2011 ALL MR (Cri) 230
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
N.A. BRITTO, J.
Ravi Somani S/O. Sh. Shree Kishan Somani Vs. State Of Goa & Ors.
Criminal Writ Petition No.119 of 2009
10th November, 2010
Petitioner Counsel: Shri. D. P. SINGH
Respondent Counsel: Shri. C. A. FERREIRA,Shri. N. SARDESSAI
Penal Code (1860), Ss.415, 420 - Cheating - Ingredients - There has got to be an interaction between deceiver and deceived - In absence of any representation which is one of the main ingredients for constituting an offence of cheating, as contained in S.415 of I.P.C., held, cheating did not and could not arise. 2008(14) SCALE 85 and AIR 2009 SC 2717 - Rel. on. (Para 24)
State of Haryana Vs. Bhajan Lal,, AIR 1992 SC 604 [Para 19,24]
S.V.L. Murthy Vs. State (CBI), Hyderabad, AIR 2009 SC 2717 [Para 24]
R. Kalyani Vs. Janak C. Mehta, 2008(14) SCALE 85 [Para 24]
3. In this petition, the petitioner seeks the quashing of F.I.R. No.319/2009 registered against the petitioner under Sections 418, 420, 471 r/w 34 I.P.C. Some facts need to be stated to understand the controversy and to dispose off this petition.
4. The Respondent No.3 is also a manufacturer of number plates. Respondent No.3 has entered into a concession agreement dated 29-2-2008 with Respondent No.1 for implementation of Rule 50 of the Central Motor Vehicles Rules, 1989 in the State of Goa. The complaint by letter dated 15-9-2009 came to be filed against the petitioner pursuant to Clause 9 of the said agreement which provides that :-
"In the event of any passing off or forgery being detected and brought to the notice of the Concessionaire, the Concessionaire or his agent shall immediately intimate the Registering Authority who shall on the basis of such intimation register a criminal complaint against such individuals, firms and companies who have indulged in the said acts. The State Government shall lodge a complaint, prosecute and pursue strict penal action against any person or firm who may seek to sell HSRP and Non .. HSRP number/License plates in the State of Goa."
5. Rule 50 of the said Rules, as amended, providing fitment of HSRPs (High Security Registration Plates) with a view to prevent use of stolen vehicles for criminal activities was to come into force from 28-9-2001 for new vehicles and within a period of two years thereafter in respect of already registered vehicles. The date of implementation was shifted from time to time. At one time it was 1-1-2004 and then 31-10-2006. Rule 50 came to be implemented in the State of Goa from 3-8-2009.
* A 1.0 m aluminium plate
* Letters in black colour on yellow background for commercial vehicles
* Letters in black colour on white background for non-commercial vehicles
* Letters in English and the figures in Arabic numerals
* Rounded border edges and corners of approx.10mm.
* Embossed borders
* Security inscription of the black hot stamp film used to colour the embossed legend of the license plate hand side just below the words IND as a sequential identification of individual license plates across the country and as a watermark that cannot be erased.
* Fastening by snap locks to prevent removal and reusability
* A hot stamped hologram with the image of "CHAKRA"
* High quality laminated and embossed retro effective sheeting
* High quality laminated and embossed retro reflective sheeting
* Third License Plate (TLP) sticker on wind screen. It is a self-destructive self-adhesive sticker containing all information pertaining to the vehicle's registration and serves as double secure identification mark.
* Only Regional transport Offices can authorize High Security Registration Plates after the necessary verifications. This directive is already implemented in meghalaya, Sikkim and Goa and will soon be issued all over India.
7. The said advertisement also cautions that in States where this directive is not implemented yet, all vehicle owners are requested to use normal number plates devoid of any fancy lettering or design as per gazette notification number G.S.R. 901(E) dated 13th December, 2001. These normal number plates have letters in black on a white background for non-commercial vehicles and letters in black colour on a yellow background for commercial vehicles.
9. The petitioner was not short listed by the Government of Goa, for want of five country experience when tenders were called for by Respondent No.1 for implementation of the said Rule, and it is Respondent No.3 who was the successful bidder and who has entered into the said concession agreement with the Government of Goa for providing HSRPs. After the filing of this petition, and after five country experience was done away with, the petitioner has secured a contract in the State of West Bengal for providing HSRPs.
