higher price is not an offence but if goods is sold on the higher price affixing his price by the seller hiding the engrafted maximum price fixed by the manufacturer or marketing agency, it amount to deceive the purchaser to believe that the MRP is fixed by the manufacturer or marketing company. This act comes in purview of deceiving fraudulently and dishonestly to the purchaser and on account of so deceived the purchaser purchased the goods on the higher price considering that it is the price of manufacturing company while it was very below. Hence it is amount to cheating.
9. It is made clear that if the fixed higher price by the seller in comparison to MRP by the manufacturer or marketing company is also exhibited simultaneously, it would not amount to cheating as the seller has right to fix his price of selling. Unless the goods governed by the Act of Legal Metrology Act, 2009, in view of this court is not governed by the aforesaid act. In view of the aforesaid discussion in the present case against the applicant no. 2, prima facie the offence punishable under Section 420 of IPC is made out.
10. So far the contention with regard to civil nature of the dispute is concerned, certainly the alleged transaction is of civil nature. But in the manner the transaction has taken place, it also come in purview of the cheating and punishable under Section 420 of IPC. In the circumstances, it cannot be said that the seller cannot held liable under the criminal law.
11. So far the provision of Consumer Protection Act is concerned, Hon'ble the Apex Court in the judgment of Trans Mediterranean Airways vs. Universal Exports and Another (Supra) has held that protection provided under the Consumer Protection Act is in addition to remedies available under other statutes and is not in derogation of any other remedy available under any other law. In the circumstances, it can't be held that because in the Consumer Protection Act, remedy is available, no action can be taken under the criminal law.
12. So far the procedure part is concerned, an affidavit has been filed with the compliant and necessary document with regard to the alleged transaction has also been filed. Therefore, it cannot be said that learned Magistrate has mechanically without applying his mind directed to register the FIR. In this regard, law laid down by the Apex Court in the case of Priyanka Srivastava and Another vs. State of Uttar Pradesh and others MANU/SC/0344/2015 : (2015) 6 SCC 287 has been followed, therefore, there is no infirmity in the procedure followed by the learned trial Court.
13. In view of the aforesaid discussions, the impugned order cannot be set aside, so far, it is concerned to the applicant no. 1, however, in connection with the applicant no. 2, it is not sustainable as there is no averment in the application under Section 156 (3) against the applicant no. 2. Criminal liability arising out of the action of the applicant no. 1 cannot be fasten on the applicant no. 2 merely on account that he is owner of the shop, unless there is an averment about his involvement in the criminal act of other co-accused. Hence the impugned order is set aside to the extent it is against the applicant no. 2 and his name be deemed to be omitted from the application on the basis of which the FIR has been registered and so far against the applicant no. 1 is concerned, the impugned order is upheld. Accordingly, this petition is disposed of.
Copy of this order be sent to the concerned trial Court for information.
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