TATA CELLULAR LTD Vs. KARUNAKARAN SHIVA KUMAR

JUDGEMENT

(1.) 1st respondent filed a private complaint against the petitioner for offences under Sections 406 and 418 I.P.C. alleging that he, believing the publicity of the petitioner that Tata Cellular Direct (T.C.D.) Card would work out cheaper than S.T.D and that many others benefits would be available to T.C.D. customers, had purchased a T.C.D. Card bearing No. 0000 14-9295/5 and coupon No. 01038-00003-000216 worth Rs. 3,000/- under invoice No. 5 dt. 29-9-2000 for Rs. 2,340/- from Ranjit Reddy (shown as L.W.2, in complaint) and after purchase he found that card does not contain the date of manufacture expiry and instructions for use. After he started using the card he found that call numbers details, unit rate, pulse rate, etc., are not being displayed and so he made a request to the petitioner to furnish those details and rectify the defect in the card sold to him. But, petitioner did not respond. He also found that there is difference between the call rate advertised and the rate per call actually charged. Thus finding that the petitioner is indulging in unfair trade practice and had cheated him and the public, he gave a police report but police did not take any action. The learned Magistrate referred the said complaint to Police under Sec. 156 (3) Cr.P.C. After investigation, police sent a final report stating that no case is made out for offences under Sections 406 and 418 I.P.C. Thereafter 1st respondent filed a private complaint against the petitioner with the same allegations for the same offence. The learned Magistrate took cognizance of the complaint and issued process. Questioning the validity of the complaint and the Magistrate taking cognizance thereof this petition is filed to quash the proceedings in C.C.No.898 of 2001.

(2.) The contention of Mr. Padmanabha Reddy, learned Senior Counsel for the petitioner, is that all the allegations in the complaint even if taken to be true do not make out offences under Secs. 406 and 418 I.P.C. and the those allegation clearly show that the dispute, if any, is purely of civil nature and contended that 1st respondent had in fact filed a complaint before the District Consumer Forum, Nizamabad, in C.D.No.217 of 2000, which is still pending and that this complaint before criminal court is but an abuse of process of Court.

(3.) The contention of the learned counsel for 1st respondent is that since the TCD Card purchased by the 1st respondent does not disclose the date of its manufacture, date of its expiry or the details of its user, petitioner violated the provisions of Standards of Weights and Measures (Enforcement) Act, 1985 and since petitioner is also indulging in 'Unfair Trade Practice' attracting the provision of the Monopolies and Restrictive Trade Practices Act, 1969, and since the TCD Card purchased by the petitioner is not performing the functions which it ought to perform as per the advertisement which apart form being a defect in the goods purchased by the 1st respondent also falls within the meaning of 'deficiency in service' as per the provisions of the Consumer Protection Act, and since the 1st respondent was induced by the petitioner to part with his money by an advertisement containing incorrect if not false information the provisions of Sections 406 and 418 I.P.C are prima facie attracted. Relying on Kamaladevi Agarwal v. State of West Bengal and others and Medchl Chemicals & Pharma (P) Ltd. v. Biological E.Ltd.2., he contended that merely because remedy in civil Court is also available to the 1st respondent it, by itself, is not and cannot be ground for questioning the complaint, because the acts committed by the petitioner attract the Provisions of I.P.C. also. Relying on M.N.Damani v. S.K. Sinha and others and Haji Abdul Mazid v. State of Rajasthan, he contended that since learned Magistrate found that there is a prima facie case against the petitioner, this petition for quashing the proceedings is not maintainable.