(2015] 11S.C.R.299

INTERNATIONALADVANCED RESEARCH CENTRE FOR A

POWDER METALLURGY AND NEW MATERIALS (ARCI)

&ORS.

NIMRA CERGLASS TECHNICS (P) LTD.&ANR.

(Criminal Appeal No.2128 of2011)

SEPTEMBER 22, 2015

[JAGDIS.H SINGH KHEHAR AND R. BANUMATHI, JJ.]

Code of Criminal Procedure, 1973s.482- Scope of- Technology transfer agreement - Between a Government research institute and a private Company - The institute D failed to achieve targeted specifications - Complaint by the Company-Against the institute and its officials uls. 420 /PC

- Magistrate took cognizance of the offence -Application ul s.482 for quashing the criminal proceedings, dismissed by High Court- On appeal, held: In order to bring out a case for E the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but it should also be proved that the representation was made in order to decieve the complainant - In view of the facts of the case including the terms and conditions of the agreement, offence F of cheating has not been made out, but it is a case of breach of contract - Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction-The dispute between the parties is purely of civil G nature - Criminal liability cannot be imposed if/ disputes of civil nature - The inherent jurisdiction u/s. 482 should be exercised only in rare cases and in exercise of such jurisdiction the High Court should not appreciate the H 299

A evidence and its truthfulness or sufficiency - However, the High Court's inherent powers, either in civil or in criminal matter, ought not be permitted to degenerate into weapon of harassment or persecution - If the averments in the complaint do not constitute an offence, the court would be B justified in quashing the proceedings in the interest of justice - Therefore, the criminal proceedings are liable to be quashed in the present case- Penal Code, 1860s.420 rlw s. 34 - Contract - Breach of contract - Distinction from offence of Cheating. c

Allowing the .appeal, the Court

HELD: 1. Though it is well-settled that while exercising inherent jurisdiction u/s. 482 Cr.P.C., it is not o for the High Court to appreciate the evidence and its truthfulness or sufficiency inasmuch as it is the function of the trial court and that the inherent jurisdiction of the High Court under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution. Power under E Section 482 Cr.P.C. is to be used sparingly only in rare . cases. However, the High Court's inherent powers, be it, civil or criminal matters, is designed to achieve a salutary public purpose and that a court proceeding ought not to be permitted to degenerate into a weapon F of harassment or persecution. If the averments in the

complaint do not constitute an offence, the court would be justified in quashing the proceedings in the interest of justice. [Paras 23, 12] [311-G-H; 320-G-H; 321-A-BJ

G State of Haryana & Ors. vs. Bhajan Lal & Ors. 1990

(3) Suppl. SCR 259: 1992 Supp. (1) sec 335; State of T.N. vs. Thirukkural Perumal 1995 (1) SCR 712: (1995) 2 SCC 449; Central Bureau of Investigation vs. Ravi Shankar Srivastava, /AS & H

INTERNATIONALADVANCED RESEARCH CENTRE FOR POWDER 301 METALLURGYv. NIMRACERGLASS

Anr. 2006 (4) Suppl. SCR 450:. (2006) 7sec188 A -relied on.

Trisuns Chemical Industry vs. Rajesh Agarwal & ors. 1999 (2) Suppl. SCR 686: (1999) 8 sec 686; Rajesh Bajaj vs. State NCT of Delhi and Ors. 8 1999 (1) scR 1012: (1999) 3 sec 259; P Swaroopa Rani vs. M.Hari Narayana Alias Hari Babu 2008 (3) SCR 900: (2008) 5 cc 765; Iridium India Telecom Ltd. vs. Motorola Incorporated & Ors. 2010 (14) SCR 591: (2011) 1 C SCC 74; Fiona Shrikhande vs. State of Maharashtra & Anr. 2013 (9) SCR 240: (2013) 14 SCC 44; Bhushan Kumar & Anr. vs. State (NCT) of Delhi & Anr. 2012 (2) SCR 696: (2012) 5 SCC 424; Smt. Nagawwa vs. Veeranna D Shivalingappa Konjalgi & Ors.1976 (0) Suppl.

SCR 123: (1976) 3 SCC 736referred to.

2.1 The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver E property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of l:)eing converted into a valuable security and

(iii) mens rea of the accused at the time of making the inducement The making of a false representation is one F of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was G false to the l<nowledge of the accused and was made in order to deceive the complainant. [Para 13)(312-D-F]

2.2 Distinction between mere breach of contract and the cheating would depend upon the intention of the H

A accused at the time of alleged inducement. If it is

established that theintention of the accused was dishonest at the very time when.he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal B and the accused is guilty of the offence of cheating. On

the other hand, if all that is established that a representation made by the accused has subsequently not been kept. criminal liability cannot be foisted on the accused and the only right which the complainant C acquires is the remedy for breach of contract in a civil

court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the

0 transaction. [Para 14] [312-G-H; 313-A-B]

S. W Palanitkar & Ors. vs. State of Bihar & Anr. 2001 (4) Suppl. scR 397: (2002) 1 sec 241; Rashmi Jain vs. State of Uttar Pradesh & Anr.

(2014) 13 sec 553 - relied on.

2.3 In the present case, various clauses in the technology transfer agreement indicate that technology transfer agreement 1999 was only experimental in nature and ARCI shall endeavour to achieve the performance F as per the specifications. In the agreement, there was no commitment on the part of ARCI to provide extruded ceramic honeycombs as per expected specifications. [Para 15] [313 F]

G 2.4 It is evident that the respondent Company first

approached ARCI for co-operation and received money from ARCI for developing part of the technology and finally it opted for developing part of the technology by itself rather than jointly transfer to a third party as

INTERNATIONALADVANCED RESEARCH CENTRE FOR POWDER 303 METALLURGYv. NIMRACERGLASS

provided for in 1997 agreement. No dishonest intention A could be attributed to the appellants as is apparent from the fact that the Company earlier had collaboration with ARCI and ARCI put in sufficient efforts by conducting repeated performance guarantee tests. [Para 17)

[315-G-H; 316-A] B

2.5 By perusal of the letter bearing No.ARCl/AD/ 2005-2006 dated 05.04.2006, (on which the respondent relied on to allege cheating)it is seen that the Centre was trying their besf efforts to improve the wall thickness C uniformity and they are expecting to accomplish all experimentation necessary for the purpose. In the letter bearing No.ARCl/AD/2006-2007 dated 23.10.2006 addressed to Technology Information, Forecasting & Assessment Council (TIFAC), copy of which was marked D to the Company states that targeted specifications could not be achieved despite ARCl's best efforts. Thus, it is clear that before the said letter was sent to TIFAC, all the details were discussed and well within the knowledge of the Company and the Company proposed for E modification of the canning process and evidently there was no dishonest intention on the part of the appellants and no criminal liability could be attributed to the appellants. [Para 18) [316-C-E; 317-B] F 2.6 Appellants-ARC! is a structure of Scientists, Team Leader and Associate Director and it is the team leader who actually executes the project, the job of Associate Director and Director is to monitor/review progress of the project. Appellants No.2 and 3 who were the G Associate Director. and Director of ARCI respectively were only monitoring the progress of the project cannot be said to have committed the offence of cheating. [Para

25] [322-D-E] H

A 2.7 Both the appellants were acting in their official capacity. Appellants No. 2 and 3 neither acted in their personal capacity nor stood to receive any personal monetary benefits from the transfer of said technology.

They were representatives of ARCI which is a grant-ins aid research and development institute under the Ministry of Science and Technology, Government of India and hence previous sanction as mandated under Section 197 Cr.P.C. must have been obtained before proceeding against them as their act was only in discharge of their C official duties. [Para 24] [321-C-D]

2.8 By analysis of terms and conditions of the agreement between the parties, the dispute between the parties appears to be purely of civil nature. It is settled D legal proposition that criminal liability should not be imposed in disputes of civil nature. [Para 20] [317-H;

318-A]

Anil Mahajan vs. Bhor Industries Ltd. & Anr.

(2005) 10 SCC 228; Mis Indian Oil Corporation vs. NEPC India Ltd. & Ors. 2006 (3) Suppl.

SCR 704: (2006) 6 sec 736 - relied on.

2.9 Moreover, Article 21 of technology transfer F agreement dated 18.06.1999 contains arbitration clause.

The arbitrator has passed the award which again is the subject matter of challenge before the High Court. [Para

19] [317-C-G]

G 2.10 Therefore, the allegations in the complaint do not constitute the offence alleged and continuation of the criminal proceeding is not just and proper and in the interest of the justice, the same is liable to be quashed. [Para 25] [322-F]

INTERNATIONALADVANCED RESEARCH CENTRE FOR POWDER 305 METALLURGYv. NIMRACERGLASS

Case Law Reference A

1990 (3) Suppl. SCR 259 relied on Para 12

1995 (1) SCR 712 relied on Para 12

2006 (4) Suppl. SCR 450 relied on .

Para 12 B 2001 (4) Suppl. SCR 397 relied on Para 14

(2014) 13 sec 553 relied on Para 14

(2005) 1 o sec 228 relied on Para 20

2006 (3) Suppl. SCR 704 relied on Para 21 c

1999 (2) Suppl. SCR 686 referred to Para 22

1999 (1) SCR 1012 referred to Para 22

2008 (3) SCR 900 referred to Para 22 D

2010 (14) SCR 591 referred to Para 22

2013 (9) SCR 240 referred to Para 22

2012 (2) SCR 696 referred to Para 22

1976 (0) Suppl. SCR 123 referred to Para 22 E

CRIMINALAPPELLATE JURISDICTION: CriminalAppeal No. 2128 OF 2011

From the Judgment and Order dated 17.03.2009 of the F High Court of Judicature of Andhra Pradesh at Hyderabad in Criminal Petition No. 7901 of 2008

Raju Ramchandran, Siddhartha Dave, Jemtiben AO, Mythili Vijay KumrThallam, Vikram Aditya Narayan, Senthil

G Jagadeesan, Rajvinder Singh Ahluwalia, Manoj Sharma, Shahid Ali Rao, Nand Ram, Shree Pal Singh, MushtaqAhmad, S .. Udaya Kumar Sagar, Krishna Kumar Singh, 0. Mahesh Babu for the appearing parties.

A The Judgment of the Court was delivered by

R. BANUMATHI, J. 1.This appeal has been preferred assailing the judgment dated 17.03.2009 passed by the High Court of Andhra Pradesh in Criminal Petition No.7901 of 2008 B dismissing the petition filed by the appellants under Section

482 Cr.P.C., thereby declining to quash the criminal proceedings initiated against the appellants in CC No. 840/ 2008 under Sections 419 and 420 IPC. c

2. Brief facts which led to the filing of this case are as under:-The respondent-complainant is a private limited company engaged in the manufacturing and marketing of scientific devices and equipments. The respondent filed complaint against appellant-International Advanced Research D Centre for Powder Metallurgy and New Materials (for short

'ARCI') and its officers i.e. appellant No.2-S.V.Joshi, Associate Director and appellant No.3-G.Sunderarajan, Director alleging that the appellants have represented that ARC I possessed of technology for manufacture of extruded ceramic honeycombs E which is used in manufacturing of catalytic converters which are used in automobiles for controlling emission. On that representation, the respondent entered into an agreement dated 18. 06 .1999 with ARCI for transfer of technology for the manufacturing process of extruded ceramic honeycombs F inclusive of transfer of extrusion die fabrication technology which is an integral part of the manufacturing process for a consideration of rupees ten lakhs in instalments exclusive of royalty amount on the sales which would have been generated on the basis of products manufactured anq marketed by the G respondent on the basis of technology. The respondent had

alleged that in pursuance of the agreement, the respondent was permitted to establish its industrial unit within the campus of ARCI at Balapur, Hyderabad for the purpose of installing H and commissioning production of prefoired technology and

INTERNATIONALADVANCED RESEARCH CENTRE FOR POWDER 307 METALLURGY v. NIMRA CERGLASS [R. BANUMATHI, J.]

for which respondent spent around rupees one crore thirty lakhs A for purchasing and installing the comprehensive machinery.

The respondent alleged that after having taken number of trial

runs for testing the efficacy of the extruded ceramic honeycombs in the function organized by ARCI in May 2003, attended by higher officials, the technology was handed over B to the respondent and accordingly the respondent was induced into remitting the third instalment of rupees two lakhs in addition to the amount already paid. Respondent states that he was informed that the initial trial runs conducted by the Scientists of ARCI succeeded and the appellants thus, handed over a C few samples of the final product which were subsequently displayed at a joint programme launched at Hyderabad. As a result, respondent spent an amount of rupees fifteen lakhs for procuring raw materials in anticipation of commencing 0 commercial production in the belief that the final perfected technology is in its hands. The respondent further alleged that after three years, the respondent was informed vide letter bearing No.ARCl/AD/2006-2007 dated 23.10.2006 addressed to Technology Information, Forecasting and E Assessment Council (TIFAC) that the targeted specification of the end product could not be achieved. The respondent alleged that scientists working in ARCI had not perfected the honeycomb technology sufficient for commencing commercial production and by their false representations induced the F respondent to spend huge amount and thus appellants have committed an offence of cheating.

