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TMI Blog2020 (6) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Section 482 CrPC and read with Article 227 of the Constitution of India, praying for setting aside and quashing of Complaint Case No. 2974c of 2014, arising out of the complaint filed by the respondent No. 2, now pending before the Court of learned SDJM (S) No. 2, Kamrup (M), Guwahati, whereby the learned Court has taken cognizance of the offence under Sections 409/418/420/465/468, read with Section 120 B of IPC. 4. The petitioner, M/s Ashok Leyland Ltd. is a public limited company, incorporated under the Companies Act, 1956, represented by its Company Secretary and carrying on business of manufacturing of commercial vehicles over the last 66 years. Mr Binod Kumar Dasari is the Chairman and Managing Director of Ashok Leyland, who is responsible for the day-to-day affairs of the company. 5. The petitioner, M/s Skylight Automotive Pvt. Ltd. is a company incorporated under the Companies Act, having its registered office at Jalukbari, Kamrup, and working as an authorized dealer of light commercial vehicle manufactured by Ashok Leyland Ltd. M/s Universal Automobiles is a proprietorship firm and is an commission agent of Skylight Automotive Private Limited. Mofiyal Rahman is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, which was obtained from her by resorting to forgery. Further, it is alleged by the complainant that on the assurance of the accused persons that the said vehicle is very good, which do not require any maintenance for first 2/3 years, that she will earn good from the said vehicle, she purchased the vehicle on good faith. But the vehicle started problems within a short time for which she took the vehicle to the service centre of the accused persons on 22.01.2015 and on various dates, but ultimately the vehicle became unusable, for which she had to return it to the service centre of the accused on 08.09.2015 and then she was told that the engine has been damaged. So, it is submitted that due to inherent manufacturing defects and/or delivery of the second-hand used vehicle in place of new vehicle, the vehicle could not run and in turn, she could not pay the monthly installment of the said vehicle to the Bank and thus, she has been cheated by the accused persons. 7. On the basis of the aforesaid complaint and after examination of the complainant/respondent No. 2, under Section 200 CrPC, the Court took cognizance of the offence under Sections 409/418/420/465/468, read with Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no question of criminal conspiracy and the learned trial Court has failed to satisfy itself as to how and in what manner, the manufacturer and its MD is responsible for commission of the alleged offence. As the manufacturer is in no way connected to the sales and service by dealer, the learned Magistrate, in absence of specific allegation or averment in the complaint about the role of the manufacturer has wrongly taken the cognizance of the offence and hence, the impugned order for taking cognizance as well as the entire proceeding is liable to be quashed and set aside. 9. So far as regards the other accused petitioners, it is contended that the complaint petition has been filed by misrepresenting the facts to get illegal benefits. It is stated that being an authorized dealer of Ashok Leyland light commercial vehicle, the Skylight Automotive is involved in the business of sale and service of Ashok Leyland Dost Express Passenger vehicle and the complainant purchased brand new Dost Express Passenger Vehicle, manufactured by Ashok Leyland with chassis number and engine number (mentioned therein) from the Skylight Automotive, with financial assistance from the State Bank of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal fault and when it was brought to the workshop of the petitioner, it was found that technical defect has arisen due to installation of sub-standard duplicate spare parts. At this stage, the petitioner was unable to respond to the demand made by the complainant to replace the spare parts by providing free servicing as the warranty period was already over as the same is against the manufacturer's policy. 11. Thereafter, the complainant had taken away the vehicle with a declaration that she would repair the vehicle outside at her own risk. Thereafter, the complainant/respondent No. 2 served two legal notices, dated 17.09.2015 and 24.09.2015 to the petitioner/seller/dealer, alleging that the engine of the vehicle got damaged after four months, when it completed 20,000 kilometres run and without providing the servicing as per warranty condition, they have compelled the complainant to get the vehicle repaired at Noor Bharat Engineering Workshop by spending a sum of Rs. 1,42,064/- and Rs. 1,17,800/- and cost of repairing was demanded. In those notices, there was no whisper that a second-hand vehicle was delivered to the complainant and she only demanded the cost of repairing. But acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners. The complainant/respondent No. 2 purchased the vehicle being fully aware about the colour and chassis number etc. of the vehicle and after plying the vehicle for more than 1 year 3 months, the complaint has been lodged, raising such contentions, which is itself not