10. The implementation of Rule 50 of the said Rules has not been without controversies, as some States are seeking its amendment. To begin with, only four States including Goa implemented it, and now eight, including West Bengal. If Respondent No.3 in the State of Goa supplies a HSRP for a four wheeler at the rate of Rs.1,250 per vehicle, the petitioner supplies the same in West Bengal at the rate of Rs.441/- per vehicle. If the petitioner advertises for sale the number plates manufactured by them on various magazines including "Autocar" as "smart plates, for smart cars * only plate in India made as per Central Motor Vehicle Rules * Made with German Collaboration * Reflective and embossed * Anti Theft * unbreakable * Certified by ARAI, Pune" and also on their website as "high security registration plates * anti theft smart plates" with a further disclaimer put from 1-1-2005 to the effect that they are not manufacturing HSRPs which can be sold only once the State Government authorises to sell HSRPs, the Respondent No.3, too has been advertising for sale "UTCH PLATES" stating that they have been "developed to cater to specifications as defined by the Government of India in Central Motor Vehicle Rules, 1989 * made of world class aluminium and equally high quality retro-reflective sheeting and hot stamped black foil on embossed section * extremely sturdy in constitution, promises longevity and value for money. Ensuring excellent night time visibility and conspicuity during day time * product undergoes intensive testing, qualifying the quality parameters defined for HSRP".
12. The petitioner has also published (after his arrest) a public caution notice on all editions of Times of India, including Goa, on 14-10-2009 stating that no one should buy the anti theft smart number plates presuming the same to be HSRP as per Rule 50, C.M.V. Rules.
13. Be that as it may, the case of the petitioner is that the petitioner is a manufacturer of High End Registration Plates of motor vehicles in India since 2002, and the petitioner is one of 20 "Type Approved" manufacturers of "High Security Registration Plates" in India and is the first Company in India to have been granted the Conformity of Production Certificate (COP) by ARAI (Automotive Research Association of India), Pune, after having commissioned the first HSRP manufacturing unit in India. According to the petitioner, they are engaged in the manufacturing of the High End Anti-Theft Smart Number Plates which are reflective, counterfeit-proof and ensure the safety and security of the motor vehicles and have authorized dealers in different parts of India. That as per the provision of Rule 50 of Central Motor Vehicle Rules, 1989, the Government of Goa has entered into agreement with Respondent No.3 which is one of the manufacturers of High Security Registration Plates and that for the purposes of law the HSRPs issued and installed in the State of Goa is deemed to have been issued by the Registration Authority, nevertheless the same have been supplied by Respondent No.3. That a F.I.R. was registered against the petitioner with other co-accused on a complaint of Respondent No.2 wherein it was alleged that the petitioner without any authority was manufacturing and selling the look alike number plates of High Security Registration Plates in the State of Goa through its dealers, and that the I.O. moved a request application before the Judicial Magistrate First Class, Margao to issue non bailable warrant against the petitioner but the same was dismissed, and yet the petitioner was arrested on 28-9-2009 from his house brought down to Goa and was released on bail on the same day. According to the petitioner, he is competent to manufacture the High Security Registration Plates but owing to the controlled supply of HSRPs anywhere in India, the petitioner does not make or supply the HSRPs anywhere in India (now it has started in West Bengal) as HSRPs have certain special features mentioned in Rule 50 of Central Motor Vehicles Rules,1989. According to the petitioner, one of the features of HSRP issued on behalf of the Registering Authority in the State of Goa is that it should bear a permanent consecutive identification number of minimum seven digits which is laser branded in the reflected sheet at left hand bottom of the number plate for tracing the particular vehicle from the database in case the number plates are fraudulently exchanged, and the Respondent No.2 has admitted that the look-alike number plates manufactured and sold by the petitioner through their dealers do not have the above identification number or snap lock on the rear number plates which number plates are fixed in the offices of the R.T.O. as per the norms of implementation of HSRPs, and, therefore the essential features of HSRP that form the necessary part of fixing the HSRP in the R.T.O. premises was never undertaken by the petitioner. The petitioner claims that there is no bar or restriction in manufacturing and selling other type of number plates in the State of Goa at least for two years from the date of implementation of the project in the State. The petitioner claims that another allegation is that the petitioner is carrying on publicity and claiming that the number plates manufactured by the Company are approved by the Central Agencies appointed by the Government of India through its website www.utsav.co.in, and that on this very website since the year 2005 a disclaimer was posted by the petitioner which shows that the petitioner was never in business of manufacturing or selling HSRPs and more so the petitioner never tried to mislead the public at large by making them buy smart number plates as if the same are HSRPs. According to the petitioner, the facts alleged in the F.I.R. do not satisfy the requirements of I.P.C. provisions. The petitioner's company is not selling smart number plates in the garb of they being HSRPs or even remotely claiming the same to be sold through the offices of R.T.O. which is the procedural requirement as per law. According to the petitioner, it is not the case of the Respondents that the petitioner sold look-alike number plates through R.T.O. to the end user or misrepresented the R.T.O. to buy the same from the petitioner under the impression that these number plates are the HSRPs but as per the complaint itself there is visible difference in both the number plates and certain must features of the HSRPs are not in the smart plates which means that the plates can be distinguished from each other so that there is no chance of cheating the customer or selling the smart plates by terming or making them look or feel like HSRPs. The petitioner has stated that HSRPs have other than the hologram and India - India foil on the embossed surface, other security features like the snap locks, unique laser printed serial identification number and the third sticker to be fixed on he windscreen, which makes such number plates unique not only to the vehicles but also as per the R.T.O. records, and, moreover HSRPs are only available through the R.T.O. and the plates manufactured by the petitioner were never sold through the R.T.O..
