Posted On by &filed under High Court, Patna High Court - Orders.


Patna High Court – Orders
Faiz Ahmad & Ors vs The State Of Bihar & Anr on 16 November, 2011
                IN THE HIGH COURT OF JUDICATURE AT PATNA
                         Criminal Miscellaneous No.36923 of 2008
              1. Faiz Ahmad, son of Shamim Ahmad, Director Marketing,
                 M/s. Logtek (India) Pvt. Limited, at 403, F.I.E. Patparganj,
                 Delhi-110092.
              2. R. Chhabra, son of N.D. Chhabra, Technical Director, M/s.
                 Logotech (India) Pvt. Limited, at 403, F.I.E., Patparganj,
                 Delhi-110092.
              3. I.A. Hashmi, son of Late Dr. Ahmad Ali Hashmi, Sales
                 Executive, M/s. Logotech (India) Pvt. Limited, At 403,
                 F.I.E., Patparganj, Officer, Delhi-110092.
                 ...............................................................Petitioners.

                                            Versus

               1. The State Of Bihar.
               2. Dr. Ira Sinha, wife of Dr. O.P. Singh, Prachi Pathology
                  Clinic, Gaushala Road, District-Siwan.
                  ....................................................Opposite Parties.

                                ----------------------------------

                   For the Petitioners: M/s. Md. Helal Ahmad and S. Tabrez,
                                        Advocates.
                   For the State      : Mr. Hirday Prasad Singh, A.P.P.
                   For O.P. No.2      : Mr.Uma Shankar Prasad Singh,
                                        Advocate.

                               ------------------------------------

                                       O R D E R

4. 16.11.2011. Through this application, the petitioners have

invoked the extraordinary jurisdiction of this Court

under Section 482 of the Code of Criminal Procedure

for quashing the order dated 29.8.2008 passed in Siwan

Muffasil P.S. Case No.61 of 2008 by the Chief Judicial

Magistrate, Siwan, taking cognizance of the offences
2

under Sections 406, 420, 384 and 386/34 of the Indian

Penal Code.

2. In brief, the facts, leading to this

application, are that on the basis of the written report of

the informant-opposite party no.2, Dr. Ira Sinha, Siwan

Muffasil P.S. Case No.61 of 2008 under Sections 420,

406, 384 and 386/34 of the Indian Penal Code was

lodged against the accused-petitioners. In the written

report, the informant-opposite party no.2 alleged that

she is running the clinic in the name of Prachi

Pathology at Goshala Road, Siwan. For the clinic, she

had purchased an auto- Analyser Ecco Plus Machine

from Logotech India Private Limited, 403, F.I.E.,

Patparganj, P.S. Mandawali, Delhi-92 in the year 2006

on payment of Rs.7,00,000/-. Finding the

manufacturing defect, the said machine was replaced

by a new one and the second machine supplied by the

company again and again went out of order. Sri Faiz

Ahmad, the Marketing Director, Sri R. Chhabra,

Technical Director and the Sale Executive, Sri I.A.

Hashmi and the engineers were also facing hardship in

repairing the machine and they told that there is
3

manufacturing defect in the machine. Then she asked

them to return the price of the machine on which they

told that the company has launched a new Fully

Automatic Random Access Analyser Miyura-200

Machine which is trouble free and if any defect would

be find out in the machine, that will be removed within

three years and the defects will be rectified within five

days without costs. The aforesaid officials of the

company also told that the running machine would be

replaced by Miyura Machine-200 on additional

payment of Rs.4,00,000/-. While she refused to

purchase the Miyura Machine-200 but on allurement

she became ready to replace the auto- Analyser Ecco

Plus Machine by Miyura Machine-200 on additional

payment of Rs.4,00,000/- on assurance given by them

that if the machine will not function properly, the price

of the same would be returned within three years.

Accordingly, the agreement deed was prepared on the

stamp paper of Rs.100/- and Miyura Machine-200 was

installed on 3.9.2007 on full payment. Thereafter, on

6th of March, 2008, the said machine became out of

order and information was given to the accused-
4

petitioners no.1 and 2 on which one Engineer, N.S.

Rao, was sent by them on 10.3.2008, who failed to

brought the machine in functioning order. In course of

opening the parts of the machine, the screw driver

slipped from his hand causing hole in the tube of the

machine. On asking him to replace the tube, he told

that the accused-petitioners no.1 and 2 have instructed

him to replace any part of the machine taking the price

of the part. Thereafter, she informed on phone to the

petitioners no.1 and 2 and also sent the message

through fax and telegram about the non functioning of

the machine. Thereafter, she received the fax message

and also a letter on 17.3.2008 from accused-petitioner

no.2, R. Chhabra and second letter on 20.3.2008 from

accused-petitioner no.1, Faiz Ahmad. On reading the

letter she became surprised as through the letter she

was asked to send the written letter and, thereafter, the

machine would be repaired. The informant-opposite

party no.2 talked to them on several occasions on

phone to repair the machine saying that otherwise she

would take the shelter of the Court on which they

became annoyed and started to speak in absurd
5

language saying that they would take care if the dispute

is raised in the court. On 21.3.2008, one Sahnawaz

Ullah, the Engineer of the said Company, had come to

repair the machine at the clinic of Dr. O.P. Singh and

when request was made to him to repair her machine

also, then he replied that he has been forbidden by the

petitioners no.1 and 2 to repair the machine unless the

letter is not sent. It is also alleged in the F.I.R. that the

accused persons with an intention to illegal gain

grabbed the money under conspiracy in supplying the

machine and due to that reasons, she is suffering from

mental agony.

