Exide Industries Ltd. and Sudip Kumar Chowdhury v State of Kerala and Unmesh V.M.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 ``` ``` CRL.MC NO. 8041 OF 2017 ``` ``` CC NO.1403 OF 2017 OF JUDICIAL MAGISTRATE OF FIRST ``` ## **`CLASS ,THALASSERY`** ## **`PETITIONERS/ACCUSED 1 TO 6:`** - **`1 EXIDE INDUSTRIES LTD. EXIDE HOUSE, 59 E, CHOWRINGHEE,KOLKATA 700020, REPRESENTED BY ITS AUTHORIZED SIGNATORY, MR. K.SARAVNANAN`** - **`2 SUDIP KUMAR CHOWDHURY ASSISTANT MANAGER, MARKETING SERVICES, EXIDE INDUSTRIES LTD., EXIDE HOUSE,59 E, CHOWRINGHEE, KOLKATA 700020 BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA`** ## **`RESPONDENTS/COMPLAINANTS:`** - **`1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN 682031`** - **`2 UNMESH.V.M AGED 39 YEARS, S/O.UTHAMAN, RESIDING A SAISHYAM, KADIRUR PO, THALASSERY TALUK BY ADVS. SRI.RENISH RAVEENDRAN SRI.SHERRY J. THOMAS SRI.RENJITH.T.R, SR.PP`** ## **`THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON`** ``` 29.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CrlM.C..No.8041/2017 **2** **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No.8041 of 2017 ---------------------------------------------Dated this the 29[th] day of July, 2024** ## **ORDER** This Criminal Miscellaneous case is filed to quash the proceedings in CC No.1403 of 2017 on the file of the Judicial First Class Magistrate Court, Thalassery, as evident by Annexure-D complaint. Annexure-D is a protest complaint filed by the 2[nd] respondent alleging offences punishable under Sections 406 and 420 of the Indian Penal Code. The 1[st] petitioner is a company registered under the Companies Act, 1956 and manufacturers of various kinds of batteries and Home UPS. The 2[nd] petitioner is the Executive Assistant of the 1[st] petitioner company. 2. The case of the complainant / 2[nd] respondent as alleged in the complaint is as follows: The 2[nd] respondent is involved in electronic business, manufacturing inverters and other electronic components. The 2[nd] CrlM.C..No.8041/2017 **3** respondent invented a system to check acid levels in batteries automatically using sensors which he called ‘OPTO ACID LEVEL SENSOR SYSTEM (OALS)’. The 2[nd] respondent applied to patent his invention and later a patent No.219141 was granted for the said invention is the submission. The 2[nd] respondent contacted the 1[st] petitioner company and explained about the work of his invention. The working model was sent to the 1[st] petitioner’s office at Kolkata on 13.05.2009. Several communications between the 2[nd] respondent and the accused were there is the submission. A working model of the system was sent to the Kochi office of the 1[st] petitioner as well. Thereafter there was no response from the side of the accused in spite of repeated queries made by the 2[nd] respondent. It is alleged that the 2[nd] respondent after a few months came to know that the 1[st] petitioner started manufacturing, advertising, marketing and supplying batteries and UPS using technology invented by the 2[nd] respondent, without his consent. The CrlM.C..No.8041/2017 **4** accused named in the criminal complaint, with an intention to cheat the 2[nd] respondent, collected the technical know how of his invention, and after getting the working model of the invention, started manufacturing the product and appropriated huge amounts by marketing the product, is the submission. Hence it is alleged that the accused committed the offence. 3. Initially the 2[nd] respondent filed Annexure-A complaint before the Judicial First Class Magistrate Court, Thalassery and the said complaint was forwarded to the Police under Section 156(3) Cr.P.C. Consequently Annexure-B FIR was registered. After the investigation, the Police referred the matter, as evident by Annexure-C. Thereafter Annexure-D complaint was filed. The 1[st] respondent was examined and his statement was recorded, as evident by Annexure-E. Thereafter the learned Magistrate took cognizance based on Annexure-D complaint and issued summons to the petitioners. CrlM.C..No.8041/2017 **5** Aggrieved by the same, this criminal miscellaneous case is filed. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. The short point raised by the petitioners is that the learned Magistrate, without considering the refer report, had taken cognizance based on the protest complaint. The same is illegal in the light of the two judgments of this Court is the submission. 