Dr. Cheeran Abraham Varghese vs Maulvi Ab. Hamid

M.L. Bhat, J.—On a complaint, filed by the respondent herein, the learned Chief Judicial Magistrate, Shopian has taken cognizance of

offences under Sections 420 and 419 RPC and issued process to the petitioner and to one V. K. Gupta, a co-accused. Through the medium of

this petition, the proceedings as also the order issuing process against the petitioner and said V. K. Gupta is prayed to be quashed u/s 561-A Cr.

P.C.

Complainant alleges that he is the owner of an orchard which is spread over land measuring 22 acres and 7 kanals at village Chitragham.

Complainant is maintaining this orchard scientifically and he annually incurs an expenditure of Rs. 60,000/- to Rupees 70,000,- on its maintenance.

Due to his efforts the fruit bearing trees of the said orchard are free from all infectious diseases like scab.

The petitioner herein, who is accused, is manufacturer of an insecticide, called Foltaf, which is meant for spraying on the fruit bearing trees so as

to save the trees from contacting scab disease. In connection with the sale of his product, accused No. 2 (V. K. Gupta) is said to have

approached the respondent on behalf of the petitioner and induced him to purchase the insecticides prepared by the petitioner's company. The said

insecticide is said to have been adulterated and ineffective. When the said insecticide was sprayed on the respondent's orchard, the orchard was

completely taken over by the scab disease and entire fruit of the orchard is said to have been spoiled causing loss of rupees three lacs to the

respondent.

Complainant further states that the accused have obtained Rs. 17,600/-from him for one qtl. of insecticide with dishonest intention knowing it,

that the said insecticide was adulterated and was not effective. The respondent is said to have detected the adulteration and preserved the sand

with which it was adulterated.

The sale of insecticides by the petitioner's representative, accused No. 2, is said to have been made through inducement which was fraudulent

and the petitioner has cheated the respondent and respondent has suffered wrongful loss. Therefore, petitioner is said to have committed offence

Under Sections 420 and 419 RPC along with his representative, Shri V. K. Gupta.

Petitioner challenges the proceedings and order issuing process on number of grounds. It is stated that he is neither incharge of sales nor has he

in fact made the sale to the respondent. He has not made any representation to the respondent and has been arrayed as accused only to pressurise

and harass him. The dispute mentioned in the complaint is said to be of civil nature. The allegations in the complaint would amount to an offence

punishable Under Sections 17 and 18 of the Insecticides Act. No prosecution for the said offence can be launched without the written consent of

the competent authority. Petitioner had never had any intention to cheat the respondent nor is there any overt act alleged against him.

I have heard learned counsel for the parties at great length and perused the record.

Mr. Zahoor has referred to Sections 17 and 18 of the Insecticides Act of 1988 as applicable to the State of Jammu & Kashmir. (The Act is a

Central Act and made applicable to the State of Jammu & Kashmir). Section 17 provides that no person shall himself or by any person on his

behalf, import or manufacture any misbranded insecticides or insecticides, the sale, distribution or use of which is prohibited u/s 27 of the Act or

any insecticides manufactured in contravention of any other provision of this Act or of any rule made thereunder. Section 18 of the Act prohibits

sale etc. of certain insecticides. If any insecticide is not registered under the Act or its sale and distribution is prohibited u/s 27 of the Act or its

manufacture is in contravention of the Act or rule, no person shall himself or by any person on his behalf sell, stock or exhibit for sale, distribution,

or cause to use any such insecticides. Section 27 of the Act prohibits sale etc. of insecticides for reason of Public safety. The Govt. is authorised to

prohibit the sale distribution or use of insecticides for a period not exceeding sixty days which is to be mentioned in the notification if it is of the

opinion, for reasons to be recorded in writing, that use of any insecticides specified in Sub-clause III of Clause (e) of Section 3 or any specific

batch thereof is likely to involve such risk to human being or animals as to render it expedient or necessary to take immediate action. Section 31 of

the Insecticides Act provides that no prosecution for an offence under this Act shall be instituted except by or with the written consent of, the State

Govt. or the person authorised in this behalf by the State Government. u/s 29 offences are grouped and punishment provided therefor.

According to the petitioner's counsel, the complainant should have resorted to the provisions of Insecticides Act because the allegations

contained in the complaint fall squarely within the provisions of Section 29 of the Act and cognizance and trial of offence is to be conducted in

accordance with Section 31 of the Act. Reliance is placed on Basir-ul-huq and Others Vs. The State of West Bengal, Section 195 of the Cr. P.C.

came to be considered by their Lordships of the Supreme Court. Without a complaint in writing of the public servant concerned, no prosecution

for an offence u/s 182 can be taken cognizance of. That Section 195 does not further provide that if in the course of the commission of offences

punishable Under Sections 172 to 188 IPC, other distinct offences are committed, the Magistrate is debarred from taking cognizance in respect of

those offences as well, meaning thereby, that in respect of other offences Section 195 Cr. P.C. would not debar a court from taking cognizance,

provided they are distinct from the ones grouped Under Sections 172 to 188 IPC. Consequently there is no imperative to apply requirements of

Section 195 Cr. P.C. to an offence u/s 500 RPC because it does not relate to giving false information or to the similar group of offences.