compatible to her own conduct. In the complaint before the Consumer Forum under Consumer Protection Act, vide Complaint No. 99/2016, the respondent No. 2 herself admitted (in paragraphs-8 and 9) that she is unable pay the monthly installment to the Bank, from which she has availed the loan facility and thus, it is evident that she has availed the loan by signing all the relevant documents, including the chassis number, colour etc. and only because to escape the financial liability, she has filed a false complaint. Further, it contends that while buying the vehicle and availing the bank loan, the respondent No. 2 had registered the vehicle, chassis number and engine number for registration with the concerned DTO, which reveals from her own documents. Therefore, the allegations of the complainant that she was given a different coloured vehicle with different engine and chassis number is patently false and conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dealer may have converted the cargo vehicle to a passenger vehicle and sold the same to the complainant, Ms Purnima Dey, as per the requisitions placed by complainant, Ms Purnima Dey. Ms Purnima Dey could not have unknowingly purchased a cargo vehicle meant for carrying doods, for carrying passengers. If the dealer or customer converts a cargo vehicle into a passenger vehicle without the information or knowledge of the petitioner No. 1, it is not the responsibility of this petitioner No. 1. Further, the same would be certainly in consultation and as per requirement of the customer, as the customer would have accordingly ordered the dealer. It the DBM system, the said vehicle was recorded to be sold by the dealer to one customer, namely, Mr Gautam Das. It is, however, upon going through the contents of Petition No. 4 of 2017, filed by the respondent No. 3, the petitioner No. 1 came to know that the said vehicle bearing Engine No. YEH018022P and Chassis No. MB1AA22EXERY74793, was, it seems, later on, sold by the respondent No. 3 to the complainant. The petitioner No. 1 has no knowledge of the same nor such conversion of the cargo vehicle to passenger vehicle. 16. The complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also stated about her sending legal notice, demanding the damage of the vehicle, dated 17.09.2015 and 19.10.2015. Now, the contention of the petitioner that the vehicle of the complaint was sent to the dealers for regular servicing as per the norms of the Company and accordingly, free servicing was provided as per rules and remaining servicing were paid servicing and there was nothing to show that the vehicle was brought to the dealer for any damage immediately after such purchase. As those documents filed by the petitioners regarding servicing etc. are not challenged by the respondent No. 2/complainant, let us have a look upon the documents, annexed with the present petition. Be it mentioned that the complainant booked the vehicle on 03.06.2014 and on some payment, the sale certificate was issued in the name of the complainant on 04.08.2014 with details including the colour. Invoice of Rs. 7,25,887.64 was issued by Skylight Automotive Pvt. Ltd. to the complainant and on 05.09.2018, another sale certificate was issued by Skylight Automotive for aqua-green vehicle (vide Annexure-2, Form-21). 19. The copies of job-cards vide Annexure-5 series, are admitted documents regarding s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginning, holds no good, particularly, by the documentary evidence. Even though she booked a white coloured vehicle initially, but subsequently, she took delivery of a different coloured vehicle as per the invoice and sale certificate. In the RC, the vehicle was being referred as new vehicle (RC dated 12.09.2014) with chassis number and vehicle number. As per the warranty, purchaser is entitled to free-servicing upto 50,000 kilometres running of the vehicle or one year, whichever is earlier. In the present case, the complainant has exhausted her free servicing on 29.05.2015 as by that time, vehicle run 52418 kilometres. May be, in the last part of April or middle of the May 2015, the vehicle competed 50000 kilometres and till then, there was no complaint whatsoever regarding the condition of the vehicle. 22. Now, let us come to the legal notice sent by the complainant to the petitioners' side, vide Annexure-7 and Annexure-8. The first legal notice was sent on 17.09.2015, i.e., after more than one year of purchase of the vehicle, complaint has been raised that the complainant/respondent No. 2 has been fraudulently delivered a different vehicle on 05.09.2014, other than the vehicle m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant/respondent No. 2 although stated to be a layman, but documents reveal that she signed everywhere in English and she made no any formal complaint before the concerned authority that the vehicle was found with inherent defect and it was a second-hand vehicle. The complainant in the complaint petition before the Court has not disclosed all about the date, time etc. of availing free servicing of the vehicle for and about the warranty period and by suppressing all, the complaint has been lodged on 22.01.2016 after more than one year of purchasing the vehicle and expiry of warranty period. The vehicle was purchased on bank-finance and the complainant is required to pay installment. During the said period, the vehicle run as a passenger vehicle through driver and after about one and half year of plying such vehicle, such a complaint has been lodged. 