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1. The Cr.M.P. Nos. 1163 of 2005, 1402 of 2005 and 1403 of 2005 am being disposed of by the common order arising out of common cause of action in relation to Complaint Case No. 73 of 2005 pending in the Court of C.J.M. Hazaribagh for common relief for quashing the cognizance order impugned dated 16.3.2005 passed by the C.J.M. and of the entire criminal proceeding in Complaint Case No. 73/05

2. Briefly stated, the Opposite Party No. 2 Shri Dileep Sonthalia filed the Complaint Case No. 73/05 on 19.1.05 as against as many as 9 accused persons including the petitioners alleging inter alia that pursuant to the advertisement published in "Times of India" dated 9.2.03 the Opposite Party No. 2 paid the membership cost of Rs. 15,100/- as down payment and 24 E.M.I. of Rs. 6,857/- by cheques to the total amount of Rs. 1,79,668/- with interest for 25 years membership of Club Mahindra Holidays to enjoy benefit as a member of the Club/ Mahindra Holidays The complainant requested to book the holidays from 4th of January, 2005 to 8th January, 2005 at Binsar resort and 8th January, 2005 to 10th January, 2005 at Corbett resort with a request that he was entitled for special offer of holidays week However, he upgraded his membership from 'while Season' to 'Red Season (Peak Season) on payment of additional cost of Rs. 20,504 besides, the annual subscription of Rs. 11,769/- When the Complainant/ Opposite Party No. 2 with his wife and two minor children reached Binsar Resort on 4 1.2005 where there was booking for 4 days, he received a very cold treatment and instead of 4 days he was allowed to stay for 3 days only. From there he went to Claridges Corbett Hideway with wife and children where he came to know that the Resort was already given to the 70 Guests of a big Company and he had to wait for more than 4 hours and only thereafter, the accused expressed their inability to provide any accommodation to him with his family, on the false pretext of technical problem. In this manner alter covering a long journey of about 2700 K.M.s he was duped by the said Company and was allowed to enjoy only 3 days out of 4 days at Binsar and the entire 2 days at Corbett Hideway at his own cost.

13. With reference to Cr.M P. No. 1403 of 2005 learned Counsel submitted that the "Mahindra Holidays nod Resorts India Ltd" is a Company under the companies Act for the purposes of its business has entered into agreements with several Hotels/ Resorts situated at various tourist destinations to enable the Company to fulfill its business objectives and cater to its members. Such Resorts/ Hotels with whom the Company has entered into an agreement for providing services in terms of the agreement are termed as Mahindra Associate's Resorts. In the present case the Company has a subsisting agreement with M/s Claridges Corbett Hideaway Resort The petitioner No 6 is the Area Resort Manager thereof The membership rules provide for the members to avail of the holiday by giving a request for reservation in the prescribed format provided by the Company and the said reservations were on a "First Come, First Served" basis and subject to availability only. The facts as contained in the Complaint Petition are essentially civil in nature and no criminal offence is disclosed by the complainant. The membership rules provided for the rights and obligations of the Company as well as that of the Opposite Party No. 2 and the alleged dispute which arose was sought to be redressed in terms of the membership rules and the contractual obligations that arose between the party No. 2 and the Company. Adopting the argument in other two cases referred to above learned Counsel submitted on behalf of the petitioner that the Opposite Party No. 2 has sought to prosecute the petitioners for a penal offence for an alleged deficiency of service covered under the membership rules. The dishonest intention and inducement as contemplated in Section 420 IP C. is neither made out nor is discemed from the records. As a matter of fact the bona fides of the petitioners which are crystal clear from the letter dated 12th February, 2005 and which were suppressed by the O.P. No. 2 in his complaint, controverted the stand of the complainant inasmuch as the letter of the petitioners was clear about their intention and their willingness to rectify the alleged lapse along with their benefit to the Opposite Party No. 2 As such it cannot be said by any stretch of imagination that an offence u/s 420 of the Indian Penal Code could be made out.

26. To recapitulate, complainant/Opposite Party No. 2 accepted the offer pursuant to the advertisement published in the "Times of India" and by paying the membership cost he became the Member of the Club Mahindra Holidays under Mahindra Holidays & Resorts India Ltd. ( in short MHRIL) and consequently he booked holidays from 4l" January, 05 to 8th January 05 at Binsar Resort and 8th January, 05 to 10th January, 05 at Corbett Resort by upgrading his membership from white season to Red Season on payment of additional cost. The O.P. No. 2/ Complainant admitted that as against booking for 4 days at Binsar Resort he was allowed to stay there for 3 days only and as against booking of 3 days in the Claridges Crobett Hideaway, no accommodation was given to him on the pretext of technical problem and he had to stay there at his own cost when he denied the amenities as promised and agreed prior to the acceptance of the membership fee. By the letter dated 11.1.2005 when the Complainant/0.P. No. 2 demanded his money back, it was refused by the officials of the Company.

31. The Court in exercise of inherent power after examining the Memorandum and Articles of Association of Mahindra Holidays & Resort India Ltd. (Annexure-2), the Membership Rules (Annexure-3) and the Annual return under the Companies Act, 1956 (Annexure-4) gathered that the petitioner Anand Mahindra was never a part of the Company neither as the Member of Board of Directors nor in any manner associated with the Company for day to day conduct. There is substance in the argument advanced that to assign a criminality to the petitioner, merely because the petitioner happens to be a Managing Director of M/s Mahindra and Mahindra Ltd, which is a separate and distinct legal identity from that of the Company, would be preposterous and on this ground alone the complaint deserves to be quashed so far as it relates to him. In the present case the complainant is conspicuously silent about the complicity of the other petitioners in the alleged offence even there is no material to implicate them by showing meeting of minds to attract the offence under Section 120B IPC for the alleged offence of cheating under Section 420 IP C The Membership Rules of Matnndra Holidays and Resorts India Ltd, (Annexure-3) a part of document which was not produced at the time of filing complaint petition and therefore, the learned C.J.M., Hazaribagh could not take judicial notice to it while taking cognizance of the offence. It has been pointed out particularly Rule 7 which stipulates the obligations of the Company in respect to a default on the part of the Company in providing accommodation and/or alternative accommodation In the present case the O.P. No. 2 had an option to seek invocation of Rule 7 arid claimed the liquidated damages as provided for on account of default of the Company. The Membership Rules further provide a contractual relationship between the Company and the Members as also arbitration clause for reference of dispute under the arbitration and conciliation Act, 1996. However, there is substance in the argument that from reading of the complaint as a whole without adding or subtracting anything therefrom the alleged dispute and/or the allegation appears to be one of deficiency of services if at all and the appropriate forum therefore would be civil forum. The essential ingredients of Section 420 I.P.C. i.e. dishonest intention from the inception of the transaction for inducing a person and causing wrongful loss to him is lacking