IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.36923 of 2008 1. Faiz Ahmad, son of Shamim Ahmad, Director Marketing, M/s. Logtek (India) Pvt. Limited, at 403, F.I.E. Patparganj, Delhi-110092. 2. R. Chhabra, son of N.D. Chhabra, Technical Director, M/s. Logotech (India) Pvt. Limited, at 403, F.I.E., Patparganj, Delhi-110092. 3. I.A. Hashmi, son of Late Dr. Ahmad Ali Hashmi, Sales Executive, M/s. Logotech (India) Pvt. Limited, At 403, F.I.E., Patparganj, Officer, Delhi-110092. ……………………………………………….........Petitioners. Versus 1. The State Of Bihar. 2. Dr. Ira Sinha, wife of Dr. O.P. Singh, Prachi Pathology Clinic, Gaushala Road, District-Siwan. ……………………………………….......Opposite Parties. ---------------------------------- For the Petitioners: M/s. Md. Helal Ahmad and S. Tabrez, Advocates. For the State : Mr. Hirday Prasad Singh, A.P.P. For O.P. No.2 : Mr.Uma Shankar Prasad Singh, Advocate. ------------------------------------ O R D E R 4. 16.11.2011. Through this application, the petitioners have invoked the extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashing the order dated 29.8.2008 passed in Siwan Muffasil P.S. Case No.61 of 2008 by the Chief Judicial Magistrate, Siwan, taking cognizance of the offences 2 under Sections 406, 420, 384 and 386/34 of the Indian Penal Code. 2. In brief, the facts, leading to this application, are that on the basis of the written report of the informant-opposite party no.2, Dr. Ira Sinha, Siwan Muffasil P.S. Case No.61 of 2008 under Sections 420, 406, 384 and 386/34 of the Indian Penal Code was lodged against the accused-petitioners. In the written report, the informant-opposite party no.2 alleged that she is running the clinic in the name of Prachi Pathology at Goshala Road, Siwan. For the clinic, she had purchased an auto- Analyser Ecco Plus Machine from Logotech India Private Limited, 403, F.I.E., Patparganj, P.S. Mandawali, Delhi-92 in the year 2006 on payment of Rs.7,00,000/-. Finding the manufacturing defect, the said machine was replaced by a new one and the second machine supplied by the company again and again went out of order. Sri Faiz Ahmad, the Marketing Director, Sri R. Chhabra, Technical Director and the Sale Executive, Sri I.A. Hashmi and the engineers were also facing hardship in repairing the machine and they told that there is 3 manufacturing defect in the machine. Then she asked them to return the price of the machine on which they told that the company has launched a new Fully Automatic Random Access Analyser Miyura-200 Machine which is trouble free and if any defect would be find out in the machine, that will be removed within three years and the defects will be rectified within five days without costs. The aforesaid officials of the company also told that the running machine would be replaced by Miyura Machine-200 on additional payment of Rs.4,00,000/-. While she refused to purchase the Miyura Machine-200 but on allurement she became ready to replace the auto- Analyser Ecco Plus Machine by Miyura Machine-200 on additional payment of Rs.4,00,000/- on assurance given by them that if the machine will not function properly, the price of the same would be returned within three years. Accordingly, the agreement deed was prepared on the stamp paper of Rs.100/- and Miyura Machine-200 was installed on 3.9.2007 on full payment. Thereafter, on 6th of March, 2008, the said machine became out of order and information was given to the accused- 4 petitioners no.1 and 2 on which one Engineer, N.S. Rao, was sent by them on 10.3.2008, who failed to brought the machine in functioning order. In course of opening the parts of the machine, the screw driver slipped from his hand causing hole in the tube of the machine. On asking him to replace the tube, he told that the accused-petitioners no.1 and 2 have instructed him to replace any part of the machine taking the price of the part. Thereafter, she informed on phone to the petitioners no.1 and 2 and also sent the message through fax and telegram about the non functioning of the machine. Thereafter, she received the fax message and also a letter on 17.3.2008 from accused-petitioner no.2, R. Chhabra and second letter on 20.3.2008 from accused-petitioner no.1, Faiz Ahmad. On reading the letter she became surprised as through the letter she was asked to send the written letter and, thereafter, the machine would be repaired. The informant-opposite party no.2 talked to them on several occasions on phone to repair the machine saying that otherwise she would take the shelter of the Court on which they became annoyed and started to speak in absurd 5 language saying that they would take care if the dispute is raised in the court. On 21.3.2008, one Sahnawaz Ullah, the Engineer of the said Company, had come to repair the machine at the clinic of Dr. O.P. Singh and when request was made to him to repair her machine also, then he replied that he has been forbidden by the petitioners no.1 and 2 to repair the machine unless the letter is not sent. It is also alleged in the F.I.R. that the accused persons with an intention to illegal gain grabbed the money under conspiracy in supplying the machine and due to that reasons, she is suffering from mental agony. 