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2009 DIGILAW 970 (ORI)

MAHAVIR AUTO DIAGNOSTIC PVT. LTD. v. MANOJ AIYER

2009-12-19

B.P.RAY

body2009
JUDGMENT : B.P. Ray, J. - The Petitioners have assailed the order of cognizance taken by the learned S.D.J.M., Bhubaneswar in ICC Case No. 206 of 2007 on the basis of a complaint filed by the opp.party. Learned Magistrate by the impugned order dated 2.2.2007 has taken cognizance of the offence u/s 420/34, IPC and has issued summons to the accused persons for which the Petitioners have filed this application Under Sections 482, Code of Criminal Procedure. 2. The complaint petition filed by the opp.party has been enclosed as Annexure-6 to this petition. From the averments made in the complaint petition it would appear that the complainant had purchased a Skoda car from the Petitioners from their Bhubaneswar Show Room on 28.10.2006. It was alleged that while purchasing the said car the Petitioners had made certain inducements/promises to the complainant for which the complainant agreed to purchase the car in question. According to the complainant, the Petitioners had promised to give a cash discount of Rs. 30,000/- on the prevailing quoted sale price, which the complainant was yet to receive and further the Petitioners had promised to give the complainant a Multi CD changer Music system having remote control of a branded Company which was not provided at the time of delivery and instead, a music system of cheaper quality without any remote control facility was given. The accessories as promised by the Petitioners were not provided to the complainant. According to the complainant, the Petitioners had not given the invoice of sale of the car in the name of the complainant, on the date of delivery but was given at a later point of time for which the complainant had to incur an additional cost for registration of the car. According to the complainant, the accused persons had promised to exchange the car with future model of the said company for which written documents though promised were not provided. The complainant also alleged that the Petitioners had also refused to honour their commitment of taking Opel car of the complainant at an exchange offer of pre-designated price of Rs. 2.5 lakhs, but offered at a lower price of about Rs. 1.5 lakhs as maximum and thereby they committed criminal breach of trust. The complainant also alleged that the Petitioners had also refused to honour their commitment of taking Opel car of the complainant at an exchange offer of pre-designated price of Rs. 2.5 lakhs, but offered at a lower price of about Rs. 1.5 lakhs as maximum and thereby they committed criminal breach of trust. According to the complainant, the entire transaction of selling new Skoda Car by the Petitioners to the complainant was based on promise of the Petitioners to exchange the Opel Corsa Car of the Petitioner along with the differential value with that of the New Skoda Car. According to the complainant, though he had purchased the car in question from the Petitioners, yet the Petitioners refused to keep their compromise and thereby cheated the complainant. On the basis of these averments the complainant having been filed, the initial statement of the complainant was recorded on 18.1.2007. After recording of the initial statement of the complainant, the complainant filed a petition for time for which the learned Magistrate granted time till 22.1.2007 for further enquiry. It appears that the case was taken up on 2.2.2007 and no enquiry was undertaken inasmuch as no witness was examined on behalf of the complainant. On that date learned Magistrate on perusal of the complaint petition, initial statement of the complainant took cognizance of the offence u/s 420/34, IPC by the impugned order. The said order is impugned in this application u/s 482 Code of Criminal Procedure. 3. I have heard Mr. Gajendra, learned Senior Counsel for the Petitioners and Sri Roy, learned Counsel appearing for the opp.party. In the instant case learned Magistrate has taken cognizance of the offence u/s 420, IPC. Cheating is defined in Section 415, IPC and is punishable u/s 420, IPC. Section 415, I.P.C. is set out below for reference: 415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'." Section 415 IPC thus requires - 1. deception of any person. 2. deception of any person. 2. (a) fraudulently7 or dishonestly inducing that person - (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. The Hon'ble Supreme Court in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, while considering the scope and ambit of Section 420, IPC held in paragraph 41 as follows: 41. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would don't do or omit to do if h weren't so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning. 4. Keeping in view the ratio of Inder Mohan Goswami (supra) I am of the considered opinion that the allegation as set out in the complainant is merely a failure on the part of the Petitioners to keep their promise. Mere failure to keep somebody's promise would not make himself liable for being prosecuted u/s 420, IPC. Therefore, the allegation as set out in the complaint petition even if taken at its face value and accepted in its entirety do not constitute the offence alleged of. 5. Mere failure to keep somebody's promise would not make himself liable for being prosecuted u/s 420, IPC. Therefore, the allegation as set out in the complaint petition even if taken at its face value and accepted in its entirety do not constitute the offence alleged of. 5. Apart from the above, I also find that the learned Magistrate after recording the initial statement of the complainant on 18.1.2007 adjourned the case for further enquiry. It would obviously mean enquiry as visualized u/s 202 of the Code. Since the learned Magistrate has postponed the issue of process it was incumbent on the learned Magistrate to cause an enquiry as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. It was also open to the learned Magistrate to take evidence of witnesses on oath as provided under Sub-section (2) of Section 202 of the Code. It appears, the learned Magistrate without taking recourse to these methods, took the impugned cognizance by order dated 2.2.2007. This procedure, taken recourse to by learned Magistrate, in my considered opinion, is impermissible. True it is the learned Magistrate, can at once take cognizance on filing of a complaint and recording initial statement of the complainant u/s 200 of the Code. This was not adopted and on the contrary, the learned Magistrate decided to hold an enquiry and without holding any enquiry, passed the impugned order of cognizance which is not in consonance with the procedure prescribed in the Code. 6. For the reasons stated above, the impugned order taking cognizance and proceeding in ICC Case No. 206 of 2007 in the file of learned S.D.J.M., Bhubaneswar are quashed. Criminal Misc. Case is accordingly allowed. Final Result : Allowed