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2016 DIGILAW 897 (CAL)

Crompton Greaves Ltd. v. State of West Bengal

2016-11-21

INDRAJIT CHATTERJEE

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JUDGMENT : Indrajit Chatterjee, J. 1. This revisional application has been filed under Section 482 of the Code of Criminal Procedure, 1973 wherein the petitioners, i.e. the accused persons have prayed for quashing of Complaint Case No. 28092 of 2010 under Sections 420/120B of the Indian Penal Code now pending before the learned Metropolitan Magistrate, 8th Court, Calcutta and also have assailed the orders dated 17/9/2010 and 29/09/2010 passed in connection with that case. 2. The case as made out in the complaint which I get from page 54 may be stated in brief thus : As per representation made by these accused persons in the year 2006, an order was placed by the complainant to supply one machine as mentioned in paragraph 4 of the complaint and Rs. 2 lakh was advanced. It was also stated in the complaint that the accused persons allured the complainant party with the features of the machine. Be that as it may, the machine was ultimately installed on or about June or July, 2006 and the residue amount of Rs.6,21,825/- was paid by the complainant party to the accused company. Thereafter, the petitioners claimed in the complaint that after the machine was installed, the machine developed numerous complaints and the function of the machine caused substantial production loss and mental agony and the matter was duly communicated to the accused persons. There was exchange of letters, the accused persons made necessary repairs but these repairs went in vain. Thereafter, the complainant made several reminders and even held a meeting wherein the accused persons admitted their wrong and undertook to repair the faulty parts of the machine without any delay but actually that did not happen. It was further claimed by the complainant that either the machine be replaced and the machine be made workable or the entire value of the machine be repaid to the complainant. 3. All these did not yield any result and as such, this complaint was filed under Section 420 read with Section 120B of the Indian Penal Code. It was further claimed by the complainant that either the machine be replaced and the machine be made workable or the entire value of the machine be repaid to the complainant. 3. All these did not yield any result and as such, this complaint was filed under Section 420 read with Section 120B of the Indian Penal Code. After the complaint was filed and cognizance was taken, the case was transferred to the present trial court where one witness, namely, A. K. Guhathakurta was examined under Section 200 of the Code of Criminal Procedure and on perusal of the documents, the court preferred to issue summons against the accused persons (the petitioners before this court) in respect of the offences punishable under Sections 420 and 120B of the Indian Penal Code. Being aggrieved as against the order of issuance of summons, these present proceeding has been filed. 4. It has been submitted by Mr. Basu, learned Sr. Advocate, appearing on behalf of the petitioners that even on a plain reading of the complaint, this court may come to the conclusion that no case of cheating was made out and the story of criminal conspiracy also did not arise at all as in the complaint there is nothing to come to a prima facie case that one conspiracy was hatched by these accused persons. 5. Mr. Basu has cited several decisions of the Apex Court as decided in Criminal Appeal No.1443 of 2007, Criminal Appeal No.1843 of 2010, Criminal Appeal No. 834 of 2002 and other judgements of the Apex Court as reported in 2002 SCC (Cri) 129, 2002 SCC (Cri) 140, (2009)1 SCC (Cri 996, 2009 SCCL. COM 2960, (2005)10 SCC 228 , 2003 C Cr. LR (Cal) 249, (2008)2 SCC (Cri) 692, (2008) SCC (Cri) 686, 1998 SCC (Cri) 1400 and also a decision of this court as reported in 2003 C. Cr. LR (Cal) 249. 6. COM 2960, (2005)10 SCC 228 , 2003 C Cr. LR (Cal) 249, (2008)2 SCC (Cri) 692, (2008) SCC (Cri) 686, 1998 SCC (Cri) 1400 and also a decision of this court as reported in 2003 C. Cr. LR (Cal) 249. 6. He submitted that the crux of all these decisions of the Apex Court and also of our High Court is that it is a settled law that for establishing offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or misrepresentation or that in a contract for supply of goods, fraudulent or dishonest intention must be shown to be existing from the very beginning of the transaction and mere failure to keep the promise at a subsequent stage, offence of cheating cannot be made out. It was further decided by the Apex Court in (2005) 10 SCC 228 that some use of word ‘cheating’ in the complaint would not be sufficient and the substance of the complaint is to be seen. 7. It was further contended by Mr. Basu by taking me to the evidence of Mr. Guhathakurta examined under Section 200 Cr. P.C. to say that the said evidence is a total departure from the complaint itself as in the complaint it was not stated that the accused gave a machine which was broken or that the accused failed to deliver the machine. He submitted that it was a positive case of the complainant that the accused persons supplied one defective machine. He further submitted that the complainant party did not take up the matter with the concerned Consumer Redressal Forum as this is purely a dispute between the supplier and the purchaser. He further submitted that the document which the complainant party annexed along with the complaint ought not to have been relied upon by the learned trial court as those documents were not public documents and those were subject to proof under the provisions of the Evidence Act. 8. In counter to all these, Mr. Banerjee the learned advocate appearing on behalf of the Opposite Party No.2 submitted that the complaint itself will prove a prima facie case under Section 420 and that all the ingredients of the offence of cheating as envisaged in Section 415 of the said Code has been duly complied with in the said complaint. In counter to all these, Mr. Banerjee the learned advocate appearing on behalf of the Opposite Party No.2 submitted that the complaint itself will prove a prima facie case under Section 420 and that all the ingredients of the offence of cheating as envisaged in Section 415 of the said Code has been duly complied with in the said complaint. He further submitted that if the statement under Section 200 of the Cr.P.C certifies the existence of the complaint then the complaint must be read along with the statement recorded under that section of the Code of 1973. He further submitted that no unnecessary person has been made parties and only people who were party to the prosecution have been aired as accused persons. He has cited the decision of the Apex Court as reported in (2011) 1 SCC 74 (Iridium India Telecom Limited Vs. Motorola Incorporated and Others) on the point regarding suppression of material facts, he concluded his argument by saying that the machine supplied was defective and that was within the knowledge of these accused persons and for that reason only they did not change the machine and passed out the guarantee time and that is ipso facto a circumstance which may prove the element of cheating. 