JUDGMENT
Mathur, J.
1. By way of instant petition under Section 482 Cr.P.C, the petitioners seek direction to quash F.I.R. No. 233/2003 Police Station Basni, District Jodhpur, for offence under Sections 406, 420 and 120B I.P.C.
2. The relevant facts giving rise to the instant petition are that the first respondent Shri Ghevar Chand, Managing Director, Alcobex Metals Ltd., filed a complaint in the court of Judicial Magistrate No. 4, Jodhpur on 17.7.2003 stating inter alia that the petitioner herein Thermax Limited and Alcobex Metals Limited had business relations for long time. Five purchase orders were placed by Thermax Limited on Alcobex Metals Limited for the supply of cupronickle tubes. The Thermax Limited under the communication dated 20.01.1998 informed the complainant that the supplies of 10,000/- tubes were not in order as some tubes had been found to have leaked. On receiving a complaint the Managing Director of the complainant company visited the works of Thermax Limited at Pune and assured that defective material will be replaced free of cost. It is alleged that the petitioner company namely Thermax Limited refused to make payment of Rs. 18 lakhs against the material supplied. The company also rejected certain material and returned the same. It is averred that the return of the material was unjustified, more particularly with respect to 2300 tubes, which were inspected and approved by an officer of the petitioner company. According to the complainant, he suffered loss on account of unjustified rejection and return of goods. Thus, the demand was raised by the complainant company against the petitioner herein for a sum of Rs. 34,31,111.44/-. According to the complainant, the entire transaction in placing the five purchase orders on complainant company by the petitioner herein was entered with an intention of cheating. It is further alleged that the petitioner herein conspired and cheat and defraud the complainant.
3. The learned Magistrate sent the said complaint for investigation under Section 156(3) Cr.P.C. to the S.H.O. Police Station Basni. Thus, the impugned F.I.R. No. 233/2003 had been registered against the petitioners at Police Station Basni, for offence under Sections 406, 420 and 120B I.P.C.
4. The petitioners seek to quash the above referred F.I.R. inter alia on the ground that complaint has been filed by the complainant mala fidely as a counter blast to a civil suit filed by the petitioner company against the complainant company at Pune for recovery of an amount of Rs. 32 lakhs plus interest thereon. Since there is a reference of civil suit, it is desirable to notice the fact leading to filing of the said suit. It appears that the petitioner company placed five purchase orders to the complainant company during the period 1997-98 for the purchase of cupronickle and copper tubes worth Rs. 1,06,27,473.31/-. The tubes supplied by the complainant company were found to be defective as they failed to conform to the quality and the specifications of the purchase orders. The problem of leakage from the tubes were found in 18 chilling machines. Thus, as many as 12,164 tubes from all the said leaking machines had to be removed. This effectively entailed the reopening of 18 ready machines and redoing the work of assembling of the said machines once again. The said fact was brought to the notice of the complainant company under communication dated 20.01.1998. It was also pointed out that it was the second occasion when the complainant company made a supply of goods of sub-standard quality. The representative of the petitioner company visited the works of the complainant company at Jodhpur and discussed the matter. The complainant company assured for improvement in the manufacturing process and overcoming the shortcomings in testing and inspection to improve the quality as per requirement of the petitioner company.
5. It is further averred that on 4.2.1998 the petitioner company informed the complainant that no feed back has been supplied. They were also questioned for supplying the bad quality tubes. A decision was taken inter alia, to return whatever material was lying with the company and cancel all the orders pending with the complainant company for the supply of the tubes. The petitioner company suffered a heavy loss due to re-work because of tubes failure and it was forced to debit the amount to the account of the complainant. The say of the petitioner company is that they asked the complainant company to depute its representative for discussion on the supply. There has been some more correspondence between the parties. A dispute between the parties as to whether the petitioner company was entitled to debit the account of the complainant with cost for re-working of its chilling machines necessitated by the supply of defective tubes by the complainant. On the part of the petitioner company it issued a debit note to the account of the complainant debiting on amount of Rs. 17.95 lakhs as cost of re-work due to bad quality of tubes. The complainant responded the dispute by addressing a notice dated 18.3.1999 inter alia stating that debiting the cost of re-working on the machines due to defective supply of tubes the parties and no unilateral changes could be effected arbitrarily after the finalization of the contract and execution of the order, particularly in view of the fact that no supplier could ever give a blanket commitment to compensate a customer for any losses without limit which may be suffered in the result of defective supplies. A demand was also made for a sum of Rs. 27 lakhs, allegedly outstanding by the company to the complainant. In these circumstances, the petitioner company filed a money suit for recovery of Rs. 32 lakhs in November, 1999 against the complainant company in the court of Civil Judge (Senior Division), Pune for the breach of contract by the complainant estimated at Rs. 50 lakhs adjusting the amount of Rs. 17.95 lakhs debited to the complainant company.
