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2016 DIGILAW 430 (JHR)

Md. Kalim v. Mukesh Bhandari

2016-03-08

PRASHANT KUMAR

body2016
JUDGMENT : This revision application is directed against the order dated 18.06.2001, passed by the learned Judicial Magistrate, Dhanbad in C.P.-1161 of 2000, whereby he dismissed the petitioner's complaint petition under Section 203 of the Cr.P.C. 2. It appears that the petitioner filed a complaint petition stating therein that he is the Director of M/s Sunrise Ingot Private Ltd., which deals with manufacturing of all types of castings. It is then stated in the complaint petition that opposite party no.1 is the Chairman of the M/s Electro-Therm (I) Ltd. And opposite party nos. 2 to 4 are other officers of the aforesaid Company. It is further stated that the petitioner approached the opposite parties for supply of 'Induction Melting Furnace' to which the opposite parties agreed to supply. It is further stated that thereafter, the petitioner had paid altogether Rs.39,81,526/- to the opposite parties. Thereafter, the opposite parties delivered the aforesaid 'Induction Melting Furnace' and installed and commissioned the 'Induction Melting Furnace' in the premises of the petitioner. After the commissioning of the furnace it was detected by the petitioner that it is not functioning up-to the mark. Thereafter, the petitioner informed the opposite parties for rectifying the defects of the aforesaid furnace. It is stated in the complaint petition that on the request of the petitioner, opposite parties sent their representatives for removing the defects. It is stated that the representatives of O.P., admitted that there is some manufacturing defects, which require to be removed. It is stated that even thereafter the opposite parties not removed the manufacturing defects, thus, they cheated the petitioner. 3. The same facts stated by the petitioner in his statement on S.A. The witnesses examined on behalf of the petitioner had also said so. However, the learned court below after considering the aforesaid evidences available on the record had concluded that the opposite parties had not deceived the petitioner while supplying the aforesaid 'Induction Melting Furnace' and it appears that there is some civil dispute between the parties for which the petitioner may sue the opposite parties for damages. Accordingly, the learned court below come to the conclusion that no offence under Sections 420 and 406 of the I.P.C. made out, thus, it dismissed the complaint petition. 4. Accordingly, the learned court below come to the conclusion that no offence under Sections 420 and 406 of the I.P.C. made out, thus, it dismissed the complaint petition. 4. It is submitted by the learned counsel for the petitioner that opposite parties induced the petitioner for purchasing the 'Induction Melting Furnace' from them, and on their persuasion, the petitioner paid more than Rs. 39 lacs to them, but the opposite parties delivered the defective 'Induction Melting Furnace' with an intention to cheat the petitioner. Hence, the offence under Section 420 of the I.P.C. made out. 5. On the other hand, Sri Shekhar Sinha, learned Additional P.P. and Sri Kalyan Banerjee, learned counsel for the opposite parties submitted that from perusal of complaint petition as well as the statement of complainant on S.A. and deposition of other witnesses, the offence under Sections 420 and 406 of the I.P.C. not made out. It is submitted that admittedly, petitioner himself approached the opposite parties for supply of 'Induction Melting Furnace'. Thus, the question of inducing the petitioner for supply of aforesaid 'Induction Melting Furnace' does not arise. It is further submitted that even at the time of installation of the 'Induction Melting Furnace', the petitioner did not raise any objection. It appears that after the commissioning of the furnace, some manufacturing defects cropped up which had been admitted by the representatives of the opposite parties. Under the aforesaid circumstance, there is no intention of opposite parties to cheat the petitioner from inception. At best, it can be said that it is a case of breach of contract for which petitioner is entitled for damages. Accordingly, the learned counsel for the opposite parties submits that the learned court below had rightly observed that the petitioner should file a suit against the opposite parties for damages. 6. Having heard the submissions, I have gone through the record of the case. It is an admitted position that the petitioner himself approached the opposite parties for supply of aforesaid 'Induction Melting Furnace', which the opposite parties had agreed to supply. Thus, at the inception, there is no inducement on the part of the opposite parties. In that view of the matter, one of the essential ingredients of the offence under Section 420 of the I.P.C. is not missing. Thus, at the inception, there is no inducement on the part of the opposite parties. In that view of the matter, one of the essential ingredients of the offence under Section 420 of the I.P.C. is not missing. It further appears that the opposite parties had supplied and installed the 'Induction Melting Furnace' in the factory premises of the petitioner, but after its commissioning, some defects cropped up. For removing the same, the opposite parties sent their engineers. This fact also shows that the opposite parties have no intention to cheat the petitioner, because if they would have such intention, they ought not have sent their engineers for rectifying the defects of the 'Induction Melting Furnace'. Later on, it was found that there is some manufacturing defects in the aforesaid furnace, which require change of some equipments. This also shows that the opposite parties admitted that there is some manufacturing defects in the 'Induction Melting Furnace' and thus, I find that they have no intention to cheat the petitioner. 7. There is no allegation in the complaint petition that petitioner entrusted any property to the opposite party which the opposite parties had misappropriated. Thus, I am of the view that no offence of criminal breach of trust made out against the opposite parties. 8. Under the said circumstance, from the facts mentioned in the complaint petition as well as in the statement of complainant on S.A., I find that the ingredients of cheating and criminal breach of trust as enumerated under Sections 406 and 420 of the I.P.C. are not available in this case. Therefore, the learned court has rightly concluded that no offence of cheating and criminal breach of trust made out. Thus, I find no illegality in the impugned order. Accordingly, this revision application is dismissed. However, it is made clear that the petitioner, if so desire, may file a suit for damages as observed by the learned court below.