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.
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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.
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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
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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
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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-
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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
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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
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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
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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
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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.
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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
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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.