However, the application of provisions of Section 195 Cr. P.C. cannot be evaded by resorting to devices or camouflage.

The offences which are defined in Section 29 of the Insecticides Act can be taken cognizance of and tried provided Section 31 of the said Act

is complied with. Without complying with the provisions of Section 31 of the Insecticides Act, no prosecution for an offence under the Act can be

instituted. This is evident from a bare reading of the two provisions of the Insecticides Act i.e. Sections 29 and 31. The question however that falls

for consideration is that if any allegation constituting an offence punishable under the Penal Code is levelled which is distinct from the offence

mentioned in Section 29, would Section 31 of the Insecticides Act come into play? The answer to this question is provided by Basir-ul-huq and

Others Vs. The State of West Bengal, . The only thing which the trial court is to see is that the offences mentioned in the complaint are not devices

of camouflage to overcome the effect of Section 31 of the Insecticides Act. Cheating or inducing a person with dishonest intention to part with

money, to purchase sub-standard insecticides which has the effect of causing wrongful loss to a person who parts with the money is not an offence

grouped u/s 29 of the Insecticides Act of 1968.

Offences punishable Under Sections 419 and 420 RPC relate to cheating by personation and cheating by dishonestly inducing delivery of

property. The special Act i.e. the Insecticides Act does not at all deal with these offences which are independent of that Act.

Sine qua non of the offence of cheating u/s 420 RPC is (i) inducement made of other party to part with money (ii) dishonest intention of the

accused at the time the other party parted with the money. Dishonest intention by which inducement is practised must be established to have been

the reason for the complainant to part with the money.

As to whether the offence of cheating] is made out or not is to be established by the complainant at the trial. Burden of proof in criminal cases

is always on the complainant to establish that the accused was guilty of an offence for which he was being tried. At the time of taking of the

cognizance of an offence, the court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of

offence are made out in the complaint.

As to whether the petitioner has made any representation through his co-accused, Mr. V. K. Gupta to the respondent in respect of the

purchase of insecticides and obtained any amount is a matter of evidence. Burden of proving that representation made by V. K. Gupta to the

respondent to purchase the insecticide which was found adulterated was made under the directions of the petitioner and there is wrongful gain from

such representation, would rest on the respondent. At this stage it would not be proper to say anything on the merits of the case because the trial

has not commenced as yet. At this stage contents of the complaint alone are to be examined. The complainant as also one of his witnesses who

have got their statements recorded for the purpose of taking cognizance and issuing process are to be taken into consideration along with the

contents of the complaint. By issuing the process the trial court has not jumped to any conclusion as regards the guilt of the petitioner. It has only

issued the process for trying the offence.

In R.P. Kapur Vs. The State of Punjab, the Supreme Court has laid down the guidelines about the use of inherent power by the High Court u/s

561-A Cr. P.C. Some of the cases which are categorised by the Supreme Court where the inherent jurisdiction to quash proceedings can be

exercised are as under:--

a) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings in respect of the offence

alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

b) Where the allegations in the FIR/complaint even if they are taken at their face value do not constitute the offence alleged;

c) Where the allegations made against the accused person do constitute an offence, but there is either no legal evidence produced in support of the

case or the evidence adduced clearly or manifestly fails to prove the charge.

From the reading of the aforesaid observations of the Supreme Court, it appears that allegations contained in the complaint cannot be

disbelieved at their face value. There is no evidence which would reveal that the charge is to fail. Nor is there bar against the institution of the

complaint because prohibition contained in Section 31 of the Insecticides Act would not apply to an offence Under Sections 419/420 RPC. It is

premature to conclude at this stage that continuance of the prosecution will be abuse of process of the court.

Mr. Zahoor has also submitted that there is no list of witnesses furnished along with the complaint which is requirement of law. On examination

of the trial court record, I have found that list of witnesses is appended to the complaint. Therefore, there is no procedural defect with the order of

the trial court in issuing the process.

The submission made by Mr. Zahoor that the allegations contained in the complaint, even if are assumed to be true, at best amount to civil

liability, cannot be accepted because the complainant as also the statement of the complainant and his witness cannot be brushed aside at this

stage.

For what has been stated herein-above, I do not find any merit in this application at this stage and the same is dismissed hereby.

Any observation made in this order shall not be construed to be an expression of opinion on the merits of the case nor will said observations or

expressions cause any prejudice to the petitioner or to the co-accused. The trial court has to try the case and come to a conclusion about the guilt

or otherwise of the accused on evidence which will be brought before it by the prosecution. Therefore, trial court shall not be influenced in any

manner by this order in trying the case or in appreciating the evidence at the conclusion of the trial. The observations made hereinabove are only

restricted to the maintainability or otherwise of the proceedings u/s 561-A Cr. P.C.