14. The petitioner has stated that his company is manufacturing and selling the smart number plates since 2002 much before the Respondent No.3 entered into an agreement with the Government of Goa, and it is not the case of Respondent No.3 that after the agreement the petitioner changed the look and feel of the number plates to make the same look like HSRPs. The petitioner stated that there was no complaint against him by any customer or buyer. According to him, there is a business rivalry between the petitioner and Respondent No.3 and because of that, Respondent No.3 in connivance with the other Respondents registered the present F.I.R. which is a clear abuse of the process of Court and the proceedings have been initiated with malice to wreak vengeance and cause harm to the petitioner.
15. The Respondent No.1 through the Investigating Officer, has filed an affidavit-in-reply, and has stated that on receipt of the complaint dated 15-9-2009, he was of the view that offences under Sections 418, 420, 471 r/w 34 I.P.C. were made out, and, therefore the complaint was registered and investigations are in progress though charge-sheet is not yet filed. According to him, the petition deserves to be rejected.
16. Shri. D. P. Singh, learned Counsel on behalf of the petitioner submits that the F.I.R. filed by the Director of Transport discloses no offence against the petitioner and in fact, does not even say that the petitioner has indulged in cheating but speaks only of violation of Rule 50 of the said Rules and asks for suitable action to be taken to prevent circulation of fake number plates which do not bear laser branded identification number and snap locks. Learned Counsel submits that the hologram has been given to the petitioner for the manufacture of the registration plates by none other then ARAI (Automotive Research Association of India) which is a Government approved undertaking. Learned Counsel submits that the registration plates manufactured by the petitioner are being distributed all over the country and in case the petitioner commits no offence elsewhere by doing that, the petitioner cannot be said to commit any offence in the State of Goa. Learned Counsel submits that although the registration number plates manufactured by the petitioner's company are otherwise in conformity with Rule 50 of the said Rules, the petitioner's registration plates do not have all the features required by Rule 50. Learned Counsel submits that there may be a bar to sell HSRPs but there is no bar to sell good look-alike number plates. According to the learned Counsel, the petitioner's company is not selling any HSRPs but is selling a good quality registration plate. According to the learned Counsel the petitioner is not the only entity which is making and selling such number plates and that there are also others in the market who do the same. The learned Counsel submits that the problem of Respondent No.3 is that the petitioner's company sells good quality number plate confirming to Rule 50 and there is no legal bar to sell the same inasmuch as the petitioner's company is selling such plates much before the Respondent No.3 entered into an agreement with the State of Goa. Learned Counsel submits that Government of India itself is on record to say that by doing so the petitioner's company commits no offence. Learned Counsel submits that the registration number plates are sold through the dealers and on his part the petitioner has not deceived anyone and there is nothing dishonest and fraudulent in making a good number plate and selling it in the market. Learned Counsel submits that there is no bar to sell good quality number plates even in the State of Goa where there is an agreement between Respondent No.1 and Respondent No.3 for implementation of Rule 50.
17. Shri. C. A. Ferreira, learned Public Prosecutor, on the other hand submits that the petitioner's company may be having a C.O.P. issued by the said ARAI but that does not authorize the petitioner's company to sell the said plates. Learned Public Prosecutor submits that the petitioner's company advertises that the registration plates manufactured by them is the only plate made in India and that will defeat the purpose of law. Learned Public Prosecutor submits that the State owed an obligation as per clause 9 of the agreement to stop such sale of registration plates. Learned Public Prosecutor further submits that after Rule 50 is enforced in any State there is no place for any other manufacturer, other than approved by the State Government, to sell their number plates.
18. Shri. N. Sardessai, learned Counsel on behalf of Respondent No.3 submits that the investigations which have begun be not throttled. Learned Counsel submits that the selling of the number plates by the petitioner's company would come in the way of the business of Respondent No.3 as the petitioner is selling look alike number plates. Learned Counsel submits that those who know the requirements of Rule 50 may not get deceived but those who do not know are bound to be deceived.