6. It is submitted by Mr. Alok Sharma learned counsel appearing for the petitioner that the complaint has been filed after a period of over four years from the date of filing of the civil suit. It is further submitted that the resort to the criminal process is completely mala fide act on the part of the complainant as a counter blast to the suit filed by the complainant. According to Mr. Sharma, there is no material to suggest the making out of any ingredients for alleged conspiracy in which petitioners alleged to have participated. The allegations against the petitioners in the F.I.R. do not make out commission of any offence by the petitioners even prima facie and the F.I.R. is liable to be quashed and set aside.
7. On the other hand, it is submitted by Mr. J.S. Choudhary, learned counsel for the contesting respondent that when the information is lodged at Police Station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is material collected during the investigation and evidence laid in the court which decides the fate of the allegations of mala fides against informant are of no significance and cannot by itself be basis for quashing the proceedings. Reliance is placed on decision of the Apex Court in State of M.P. v. Awadh Kishore Gupta and Ors., 2004 (1) SCC 699.
8. I have considered the rival contention and perused the relevant record. The Apex Court instate Haryana and Ors. v. Bhajan Lal and Ors., 1992 Supp (1) SCC 335, has laid down parameters for exercise of powers by the High Court under Section 482 Cr.P.C. for quashing of FIR. The Court also held that the criminal proceedings, if otherwise justifiable, are not liable to be quashed merely on the ground of mala fide In Madhavrao Jiwajirao Sindia v. Sambhajirao held that it is for the Court to take into consideration any special feature which appear in a particular case to consider whether it is expedient and in the interest of just to permit a prosecution to continue. In Ashok Chaturvedi and Ors. v. Shitul H. Chanchani and Anr., AIR 1998 SC 2796, the Court held that allowing the criminal proceeding to continue even where the allegations in the complaint do not make out any offence would tantamount to an abuse of process of the Court, and therefore, in such cases the power must be exercised under Section 482 Cr.P.C. to prevent the abuse of process of the Court. Similarly in Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. and Ors., 2000 (3) SCC 269, it is held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, the Court should not hesitate to quash the complaint. The Court further observed that for quashing of a complaint, Court has to see whether on the fact situation “civic profile” outweighs the “criminal outfit”, The court examining the allegations of offence under Sections 451, 418 and 420 I.P.C. held that Mens rea essential ingredient of offence under Sections 418 and 420 I.P.C. It was further held that in order to attract the provisions of Section 418 and 420 I.P.C. the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfill the promise by itself would not attract the provisions of Section 418 and 420 I.P.C. Their Lordships further observed as follows:-
“Mens rea is one of the essential ingredients of the offence of cheating under Section 420. As a matter of fact Illustration (g) to Section 415 makes the position clear enough to indicate that more failure to deliver in breach of an agreement would not amount to cheating but is liable to only a civil action for breach of contract.”
9. Thus, it clearly emerges that to exercise powers under Section 482 Cr.P.C., the complaint in its entirety must be examined on the basis of the allegation made therein. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. If the allegations made in the complaint do not make out any case against the accused or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against such accused. In such cases, with a view to prevent the abuse of process of the Court, the High Court would be competent to quash the complaint or the F.I.R. to prevent the abuse of process of the Court to secure the ends of justice.
10. In the instant case, it clearly appears that the impugned complaint has been filed complaining the alleged non-payment of Rs. 18 lakhs plus interest thereon, after a period of more than about a five years inasmuch as the complainant company was informed by the petitioner herein as early as on 25.2.1998 that the total cost of re-work on the machines as a result of defective tubes would be Rs. 17.95 lakhs. Thereafter a civil suit has also been filed by the petitioner company as back as in the year 1999. Even if the allegations made in the complaint are taken to be true on its face, it does not show fraudulent or dishonest intention on the part of the petitioner at the time of making of the promise. It also does not appear to be a case of failure to keep promise or breach of contract by the petitioner. The stand of petitioner herein from the beginning has been that the tubes supplied were defective entailing loss to the company. Similarly no offence under Section 406 is also made out. The transaction in the case of one of sale and not of entrustment.
11. In the instant case, the cost of re-working amounting to Rs. 17.95 lakhs constituted diminution of the price of the goods supplied. The entire dispute appears to be of a civil nature and in fact a civil suit is pending between the parties. In these circumstances, unhesitatingly to my mind, the instant complaint filed by the respondent is nothing but an abuse of process of the Court. Thus, it is the expedient interest of justice to quash the proceedings.
12. Consequently, the misc. petition is allowed. The F.I.R. No. 233/2003 Police Station Basni, District Jodhpur, is quashed and set aside.