3. The respondent lodged a criminal complaint on 06.11.2007 before the court of the 11 Metropolitan Magistrate G Cyberabad seeking prosecution of the appellants for the offences punishable under Sections 405, 415, 418, 420 IPC read with Sections 34 and 1208 IPC. After investigation, the investigating officer submitted final report dated 28.01.2008 stating that the dispute is purely of civil nature and that no H

A offence was made out against the appellants and the same may be accepted and the case be treated as closed. On protest petition filed by the respondent, the Magistrate took cognizance of the case for offences under Sections 419 and 420 IPC read with Section 34 IPC vide order dated 11.11.2008. Aggrieved B by the summoning order issued by the II Metropolitan Magistrate, Cyberabad, the appellants filed petition under Section 482 Cr.P.C. before the High Court to quash the proceedings in CC No. 840 of 2008 and the same was dismissed, which .is under challenge in this appeal. c

4. Contention at the hands of the appellants is that when Technology Transfer Agreement dated 18.06.1999 was entered into, NIMRA was fully aware of ARCl's honeycomb technology and second and third appellants were involved in D the process of developing the technology wholly in their capacity as Associate Director and Director of ARCI and there was no dishonest intention on their part to cheat the respondent.

Taking us through various clauses in the technology transfer agreement, Mr. Raju Ramachandran, learned Senior Counsel E submitted that the said technology transfer agreement provides for a contingency that if the targeted specifications are not achieved, then ARCI is liable to pay damages to the tune of twenty percent of the lump-sum technology transfer fee F charged. It was contended that the case is purely of a civil nature and for the alleged breach of contract, arbitral proceedings have already commenced and the criminal prosecution is clear abuse of process of law.

5. Reiterating the above submissions, Mr. Manoj Sharma, G learned counsel for the appellant No.2 contended that in the year 1&99, second appellant was not in theARCI campus and the second appellant was appointed as the Associate Director and entrusted the responsibiiity of heading the technology H transfer activities of ARCI only in April 2005 and no dishonest

INTERNATIONALADVANCED RESEARCH CENTRE FOR POWDER 309 METALLURGYv. NIMRA CERGLASS [R. BANUMATHI, J.]

intention could be ascribed to the second appellant in his A individual capacity.

6. Mr. Mushtaq Ahmad, learned counsel for respondent No.1 submitted that the appellants made false representation to the respondent that AR Cl was possessed of proved ceramic B honeycomb technology and the appellants conspired and induced the respondent to enter into agreement and based on the assurance of the appellants, respondent spent huge money in purchasing and installing comprehensive machinery in its industrial unit set up in ARCI campus and only in the year C 2006, by the letter dated 23.10.2006, second appellant intimated that ceramic honeycomb technology has failed and the facts and circumstances clearly show that the representation was a fraudulent right from inception.

7. We have carefully considered the rival contentions and perused the impugned order and the material on record.

8. ARCI, a grants-in-aid research and development institute under the Ministry of Science and Technology, E Government of India, carries out research work for the development of a number of scientific products to be used in various fields. As a part of its scientific development, ARCI developed a process for extruded ceramic honeycombs. The said extruded ceramic honeycombs were found suitable for F manufacture of catalytic converters which are used in vehicles for controlling the pollution in the emission of vehicles and e>qruded gases. ARCI is said to have held the intellectual property rights for the know-how i.e. the process for extruded ceramic honeycombs and extrusion die fabrication technology. G

9. ARCI entered into a technology transfer agreement on 18.06.1999 with respondent to transfer the know-how related to the process for extruded ceramic honeycombs as per the specifications indicated thereon in the annexure to the H

A agreement. The agreement details the modalities of the terms and conditions for the grant of licence by ARCI and NIMRA for utilizing the said know-how and the rights and obligations of the parties and the financial arrangements between them. As per Article 2.5 of the agreement, NIMRA has seen ceramic B honeycombs as per specifications indicated thereon and felt

that they could be a substitute for imported honeycombs for manufacture of catalytic converter automotive application.