6. This Court in **Parameshwaran Nair v. Surendran** [2009 (1) KLT 794] considered this point in detail. The relevant portion of the above judgment is extracted hereunder: “12. If the original complaint stood dismissed by the acceptance of the refer report submitted after investigation the protest complaint if any filed can only be treated as a second complaint. If so, the protest complaint will lie only if there was a manifest error or manifest miscarriage of justice in the earlier order or new facts which the complainant had no knowledge of or with reasonable diligence could not have brought forward in the previous proceedings is CrlM.C..No.8041/2017 **6** adduced. When this is the legal position, it is notlawful to the Magistrate to ignore the final report submitted by the police under Section 173(2) of the Code. Magistrate is bound to consider the final report and decide which of the options available to him is to be exercised.” ## 7. Similarly in **Kader v. State of Kerala** [1999 (3) KLT 55], this Court considered the same point which is extracted hereunder: “7. The Court noted that the scope of enquiry under S.202 is the ascertainment of the truth or falsity of the allegations made in the complaint on the materials placed by the complainant before the Court for the limited purpose of finding out whether the prima facie case for issue of process has been made out and for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. Nevertheless, the Court has a duty to protect the interest of the absent accused also because at the particular stage, the accused has no say in the matter and the matter is decided without notice to him. It is, therefore, open to the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent the accused therein from being called upon to face obviously CrlM.C..No.8041/2017 **7** frivolous complaint and to find what material there is to support the allegations made in the complaint. The Magistrate has a duty not only to bring to book a person or persons against whom grave allegations are made in the complaint but also to protect the interest of the absent accused in such matters. What all matters he should take into consideration to arrive at the conclusion that he should take cognizance of the offence, will depend upon the facts and circumstances of each case. He has necessarily to consider the allegations made in the complaint and the statement of the complainant recorded under S.200 Cr.P.C. as also of the witnesses examined under S.202 of the Cr.P.C. Along with that, he has also to consider the result of enquiry or investigation, if any, held by the police. It cannot be said that the said data is not an essential factor. The consideration of the materials under S.202 of the Cr.P.C. is not an empty formality and cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach.” 8. In the light of the above principle, I am of the considered opinion that taking cognizance without considering refer report is to be set aside. Therefore, this criminal miscellaneous case is disposed of with following directions: CrlM.C..No.8041/2017 **8** |1.|Taking<br>cognizance<br>based<br>on| |---|---| ||Annexure-D complaint by the Judicial| ||First<br>Class<br>Magistrate<br>Court,| ||Thalassery, is set aside.| |2.|The learned Magistrate is directed to| ||reconsider the matter in the light of| ||the principle laid down by this Court| ||in<br> **Parameshwaran**<br>**Nair**<br>**v.**| ||**Surendran**[2009 (1) KLT 794] and| ||**Kader v. State of Kerala**[1999 (3)| ||KLT 55], and also in the light of| ||Annexure-C fnal report.| vismaya/JV sd/- **P.V.KUNHIKRISHNAN JUDGE** CrlM.C..No.8041/2017 **9** ## **`APPENDIX OF CRL.MC 8041/2017`** |**`PETITIONER`**|**`ANNEXURES`**| |---|---| |**`ANNEXURE A`**|**`CERTIFIED COPY OF THE CMP.NO.`**| ||**`2107/2014 FILED BY THE 1ST RESPONDENT`**| ||**`ON 22.05.2014 BEFORE THE JUDICIAL`**| ||**`FIRST`**<br>**`CLASS`**<br>**`MAGISTRATE`**<br>**`COURT,`**| ||**`THALASSERY`**| |**`ANNEXURE B`**|**`CERTIFIED COPY OF FIR NO. 759 DATED`**| ||**`22.05.2014 OF TELLICHERRY POLICE`**| ||**`STATION`**| |**`ANNEXURE C`**|**`CERTIFIED COPY OF THE REFER REPORT`**| ||**`SUBMITTED BY THE POLICE DATED`**| ||**`16.03.2015`**| |**`ANNEXURE D`**|**`CERTIFIED COPY OF COMPLAINT IN CMP.NO.`**| ||**`827/2016 FILED BY THE 2ND RESPONDENT`**| ||**`BEFORE THE JUDICIAL FIRST CLASS`**| ||**`MAGISTRATE COURT, THALASSERY ON`**| ||**`25.05.2016`**| |**`ANNEXURE E`**|**`CERTIFIED COPY OF STATEMENT OF THE 1ST`**| ||**`RESPONDENT RECORDED ON 05.09.2016`**| |**`ANNEXURE F`**|**`TRUE COPY OF THE SUMMONS DATED`**| ||**`24.08.2017 ISSUED BY THE JUDICIAL`**| ||**`FIRST`**<br>**`CLASS`**<br>**`MAGISTRATE`**<br>**`COURT,`**| ||**`THALASSERY RECEIVED BY THE 1ST`**| ||**`PETITIONER`**| |**`ANNEXURE G`**|**`TRUE COPY OF THE SOMMONS DATED`**| ||**`24.08.2017 ISSUED BY THE JUDICIAL`**| ||**`FIRST`**<br>**`CLASS`**<br>**`MAGISTRATE`**<br>**`COURT,`**| ||**`THALSSERY RECEIVED BY THE 2ND`**| ||**`PETITIONER`**| |**`ANNEXURE H`**|**`TRUE COPY OF THE E REGISTER WITH`**| ||**`RESPECT TO THE 1ST RESPONDENT'S PATENT`**| ||**`NO. 219141 EXTRACTED FROM THE WEBSITE`**| |**`ANNEXURE I`**|**`TRUE COPY OF THE LETTER OF THE 1ST`**| ||**`RESPONDENT DATED 10.09.2013`**| |**`ANNEXURE J`**|**`TRUE COPY OF THE LETTER OF THE 2ND`**| ||**`RESPONDENT DATED 27.09.2017`**|