REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 539 OF 2009
(Arising out of SLP (Crl.) No. 6712 of 2007)
M.D. Sonalika International Tractor Ltd. ...Appellant
Vs.
Dinesh Sharma and Ors. ...Respondents
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single
Judge of the Madhya Pradesh High Court dismissing the Criminal
Revision Petition filed by the appellant questioning the order passed by
learned Additional Sessions Judge, Gohad, Bhind.
3. Backgrounds facts as projected by the appellant are as follows:
On 19.6.2002 respondent No.1 purchased a tractor manufactured
by the appellant from respondent No.3. On 12.5.2003 respondent No.1
filed a complaint bearing No.87 of 2003 in the District Consumer Forum,
Bhind, Madhya Pradesh alleging that the dealer (respondent No.3) had
represented at the time of purchase of the tractor that the capacity of the
same is 40HP (horse power) and accordingly payment was made but after
some time the applicant came to know that the said tractor is made of
1035 tafe tractor engine and the model of the said tafe engine is Simpson
S-324 of which power capacity is 35 HP. It was thus submitted that
trusting the opposite parties and having faith on the company and
believing that the tractor is made of 40HP the applicant paid for the same
where the tractor is not more than 35 HP.
On 22.7.2003 the District Consumer Forum, Bhind dismissed the
complaint filed by respondent No.1 and observed as under:
“…on careful consideration it is 40 SAE and not 40
HP in the cash memo dated 19.6.2002 issued at the
time of purchase of the said tractor by the
complainant. The 40SAE power capacity of the said
sold Sonalika D1 740 tractor is shown in the report
of Mechanical Engineering Research and
Development Corporation, Ludhiana. As such the
capacity of 40SAE of the tractor sold and purchased
by complainant as per cash memo showing 40SAE is
proved in view of the above report of Mechanical2
Engineering Research and Development
Corporation.”
On 25.6.2004 after more than 2 years from the date of purchase of
the tractor and one year from the date of dismissal of complaint by the
District Consumer Forum, Bhind, the respondent No.1 with ulterior
motives filed a complaint case No.896 of 2005 before the learned
Judicial Magistrate, First Class, Gohad, M.P. against respondent No.3 as
well as the present appellant under Sections 120B, 420 and 468 of the
Indian Penal Code, 1860 (in short the `IPC’). In the complaint the
allegation made is that at the time of sale it was falsely represented by the
dealer that the tractor was of 40 HP capacity. It was stated that the
complainant obtained information about the power capacity of the tractor
and came to know that the tractor sold to him is of 33 HP capacity and
the accused persons have cheated him. In the meantime, on 20.10.2005
the report was called from Central Farm Machinery Training and Testing
Institute, Tractor Nagar, Budhni by M.P. State Commission. On
19.12.2005 the State Commission allowed the appeal and directed the
appellant and respondent No.3 to jointly and severally pay Rs.27,000/- to
respondent No.1.
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On 23.3.2006 the National Consumer Disputes Redressal
Commission issued notice and granted interim stay of order dated
19.12.2005 passed by the MP State Commission. On 22.4.2006 the
Judicial Magistrate, Ist Class dismissed the complaint of respondent
No.1. On 12.3.2007 the Additional Sessions Judge allowed the Revision
Petition filed by respondent No.1 and directed the learned Magistrate to
register the complaint case of the complainant under Sections 120-B, 420
and 468 IPC.
The High Court by the impugned order rejected the revision
petition.
4. It is the stand of the appellant that the prosecution’s complaint
lodged even if taken in its totality does not disclose any offence so far as
the present appellant is concerned. In the complaint there was no
allegation against the present appellant who was A-2. Nothing was also
stated in the evidence so far as he is concerned.
5. Learned counsel for the respondents on the other hand submitted
that the High Court has analysed the position in great detail and its order
should not be interfered with.
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6. The parameters for interference at the threshold have been
highlighted by this Court in several cases.
7. In State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) it has
been observed as under:
“(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out
a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying
an investigation by police officers under Section 156
(1) of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
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(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is instituted)
to the institution and continuance of the proceedings
and/or where there is a specific provision in the Code
or the concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.”
8. A bare reading of the FIR shows that there was no allegation so far
as the appellant is concerned. In any event in the evidence recorded no
specific role was attributed to the appellant.
9. That being so, the complaint proceedings cannot be maintained
qua the appellant and are set aside.
10. The appeal is allowed.
…………………………………..J.
(Dr. ARIJIT PASAYAT)
…………………………………..J.
(D.K. JAIN)
…………………………………..J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi:
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March 24, 2009
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