Further Article 2.6 of the agreement provides that NIMRA had made some preliminary evaluation of ARCI honeycomb C samples and found that the ceramic honeycombs may be

suitable for manufacture of catalytic converters for automobile application.

10. Contention at the hands of respondent is thatARCI D had already developed and possessed know-how for extruded ceramic honeycombs. Article 2.2 of technology transfer agreement suggests thatARCI has the intellectual property rights for the know-how of the ceramic honeycomb technology and the extrusion die fabrication technology. It was contended E that the intellectual property rights could not have been given .

to ARCI unless the Centre developed the process hundred percent successfully and without such cent percent success appellants should not have entered into an agreement for F transfer of the technology. Further contention of respondent is that believing the representation of the appellants, respondent established an industrial unit within the Balapur Campus of the Centre and in this regard spent an amount of rupel)s one crore and thirty lakhs for purchasing and installing G comprehensive machinery. It is submitted that in the month of May 2003 officials of ARCI convened a convention for trial run and they assured the respondent that the technology was a proved one and was fully developed and believing their assurances, respondent spent rupees fifteen lakhs for procuring H raw materials and three years thereafter, second appellant

INTERNATIONALADVANCED RESEARCH CENTRE FOR POWDER 311 METALLURGYv. NIMRACERGLASS [R. BANUMATHI, J.]

'* informed the respondent that the targeted specification of the A end project could not be achieved and the second appellant marked a copy of the letter dated 23.10.2006 addressed to TIFAC that the ceramic honeycombs technology has failed and act of the appellants made out a case of cheaing and rightly Magistrate has taken cognizance of the matter.

11. Learned counsel for the respondent further submitted that in the letter addressed to TIFAC dated 23.10.2006, appellant No. 2 stated that targeted specification of the end product could not be achieved implying that the so-called C perfect honeycomb technology which the appellants asserted to be having was in fact, an imperfect technology. Drawing our attention to the official website of ARCI, it was submitted that the ARCI submitted an application for patent registration only on 03.07.2001 and patent was granted on 13.01.2006 D and while so, Article 2.2 of transfer technology agreement mentioning thatARCI has the intellectual property rights for the know-how and the extrusion die fabrication technology is false and the appellants made a false representation to the E respondent thatARCI was having intellectual property rights for extruded ceramic honeycombs and the Magistrate has rightly taken cognizance of the matter for the offence punishable under Sections 419 and 420 IPC.

12.The legal position is well-settled that when a F prosecution at the initial stage is asked to be quashed, the test to be applied by the court is, as to whether uncontroverted allegations as made in the complaint establish the offence.

The High Court being superior court of the State should refrain from analyzing the materials which are yet to be adduced and G seen in their true perspective. The inherent jurisdiction of the High Court under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution. Power under Section 482 Cr.PC. is to be used sparingly only in rare cases. In a catena H

• A of cases, this Court reiterated that the powers of quashing criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon facts and circumstances of each case. Vide State of Haryana & Ors. vs. Bhajan Lal & Ors., 1992 Supp.(1) SCC B 335; State of T.N. vs. Thirukkural Peruma/, (1995) 2 SCC

449; and Central Bureau of Investigation vs. Ravi Shankar Srivastava, /AS & Anr. (2006) 7 SCC 188.

13. In the light of the well-settled principles, it is to be seen C whether the allegations in the complaint filed against ARC I and its officers for the alleged failure to develop extruded ceramic honeycomb as per specifications disclose offences punishable under Sections 419 and 420 IPC. It is to be seen that whether the averments in the complaint make out a case to constitute D an offence of cheating. The essential ingredients to attract Section 420 IPC are: (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security and (iii) mens rea of E the accused at the time of making the inducement. The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely F sufficient to prove that a false representation had been made, but, it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.

14. Distinction between mere breach of contract and the G cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the H complainant to part with his property or money, then the liability

INTERNATIONALADVANCED RESEARCH CENTRE FOR POWDER 313 METALLURGYv. NIMRACERGLASS [R. BANUMATHI, J.)

is criminal and the accused is guilty of the offence of cheating. A On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the compla.inant acquires is the remedy for breach of contract in a civil court. Mere breach of contract cannot give B rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown atthe beginning of the transaction . . In S. W Palanitkar & Ors. vs. State of Bihar & Anr. (2002) 1

SCC 241, this Court held as under: c "21 ...... In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an D act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating."

lhe above view in Palanitkar's case was referred to and E followed in Rashmi Jain vs. State of Uttar Pradesh & Anr.

