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2023 (1) TMI 1355 - HC - Indian LawsSeeking to invoke the inherent powers of this Court under Section 401 read with Section 482 Cr.P.C. for recalling, quashing of the proceedings pending before the learned Metropolitan Magistrate, 9th Court, Calcutta - defective products and their replacements - HELD THAT:- The Magistrate was wrong in his findings/reasons that as the accuseds had not entered their appearance (meaning personal appearance) before the court, the application under Section 205 Cr.P.C. be dismissed - the said powers of a Magistrate can be exercised at any stage of proceedings or throughout the said proceedings and as such the said prayer can be considered right from the stage of commencement of the proceedings even at the stage of issuing summons and the accused need not appear personally. Admittedly the Arbitration clause has not been invoked by the parties. The opposite party has chosen to put the criminal law into motion by initiating the proceedings in this case, alleging breach of contract/trust by the petitioners. The parties to the agreement still have the option to use the Arbitration clause or may seek relief from the appropriate forum, the dispute being civil in nature and also a commercial dispute being given a criminal colour to pressurize the petitioners. In the present case there is no case against the petitioners that they dishonestly induced the complainant to deliver any property. There was neither any inducement nor any delivery of property as required. As such an essential ingredient required to constitute an offence under Section 420 IPC being prima facie not present, the offence alleged cannot be held to be proved against the petitioners/accused. From the petition of complaint, no such materials has been produced to prima facie show that the petitioners intentionally with knowledge cheated the complaint. The dispute between the parties is regarding defective products and their replacements (within time). As such the ingredient required to constitute the said offence under Section 418 IPC is also absent against the petitioners - The Supreme Court in Mitesh Kumar J. Sha vs. The State of Karnataka & Ors. [2021 (10) TMI 1423 - SUPREME COURT] while considering an appeal against an judgment and order of the High Court of Karnataka in an application under Section 482 of the Cr.P.C. wherein the prayer of the petitioners for quashing of proceedings of offence punishable under Section 406, 419, 420 read with Section 34 of the IPC was dismissed, held existence of dishonest or fraudulent intention has not been made out against the Appellants. Though the instant dispute certainly involves determination of issues which are of civil nature, pursuant to which Respondent No. 2 has even instituted multiple civil suits, one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. In the instant case, cognizance has been taken and process has been issued (including attachment and warrant of arrest) by the Magistrate concerned - The materials in the present case including the written complaint clearly shows that there was no dispute from the year 2012 to 2017 (initial period). The ingredients of 'entrustment', dishonest intention leading to delivery of property and cheating with knowledge to cause wrongful loss are not on record. The dispute is clearly civil in nature, may be even a commercial dispute but the ingredients required to constitute the criminal offences alleged are totally absent. In the Present case there is no substance in the allegations and no material exists to prima facie make out the complicity of the applicants in cognizable offences. As such the proceedings in this case should be quashed by exercising its inherent powers for ends of justice and to prevent the abuse of process of the court. The criminal revisional application stand allowed.
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