19. In the case of State of Haryana and others Vs. Bhajan Lal and others (AIR 1992 SC 604) the Apex Court has given certain illustrative cases when the High Court may exercise its powers under Article 226 of the Constitution of India or Section 482 of Criminal Procedure Code for the purpose of quashing a F.I.R. and some of the illustrations given are :-
1). where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
5). where allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
7). where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
20. From the averments in the petition, and the submissions made, it can be clearly seen that the petitioner has been dealt with highhandedly by Respondent No.1. Respondent No.1 registered the F.I.R. on 17-9-2009 without even recording the statements of any of the witnesses who could have been said to be cheated and without there being allegations in the F.I.R. dated 15-9-2009 that the petitioner had indulged in any offence of cheating. Two of the statements which have been provided, on behalf of Respondent No.1 were recorded only on 21-1-2010, and if at all the said two statements implicate anyone, it is certainly not the petitioner but his agents. Inspite of the fact that Respondent No.1 failed to secure a NBW sought by letter dated 25-9-2009 from the Judicial Magistrate, First Class at Margao, Goa, the petitioner was arrested from his New Delhi residence on 28-9-2009, and brought to Goa as stated by the learned Counsel on behalf of the petitioner, by air, but was immediately ordered to be released on bail by order of the same date. One fails to understand the urgency with which the Investigation Officer acted when the petitioner's company has been manufacturing and selling the said number plates all over the country even before the Respondent No.3 entered into an agreement with the Government of Goa in the year 2008.
21. The Government of India has been concerned about the introduction of new HSRPs, particularly after the Judgment of the Apex Court dated 5-5-2009 by which the States/UTs were required to implement the scheme by 5-8-2009. The Government of India as well as ARAI are well aware of ATRPs being sold in the market, all over the country by the petitioner and others, with only some of the features of HRSPs, and in fact on the advice of ARAI, Government of India (MoRTH) has been carrying on a sustained publicity campaign through the Directorate of Audio Visual Publicity on all major newspapers published in the Country so that the public may not be misled and one such notice published on Indian Express on 21-6-2003 reads as follows :
"It has been reported that some so called anti-theft registration plates for motor vehicles containing some security features are available in the market. It is hereby clarified that use of the high security registration plates is to be brought into force from the 1st January, 2004. These plates are not to be affixed outside the premises of the registering authority i.e. the RTO. Further the high security registration plates would contain a number of security features like a permanent identification number of minimum seven digits which is laser branded on the bottom left hand side of the registration plates, a chromium based hologram hot stamped on the top left hand corner of the front and rear plates, use of a third registration plate in the form of self destructive type chromium based hologram sticker to be affixed on the inner side of left hand corner of windshield etc.. It may be noted that the new high security registration plates have to be supplied to the motor vehicle owner by the vendor selected by the government of concerned State/U.T., against the authorization of the RTO or an officer designated for the purpose by the State Transport Department."
Earlier, another public notice was published by the Government of India around 19-6-2003 to the same effect.
22. The issue of the Registration Plates manufactured by the petitioner and one M/s. Omish, Mumbai, was taken up before the Director of Road Transport in MoRTH on 18-6-2003 at the instance of the treasurer of Confederation of Vehicle Security and Road Safety Industry, New Delhi, and it was represented before him that M/s. Utsav and M/s. Omish were marketing number plates which contained some of the features of the high security registration plates of which they had brought samples and they wanted the Government of India to intervene in the matter and put an end to the sale of such plates, and it was observed by the Director, Road Transport, that a perusal of the sample revealed the absence of three features of the High Security Registration Plates system, namely, absence of hologram, absence of laser branded identification number and also absence of chromium foil based self destructive sticker i.e. the third registration plate. The delegation member was asked whether the sale of plates was taking place at the R.T.O. Complexes, which was yet another feature of the high security system, and was answered in the negative, and, therefore the Director (Road Transport) came to the conclusion that the sample plate submitted by them did not violate any of the existing provisions of the Central Motor Vehicles Rules whether it is in terms of colour combination or the size and shape. The delegation members admitted that no violation of any provisions of Central Motor Vehicles Rules was taking place.
23. Thereafter, it appears that the said note was approved and public notices were issued such as "Vehicle Owners Beware", High Security Registration Plates (HSRP) authorized and issued only by the Regional Transport Offices are genuine and legal, and those sold by local vendors are fake and illegal.