9. I have gone through the complaint and taken into consideration the statement recorded under Section 200 Cr.P.C. It is the duty of the Magistrate to place reliance on such statement as that is the prima facie evidence before the court to act upon either to dismiss the complaint or to issue summon. Let me now say what the said witness (A.K. Guhathakurta) of the complainant deposed under Section 200 Cr.P.C. He deposed that the complainant purchased a circuit breaker on payment of rupees eight lakh in the year 2006 it may be noted that the complaint was filed in the year 2010 that is 4 years after such purchased. This witness also deposed that the accused persons failed to deliver the machine and thereafter he deposed that the accused gave a machine but it was broken. This witness also deposed that notice was issued for replacement of the said machine and so the complaint was filed. 10. This witness also deposed that the accused persons failed to deliver the machine and thereafter he deposed that the accused gave a machine but it was broken. This witness also deposed that notice was issued for replacement of the said machine and so the complaint was filed. 10. In the complaint it has been stated that the accused persons depicted a rosy picture of the said machine which allured the complainant company to purchase the said machine but there is no such assertion in the statement recorded under Section 200 of the Cr.P.C. If the statement referred to above is scrutinized then it will prompt me to say that the complaint was filed as the machine was not replaced. Even the main feature of the complaint was not stated to the Magistrate to convince him to issue process. The existence of the allegation in the complaint is not enough to convince a Magistrate to issue process under Section 204 of the Code of 1973. It is also to be looked into and considered by the Magistrate what the witness deposed under Section 200 of that code before a summon is issued. Process should not be issued mechanically and judicial discretion must be exercised before issuing summon. Unfortunately, the learned Metropolitan Magistrate, 8th Court, Calcutta did not exercise such discretion properly while issuing summon vide Order dated 29.09.2010 and as such the said order is fit to be set aside only on that ground. 11. Myself is also to answer whether the act of the accused persons as noted in the complaint can give rise to the prosecution under Section 420/120B of the IPC. On reading and re-reading the said complaint this Court is satisfied that the ingredients of Section 415 of the IPC was not satisfied. 11. Myself is also to answer whether the act of the accused persons as noted in the complaint can give rise to the prosecution under Section 420/120B of the IPC. On reading and re-reading the said complaint this Court is satisfied that the ingredients of Section 415 of the IPC was not satisfied. The ingredients of Section 415 of the IPC are as follows: (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) any case covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind reputation or property. On scrutiny of the complaint this Court is satisfied that the intention to deceive the complainant company cannot be curved out it to entangle the present petitioners to be framed as accused under Section 420/120B of the IPC. 12. The decisions referred by Mr. Basu about which I have taken a detailed note are enough to show that existence of a dirty mind since the inception of the contract was a must. Considering the factual aspect of this case this Court is satisfied that even if the entire complaint is believed it cannot lead this Court to anywhere to attract the ingredients of the cheating as defined in Section 415 of the IPC. 13. This Court is not unmindful of the decision of the Apex Court as cited by Mr. Banerjee in Iridium (supra). Putting the said decision on the factual aspect of this case where the complainant waited for 4 long years to file a complaint this Court cannot apply the said decision of the Apex Court in this case. It is difficult to believe that there was deception on the part of the accused persons to prompt the complainant company to purchase the said machine. 14. The crux of the complaint is that the machine was defective and that such defect manifested after 2 years of such purchase and that the machine was in use during those 2 years. It is difficult to believe that there was deception on the part of the accused persons to prompt the complainant company to purchase the said machine. 14. The crux of the complaint is that the machine was defective and that such defect manifested after 2 years of such purchase and that the machine was in use during those 2 years. Just after purchase the machine did not develop any defect and as such I reiterate that it is difficult to impute criminal liability on the accused persons by attracting Section 420/120B of the IPC. 15. Thus, in view of discussion so long made this Court is satisfied that this revisional application is fit to be allowed and I do that. 16. There will be no order as to costs. 17. Hence, the proceeding of complaint case no.28092 of 2010 now pending before the learned Metropolitan Magistrate, 8th Court, Calcutta is hereby quashed. 18. The office is directed to communicate this order to the learned trial court at once. 19. Certified copy of this judgment, if applied, be supplied to the party after making all formalities. Later:- Just after the judgment was passed, it is submitted by Mr. Banerjee that the decision of this court is factually wrong as this court in its judgment has stated that the defect in the machine manifested after two years of such purchase (Page No.8 of the judgment). Mr. Banerjee further submitted that the date as mentioned in paragraph 9 of internal page no.4 of the complaint is a typographical mistake and instead of 25.08.2009 it ought not to have been typed as 18.08.2007. This revisional application is pending since 2010 and this typographical defect was not taken care of and that was also not argued before this court even and as such a prayer of Mr. Banerjee cannot be taken care of by this court.