24. The learned trial Court directed for a limited investigation under Section 202 CrPC, and the IO has conducted an investigation and submitted a report, but has also registered the same as Gorchuk PS Case No. 529/2016 under Sections 409/418/420/465/468/120 B IPC. The learned trial Court, however, ignored the factum of registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the Court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397 (2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor and Ors. v. State of Punjab and Ors. MANU/SC/0210/1979 : AIR 1980 SC 258 : (1980) 1 SCC 43. In this very case, this Court has observed that inherent power under Section 482 may not be exercised if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other person so to do, commits "criminal breach of trust". A careful reading of Section 405 shows that the ingredients of a criminal breach of trust are as follows:- i) A person should have been entrusted with property, or entrusted with dominion over property; ii) That person should dishonestly misappropriate or convert to their own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; and iii) That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. Entrustment is an essential ingredient of the offence. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code and Section 409 IPC provides criminal breach of trust by public servant, or by banker, merchant or agent. 28. Section 415 of the Penal Code reads thus:- Section 415. Cheating- Whoever, by deceiving any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... white coloured "Dost Express" vehicle manufactured by Ashok Leyland Limited. I went to the (Company's) Sub Centre at Goalpara. Pinku Das, Mafiyal Rahman and Randhir Kr. Das were present there. I was made to sign a number of papers. I purchased the vehicle with the finance arranged by them. They were due to refund me a sum of Rs. 1,25,000/-, but they did not. They got the registration done and delivered me a green coloured vehicle. I wanted to buy a first hand vehicle. They took me to Guwahati and shown a white coloured vehicle. But they did not give me that vehicle. A few days later, my vehicle malfunctioned. It was then that I came to know that the entire parts of the vehicle were damaged. The papers given by them contain the engine number, chasis number etc. of the green coloured vehicle. But the sale letter issued by the bank mentions the chasis number, engine number etc., of the white coloured vehicle. I took the vehicle to the company's showroom at Lakhra for repairing. But they did not repair it. Instead, they threatened me. 31. The selling of vehicle by the manufacturer to the dealer and the purchase of vehicle by customer from the dealer by its own choice by executing all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of no consequence. Except mention of the words 'deceive' and 'cheat' in the complaint filed before the Magistrate and 'cheating' in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MoU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. The breach of contract will always lie in a civil Court. 34. In a recent case reported in 2015 (1)) SCALE 136 (International Advanced Research Centre for Powder Megallurgy and New Materials (ARCI) and others V. Nirma Cerglass Technics (P) Ltd. and others, it has been held as under:- "The making of a false representation is one of the essential ingredients to constitute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely sufficient to prove that a false representation has been made, but, it is further necessary to prove that the respresentaiton was false to the knowledge of the accused and was made in order to deceie the complainant. Distinction between mere breach of contract and the cheating would depend upon the intention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, looking at the allegations in the complaint on the face of it, it is found that no allegations are made, attracting the ingredients of Section 405 IPC. Likewise, there is no any allegations as to dishonest intention at the time of transaction on the part of the petitioners while delivering the vehicle, in order to have wrongful gain to themselves or causing wrongful loss to the complainant, excepting the bold allegation that defective and second hand vehicle was sold to the complainant/respondent No. 2 and servicing to the vehicle was denied. There is also no allegation as to dishonest intention in misappropriating the property. The matter of forgery in conspiracy amongst the manufacturer/dealer and sub-dealer is not made out from the facts and circumstances as enumerated above. The basic essential ingredients of the offences alleged are missing. 38. Admittedly, the complainant/respondent No. 2 has lodged her complaint before the Consumer Forum, claiming damages etc. and the said forum can suitably address the issue regarding awarding compensation for damage etc. and by filing the criminal complaint, an attempt has been made by the complainant to clock the civil dispute to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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