Gauhati High Court
M/S. Ashok Leyland Ltd And Anr vs State Of Assam And 6 Ors on 18 June, 2020
Equivalent citations: AIRONLINE 2020 GAU 219
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/20
GAHC010032902016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 984/2016
1:M/S. ASHOK LEYLAND LTD and ANR.
REP. BY ITS COMPANY SECY. MR. N. RAMANATHAN, HAVING ITS OFFICE
AT NO.1 SARDER PATEL ROAD, GUINDY, P.O. CHENNAI-32
2: VINOD K DASARI
THE MANAGING DIRECTOR OF ASHOK LEYLAND LTD.
HAVING ITS OFFICE AT NO.1 SARDER PATEL ROAD
GUINDY
P.O. CHENNAI-3
VERSUS
1:STATE OF ASSAM and 6 ORS.
2:PURNIMA DEY
W/O SHYAMAL CHANDA DEY
R/O PAHAR SINGH PARA
P.O. DUBAPARA
P.S. MORNOI
DIST- GOALPARA
ASSAM
3:M/S SKYLIGHT AUTOMOTIVE PTVT. LTD.
REP. BY ITS MANAGING DIRECTOR
4:PINKU DAS
SALES OFFICER/MANAGER OF RESPONDENT NO.2
BOTH 3 AND 4 ARE HAVING THEIR OFFICE AT BETKUCHIGAON
NEAR DTO OFFICE LOKHRA
P.O. GUWAHATI-18
5:M/S UNIVERSAL AUTOMOBILES
Page No.# 2/20
6:MD. MOFIYAL RAHMAN
7:RANDHIR KUMAR DAS
RESPONDENTS NO.5 TO 7 ARE HAVING THEIR PLACE OF BUSINESS AT
OPP. S.P. OFFICE
BAPUJINAGAR
AGIA ROAD
P.O. GOALPARA-2
Advocate for the Petitioner : MR. M K BORAH
Advocate for the Respondent : MR J C GAUR R-2
Linked Case : Crl.Pet. 4/2017
1:SKY LIGHT AUTOMOTIVE PVT. LTD. and 2 ORS.
REP. BY MANAGING DIRECTOR KUMAR GAURAV
HAVING ITS REGISTERED OFFICE AT NORTH JALUKBARI
NEAR KATIA DALANG
P.O. JALUKBARI
DIST. KAMRUP M
ASSAM
THE COMPANY IS NOW HAVING ITS BUSINESS OFFICE AT NH-37 BYPASS
BEHING GUWAHATI UNIVERSITY
NORTH JALUKBARI
P.O. JALUKBARI
DIST. KAMRUP M
ASSAM
PIN- 781014.
2: M/S UNIVERSAL AUTOMOBILES
REP. BY ITS PROPRIETOR MD. MOFIYAL RAHMAN OPPOSITE TO SP OFFICE
GOALPARA
BAPUJINAGAR
AGIA ROAD
P.O. GOALPARA
DIST. GOALPARA
ASSAM
PIN - 783021.
Page No.# 3/20
3: MD. MOFIYAL RAHMAN
S/O BODIAR ALI AGED ABOUT 38 YEARS
RESIDIDNG AT OPPOSITE TO SP OFFICE GOALPARA
BAPUJINAGAR
AGIA ROAD
P.O. GOALPARA
DIST. GOALPARA
ASSAM
PIN - 783021.
VERSUS
1:THE STATE OF ASSAM and ANR.
REP. BY THE PUBLIC PROSECUTOR
ASSAM
GUWAHATI HIGH COURT
GUWAHATI.
2:SMT. PURNIMA DEY
W/O SRI SHYAMAL CHANDRA DEY
AGED ABOUT 36 YEARS
RESIDENT OF PAHAR SINGH PARA
P.O. DUBAPARA
P.S. MORNOI
DIST. GOALPARA
ASSAM
PIN - 783133.
Advocate for the Petitioner : MS.P K ZANNAT
Advocate for the Respondent : MR J C GAUR (R2)
BEFORE
HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
Date : 18-06-2020 Both above petitions are taken up together for hearing and disposal as the cases are between same parties and on the same subject matter.
2. Heard Ms M Hazarika, learned Senior Counsel, assisted by Mr M K Borah, learned counsel appearing for the petitioner in Criminal Petition No. 984 of 2016. Also heard Mr S N Tamuly, learned counsel for the petitioner in Criminal Petition No. 4 of 2017 as well as Mr R Gaur, learned counsel for the respondent in both the petitions.
Page No.# 4/20
3. Both the petitions have been preferred under Section 397, read with Section 482 CrPC and read with Article 227 of the Constitution of India, praying for setting aside and quashing of Complaint Case No. 2974c of 2014, arising out of the complaint filed by the respondent No. 2, now pending before the Court of learned SDJM (S) No. 2, Kamrup (M), Guwahati, whereby the learned Court has taken cognizance of the offence under Sections 409/418/420/465/468, read with Section 120 B of IPC.
