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(2) For the time being, without going into the details of the complaint as above, it may be mentioned here that on 16th June, 2014, the accused persons have issued a proforma invoice notifying the onroad price of AUDI Q5 PI 2.0 TDI Navigation model to be Rs. 53,66,522/-. On 18th June 2014, a sales contract was forwarded to the complainant company by the said accused persons. On 19th June, 2014, a cheque bearing No.052326 dated 17th June, 2014 drawn on State Bank of Mysore of an amount of Rs.3,00,000/- was handed over by the complainant company to the 4th petitioner/the authorized distributor of Audi India based in Kolkata, towards advance amount for purchase of the said model of car. The complainant was issued an acknowledgement receipt dated 24th June, 2014, for the same. Thereafter, on 11th August, 2014, the complainant company has transferred a sum of Rs.50,66,520/- in favour of the 4th petitioner/the authorized distributor towards balance consideration amount to purchase the car, which has been admittedly duly credited in the account of the said petitioner. Ultimately on 18th August, 2014, the car was delivered to the complainant company. On the said date of delivery, the car was registered in the name of the complainant company with the manufacturer's warranty of 2 years. Within the said warranty service period, the said car was put into servicing to the authorised workshop of the petitioners/accused persons and servicing was done on 29th June 2015, in lieu of the charge of Rs. 25, 041.71/-.

(4) On the said date of incident as alleged, the complainant company lodged docket immediately with the Road Side Assistance Service Department of the petitioners/accused persons being case No. 2515186792 and the defective car was taken to the authorised workshop of the petitioners/accused persons, on 30th November 2015. The said workshop has reported as follows: "Vehicle Brakes were not working at the speed of 100 km" and that "to check the brake system". A letter of the complainant dated 1st December 2015 followed, being addressed to the 3rd petitioner/Chief Operating Officer, Audi Kolkata to seek return of the allegedly defective car to the company again, in lieu of refund of the price thereof. Letter with similar claim and claim of compensation has also been sent to the 1st petitioner/the Head of company Audi India, but allegedly in vain. 5th December 2015 is the date on which the said vehicle was returned to the complainant with a remark "brake fluid replaced", though nothing was charged as a cost of such replacement of the brake fluid. According to the complainant, the lineage of incidents have sufficiently brought on record the fundamental deficiency in the entire mechanics of the said vehicle and after the servicing was done, the said vehicle has never become usable but instead the faulty brake system in the vehicle, as also certified to be the same, has rendered the said vehicle not at par with the promises held out as regards its features including safety features. According to the complainant, this has amounted to 'cheating' in accordance with law. Hence, the said complaint was lodged.

(5) The petitioners are the accused persons in the case. The 1st petitioner is the Head of Audi, India, whereas the 2nd petitioner is the Head of Customer Services, Audi, India. There are other two accused persons, that is, the Chief Operating Officer, Audi, Kolkata and the Managing Director, of the authorised distributorship company of Audi, in Kolkata. The said first two accused persons have filed the instant revision. The petitioners have been represented by Mr. Sandipan Ganguly, learned senior counsel. At the threshold, Mr. Ganguly has argued on the aspect of non-maintainability of the criminal proceeding as above, against the present petitioners. He says that the petitioners are the designated officers of the manufacturing company. He has specifically relied on the doctrine of "alter ego" as enumerated by the Supreme Court, in the case reported in (2015) 4 SCC 609 [Sunil Bharti Mittal vs CBI]. He has also stated that in the said case the Court has held that an individual can be held to be an offender along with the company and only when his active role coupled with the criminal intent is on record and the statute has provided for application of the doctrine of vicarious liability, only in that case and not otherwise. He states that generally in criminal law, the concept of vicarious liability is an unknown phenomena unless the statute itself creates such legal fiction. Therefore, such liability could not have been ladened on the director or the official of the company who is not charged directly with the affairs of the company resulting into commission of an offence, without making the company itself as an accused person. In this regard a judgment of the Supreme Court reported in (2008) 5 SCC 662 [S.K.Alagh vs State of Uttarpradesh & Others] has been relied on by the petitioners. According to Mr. Ganguly, the complaint would not disclose any cognizable case against the present petitioners individually and on their personal capacity. He says that the complaint would be devoid of any specific averment as to the involvement and role of the petitioners in charge and responsible for the conduct of the business of the company and also be devoid of any merit due to the company having not been arrayed as an accused person therein. He has also referred to the judgment reported in (2015) 12 SCC 781 [Sharad Kumar Sanghi vs Sangita Rane]. Two other decisions have also been referred to of the Delhi High Court and this Court, those are reported in 2008 SCC Online Del 764 [Ford India Limited & Anr. Vs Sunbeam Ancilliary P.Ltd] and 2018 SCC Online Cal 9583 [Honda Cars India Ltd and Another vs Dilip Kumar Basak], respectively, in which similar propositions have been relied on.

(8) Warranties are promises made by manufacturers or retailers about their products and services and are good for a specified period, like in the present case, where it is for 2 years. Generally, the product is covered in case of any problem due to a defective part or workmanship. Even if a product is within the timeframe designated by a warranty, the company may require multiple proof points to show that the product failed in normal use. If the product failed due to any other reason rather than a fault in the design or manufacturing, the warranty is not likely to be honoured. Be that as it may, the complainant's allegation is not with regard to the deficiency in service or defective part or workmanship, but of deception and cheating. It is the criminal intent and act of the petitioners/accused persons, that has been alleged about and a criminal case is sought to have been initiated. Who are these petitioners and accused persons? They are the head of company Audi India which is a division of Volkswagen Group Sales India Private Limited, and the head of customer services in the said company respectively. The 1st and the 2nd petitioners are seated in offices in different State, beyond jurisdiction of the said Magistrate. Against these persons the complainant has intended to lodge a case under sections 34, 120B, 418 and 420 of The Indian Penal Code, 1860. Let us understand what sections 418 and 420 have provided for, by quoting the said provisions: