IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6538 of 2000 THE MANAGING DIRECTOR, MR. A.M.NAIK Versus DR. HAIR KRISHNA SINGH & ANR with Cr.Misc. No.7577 of 2000 DHIRENDRA PRASAD & ORS Versus DR. HARI KRISHNA SINGH & ANR ----------- For the Petitioners : Sarvshri Ray Shivaji Nath, Sr. Advocate Indrajeet Singh & Ray Saurav Nath, Advocates. For the O.P. No.1 (in both cases) : Shri Janardhan Pd. Singh, Advocate For the State : Shri Jharkhandi Upadhyay, APP ----------- 4/ 2.7.2010 Heard learned counsel for the parties. The two petitions arise out of Complaint Case No. 1304 (C ) of 1999. The first petition has been filed by Shri A.M. Naik, who was the Managing Director of M/s Larsen and Tourbo Limited (hereinafter referred to as L & T Limited), who manufacture and market Clarity Ultra Sound Machine which is used by medical practitioners in their profession. The other petition has been filed by the three employees of the distributors of the said company, from the local office of the said company at Patna. The offences for which the petitioners in the two 2 petitions have been summoned are under sections 420 and 406 of the IPC. The allegation is that the complainant purchased Ultrasound Machine from the company of the petitioners and payments were made in two installments, the first in March, 1998 and the next in April, 1998 of Rs.4,95000. The delivery of machine, as per the complainant, was given to the complainant on 15th May, 1998. The complainant stated that the machine was not functioning properly and satisfactorily an it was rather afflicted with incurable mechanical defects and information and complain to that effect were placed and lodged before the manufacturers through petitioners Dhirendra Prasad and others but, no meaningful steps were taken to satisfy the complainant’s grievance and, lastly, a Pleader’s notice was given under registered postal cover on 13.11.1998. But again, no proper constructive response was made by the petitioner’s company and that caused a loss of rupees ten lacs to the complainant which included the bank interest, professional damages etc. The complainant further stated that it constituted offence under sections 420 and 406 of the IPC. While I was hearing the two petitions, I found that 3 petitioner Shri A.M. Naik, indubitably, was the Managing Director of M/s L & T Limited and as may appear from the nature of position he was holding in the company, he could be responsible mainly for formulating the policies of the company, implementing them, may be, on the manufacture of its goods also. The petitioner A.M. Naik may not be said to be engaged in marketing of the product of the company, much less, selling the products in market, as appears done by the agency of the Company in Patna, it is meant for other petitioners of the other petition. In that view of the matter, no criminal liability for supplying a defective machine could be fastened on Shri A.M. Naik who was Managing Director and the order summoning him is completely erroneous. As regards the other petition on behalf of the three petitioners, the allegations have been made generally against the company and some of its officials. There is no definite allegation made against any of the petitioners or employees as to how they deceived the complainant to deliver the price of a machine and how they could be said to be responsible for delivery of a faulty ultrasound machine. It appears admitted by virtue of the document furnished by the complainant 4 himself which appears at page 46 of the petitions that the defective machine was replaced by a new one and the new machine as may appear from the subsequent annexure at page 47 was kept under observation for quite some time and it was found that no problem was being reported or observed in the functioning of the machine which was delivered as replacement to the earlier one to the complainant on 4.2.1999. At this stage, learned counsel for the complainant has pointed out to the court that it might be a fact that the complainant had missed pointing out or alleging in the complaint petition that the second machine which was received by him on 4.2.1999 also turned to be a defective one and as such, the full price which was paid by the complainant was misappropriated as the company was supposed to supply a machine quite in order which could satisfy the complainant’s professional needs. That machine also tuned out to be a defective one and that fact was stated by the witnesses in their statements under section 202 of the Code of Criminal Procedure. It was contended, as such, that the court has to take into account the statement of the complainant’s witnesses also and if it does that, it could not be said that the 5 summoning of the petitioners Dhirendra Prasad and two others could be bad in law. I find from the perusal of the annexures at pages 46 and 47 of the petition and some others on some subsequent pages that another machine was delivered to the complainant as replacement for the first one supplied to him, was reviewed as regards its working in respect to the professional needs of the complainant at different intervals. There is a report on the letter head of the complainant itself which appears at page 47 and it indicates that the machine was observed by the employees, agents or engineers of the company and was found having no problem. This is one aspect of the matter. The other aspect is that there is no averment or allegation that the complainant had ever confronted any difficulty on account of mechanical failure or on account of manufacturing defect that the second machine was not proving useful to him and further that on that account, he felt cheated and defrauded. If there is no statement made in the complaint petition to the above effect and on the above line, then this court has some difficulty in sustaining the order of summoning as regards the three petitioners of the other 6 petition also. Besides, 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 always to earn goodwill. 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. In the court’s view, as such, it could be a good litigation for prosecuting before a consumer forum and as regards the criminal law, this appears a complete abuse of the process of the court that prosecution vide above noted complaint petition could be allowed to continue. In the above view of the matter, the whole prosecution initiated by Complaint Case no. 1304 C of 1999 7 pending in the court of J.M. Ist Class, Patna is hereby quashed. However, it is made clear that the complainant shall have the liberty to agitate the matter before an appropriate forum, like, the Consumer Forum or Commission and if any time has intervened which could cause obstruction in legally approaching the said forum, the same should not intervene in filing such petitions as the complainant, to me, appears diligently prosecuting the present petition. Both the applications stand allowed with the above liberty of approaching an appropriate forum to the complainant for the redressal of his grievances. Anil/ ( Dharnidhar Jha, J.)