Bombay High Court
Siemens Limited Through Prateep Sarkar vs State Of Maharashtra And Anr on 15 January, 2025
2025:BHC-AS:2241
P.H. Jayani 09 WP3752.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3752 OF 2022
Siemens Limited
(Through its Authorised Representative,
Prateep Sarkar Having its registered
address at Birla Aurora, Level 21,
Plot No.1080, Dr. Annie Besant Road,
Worli, Mumbai - 400 030) ..... Petitioner
Vs.
1. State of Maharashtra
(Through Public Prosecutor)
2. Swapnaja Nitin Lakhe
R/o 201, Dattatrey CHS,
Opposite MIDC Office, Chendhare,
Tal. Alibag, Dist. Raigad - 402201
3. BSH Household Appliances Manufacturing
Private Limited,
Arena House, 2nd Floor Main Building,
Plot No.103, Road No.12, MIDC,
Andheri East, Mumbai - 400 093. ..... Respondents
Ms. Lakshmi Raman for the Petitioner.
Mr. Y.M. Nakhwa, APP for the State.
Mr. Pravinchand B. Gole a/w. Mr. P.M. Patil and Adv. Nimish
S. Parakh for Respondent No.2.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 10th JANUARY, 2025.
PRONOUNCED ON : 15th JANUARY, 2025.
JUDGMENT :-
. Present Petition filed under Article 227 of the Constitution of India and under Section 482 of Cr.P.C. seeks quashing and setting 1/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 ::: P.H. Jayani 09 WP3752.2022.doc aside of the impugned Order dated 03 rd March 2020, passed by the learned Judicial Magistrate First Class, Court at Alibag in R.C.C. No.23 of 2020 (Old No. Cril.M.A. No.319 of 2018) thereby process has been issued against the Petitioner, for the commission of the alleged offences punishable under Sections 406, 417, 420 and 427 read with Section 34 of the Indian Penal Code. Further, the Petition seeks to quash the aforesaid case.
2) Heard Ms. Lakshmi Raman, learned Advocate for the Petitioner, Mr. Y.M. Nakhwa, learned APP for the State and Mr. P.B. Gole, learned Counsel for Respondent No.2. Perused the record.
3) Rule. Rule is made returnable forthwith. Heard finally with consent of the parties.
4) The facts in brief are that, Respondent No.2 has filed the aforesaid case arraying M/s. Vijay Sales, Khargar Branch, Navi- Mumbai and the Petitioner as Accused Nos.1 and 2 respectively. It is the case of Respondent No.2 that she had purchased a Siemens 8 kg washing machine from Accused No.1 on 22nd November, 2017 for a consideration of Rs.37,200/-. At the time of purchase, the Branch Manager of Accused No.1 had assured the Respondent No.2 that delivery and installation of the washing machine alongwith demo of the same would be done at the cost of Accused No.1. Thus, Accused No.1 was duty bound to do the same for free. That, after purchase of 2/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 ::: P.H. Jayani 09 WP3752.2022.doc the washing machine, the Respondent No.2 asked the Accused No.1 for installation and to give the demo of the machine. However, every time the Sales Manager of the Accused No.1 was assuring to do the needful. The Sales Manager also forwarded two cell numbers of technicians of the Petitioner and asked the Respondent No.2's husband to contact them for installation and demo of the washing machine. In turn, the Respondent No.2's husband contacted the said technicians repeatedly but nobody turned up to do the needful. It is alleged that thus, both accused have committed the wrong by not doing the free installation and demo of the machine. It is stated that, since the delivery, the washing machine is packed, therefore, there is every possibility of rusting and consequential damage to the washing machine due to the lapse of time and for want of use. It is stated that the aforesaid approach and attitude of both accused is nothing but a cheating and deficiency in providing service. Therefore, lastly, the Respondent No.2 issued a notice dated 26 th July, 2018 and called upon the accused to do the proper installation of the machine and give its memo and if after installation the machine does not work properly, then it be replaced failing which, the Respondent No.2 would be entitled for refund of the price of the machine at the cost the accused. However, both accused did not comply with the notice. Hence, Respondent No.2 filed the said complaint case. 3/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 :::
P.H. Jayani 09 WP3752.2022.doc 5) On perusal of the complaint, the learned Magistrate noted