(2014) 13 sec 553.

15. Various clauses in the agreement indicate that technology transfer agreement 1999 was only experimental in F. nature and ARCI shall endeavour to achieve the performance as per the specifications. In the agreement, there was no commitment on the part of ARCI to provide extruded ceramic honeycombs as per expected specifications. Article 12 which deals with performance guarantee suggests thatARCI is to G conduct performance test and shall endeavour to ach!eve product quality/specification as mentioned in annexure I of the agreement. We may usefully refer to Article 12.2 to 12.6 of the agreement which read as under: H

"12.2 When all guarantee figures as set forth in Article 12.1 are achieved during the performance guarantee test, thenARCI shall be released thereafter from any liability for the performance guarantee of the know-how.

12.3 In the event of failure to achieve the performance as agreed in Article 12.1 in the first performance test, ARCI shall make necessary rectification and another performance test will be conducted.

12.4 In the event of failure to achieve the guarantee figures in the second performance test, ARCI may at its option either (I) 'make necessary rectification so that another performance test can be conducted or pay the

liquidated damages equal to 20% of the lump-sum technology transfer fee charged.

12.5 When the liquidated damages are paid by ARCI as specified in Article 12.4, the performance guarantee shall be deemed to have been fulfilled asARCI shall be relieved from any liability or the performance guarantee.

12.6 If for reasons not attributable to ARCI, the performance guarantee figures are not attained during the performance test, both parties shall discuss and agree upon measures to be taken."

16. By reading of the above clauses in the technology transfer agreement, it is seen that the development of technology ceramic honeycombs by ARCI was experimental.

Terms and conditions of technology transfer agreement clearly G suggest that the Centre is to conduct performance guarante~

to achieve the product quality/specification of extruded ceramic honeycombs as mentioned in annexure-1 of the technology transfer agreement and make necessary H rectification, if required. The agreement provides that in the

INTERNATIONALA:'/ANCED RESEARCH CENTRE FOR POWDER 315 METALLURGYv. ~11Vitv-, CERGLASS [R. BANUMATHI, J.]

event of failure to achieve the guarantee figures as per A specification even after second performance test, option given toARCI either to conduct another performance test or pay the liquidated damages equal to twenty percent on the lump-sum technology transfer fee charged. As per the terms and conditions of the agreement, ARCI had the option to conduct B performance test to achieve the quality/specifications and when it could not achieve these specifications, it cannot be said that ARCI acted with dishonest intention to cheat the respondent attracting the essential ingredients of Section 420 IPC.

17. Two important aspects are relevant to be noted to hold that criminal liability cannot be foisted on the appellants. Firstly, satisfaction of NIMRA as to suitability of ceramic honeycombs.

As per Article 2.5 of the technology transfer agreement, NIMRA

felt that AR Cl's honeycombs could be a substitute for imported D honeycombs-for manufacture of catalytic converters automotive application. Further, as seen from Article 2.6, NIMRA made some preliminary evaluation of the honeycomb samples and found that the ceramic honeycombs may be suitable for manufacture of catalytic converters for automobile application.

E Secondly, as seen from Article 2.8 of technology transfer agreement 1999, NIMRA had earlier entered into an agreement with AR Cl on 28.05.1997 to optimize the wash coat and catalyst coating by NIMRAonARCl's substrate to achieve conversion F efficiency on two samples for two vehicles Maruti 800cc and Ceilo 1500cc .. As per the said agreement, ARCI paid rupees six lakhs fifty thousand to respondent for optimization process to achieve conversion efficiency and the said agreement was further extended vide amendment dated 06. 05.1999. It is seen G that NIMRA first approached ARCI for co-operation and received money from ARCI for developing part of the technology and finally NIMRA opted for developing part of the technology by itself rather than jointly transfer to a third party as provided for in 1997 agreement. No dishonest intention H

A could be attributed to the appellants as is apparent from the fact that NIMRAearlier had collaboration withARCI andARCI put in sufficient efforts by conducting repeated performance guarantee tests. s

18. Respondent mainly relied upon the letter bearing No.ARCl/AD/2006-2007 dated 23.10.2006 to contend that what appellant No.2 conveyed was that the so-called perfect honeycomb technology which they asserted to be having, was in fact, an imperfect technology and thus act of the appellants C amounted to cheating. By perusal of the letter bearing No.ARCI/