4. The petitioner, M/s Ashok Leyland Ltd. is a public limited company, incorporated under the Companies Act, 1956, represented by its Company Secretary and carrying on business of manufacturing of commercial vehicles over the last 66 years. Mr Binod Kumar Dasari is the Chairman and Managing Director of Ashok Leyland, who is responsible for the day-to-day affairs of the company.
5. The petitioner, M/s Skylight Automotive Pvt. Ltd. is a company incorporated under the Companies Act, having its registered office at Jalukbari, Kamrup, and working as an authorized dealer of light commercial vehicle manufactured by Ashok Leyland Ltd. M/s Universal Automobiles is a proprietorship firm and is an commission agent of Skylight Automotive Private Limited. Mofiyal Rahman is a self-employed youth, who is earning his livelihood by doing business under the proprietorship firm Universal Automobiles.
6. The respondent No. 2 as complainant filed the aforesaid complaint before the learned CJM, Kamrup (M), Guwahati, contending, inter alia, that on being approached by the agents of the dealers of the company, the complainant booked a Dost Express Passenger Vehicle manufactured by Ashok Leyland Private Limited on 03.06.2014, by depositing the booking amount of Rs. 10,000/- (Rupees Ten Thousand) only. She has also deposited Rs. 1,55,595/- (Rupees One Lakh Fifty Five Thousand Five Hundred Ninety Five) only as down payment against the aforesaid vehicle. Subsequently, she paid a sum of Rs. 1,00,000/- (Rupees One Lakh) only on 08.07.2014, towards the cost of the aforesaid vehicle. She has stated that the accused persons have assured her that they will return the additional sum Rs. 1,00,000/- (Rupees One Lakh) only, once they receive the financed amount from the financer Bank. She has stated that the accused have initially issued invoice bearing Invoice No. SLAPL/SALES/0021/14-15, dated 04.08.2014, for an amount of Rs. 7,25,888/- (Rupees Seven Lakhs Twenty Five Thousand Eight Hundred Eighty Eight) only and Sale certificate in Form-21, showing Engine No. XEH019081P and Chassis No. MB1AA22E2ERX75451, to her. The colour of the vehicle shown to her was white. She has further stated that the accused persons have later on delivered a DOST EXPRESS vehicle bearing Registration No. AS-25-AC-8255 (Colour AQUA Green) along with its registration certificate. According to her, vehicle delivered to her bears Engine No. YEH018022P and the Chassis No. MB1AA22EXERY74793, which is different from the one mentioned in the Invoice and Page No.# 5/20 Sale Certificate issued to her. It was alleged that the accused persons in collusion with each other have delivered a damage/second hand vehicle to her and as such aforesaid vehicle has developed technical fault soon after its delivery. Hence, she has alleged that the petitioners have cheated her by playing fraud as they have delivered a defective/second hand vehicle to her. As the vehicle delivered to her was a faulty vehicle it has developed mechanical defects soon after its delivery and was repaired on several occasions. She has also alleged that the petitioners have not refunded the amount of Rs. 1,00,000/- (Rupees One Lakh) only, which was obtained from her by resorting to forgery. Further, it is alleged by the complainant that on the assurance of the accused persons that the said vehicle is very good, which do not require any maintenance for first 2/3 years, that she will earn good from the said vehicle, she purchased the vehicle on good faith. But the vehicle started problems within a short time for which she took the vehicle to the service centre of the accused persons on 22.01.2015 and on various dates, but ultimately the vehicle became unusable, for which she had to return it to the service centre of the accused on 08.09.2015 and then she was told that the engine has been damaged. So, it is submitted that due to inherent manufacturing defects and/or delivery of the second-hand used vehicle in place of new vehicle, the vehicle could not run and in turn, she could not pay the monthly installment of the said vehicle to the Bank and thus, she has been cheated by the accused persons.
7. On the basis of the aforesaid complaint and after examination of the complainant/respondent No. 2, under Section 200 CrPC, the Court took cognizance of the offence under Sections 409/418/420/465/468, read with Section 120 B of IPC, and has issued summons to the accused persons, vide order dated 21.10.2016. Challenge to the aforesaid order of taking cognizance as well as entire proceeding, has been made by the accused persons, by way of the present two petitions.