that the record does not show that investigation at the hands of the police is needed, hence, directed the Respondent No.2 to examine her and her witnesses vide Order dated 16th November 2018. Thereafter, the learned Magistrate recorded the statement of Respondent No.2 under Section 200 of Cr.P.C. and by an Order dated 14th February 2019, forwarded the complaint to police with a direction to investigate into the complaint under the Section 202 of Cr.P.C. and submit the report. Accordingly, the police submitted the report. Thereafter, the learned Magistrate considered the material before him and passed the impugned Order dated 03 rd March 2020, which reads :-
" Perused complaint, statement of the complainant u/s. 200 of the Code of Criminal Procedure and police report at Exh. 5. Heard learned advocate for the complainant. The complainant alleges commission of offences punishable u/secs.406, 417, 427, 420 r.w Sec. 34 of the Indian Penal Code at the hands of the accused. The complainant has contended on oath that the accused cheated her by selling faulty/defective washing machine and failed to replace/repair the same despite continued pursuance. The record reveals that there are sufficient grounds to proceed against the accused. Prima-facie case is made out against the accused. There is sufficient material on record to issue process against the accused for offences punishable u/secs. 406, 417, 427, 420 r.w. Sec. 34 of the Indian Penal Code. Hence, the order.
ORDER Issue process against the accused for offences punishable u/secs.4/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 :::
P.H. Jayani 09 WP3752.2022.doc 406, 417, 427, 420 r.w. Sec. 34 of the Indian Penal Code vide Section 204 of the Code of Criminal Procedure.
Alibag, (-Sd-) Date : 03.03.2020 Judicial Magistrate, F.C., Alibag " 6) Ms. Raman, the learned Advocate for Petitioner, at the
outset, referred the provisions of Sections 405, 417, 427 and 420 of I.P.C. and submitted that, the allegations made in the complaint are absolutely vague, scattered and general in nature. She claimed that, even if said allegations are taken on face value and accepted in their entirety, they would not even prima facie constitute any of the alleged offences. She submits that a pure civil dispute, which maximum can be referred to the consumer dispute redressal forum, purposely has been given the colour of a crime just as an arm twisting and to compel the Petitioner to accept the unreasonable claim before said forum.
She therefore urged that the impugned Order of issue process as well as the subject complaint are liable to be quashed and set aside. To support the above submissions, Ms. Raman, the learned Advocate has relied upon the following decisions of the Hon'ble Supreme Court :-
(i) The State of Gujarat v/s. Jaswantlal Nathala1.
(ii) Indian Oil Corporation v/s. NEPC India Ltd. and Ors2.
(iii) Md. Ibrahim and Ors. v/s. State of Bihar and Ors3.
1. AIR 1968 SC 700.
2. (2006) 6 SCC 736.
3. (2009) 8 SCC 751.
5/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 :::
P.H. Jayani 09 WP3752.2022.doc (iv) Amazon India v/s. State of Maharashtra and Ors4. 7) Mr.Gole, the learned Counsel for Respondent No.2 on the
other hand submitted that after selling the washing machine the Petitioner and Accused No.1 both were duty bound to provide the necessary services to install the machine and give its demonstration to the satisfaction of Respondent No.2. However, except providing mobile numbers of the technicians both accused did nothing. This conduct of the accused clearly indicates that they sold the washing machine only with an intent to make profit out of said transaction. Ultimately, both the accused made the Respondent No.2 to suffer financially as well as mentally. Thus, there is a prima facie case against the Petitioner and Accused No.1. Therefore, the learned Magistrate was justified to pass the impugned Order to issue process against both accused for the alleged offences. He, therefore, urged to dismiss the Petition.
8) Section 405 of I.P.C. defines the 'Criminal breach of trust'. Said Section reads :-
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
4. 2022 (1) BomCR (Cri) 326.
6/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 :::
P.H. Jayani 09 WP3752.2022.doc 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".