AD/2005-2006 dated 05.04.2006, it is seen that the Centre was trying their best efforts to improve the wall thickness uniformity and they are expecting to accomplish all experimentation necessary for the purpose. In the letter bearing D No.ARCl/AD/2006-2007 dated 23.10.2006 addressed to Technology Information, Forecasting &Assessment Council (TIFAC), copy of which was marked to NIMRA states that targeted specifications could not be achieved despiteARCl's best efforts. The said letter further states as under:- E

" ... ARCI has already conveyed to NIMRA that ARC I may not be able to meet the specifications as presently targeted.ARC! had further indicated to NIMRA very clearly that it would write to TIFAC requesting short-closure of the project for the above rP.asons. However, Mr. Khaja has dissuaded ARC! from taking such a step, indicating that he does not want the project to be termed as a failure and carry the image of not fully repaying the loan amount received from TIFAC. Mr. Khaja has also indicated to ARCI that Nimra Cerglass would, therefore, like to make one final effort to commercialize the product despite the existing departure from the specifications. For the purpose, Mr. Khaja has proposed to modify the canning process, invol\ling a flexible mat suitable for canning

INTERNATIONALADVANGED RESEARCH CENTRE FOR POWDER 317 METALLURGY, "llMRACERGLASS [R. BANUMATHI, J.)

honeycomb substrates with warpage, to explore the A possibility of utilizing the currently developed honeycomb structures .... "

Thus, it is clear that before the said letter was sent to TIFAC, all the details were discussed and well within the B knowledge of NIMRA and NIMRA proposed for modification of the canning process and evidently there was no dishonest intention on the part of the appellants and no criminal liability could be attributed to the appellants. c

19. It is also pertinent to note that Article 21 of technology transfer agreement dated 18.06.1999 contains arbitration clause. On 30.12.2007, the respondent invoked arbitration as provided in Article 21.1 of the technology transfer agreement and Dr. T. Ramasamy (sole arbitrator) was appointed. On o 06.02.2008, respondent filed an Arbitration Petition No.42/ 2008 under sub-section (2) of Section 14 of the Arbitration and Conciliation Act before the High Court of Andhra Pradesh praying to substitute Dr. T. Ramasamy alleging that he is known to appellant No.3. In view of objection raised by E the respondent, Dr. T. Ramasamy recused himself from hearing the matter. Subsequently, ARCI filed an Arbitration Petition No. 78/2008 before the High Court of Delhi for appointment of an independent arbitrator to resolve the existing disputes betweenARCI and the respondent. The said arbitration petition F was dismissed as withdrawn by an order dated 08.07.2008.

It was submitted at the Bar that an independent arbitrator was in fact appointed to resolve disputes between ARCI and the respondent and arbitrator has passed the award which again is the subject matter of challenge before the High Court.

20. By analysis of terms and conditions of the agreement between the parties, the dispute between the parties appears to be purely of civil nature. It is settled legal proposition that H

A criminal liability should not be imposed in disputes of civil

nature. In Anil Mahajan vs. Bhor Industries Ltd. &Anr. (2005) 10 SCC 228, this Court held as under:-

"6 ......... A distinction has to be kept in mind between s mere breach of contract and the offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test.

Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest C intention is shown at the beginning of the transaction.

7 ..... .

8. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence. Except mention of the words "deceive" and "cheat" in the complaint filed before the Magistrate and "cheating" in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred thatthe accused had the intention to deceive the complainant to pay ....

We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainant's own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above-noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question."

21. In Mis Indian Oil Corporation vs. NEPC India Ltd. & Ors., (2006) 6 SCC 736, this court observed that civil liability H cannot be converted into criminal liability and held as under:-

INTERNATIONALADVANCED RESEARCH CENTRE FOR POWDER 319 METALLURGY v. NIMRA CERGLASS [R. BANUMATHI, J.]

"13. While on this issue, it is necessary to take notice of A a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen B in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, C which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of UP. (2000) 2 SCC 636 this Court observed: (SCC p.

D 643, para 8)

"It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence.

Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a E criminal court has to exercise a great deal of caution.

For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 F of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure th~ ends of justice."

14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available G in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the H

 A end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they B discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."

22. Learned counsel for the respondent submitted that any defence to be taken by the appellants is to be raised only during C the course of trial and is not to be raised in the initial stage of the prosecution. In support of his contention, the learned counsel placed reliance upon Trisuns Chemical Industry vs.

