Cr. M.P. Nos. 1163, 1402 and 1403 of 2005. Case: Anand Mahindra and etc. Vs The State of Jharkhand and Anr.. Jharkhand High CEGAT & CESTAT High Court
| Case Number | Cr. M.P. Nos. 1163, 1402 and 1403 of 2005 |
| Counsel | For Petitioners: Kalikant Jha, Adv. and For Respondents: Nityanand Sinha and Sameer Saurav, Advs. |
| Judges | D. K. Sinha, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Section 482; Indian Penal Code (45 of 1860) - Sections 420, 120B |
| Citation | 2006 CriLJ 4204 |
| Judgement Date | May 17, 2006 |
| Court | Jharkhand High CEGAT & CESTAT High Court |
Order:
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The Cr.M.P. Nos. 1163 of 2005, 1402 of 2005 and 1403 of 2005 are being disposed of by the common order arising out of common cause of action in relation to Complaint Case No. 73 of 2005 pending in the Court of C.J.M., Hazaribagh for common relief for quashing the cognizance order impugned dated 16-3-2005 passed by the C.J.M. and of the entire criminal proceeding in Complaint Case No.73/05.
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Briefly stated, the Opposite Party No.2 Shri Dileep Sonthalia filed the Complaint Case No.73/05 on 19.1.05 as against as many as 9 accused persons including the petitioners alleging inter alia that pursuant to the advertisement published in 'Times of India' dated 9-2-03 the Opposite Party No.2 paid the membership cost of Rs.15,100/- as down payment and 24 E.M.I. of Rs.6,857/- by cheques to the total amount of Rs. 1,79,668/- with interest for 25 years membership of Club Mahindra Holidays to enjoy benefit as a member of the Club/ Mahindra Holidays. The complainant requested to book the holidays from 4th of January, 2005 to 8th January, 2005 at Binsar Resort and 8th January, 2005 to 10th January, 2005 at Corbett Resort with a request that he was entitled for special offer of holidays week. However, he upgraded his membership from 'White Season' to 'Red Season' (Peak Season) on payment of additional cost of Rs. 20,504/- besides, the annual subscription of Rs. 11,769/-. When the Complainant/Opposite Party No.2 with his wife and two minor children reached Binsar Resort on 4-1-2005 where there was booking for 4 days, he received a very cold treatment and instead of 4 days he was allowed to stay for 3 days only. From there he went to Claridges Corbett Hideway with wife and children where he came to know that the Resort was already given to the 70 Guests of a big Company and he had to wait for more than 4 hours and only thereafter, the accused expressed their inability to provide any accommodation to him with his family, on the false pretext of technical problem. In this manner after covering a long journey of about 2700 K.M.s he was duped by the said Company and was allowed to enjoy only 3 days out of 4 days at Binsar and the entire 2 days at Corbett Hideway at his own cost.
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After his return on 11-1-2005 O.P. No.2 demanded his money back, which was flatly refused by the petitioners and other accused and was intimidated and threatened. On the above background the O.P.No.2 alleged that it was apparent from their conduct that the Company and its officials were engaged in luring and defrauding people for the sake of illegal earning from the very inception of the constitution of the Company on false promise and undertakings and in this manner they committed offence under Section 406/420 I.P.C. After enquiry the cognizance of the offence was taken on 16.5.2005 under Section 420/120B I.P.C. impugned.
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With reference to Cr.M.P.No.1163 of 2005 the learned Counsel for the petitioner submitted that M/s Mahindra Holidays and Resorts India Ltd., a limited Company was incorporated in 1996 under the provisions of Companies Act, 1956 (hereinafter referred to as the Company), the Memorandum of Association, inter alia, stipulated the business of developing Holidays Resorts in the places of tourist interest and market them on timeshare basis as one of the primary business activities of the Company. The Company was promoted by Mr. Arun Kumar Nanda and Mr. Ramesh Ramanathan and on incorporation they formed the Board of the Directors of the Company. Learned Counsel for the petitioner submitted that the petitioner Shri. Anand Mahindra was neither the promoter nor a Director of the Company at the time of the incorporation of the Company or any time thereafter.
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Advancing his argument, learned Counsel submitted that membership rules provided for the member to avail of the holiday in the allotted season of the specified apartment in any of the Mahindra Resorts or Mahindra Associate Resorts, by giving a request for reservation in the prescribed format provided by the Company. The said reservation was on a 'First Come, First served' basis subject to availability. The member out of his/her entitlement of 7 days in a year could avail holiday only twice in a year out of which holiday in the weekend could be availed only once subject to issuance of confirmation voucher specifying the time schedule for availing the resorts. In case the Company could not provide holiday in spite of issuance of confirmation voucher it was facilitated that the Company would provide alternate accommodation and in the event of default the Company would pay liquidated damages equivalent to 100% of the rent/tariffs that may be charged. Under such terms and conditions the members were incorporated in the membership rules as contained in Annexure-3. Admittedly O.P. No. 2 was registered as member of the Company and at that time the petitioner herein was not a member on the Board of Directors of the Company which would be evident from the Annual Returns of the Company submitted in compliance of the statutory requirement for the financial year 2002-03 as Annexure-4.
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Learned Counsel further submitted and pointed out towards the letter of the Company dated 12-2-2005 as contained in Annexure-5 whereby the Company apologized and sought to redress the same by offering a holiday at the Claridges Corbett Hideway. By Annexing Annexure-6, 6/A with the present petition, the fact has been presented before this Court in support of the contention that the petitioner herein was never associated with the said Company at any time and therefore, the cognizance for the offence taken under Sections 420/120B of the I.P.C. against the petitioner who was not at all concerned with the Company is absolutely bad in law and not sustainable in the eyes of law which is liable to be set aside and the criminal proceeding against the petitioner at the same time is liable to be quashed.
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Learned Counsel finally submitted that to assign a criminality to the petitioner merely because the petitioner happens to be a Managing Director of M/s Mahindra and Mahindra Ltd., which is a separate and distinct legal identify from that Company would be preposterous and on this ground alone the complaint deserves to be quashed. In the present case the entire complaint is conspicuously silent about any complicity of the petitioner.
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With respect to Cr.M.P. No.1402 of 2005 in relation to the petitioner Ramesh Ramanathan, Managing Director of Mahindra Holidays and Resorts India Ltd. it has been submitted that Rule 7 of the membership Rules provided the obligations of the Company which may be read as follows:
(i) In case MHRIL does not provide holiday after issuance of confirmation voucher in the allotted Mahindra Resort/Mahindra Associate Resort, MHRIL shall provide alternate accommodation and in the event of default in providing alternate accommodation, MHRIL shall pay liquidated damages equivalent...
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