8.1) In Jaswantilal Nathalal (Supra) the Hon'ble Supreme Court has held that, "The term "entrusted" found in S. 405 IPC governs not only the words "With the property" immediately following it but also the words "or with any dominion over the property" occurring thereafter. Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trusts. The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that properly is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. ..." 8.2) In the case in hand, it is an admitted fact that Respondent No.2 had purchased the washing machine against the payment of its 7/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 ::: P.H. Jayani 09 WP3752.2022.doc price. Said machine was the product of the Petitioner company. The said transaction did not involve "entrustment" of any property by Respondent No.2 to any of the accused. And it cannot, as it was purely a transaction of sale. Therefore, before alleging the offence of Section 405 punishable under Section 406 of I.P.C., it was for the Respondent No.2 to describe in the complaint as to how the complained act fit in the definition of said Section 405. However, the complaint is surprisingly silent about such an entrustment. As such, in the facts, question of attracting the offence of Section 406 of I.P.C. does not arise.
9) Let us now examine as to whether the alleged offence of cheating was made out or not? The offence of cheating is defined in Section 415 of I.P.C. and it is punishable under Section 417 of I.P.C. When the act of cheating is associated with dishonestly inducing delivery of certain property by the person cheated, then said act is punishable under Section 420 of I.P.C. In the case in hand, process has been issued under both Sections 417 and 420. Section 415 and 420 read :-
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 8/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 ::: P.H. Jayani 09 WP3752.2022.doc 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".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
420.Cheating and dishonestly inducing delivery 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 or sealed, and which is capable of 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.
9.1) The essential ingredients of the offence of "cheating" are as follows :-
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, 9/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 ::: P.H. Jayani 09 WP3752.2022.doc reputation or property. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security. On the same line, in Amazon India (Supra), the Hon'ble Supreme Court has held that, as to constitute offence under Section 420 of I.P.C., it must be shown that Complainant parted with his property, acting on a representation, which was false to the knowledge of the accused.
9.2) In the case in hand, the Respondent No.2 did not allege that at the time of purchasing the washing machine, some deception was practiced upon her and then, with a fraudulent or dishonest intention she was caused to purchase the machine which she would not have purchased had she been not so deceived. On the contrary, the complaint sufficiently indicates that the Respondent No.2 on her own free will went to the shop of Accused No.1 and purchased the washing machine, exercising her choice. Thus, Respondent No.2 received the washing machine as a consideration against the payment of its price. It is not the case that by playing fraud upon Respondent No.2, the accused party induced her to pay unreasonable price for the 10/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 ::: P.H. Jayani 09 WP3752.2022.doc washing machine. It is also not the case that the washing machine was completely faulty or non-functioning when it was sold to Respondent No.2, however, the accused party kept silent about that. On the contrary, the complaint mentions that the Respondent No.2 even did not unpack the washing machine after purchasing the same. 9.3) Considering the allegations in the complaint prima facie, it appears that after selling the washing machine, the technical support provided by the accused party/Petitioner company failed to install the machine and provide its demonstration on time. As a result, Respondent No.2 did not get the machine services as its consumer. As stated in the complaint, when the Respondent No.2 purchased that machine, she was assured that the said technical support would be free. However, as held in Indian Oil Corporation (Supra), mere breach of a contractual terms would not amount to cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and in the absence of an allegation that the accused had a fraudulent or dishonest intention while making a promise, there is no 'cheating'.
10) In Indian Oil Corporation (Supra), the Hon'ble Supreme Court in paragraph 10 observed that, "..., it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a 11/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 ::: P.H. Jayani 09 WP3752.2022.doc prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down 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, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. Then the Court referred the decision in G. Sagar Suri vs. State of UP5, wherein the Hon'ble Supreme Court observed :
It is to be seen if a matter, which is essentially of 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 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 High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.
While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a
5. [2000 (2) SCC 636].12/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 :::
P.H. Jayani 09 WP3752.2022.doc 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 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 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."
11) The last alleged offence is under Section 427 of I.P.C. which provides that "Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." Section 425 of I.P.C. defines the 'mischief' and said Section reads :-
425. Mischief.-- Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
Explanation 1.-- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. 13/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 :::
P.H. Jayani 09 WP3752.2022.doc It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2.-- Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.