8. According to the accused petitioner Nos. 1 and 2, i.e., M/s Ashok Leyland and its Managing Director, the learned trial Court has wrongly taken cognizance against them. It has been pointed out that the learned trial Court only directed OC, Garchuk Police Station for limited investigation under Section 202 CrPC, and the Police report furnished on 18.10.2016 (reflected in the order dated 21.10.2016) that the Police has registered a separate case vide Gorchuk PS Case No. 529/2016 under the same Sections of law, and in the said police report, accused persons Skylight Automotive Pvt. Ltd and its MD, has been implicated for the offence alleged, but the report is silent as about the complicity of the manufacturer and others. Moreso, the learned trial Court by ignoring the fact that Police has registered a separate case which was not directed, cognizance taken by the Court which is blatant illegality. Accordingly, it is contended that the learned trial Court took cognizance against petitioner Nos. 1 and 2 of the complaint mechanically without applying any judicial mind to the police report, the Page No.# 6/20 complaint as well as the statement of the complainant and without taking into consideration of the provisions of Section 210 of CrPC. Learned trial Court should have stayed the proceeding of the police case, which was otherwise, not directed and two parallel proceeding on the same subject cannot run hand-in-hand. As admittedly the complainantl has taken the delivery of the vehicle from the dealer and the financer has provided finance and no allegation has been made against the manufacturer, there cannot be any inducement from the manufacturer and as such, the cognizance taken under Sections 409 and 420 IPC, against the manufacturer and its officials is bad in law. Being a manufacturer, they had no business dealing with the complainant at any point of time and she has purchased the vehicle from the dealer, by executing all the necessary documents as stated in the complaint itself. There is no element of forgery on the part of the present two petitioners for the purpose of cheating the complainant, as it was the business dealings, there is no question of criminal conspiracy and the learned trial Court has failed to satisfy itself as to how and in what manner, the manufacturer and its MD is responsible for commission of the alleged offence. As the manufacturer is in no way connected to the sales and service by dealer, the learned Magistrate, in absence of specific allegation or averment in the complaint about the role of the manufacturer has wrongly taken the cognizance of the offence and hence, the impugned order for taking cognizance as well as the entire proceeding is liable to be quashed and set aside.
9. So far as regards the other accused petitioners, it is contended that the complaint petition has been filed by misrepresenting the facts to get illegal benefits. It is stated that being an authorized dealer of Ashok Leyland light commercial vehicle, the Skylight Automotive is involved in the business of sale and service of Ashok Leyland Dost Express Passenger vehicle and the complainant purchased brand new Dost Express Passenger Vehicle, manufactured by Ashok Leyland with chassis number and engine number (mentioned therein) from the Skylight Automotive, with financial assistance from the State Bank of India. Initially, the said petitioner issued invoice dated 04.08.2014 for an amount of Rs. 7,25, 888/- and sale certificate in Form-21, showing the engine number and chassis number, but at the time of actual delivery, complainant refused to accept the said vehicle and requested to change the aforesaid vehicle by another. Subsequently, another brand new vehicle was delivered to the complainant by executing fresh sale certificate in Form-21 dated 05.09.2014. In the said fresh sale certificate, chassis number of the said vehicle was actually incorporated and she has received the same with full consent and without any objection. At the time of delivery of the vehicle complainant was fully aware of the colour and chassis number etc. of the said vehicle, as she has signed all the relevant papers, relating to the registration of the vehicle. It is stated that the vehicle, which was delivered to the complainant was a brand new vehicle and it has passed all the quality control test Page No.# 7/20 conducted by the manufacturer and also by statutory bodies. The DTO, Kamrup (M) has also issued fitness certificate against the aforesaid vehicle and as a new one. As such, allegation that she was delivered a different vehicle from the one shown to her by resorting forgery is totally unfounded. Complainant has raised a false story to suit her case for making illegal gain.
10. According to the petitioners, there was neither any manufacturing defect nor it was a second- hand vehicle. In terms of the warranty, dealer is required to repair the vehicle for a period of one year from the date of sale or upto 50,000 kilometres run, whichever is earlier. The complainant, herein, has been provided all the free servicing, in terms of the warranty, as and when she took the vehicle for servicing purpose and by the time, on 29.05.2015, when she took the vehicle for service centre, the warranty period was over, so, they could not provide free servicing as demanded by the complainant. Hence, the complainant repaired the vehicle in private workshop, namely, M/s Noor Bharat Engineering Workshop which is not an authorized service centre of the Ashok Leyland by using sub- standard parts, and, hence, the dealer as well as other persons under the Company are not liable for any damage caused to the vehicle. It is only after repairing the vehicle in Noor Bharat Engineering, the vehicle has developed serious mechanical fault and when it was brought to the workshop of the petitioner, it was found that technical defect has arisen due to installation of sub-standard duplicate spare parts. At this stage, the petitioner was unable to respond to the demand made by the complainant to replace the spare parts by providing free servicing as the warranty period was already over as the same is against the manufacturer's policy.