Rajesh Agarwal & Ors. (1999) 8 SCC 686; Rajesh Bajaj vs.

State NCT of Delhi and Ors. ( 1999) 3 SCC 259; P. Swaroopa D Rani vs. M.Hari Narayana Alias Hari Babu (2008) 5 SCC

765 and Iridium India Telecom Ltd. vs. Motorola Incorporated & Ors. (2011) 1 sec 7 4. Learned counsel for the respondent further submitted that when the Magistrate has taken cognizance of an offence and the power of the High Court to E interfere is only to a limited extent, the High Court cannot substitute its view for the summoning order passed by the Magistrate. In support of this contention, learned counsel placed reliance upon the decisions of this Court in Fiona F Shrikhande vs. State of Maharashtra &Anr. (2013) 14 SCC

44; Bhushan Kumar & Anr. vs. State (NCT) of Delhi & Anr.

(2012) 5 SCC 424 and Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & O_rs. (1976) 3 SCC 736.

23. The above decisions reiterate the well-settled G principles that while exercising inherent jurisdiction under

Section 482 Cr.P.C., it is not for the High Court to appreciate the evidence and its truthfulness or sufficiency inasmuch as it is the function of the trial court. High Court's inherent powers, H be it, civil or criminal matters, is designed to achieve a salutary

INTERNATIONALADVANCED RESEARCH CENTRE FOR POWDER 321 METALLURGYv. NIMRA CERGLASS [R. BANUMATHI, J.]

public purpose and that a court proceeding ought not to be A permitted to degenerate into a weapon of harassment or persecution. If the averments in the complaint do not constitute an offence, the court would be justified in quashing the proceedings in the interest of justice.

24. Second appellant-Dr. S.V. Joshi was the Associate Director. Third appellant Dr. G. Sunderarajan was the Director

of ARCI and both of them were acting in their official capacity.

Appellants No. 2 and 3 neither acted in their personal capacity nor stood to receive any personal monetary benefits from the C transfer of said technology. Appellants No.2 and 3 were representatives of ARCI which is a grant-in-aid research and development institute under the Ministry of Science and Technology, Government of India and hence previous sanction as mandated under Section 197 Cr.P.C. must have been D obtained before proceeding against them as their act was only in discharge of their official duties. In this regard, our attention was drawn to a communication from Ministry of Science and Technology indicating that for initiating criminal proceeding against appellants No. 2 and 3, permission is required and E the said communication reads as under:

" ..... They have both been appointed by the Government of India and are governed by all rules and regulations of the Government of India....

It is further stated that we have examined all the actions taken by Dr. G. Sundararajan and S.V. Joshi in relation to the activities pertaining to the Technology Transfer Agreement dated 18/06/1999 between ARCI and M/s G Nimra Cerglass, Hyderabad and are of firm view that these actions were taken by the above officers while discharging their official duty in good faith and in the best interest of ARCI.

A Therefore, for initiating criminal proceeding against Dr.

G. Sundararajan and Dr. S. V.Joshi, Government of India permission is required."

The alleged acts of the appellants No. 2 and 3 were B committed while acting in discharge of their official duties, sanction from the competent authority was necessary before initiating the criminal prosecution against them. Since we have held that from the averments in the complaint, the essential ingredients of dishonest intention is not made out, we are not C inclined to further elaborate upon this point.

25. As per the terms of the technology transfer agreement, ARCI has to conduct performance guarantee tests and in those tests when ARCI was unsuccessful in achieving the targeted o specifications, ARCI cannot be said to have acted with dishonest intention to cheat the respondent. Appellants-ARC I is a structure of Scientists, Team Leader and Associate Director and it is the team leader who actually executes the project, the job of Associate Director and Director is to monitor/ E review progress of the project. Appellants No.2 and 3 who were the Associate Director and Director of ARCI respectively were only monitoring the progress of the project cannot be said to have committed the offence of cheating. In the facts of the present case, in our view, the allegations in the complaint F do not constitute the offence alleged and continuation of the

criminal proceeding is not just and proper and in the interest of the justice, the same is liable to be quashed.

26. In the result, the impugned order is set aside and this G appeal is allowed. The criminal proceedings against appellants No.1 to 3 in CC No. 840 of 2008 on the file of II Metropolitan Magistrate at Cyberabad, is quashed.

Kalpana K. Tripathy Appeal allowed.