12) In the case in hand, the complaint is not claiming that, the Petitioner caused the destruction of or any change in the washing machine or in the situation thereof and said change destroyed or diminished its value or utility, or affected it injuriously. Therefore, in my considered opinion, said offence of Section 427 is also not made out from the allegations in the complaint.
13) Now coming to the report submitted by the police under Section 202. The report states that, police inquired with and recorded the statement of Respondent No.2 and Mohammad Karamsher, Manager of Accused No.1. Their statements revealed that, after purchase of the washing machine, the Petitioner-Company was informed to install the same. The Manager stated that the Respondent No.2 phoned at the shop of Accused No.1 on 01/08/2018 and told to send a technician to install the washing machine. However, the machine was not installed. The said phone call was made after 8 months of the purchase. Therefore, immediately the 14/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 ::: P.H. Jayani 09 WP3752.2022.doc Petitioner company was informed about the aforesaid grievance of Respondent No.2. In turn, the Petitioner company informed that when 2-3 times the customer was telephonically asked as to whether the technician be sent, the customer replied that, he will inform later on. But the company was not informed, accordingly. The report further states that the police sent a notice to Mr. Shaikh, Manager of the Petitioner. However, none appeared for the inquiry. Thus, the Petitioner company was not co-0perative in the investigation. In the backdrop the police concluded that although the Petitioner was duty bound to install the machine, it did not, hence, it appears that the Petitioner cheated the Respondent No.2. However, the police report dated 04th July, 2019 is silent as to how the failure of the technician of the Petitioner-Company to install the machine is cheating. As noted above, there is no material indicating certain dishonest or fraudulent intention on the part of the Petitioner when the washing machine was sold to the Respondent. Therefore, mere conclusion that there is a case of cheating but without recording reasons for such conclusion would not bind the Court to depend upon such conclusion.
14) In so far as the impugned Order is concerned, bare reading would suggest that said Order is passed only noting that the Respondent No.2 on oath contended that the accused cheated her by selling faulty/defective machine and failed to replace/repair the same 15/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 ::: P.H. Jayani 09 WP3752.2022.doc despite continued pursuance. However, this fact is not at all alleged in the complaint. The police report is also silent on this aspect, therein the statement of Respondent No.2 has been referred in detail. On the contrary, in the complaint twice it is mentioned that the washing machine is in packed condition. The learned Magistrate did not record any other reason in the impugned Order as to how the prima facie case is made out against the Petitioner for the aforesaid offences. Thus, it appears that before passing the impugned Order the learned Magistrate did not properly consider the record of the case.
15) In Indian Oil Corporation (Supra) the Hon'ble Supreme Court has considered the following principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings :-
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear
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abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
16) Conspectus of the above discussion is that, the complaint is bereft of the basic facts which are necessary for making out the 17/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 ::: P.H. Jayani 09 WP3752.2022.doc alleged offences. In the facts, the dispute in question is of civil nature. As such, there is no prima facie case against the Petitioner of commission of the alleged offences punishable under Sections 406, 417, 420 and 427 read with Section 34 I.P.C. The subject complaint, therefore, is not maintainable in law. However, the learned Magistrate passed the impugned Order against the Petitioner without properly considering the record. As a result, the impugned Order is not sustainable in law. Thus, the impugned Order and the subject complaint both are liable to be quashed and set aside qua the Petitioner. Hence, following Order :-
- ORDER -
(i) The impugned Order dated 03rd March 2020, passed by the learned Judicial Magistrate First Class, Court at Alibag in R.C.C. No.23 of 2020 (Old No. Cril.M.A. No.319 of 2018) thereby process has been issued against the Petitioner, for the commission of the alleged offence punishable under Sections 406, 417, 427, 420 read with Section 34 of the Indian Penal Code and the aforesaid R.C.C. No.23 of 2020 (Old No. Cril.M.A. No.319 of 2018) are quashed and set aside qua the Petitioner.
(ii) Petition is allowed in aforesaid terms. Rule is made absolute.
PREETI HEERO JAYANI (SHYAM C. CHANDAK, J.) Digitally signed by PREETI HEERO JAYANI Date: 2025.01.17 17:51:23 +0530 18/18 ::: Uploaded on - 17/01/2025 ::: Downloaded on - 18/01/2025 08:46:53 :::