11. Thereafter, the complainant had taken away the vehicle with a declaration that she would repair the vehicle outside at her own risk. Thereafter, the complainant/respondent No. 2 served two legal notices, dated 17.09.2015 and 24.09.2015 to the petitioner/seller/dealer, alleging that the engine of the vehicle got damaged after four months, when it completed 20,000 kilometres run and without providing the servicing as per warranty condition, they have compelled the complainant to get the vehicle repaired at Noor Bharat Engineering Workshop by spending a sum of Rs. 1,42,064/- and Rs. 1,17,800/- and cost of repairing was demanded. In those notices, there was no whisper that a second-hand vehicle was delivered to the complainant and she only demanded the cost of repairing. But according to the job-sheets of the petitioner, it is clear that regular servicing of the vehicle was provided on each and every occasion and in support of the contention, the petitioners' side has produced all the documents pertaining to the purchasing of vehicle, registration, free servicing as well as paid servicing and the legal notice of the complainant and their reply to the notice. On the basis of such documents, it has now been refuted that the complaint which has been lodged after more than 1 year of the purchase and after the warranty period, raising false and vexatious allegations is bad in Page No.# 8/20 law and such complaint is liable to be quashed and set aside.
12. Resisting the claim of the petitioners and denying their contentions, the respondent No. 2/complainant in her affidavit-in-opposition has submitted that the learned trial Court has rightly taken cognizance of the offence and there being prima facie case against the petitioners for the offence alleged, the present petitions are liable to be dismissed. In paragraph-4 of the affidavit, it is submitted that apart from the criminal complaint, respondent No. 2 has also filed a Consumer Case No. 99/2016 against the petitioner, i.e., petitioner/dealer/sub-dealers as well as the State Bank of India, Goalpara, Bazar Branch, claiming compensation, wherein, the petitioner No. 1/Ashok Leyland/manufacturer has filed written statement admitting that as per the records maintained by its dealers at Guwahati, vehicle sold to the complainant on 28.07.2014, was of white coloured cargo vehicle bearing engine number and chassis number, whereas invoice issued to her on 04.08.2014, indicates that the engine number and chassis number is different. Further, the petitioner has not responded to the legal notice dated 19.10.2015, issued by the complainant, which indicates that all accused persons have hands in gloves in cheating the complainant.
13. An affidavit-in-reply against the affidavit filed by the respondent No. 2/complainant has been filed by the petitioner Nos. 1 and 2, i.e., the Ashok Leyland Co. Ltd. and the MD of the Company, contending that there is no prima facie allegation against the present three petitioners and also there is no whisper against them in the police report. The complainant/respondent No.2 approached the dealer for purchasing of the vehicle and there was no inducement on the part of the present petitioners. The complainant/respondent No. 2 purchased the vehicle being fully aware about the colour and chassis number etc. of the vehicle and after plying the vehicle for more than 1 year 3 months, the complaint has been lodged, raising such contentions, which is itself not compatible to her own conduct. In the complaint before the Consumer Forum under Consumer Protection Act, vide Complaint No. 99/2016, the respondent No. 2 herself admitted (in paragraphs-8 and 9) that she is unable pay the monthly installment to the Bank, from which she has availed the loan facility and thus, it is evident that she has availed the loan by signing all the relevant documents, including the chassis number, colour etc. and only because to escape the financial liability, she has filed a false complaint. Further, it contends that while buying the vehicle and availing the bank loan, the respondent No. 2 had registered the vehicle, chassis number and engine number for registration with the concerned DTO, which reveals from her own documents. Therefore, the allegations of the complainant that she was given a different coloured vehicle with different engine and chassis number is patently false and concocted. She never complained either before the dealer or before the manufacturer that she has been delivered a different vehicle with different colour and number and only after running the vehicle Page No.# 9/20 for more than a year by engaging a driver, she has now lodged a complaint, which is itself barred.
14. An additional affidavit has also been filed by the petitioner Nos. 1 and 2 to bring on record certain documents between the dealer and the manufacturer, wherein it has been submitted that as per the dealership agreement entered between the petitioner No. 1 and Skylight Automotive Pvt. Ltd. dated 07.12.2015, w.e.f. 01.06.2015 to 31.05.2018, the vehicles were sold by the Company to the dealers on a principal basis and the dealers used to sell the vehicles as per customers' choice. As per their record, both white coloured and aqua-green coloured cargo vehicles were sold to the dealer. It is the dealer's prerogative to sell those vehicles to its customers as per choice and requisition. The customer visit, inspect the vehicles in the showroom and places the order for the vehicle of his choice by colour and other specifications. Once a vehicle is sold to the customer, the dealer has the option based on local RTO requirements either to take print out of the Customer Retail Invoice and Form 21 from the DBM System by entering the details of the customer and vehicle and after affixing his signature and seal has to give it to the customer. Alternatively, based on local RTO requirements, the dealer also has the option to take manual print out of the Customer Retail Invoice and Form 21 on the dealer's letterhead. In the present case, respondent No. 3 has taken manual print out of the Customer Retail invoice and Form 21 on his letterhead in which he has changed the cargo vehicle as passenger vehicle which this petitioner No. 1 is not aware of.
