Calcutta High Court (Appellete Side)
Honda Cars India Ltd. & Ors vs Dilip Kumar Basak on 10 July, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
1 10.7.2018
p.b.
Ct. No. 33
CRR 1594 of 2014 CRAN 1281 of 2018 Honda Cars India Ltd. & Ors.
vs. Dilip Kumar Basak Mr. Milon Mukherjee, Mr. Sandipan Ganguly, Mr. Biswajit Manna.
......for the petitioner.
None appeared despite the service upon opposite party. Affidavit of service be kept on the record.
This is an application under Section 397/401 read with Section 482 of the Code of Criminal Procedure whereby the petitioner has prayed for quashing of the proceeding of Case No.C-926 of 2013 under Sections 420/406/20B of the Indian Penal Code pending in the court of learned Metropolitan Magistrate, 20th Court, Calcutta inter alia on the grounds that the learned Magistrate by the impugned order dated 18th March, 2014 issued the process under Sections 420/406/20B of the Indian Penal Code on the basis of the statements on solemn affirmation of one Dilip Kumar Basak the complainant and his driver Tarun Kumar Saha without any prima facie case of offence alleged by the complainant. 2 My attention is invited to the statement of S.A. taken on oath under Section 200 of the Code of Criminal Procedure, 1973 at page 32 and 33. Mr. Dilip Kumar Basak, the complainant, has stated on oath that he has purchased a car after taking loan from Canara Bank and got the delivery of a Honda car which broke down near Dum Dum Park and the accused no.5 picked up the car for repairing and returned the car on 28th September, 2013 i.e. after more than a month and charged for a sum of Rs.25,686/- although they added a connecting rod, changed mobil and made a petrol wash. Then on 2nd October that car again broke down and being informed the accused no.5 took away the car for repairing but did not deliver the same for its use during his daughter's wedding on 28th November, 2013. When he demanded the explanation, the accused persons refused to give any reply and they have still not returned the car. One Tapan Kumar Saha, a driver by profession deposed on oath that the accused no.5 had picked up the car for repairing but returned on 28th September, 2013 i.e. after more than a month. Then on 2nd October when he was driving the car, the said car again broke down and being informed the accused no.5 again took away the car for repairing and kept that detained.
Mr. Milan Mukherjee, learned senior counsel appearing on behalf of the petitioner invites my attention to the ground no.8 and submits that the opposite party has already filed a complaint being 3 C.C. No.266 of 2013 under the Consumer Protection Act before the State Consumer Disputes Redressal Commission which was pending as on the date of filing of this application and the consumer forum has already disposed of the said case. The consumer forum while deciding the case as was of the observation: "in the light of our foregoing discussion, we are constrained to hold that the complainant has failed to prove his case and as such, the complaint cannot be allowed.
However, considering the fact that the opposite parties has already replaced the starter and they have in principle agreed not to charge the complainant anything for the same, we feel, for an amicable settlement of the matter the opposite parties should waive off garage parking charge and all other incidental charges and handover the vehicle to the complainant in roadworthy condition". Section 406 of the Indian Penal Code provides punishment for the offence of criminal breach of trust. The primary ingredients of the offence under Section 406 of the Indian Penal Code are - (a) entrustment of property by the aggrieved to the accused; and (b) subsequent misappropriation of the said property by the accused. Thus, "entrustment" of a valuable property by the aggrieved to the accused is an essential ingredient of the offence. In the instant case, the allegation revolves around purported handing over of the vehicle by the opposite party to the accused no.5 for repairing. It is 4 apparent, the said vehicle had not been entrusted to the petitioners and as such, there arises no question of the petitioners misappropriating the said vehicle.
So far as section 420 of the Indian Penal Code it provides punishment for the offence of cheating and thereby inducing delivery of valuable property by the aggrieved to the accused. The main ingredients of the offence are - (a) false and fraudulent representations made by the accused to the aggrieved; (b) consequent delivery of valuable property by the aggrieved to the accused; and (c) subsequent misappropriation of the said valuable property by the accused.
False and fraudulent representations made at the inception of the transaction is an essential, ingredient of the offence which purportedly induced the aggrieved to hand over valuable property to the accused. It is to be appreciated that the petitioner no.1 company manufactures vehicles of high quality and mere complaint of defect in one vehicle cannot be construed to constitute any false or fraudulent representations of the nature as provided under Section 415 of the Indian Penal Code. The vehicle is purchased from the dealer, i.e. the accused no.5 by the opposite party and there exists no principal-agent relationship between the petitioner no.1 company and the accused no.5. The purported false or fraudulent representations as alleged by the opposite party at best relates to 5 promotion of a product manufactured by the petitioner company and cannot constitute the offence of cheating as alleged. Moreover, there exists no allegation whatsoever of any interaction with the opposite party by the petitioner nos.2 to 4 prior to purchase of the said vehicle by the opposite party and in such circumstances, the basic ingredients of the offence are not made out against the petitioner. Section 120B of the Indian Penal Code provides punishment for criminal conspiracy. The offence has been defined under Section 120A of the Indian Penal Code as an agreement entered between two or more persons to do an illegal act or to do an act which is legal, by illegal means. In order to sustain the charge under Section 120B of the Indian Penal Code, it is required that there exist materials to show common intention the part of the accused persons. Bearing in mind the aforesaid provisions of law, it is axiomatic from the factual backdrop of the instant case that the petitioners have been arraigned in their capacity as Directors of the petitioner no.1 company. The mere fact that the petitioners are Directors of the petitioner no.1 company, the said factum does not in any manner show existence of criminal conspiracy between them in as much as the petition of complaint does not in any manner describe the petitioners as persons in charge of and responsible to the petitioner no.1 company for the day to day affairs of the said company.
6In the context of the above, I do not find any ingredients of the offence as alleged in the complaint. I am also of the considered view that the proceeding in reference to the aforesaid Case being No.C-926 of 2013 under Sections 420/406/20B of the Indian Penal Code pending in the court of learned Metropolitan Magistrate, 20th Court, Calcutta, would tantamount to misuse of the process of law and of the Court, and is therefore quashed. Consequently, the criminal revision being CRR 1594 of 2014 and the CRAN 1281 of 2018 are disposed of.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
(Shivakant Prasad, J.)