3. The police on investigation of the case submitted the chargesheet in the court of the Chief Judicial Magistrate, Siwan, who on perusal of the chargesheet and case diary took the cognizance of the offence through the impugned order dated 29.8.2008 under Sections 406, 420, 384 and 386/34 of the Indian Penal Code against the accused-petitioners. 4. Learned counsel appearing on behalf of the petitioners submitted that after around seven months of the installation of the Miyura Machine-200, the 6 officials of the company on receiving the complaint of the informant-opposite party no.2 regarding some problem in the machine, immediately sent the concerned Engineer to rectify the same without any delay and on inquiry, it was found that the trouble was due to the rat cut in the tube of the machine due to the negligence on the part of the informant-opposite party no.2. The tube was changed and the matter was immediately informed the informant-opposite party no.2 in writing by the company to the effect that in future it may not be possible to supply free of cost any spare part for which Logotech cannot control, which would appear from Annexure-‘7’ to this application but despite of that the informant-opposite party no.2 started to give threatening and lodged the present case implicating the petitioners. It is further submitted that in spite of lodging of the present case by the informant- opposite party no.2, on receiving the complaint about the defect in the machine supplied to the informant- opposite party no.2, it was diligently and sincerely attended by the employees and the concerned Engineer of the Company, which would appear from the Service 7 Report dated 1.4.2008 as contained in Annexure-‘8’ to this application. It is also contended that from perusal of the allegations as made in the F.I.R., it would appear that simply the case would be made out for non fulfillment of the agreement entered into in between the petitioners on behalf of the company and the informant-opposite party no.2 in business transaction and no offence of criminal breach of trust, cheating or extortion is made out against the accused-petitioners. If the informant-opposite party no.2 has any grievance, the remedy is available to her in civil forum for redressal of her grievance and placed reliance on a decision of a Bench of this Court in case of the Managing Director Vs. Dr. Hari Krishna Singh and another {2010 (4) PLJR 136}. 5. On bare reading of the F.I.R., it appears that the allegation of the informant-opposite party no.2 is that the petitioners, who are officials of the M/s. Logotech (India) Private Limited, have supplied the Miyura Machine-200 by replacing the auto-Analyser Ecco Plus Machine supplied earlier to her on taking an additional amount of Rs.4,00,000/- with an assurance 8 that the machine is trouble free and if any defect would be pointed out, that will be repaired within three years but on coming defect in the machine that has not been removed by the petitioners and the allegation is that the demand was made on behalf of the petitioners for the price of the parts in removing the defect in Machine Miyura-200. The informant-opposite party no.2 made averment in the F.I.R. of suffering from the mental agony due to not taking care to repair the machine by the petitioners’ company. 6. In the case of the Managing Director (Supra), a Bench of this Court held that the complainant appears making averments in the complaint petition of incurring losses on different counts due to the supply of a defective machine by the company. It is true that he has attempted to make out a case of cheating, defrauding and misappropriating his money, but basically, it could not be said that the same was done knowingly with an intent to cheat as in matters of the present nature, no manufacturer could be held having intent to cheat while supplying his products to a customer. The intent is to earn goodwill. 9 However, the allegation of incurring damages may in an appropriate case, like the one in hand, give rise to appropriate causes of action before the Consumer forum. On perusal of the F.I.R. itself, it could not be said that the machine was supplied to the informant- opposite party no.2 knowingly with intent to cheat or price of the machine has been taken by the petitioners by putting the informant-opposite party no.2 or any person in fear amounting to extortion. However, the allegation as made in the F.I.R. incurring monetary loss of supplying defective machine, Miyura-200 and mental agony due to non providing the service to remove the defect of machine may in appropriate cases give rise the cause of action for prosecuting before the Consumer forum. As such, initiation of the criminal proceeding by taking cognizance through the impugned order dated 29.8.2008 passed in Siwan Muffasil P.S. Case No.61 of 2008 by the Chief Judicial Magistrate, Siwan, appears to be an abuse of the process of the court. 7. Under the aforesaid facts and circumstances 10 of the case, the impugned order dated 29.8.2008 passed in Siwan Muffasil P.S. Case No.61 of 2008 by the Chief Judicial Magistrate, Siwan, is hereby quashed and the application is allowed. However, it is made clear that the informant-opposite party no.2 shall have liberty to agitate the grievance before an appropriate forum like Consumer forum or Commission. P.S./A.F.R. (Rajendra Kumar Mishra, J)