3. The police on investigation of the case

submitted the chargesheet in the court of the Chief

Judicial Magistrate, Siwan, who on perusal of the

chargesheet and case diary took the cognizance of the

offence through the impugned order dated 29.8.2008

under Sections 406, 420, 384 and 386/34 of the Indian

Penal Code against the accused-petitioners.

4. Learned counsel appearing on behalf of the

petitioners submitted that after around seven months of

the installation of the Miyura Machine-200, the
6

officials of the company on receiving the complaint of

the informant-opposite party no.2 regarding some

problem in the machine, immediately sent the

concerned Engineer to rectify the same without any

delay and on inquiry, it was found that the trouble was

due to the rat cut in the tube of the machine due to the

negligence on the part of the informant-opposite party

no.2. The tube was changed and the matter was

immediately informed the informant-opposite party

no.2 in writing by the company to the effect that in

future it may not be possible to supply free of cost any

spare part for which Logotech cannot control, which

would appear from Annexure-‘7’ to this application but

despite of that the informant-opposite party no.2 started

to give threatening and lodged the present case

implicating the petitioners. It is further submitted that

in spite of lodging of the present case by the informant-

opposite party no.2, on receiving the complaint about

the defect in the machine supplied to the informant-

opposite party no.2, it was diligently and sincerely

attended by the employees and the concerned Engineer

of the Company, which would appear from the Service
7

Report dated 1.4.2008 as contained in Annexure-‘8’ to

this application. It is also contended that from perusal

of the allegations as made in the F.I.R., it would appear

that simply the case would be made out for non

fulfillment of the agreement entered into in between the

petitioners on behalf of the company and the

informant-opposite party no.2 in business transaction

and no offence of criminal breach of trust, cheating or

extortion is made out against the accused-petitioners.

If the informant-opposite party no.2 has any grievance,

the remedy is available to her in civil forum for

redressal of her grievance and placed reliance on a

decision of a Bench of this Court in case of the

Managing Director Vs. Dr. Hari Krishna Singh and

another {2010 (4) PLJR 136}.

5. On bare reading of the F.I.R., it appears

that the allegation of the informant-opposite party no.2

is that the petitioners, who are officials of the M/s.

Logotech (India) Private Limited, have supplied the

Miyura Machine-200 by replacing the auto-Analyser

Ecco Plus Machine supplied earlier to her on taking an

additional amount of Rs.4,00,000/- with an assurance
8

that the machine is trouble free and if any defect would

be pointed out, that will be repaired within three years

but on coming defect in the machine that has not been

removed by the petitioners and the allegation is that the

demand was made on behalf of the petitioners for the

price of the parts in removing the defect in Machine

Miyura-200. The informant-opposite party no.2 made

averment in the F.I.R. of suffering from the mental

agony due to not taking care to repair the machine by

the petitioners’ company.

6. In the case of the Managing Director

(Supra), a Bench of this Court held that the

complainant appears making averments in the

complaint petition of incurring losses on different

counts due to the supply of a defective machine by the

company. It is true that he has attempted to make out a

case of cheating, defrauding and misappropriating his

money, but basically, it could not be said that the same

was done knowingly with an intent to cheat as in

matters of the present nature, no manufacturer could be

held having intent to cheat while supplying his

products to a customer. The intent is to earn goodwill.
9

However, the allegation of incurring damages may in

an appropriate case, like the one in hand, give rise to

appropriate causes of action before the Consumer

forum.

On perusal of the F.I.R. itself, it could not be

said that the machine was supplied to the informant-

opposite party no.2 knowingly with intent to cheat or

price of the machine has been taken by the petitioners

by putting the informant-opposite party no.2 or any

person in fear amounting to extortion. However, the

allegation as made in the F.I.R. incurring monetary loss

of supplying defective machine, Miyura-200 and

mental agony due to non providing the service to

remove the defect of machine may in appropriate cases

give rise the cause of action for prosecuting before the

Consumer forum. As such, initiation of the criminal

proceeding by taking cognizance through the impugned

order dated 29.8.2008 passed in Siwan Muffasil P.S.

Case No.61 of 2008 by the Chief Judicial Magistrate,

Siwan, appears to be an abuse of the process of the

court.

7. Under the aforesaid facts and circumstances
10

of the case, the impugned order dated 29.8.2008 passed

in Siwan Muffasil P.S. Case No.61 of 2008 by the

Chief Judicial Magistrate, Siwan, is hereby quashed

and the application is allowed. However, it is made

clear that the informant-opposite party no.2 shall have

liberty to agitate the grievance before an appropriate

forum like Consumer forum or Commission.

(Rajendra Kumar Mishra, J)

P.S./A.F.R.


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

66 queries in 0.160 seconds.