15. As per the Sales Invoice of Ms Purnima Dey and the Form 21 filed by her, the same was not the documents generated from the DBM System, but seems to be prepared and issued at the end of the dealer on its own without recourse to the DBM System and as such, are not generated from the DBM (SAP) system of the Company. The petitioner states the Vehicle Sales Invoice as enclosed herein, as Annexure-B, shows clearly that the petitioner No. 1 has sold a cargo vehicle to the respondent No.3. It is, therefore, clear that the respondent No. 3, the dealer may have converted the cargo vehicle to a passenger vehicle and sold the same to the complainant, Ms Purnima Dey, as per the requisitions placed by complainant, Ms Purnima Dey. Ms Purnima Dey could not have unknowingly purchased a cargo vehicle meant for carrying doods, for carrying passengers. If the dealer or customer converts a cargo vehicle into a passenger vehicle without the information or knowledge of the petitioner No. 1, it is not the responsibility of this petitioner No. 1. Further, the same would be certainly in consultation and as per requirement of the customer, as the customer would have accordingly ordered the dealer. It the DBM system, the said vehicle was recorded to be sold by the dealer to one customer, namely, Mr Gautam Das. It is, however, upon going through the contents of Petition No. 4 of 2017, filed by the respondent No. 3, the petitioner No. 1 came to know that the said vehicle bearing Engine No. YEH018022P and Chassis No. MB1AA22EXERY74793, was, it seems, later on, sold by the respondent Page No.# 10/20 No. 3 to the complainant. The petitioner No. 1 has no knowledge of the same nor such conversion of the cargo vehicle to passenger vehicle.
16. The complainant's allegations cannot be true on the face of it, as one of the vehicles appear to have been financed by the State Bank of India, Goalpara Branch, as well as the entries that the respondent No. 3 has been made in the DBM (sap) system, which shows that the vehicle is financed by State Bank of India. It is not possible that the said Bank would have extended any financial facilities without the complainant signing bank hypothecation documents.
17. The financier has also provided finance to the complainant Ms Purnima Dey. This petitioner No. 1 has no role to play in any of the transactions that Ms Purnima Dey had with the dealer, that is respondent No. 3 or the financier. Further, the vehicle purchased by Ms Purnima Dey was never entrusted to the petitioner Nos. 1 and 2, there was no inducement whatsoever by the petitioner Nos. 1 and 2. The complainant never approached the petitioner No. 1 nor had ever met or discussed with petitioner No. 2. Just because the invoice issued by the respondent No. 3 mentioning the name of the Ashok Leyland, the petitioner Nos. 1 and 2 cannot be held liable for the conversion of the cargo vehicle to the passenger vehicle committed by the respondent No. 3, which may be at the instance or in discussion with the complainant as per her requisition and obviously without any knowledge of the petitioner Nos. 1 and 2. None of the provisions of the Indian Penal Code are attracted against the petitioner Nos. 1 and 2.
18. I have gone through the respective pleadings made by the parties as made above. Neither party disputed any of the documents. The primary allegation of the complainant/respondent No. 2 is that all the above petitioners have cheated her by giving a different vehicle, which was not booked by her and the said vehicle was second-hand defective vehicle, for which she cannot run the vehicle. The complainant, in her petition, has stated that the petitioner company did not repair her vehicle by providing required service and due to their conduct, the vehicle got damaged and as a result of which, the she could not pay the bank installments. She, however, admitted about sending the vehicle for servicing of the same on 22.01.2015 and other various dates, contending that as the said vehicle became unusable, she returned the vehicle to the service centre of the accused petitioners on 08.09.2015 (vide para 7 of the complaint petition). She has also stated about her sending legal notice, demanding the damage of the vehicle, dated 17.09.2015 and 19.10.2015. Now, the contention of the petitioner that the vehicle of the complaint was sent to the dealers for regular servicing as per the norms of the Company and accordingly, free servicing was provided as per rules and remaining servicing were paid servicing and there was nothing to show that the vehicle was brought to the Page No.# 11/20 dealer for any damage immediately after such purchase. As those documents filed by the petitioners regarding servicing etc. are not challenged by the respondent No. 2/complainant, let us have a look upon the documents, annexed with the present petition. Be it mentioned that the complainant booked the vehicle on 03.06.2014 and on some payment, the sale certificate was issued in the name of the complainant on 04.08.2014 with details including the colour. Invoice of Rs. 7,25,887.64 was issued by Skylight Automotive Pvt. Ltd. to the complainant and on 05.09.2018, another sale certificate was issued by Skylight Automotive for aqua-green vehicle (vide Annexure-2, Form-21).