24. If Government of India found that the petitioner had not violated Rule 50 of the said Rules nor had indulged in cheating where was the question of Government of Goa filing a complaint against the petitioner to the Police to take suitable action to prevent circulation of fake number plates which do not bear laser branded identification number and snap lock? Admittedly, no offence of cheating was alleged to have been committed by the petitioner, in the said complaint of Director of Transport, and interestingly no person who got cheated, if at all, had complained about such cheating. It was nobody's case that any of the buyers of the plates manufactured by the petitioner's Company were carried away by the advertisements published by the petitioner or the petitioner's Company. Puffing of goods by advertisements are not at all uncommon and are routinely discounted by men and women exercising ordinary prudence. Otherwise, there will be a case of cheating with every dissatisfied customer. In fact, Respondent No.1 ought to have simply filed such a complaint because no offence of cheating was disclosed and if at all anybody got cheated, such person/s had not complained about such cheating against the petitioner. Clause 9 of the concession agreement could not have been used by Respondent No.2 to lodge a complaint for offences which were not disclosed. Circulation of number plates which did not bear laser branded identification number and other essential features could have been stopped only in accordance with law, or as was done in the State of Rajasthan by filing a writ petition (See page 140 of paper book) if that was permissible in law but certainly not by misusing police machinery. I am entirely in agreement with all the submissions made by learned Counsel on behalf of the petitioner. For two years at least owners of vehicles are entitled to use normal number plates and manufacturers are entitled to sell the same to them without committing any offence or breach of Rule 50 of the said Rules. The complaint dated 25-9-2009 discloses no offence having been committed by the petitioner, and, therefore there was no question of the Police Inspector saying that he was of the view that offences under Sections 418, 420, 471 r/w. 34, I.P.C. were disclosed even before examining any of the persons who had purchased such registration number plates. An ordinary buyer is supposed to have common prudence. Every citizen is presumed to know the law. The foremost requirement of Rule 50 of the Rules which is otherwise sufficiently published by the G.O.I. is that the registration plate is required to be fastened with non-removable/non-usable snap lock fitting system at the premises of the registering authority. That would cover two of the essential features of a HSRPs. The third feature in importance is what is known as the third plate i.e. self destructive diffraction type sticker with specific features on the wind screen. The petitioner's registration plates do not have at least the said three most important features of a HSRP nor has the petitioner claimed that his registration plates carry the said features and therefore by no stretch of imagination it could be said that the petitioner had deceived anyone in case he had advertised the smart number plates manufactured by him, in the manner he was doing. What is the sauce for the goose has got to be the sauce for the gander. Respondent No.3 has an agreement with Government of Goa and the petitioner has an agreement with Government of West Bengal and both are advertising and selling the number plates manufactured by them elsewhere in the country. There is no substance in the submission of the learned Public Prosecutor that once there is an agreement by the State Government with a particular manufacturer of number plates, all others are restrained from selling the number plates manufactured by them within the State of Goa. Government of India had found that the petitioner has committed no offence. Government of Goa if under the agreement was required to help the Respondent No.3 and restrain others from selling the registration plates, it had to do in accordance with law and certainly not by misusing the police machinery. The case at hand is covered by illustration (1) and (7) in State of Haryana and others Vs. Bhajan Lal and others (supra), and, therefore the F.I.R. registered pursuant to the said complaint dated 15-9-2009 needs to be quashed and set aside. The petitioner was bound to advertise his product, in the manner done by him, on the magazines, on the website with a disclaimer, etc. and it is nobody's case that anybody was deceived by such advertisement. If any deception has been practiced by any of his agents, it is entirely a different matter but even then customers of ordinary prudence are expected to know the law that HSRPs can be installed only at the office of RTO and even in their case, the allegation that they were cheated, cannot be accepted. That apart, there has been no interaction between the petitioner and those who place orders by courier or through agents. As reiterated by the Apex Court in S.V.L. Murthy Vs. State (CBI) Hyderabad (AIR 2009 SC 2717) referring to R. Kalyani Vs. Janak C. Mehta and others (2008(14) SCALE 85) there has got to be an interaction between the deceiver and the deceived and in the absence of any representation which is one of the main ingredients for constituting an offence of cheating, as contained in Section 415, I.P.C. cheating did not and could not arise. The Court held thus :
"As there had never been any interaction between the appellant and them, the question of any representation which is one of the main ingredients for constituting an offence of cheating, as contained in Section 415 of the Indian Penal Code, did not and could not arise."
26. As a result, the petition deserves to succeed. Rule is made absolute in terms of prayer clause(A). Considering the facts, Respondent No.1 shall pay costs quantified at Rs.15,000/- to the Petitioner within thirty days. P.I. Sudesh Narvekar shall be responsible for payment of costs.