19. The copies of job-cards vide Annexure-5 series, are admitted documents regarding servicing of the vehicle of the complainant. From the documents annexed, it reveals that-
Ø Third servicing of the vehicle was done on 22.01.2015 (kilometer reading -
20150) for an amount of Rs. 1769/- for changing mobil filter and cost of 5 litres mobil.
Ø Fourth servicing was done on 26.02.2015 (kilometer reading - 30025 ) for changing gasket, fuel filter, oil filter, engine oil (5 litres), gear oil (2 litres), coolent (5 litres) for an amount of Rs. 4168/-.
Ø 16.04.2015 (km reading-42743), for changing bearing (4), oil ceal, engine oil (5 litres), greace, for an amount of Rs. 1894/-.
Paid-servicing was made on following days:-
Ø 18.05.2015 (km reading-49829), for brake-pad, normal check-up, clutch adjust (vide Annexure -5), but no servicing was done for money problem. It was recorded in the job-card (customer voice) that everything is okay and the road-test was done along with the customer.
Ø 29.05.2015 (km reading- 52418), for changing oil filter (1), gear oil (2 litres), air filter (1), fuel filter (1), for an amount of Rs. 2528/-.
Ø 11.07.2015 (km reading-63081), for doing (MBR) Compl. Front suspension, MCASS with O Ring, BMARASSY bound front, for an amount of Rs. 6712/-.
Ø 24.07.2015 (km reading- 65792), starting problem was complained.
Ø 25.08.2015 (for km reading-66394), wherein there was demand for repair of
mobil leakage and gear jume.
20. The above documents reveal that after purchasing of the vehicle on 05.09.2014, the complainant respondent took the vehicle for regular servicing to the dealer and after exhausting the Page No.# 12/20 free servicing, she also continued paid servicing also on subsequent period without any complaint, but only on 24.07.2015, she made some complaint about the starting problem and by this time, as the warranty period was over, the Company refused free servicing.
21. It may be noted that there was no such reporting of any inherent defect of the vehicle to the dealer or the Company since after purchasing of the same, nor there was any complaint about delivery of different coloured vehicle. On the next, the complainant/respondent No. 2 has received the aforesaid vehicle by signing all the relevant documents like sale certificate, RC and various job-cards at the time of servicing. So, the contention of the complainant that the vehicle was sold fraudulently to her and that the vehicle was a defective one since the beginning, holds no good, particularly, by the documentary evidence. Even though she booked a white coloured vehicle initially, but subsequently, she took delivery of a different coloured vehicle as per the invoice and sale certificate. In the RC, the vehicle was being referred as new vehicle (RC dated 12.09.2014) with chassis number and vehicle number. As per the warranty, purchaser is entitled to free-servicing upto 50,000 kilometres running of the vehicle or one year, whichever is earlier. In the present case, the complainant has exhausted her free servicing on 29.05.2015 as by that time, vehicle run 52418 kilometres. May be, in the last part of April or middle of the May 2015, the vehicle competed 50000 kilometres and till then, there was no complaint whatsoever regarding the condition of the vehicle.
22. Now, let us come to the legal notice sent by the complainant to the petitioners' side, vide Annexure-7 and Annexure-8. The first legal notice was sent on 17.09.2015, i.e., after more than one year of purchase of the vehicle, complaint has been raised that the complainant/respondent No. 2 has been fraudulently delivered a different vehicle on 05.09.2014, other than the vehicle mentioned in the earlier sale certificate and invoice dated 04.08.2014 and that although there was a warranty of the vehicle for repairing for a period of 12 months from the date of sale or upto 50000 kilometres, whichever is earlier, but the vehicle and the engine damaged after four months of its run upto 20000 kilometres, but the dealer did not provide service according to the conditions and finding no alternative, the vehicle was repaired at M/s Noor Bharat Engineering Workshop at Goalpara, incurring Rs. 1,42,064/- and Rs. 1,17,800/-. In the second legal notice, exactly a similar contention has been raised demanding servicing of the vehicle as per the warranty period. In the aforesaid notices, there was no mention that the vehicle was old and defective one and also no allegation of any inducement.
In response to the aforesaid notices, the dealer/Skylight Automotive Pvt. Ltd. made the reply vide Annexure-9, dated 05.10.2015, claiming that as the complainant/respondent No. 2 purchased and took delivery of the vehicle after verification of the engine number and chassis number etc. which was perfectly alright at the time of its delivery and hence, there is no question of fraudulent activity on Page No.# 13/20 their part. It is also replied that when the vehicle was brought to the Company's workshop for repairing, by that time, warranty period was over as already the vehicle run 50000 kms and hence, there being no warranty coverage, they denied the free-servicing and repairing of the vehicle, as claimed. Further, it was replied that the complainant has altered the vehicle for more than approved sitting capacity, which caused serious damage to the engine and the Company is not liable for the repairing of the vehicle at M/s Noor Bharat Engineering Works at Goalpara, which is not authorized under the Company. The Company also expressed that the Company is still ready to provide the service of the vehicle, subject to the condition that the complainant has to bear the cost of spare parts and manpower as per the Company's policy.
23. The claim of the complainant that the vehicle got damage after run of the vehicle upto 20000 kilometres and that free servicing was denied, is itself not supported by her own documents as discussed above, which reveals that she took the vehicle to the Company on several occasions and she signed the job-card at the time of availing such servicing. The complainant/respondent No. 2 although stated to be a layman, but documents reveal that she signed everywhere in English and she made no any formal complaint before the concerned authority that the vehicle was found with inherent defect and it was a second-hand vehicle. The complainant in the complaint petition before the Court has not disclosed all about the date, time etc. of availing free servicing of the vehicle for and about the warranty period and by suppressing all, the complaint has been lodged on 22.01.2016 after more than one year of purchasing the vehicle and expiry of warranty period. The vehicle was purchased on bank-finance and the complainant is required to pay installment. During the said period, the vehicle run as a passenger vehicle through driver and after about one and half year of plying such vehicle, such a complaint has been lodged.
24. The learned trial Court directed for a limited investigation under Section 202 CrPC, and the IO has conducted an investigation and submitted a report, but has also registered the same as Gorchuk PS Case No. 529/2016 under Sections 409/418/420/465/468/120 B IPC. The learned trial Court, however, ignored the factum of registration of a case on the same complaint, despite direction for limited investigation, took the cognizance of the offence under the same sections of law, which is apparently bad in law.
25. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Page No.# 14/20 Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint should reproduce the legal ingredients of the offence in verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.
In Amit Kapoor -Vs- Ramesh Chander; reported in 2013 ACR 258, it has been held by the Apex Court that the jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial Court of the inferior Court, as the case may be. Though the Section does not specifically use the expression 'prevent abuse of process of any Court or otherwise to secure the ends of justice', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a Court is the very foundation of exercise of jurisdiction under Section 397, but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused.
It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the Court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397 (2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor and Ors. v. State of Punjab and Ors. MANU/SC/0210/1979 : AIR 1980 SC 258 : (1980) 1 SCC 43. In this very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397 (2) and 397 (3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This Page No.# 15/20 itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the Court's jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders, which will be free from the bar of Section 397 (2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code, but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction.
26. The respondent No. 2/complainant has alleged in the complaint that the petitioners have committed offences under Sections 409/418/420/465/468, read with Section 120 B of IPC. It would thus be necessary to examine the ingredients of the above offences and whether the allegations made in the complaint, read on their face, attract those offences under the Penal Code.
27. Section 405 of the Penal Code reads thus:
Section 405- Criminal breach of trust- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust or willfully suffers any other person so to do, commits "criminal breach of trust".
A careful reading of Section 405 shows that the ingredients of a criminal breach of trust are as follows:-
i) A person should have been entrusted with property, or entrusted with dominion over property;
ii) That person should dishonestly misappropriate or convert to their own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; and Page No.# 16/20
iii) That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
Entrustment is an essential ingredient of the offence. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code and Section 409 IPC provides criminal breach of trust by public servant, or by banker, merchant or agent.
28. Section 415 of the Penal Code reads thus:-
Section 415. Cheating- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
The ingredients to constitute an offence of cheating are as follows:-
i) There should be fraudulent or dishonest inducement of a person by deceiving him;
ii) (a) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or
(b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and
iii) in cases covered by (ii) (b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
29. Section 420 of the Penal Code reads thus:
Section 420. Cheating and dishonestly inducing deliver of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed Page No.# 17/20 or sealed, and which is capable to being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The ingredients to constitute an offence under Section 420 are as follows:-
i) A person must commit the offence of cheating under Section 415; and
ii) The person cheated must be dishonestly induce to
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
Cheating is an essential ingredient for an act to constitute an offence under Section 420.
30. The complainant in her statement under Section 200 CrPC stated as below:-
I wanted to purchase a white coloured "Dost Express" vehicle manufactured by Ashok Leyland Limited. I went to the (Company's) Sub Centre at Goalpara. Pinku Das, Mafiyal Rahman and Randhir Kr. Das were present there. I was made to sign a number of papers. I purchased the vehicle with the finance arranged by them. They were due to refund me a sum of Rs. 1,25,000/-, but they did not. They got the registration done and delivered me a green coloured vehicle. I wanted to buy a first hand vehicle. They took me to Guwahati and shown a white coloured vehicle. But they did not give me that vehicle. A few days later, my vehicle malfunctioned. It was then that I came to know that the entire parts of the vehicle were damaged. The papers given by them contain the engine number, chasis number etc. of the green coloured vehicle. But the sale letter issued by the bank mentions the chasis number, engine number etc., of the white coloured vehicle. I took the vehicle to the company's showroom at Lakhra for repairing. But they did not repair it. Instead, they threatened me.
31. The selling of vehicle by the manufacturer to the dealer and the purchase of vehicle by customer from the dealer by its own choice by executing all necessary documents and it is a purely business transaction. The dealer while selling a vehicle obviously explained the features/benefits to its customer and equally the customer by its option purchased such vehicle and such transaction cannot be termed as an inducement on the part of the manufacturer/dealer/ sub-dealer within the purview of law. In the given case, there is nothing to reflect about fraudulent or dishonest intention at the time the petitioner sold the vehicle, as the complainant/respondent No. 2 purchased the vehicle by signing Page No.# 18/20 all the relevant documents, got the vehicle registered and vehicle run on the road for more than a year. The vehicle was brought to the dealer for servicing upto the warranty period without any complaint and only after warranty period, there was some starting problem.
The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. In the instant case, nothing emerges to indicate that the petitioners dishonestly induced the complainant to deliver money to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out.
32. In SW Palanitkar V. State of Bihar- 2001 (10) TMI 1150-Supreme Court, the Supreme Court held that 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 act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.
33. Further in Anil Mahajan V. Bhor Industries Limited- (2005) 10 SCC 228, Hon'ble Supreme Court observed that a distinction has to be kept in mind between mere breach of contract and the offence of cheating. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction. The Supreme Court held that 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 that the accused had the intention to deceive the complainant to pay. The breach of contract will always lie in a civil Court.
34. In a recent case reported in 2015 (1)) SCALE 136 (International Advanced Research Centre for Powder Megallurgy and New Materials (ARCI) and others V. Nirma Cerglass Technics (P) Ltd. and others, it has been held as under:-
"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 sufficient to prove that a false representation has been Page No.# 19/20 made, but, it is further necessary to prove that the respresentaiton was false to the knowledge of the accused and was made in order to deceie the complainant. Distinction between mere breach of contract and the 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 complainant to part with his property or money, then the liability is criminal 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 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 transaction."
35. Regarding cognizance taken by a Magistrate, in M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, a three Judge Bench of Hon'ble Supreme Court observed as under:
"28 Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
36. The same view is reiterated in Jagdish Ram v. State of Rajasthan and Another; (2004) 4 SCC 432, by holding that taking cognizance of an offence is an area exclusively within the domain of the Magistrate. At this stage, the Magistrate is to be satisfied whether there is sufficient ground for proceeding or not.
37. Now, in the present case, looking at the allegations in the complaint on the face of it, it is found that no allegations are made, attracting the ingredients of Section 405 IPC. Likewise, there is no any allegations as to dishonest intention at the time of transaction on the part of the petitioners while Page No.# 20/20 delivering the vehicle, in order to have wrongful gain to themselves or causing wrongful loss to the complainant, excepting the bold allegation that defective and second hand vehicle was sold to the complainant/respondent No. 2 and servicing to the vehicle was denied. There is also no allegation as to dishonest intention in misappropriating the property. The matter of forgery in conspiracy amongst the manufacturer/dealer and sub-dealer is not made out from the facts and circumstances as enumerated above. The basic essential ingredients of the offences alleged are missing.
38. Admittedly, the complainant/respondent No. 2 has lodged her complaint before the Consumer Forum, claiming damages etc. and the said forum can suitably address the issue regarding awarding compensation for damage etc. and by filing the criminal complaint, an attempt has been made by the complainant to clock the civil dispute to a criminal nature dispute despite the absence of ingredients necessary to constitute criminal offence. Criminal proceedings are not a shortcut for other remedies. The learned trial Court has failed to examine the matter in proper perspective, whether ingredients required to constitute criminal offences are made out or not at the time of taking cognizance. In the given circumstances, continuation of criminal proceeding will amount to abuse of the process of Court, which calls for interference. Although accused Nos. 6 and 7 (of complaint), who were sub-agents under the accused No. 3 and have not come forward to challenge the petition, but from the discussion and finding above, it is found that complicity of those persons also are not at all made out with the offence alleged.
39. Resultantly, the entire proceeding pertaining to Complaint Case No. 2974 c of 2014, pending before the Court of learned Court of learned SDJM (S) No. 2, Kamrup (M), Guwahati, is hereby quashed and set aside.
JUDGE Comparing Assistant