( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 996 OF 2009 Sayyad Tajoddin Sayyad Wahed Ali .. Petitioner Versus Bharatbhai s/o. Mannubhai Sanghavi & Ors. .. Respondents Shri M.M. Patil (Beedkar), Advocate for the petitioner. Shri V.D. Hon, Advocate for respondent No. 1 & 2. Shri B.V. Wagh, A.P.P. for respondent No.3. CORAM : P.R. BORKAR,J. DATED : 15.02.2010 P.C. :- 1. This petition is filed by the original complainant being aggrieved by the judgment and order passed by the Additional Sessions Judge, Latur, in Criminal Revision No. 37 of 2007 decided on 08.07.2009, whereby the learned Additional Sessions Judge set aside the order of issuance of process against respondent Nos. 1 and 2 for committing offences punishable under sections 417 and 418 of the Indian Penal ( 2 ) Code, and dismissed the complaint filed by the petitioner. 2. The present petitioner filed a private complaint in the Court of Chief Judicial Magistrate, Latur, on 25.05.2006 alleging that in September, 2003, the petitioner wanted to purchase truck of Tata 2525 EX model and therefore he made enquiries with respondent No.2-Manohar Kore, who was sub- dealer. However, respondent No.2 told the petitioner that truck of Tusker Super 2214/4/S model of Ashok Layland company was better and more profitable than Tata 2525 EX model truck. He not only recommended, but also gave a guarantee that such truck can give average of 2.75 kms. per liter even if 30 to 35 tones load is carried by truck. Relying on the word of respondent No.2 – Sub-Dealer of Ashok Leyland company regarding average of 2.75 kms. per liter and recommendation of Shri P.R. Pawar, Marathwada Sales Manager, the petitioner purchased Tusker Super 2214/4/S model truck of Ashok Leyland company. The delivery of the truck was taken on 07.11.2003. Thereafter, the petitioner constructed body on the chesis, so also obtained insurance on the truck. He spent Rs.2.75 lacs on the truck. The truck was given registration No. MH 24- F-5577. National permit was obtained for the truck. ( 3 ) However, when the truck was brought on road for plying, the complainant/petitioner realised within few days that the truck was giving average of less than 2 kms. per liter and therefore he immediately approached respondent No.2. At that time respondent No.2 said that he would get repaired/replaced Bosch pump & nozal and thereby the average of the truck would be increased. Accordingly, the repairs were carried out on 22.10.2003. Within 15 – 20 days thereafter it was again found that the average was less than 2 kms per liter. Therefore, the petitioner informed the Head of Workshop and In-charge Shri Gavane at Aurangabad, who said that for engine becoming free, the vehicle must be plied for 10,000 kms. Inspite of plying the truck 10,000 kms., there was no change in the average and thereafter Shri Gavane changed Bosch pump and nozal. Still there was no change in the average of the truck. Thereafter, with mechanic of Sagar motors, truck was sent to Nagpur. But the petitioner did not get the average as promised. It is further stated that as suggested by Shri Gavane, the truck was plied for 20,000 kms. still the average had not gone up. The petitioner made complaint to respondent No.2. On 03.06.2004 again Bosch pump and Nozal were sent for repairs to Surbhi Diesel. Even then there was no change in ( 4 ) the average. Therefore, Shri Gavane asked to send truck to Aurangabad. Accordingly, on 02.10.2004 the company had carried out repairs, but the truck was not giving average as promised. Therefore, on 22.11.2004, the petitioner again gave truck in the custody of company. Thereafter, the petitioner resorted to other ways including proceeding on fast to get relief. But, on the assurance of respondent No.1 the petitioner gave up his fast. Thus, it is said that loss of about Rs. 10,00,000/- is sustained by the petitioner. In para 7 of the complaint, it is stated that the truck was purchased on finance from a finance company and it is in the custody of respondent No.1 for last 1 and 1 ½ years and the petitioner had to pay installments with interest to the finance company. 3. After above said complaint was received, verification statement was recorded. The learned Magistrate sent the matter for enquiry to police, which is said to be under section 156 (3) of Cr.P.C. The police sent report. Considering report, verification and the complaint, the Magistrate issued process under section 417 and 418 of the I.P.C. by his order dated 21.02.2007. Said order of issuance ( 5 ) of process was challenged before the Sessions Court in Criminal Revision No. 37 of 2007 as stated earlier. The learned Sessions Judge, Latur, by his order dated 08.07.2009 allowed the Criminal Revision and set aside order of issuance of process and dismissed the complaint. It is this order which which is challenged in this writ petition. 4. Heard Adv. Shri M.M. Patil (Beedkar) for the petitioner, Adv. Shri V.D. Hon for respondent Nos. 1 and 2 and A.P.P. Shri B.V. Wagh for respondent No.3. 5. The learned Additional Sessions Judge has considered the main ingredients of cheating in para 8 of his judgment and observed that in this case as per the complaint it was respondent No.2–Manohar More, who gave him representation regarding truck giving average of 2.75 km. per liter. As per Section 415 of the I.P.C. the act must be done either ‘dishonestly’ or ‘fraudulently’ and secondly there must be intentional inducement. It is observed that in the present case the reading of entire complaint does not show necessary mens rea or intention on the part of respondent No. 2. ( 6 ) 6. The learned advocate for the petitioner Shri M.M. Patil (Beedkar) stated that the mens rea or intention has to be gathered from the evidence and when the learned Magistrate has said that he was prima facie satisfied regarding cheating, there should not have been interference in the Revision. He referred to para 5 of Sandu Keshav Singh Shinde and Ors., V/s. Ramsingh Mahasingh Shinde and Ors., 1996 (1) B.Cr.C.629, which is as follows:- “5. The matter can be considered from another angle when the magistrate records his satisfaction as to the existence of breach of peace in his preliminary order, the revisional Court cannot go into the sufficiency or otherwise of the material on which the magistrate’s satisfaction was based. In the present case, the learned Additional Sessions Judge, therefore, seems to have exceeded his power of revisional jurisdiction in disturbing preliminary order passed by the Executive Magistrate.” 7. In this case, in my opinion, the Additional Sessions Judge was very much within his power and jurisdiction to examine the allegations made in the complaint to find out whether ingredients of cheating were present. In para 9, the learned Sessions Judge observed that the case of ( 7 ) the petitioner is that respondent No.2 represented the complainant/petitioner that truck of Ashok Leyland company is good and would give fuel average of 2.75 kms. Per liter. From the conduct of respondent Nos. 1 and 2 as appearing from the complaint itself clearly shows that they have done their best to correct whatever problem that was there in giving good fuel average. Again and again attempts were made to repair and replace fuel pump and nozal. So, this subsequent conduct regarding which there are admissions in the complaint itself, indicates that there was no dishonest or fraudulent intention. Moreover, the learned Sessions Judge rightly observed in para 9 of his judgment that it is nowhere case of the complainant that all trucks of that particular model of Ashok Leyland company, were not giving average of 2.75 kms. per liter. So, if other trucks from same model are giving such average, in that case, it cannot be said that the representation was false. The revisional Court observed that the truck sold to the complainant was not the only truck manufactured. It was not the only truck which was sold. So, even if the representation was found to be incorrect in respect of particular truck that was sold to the petitioner, it cannot be said to be dishonest or fraudulent ( 8 ) representation intentionally made. So, I agree with the observations of the Additional Sessions Judge that even taking all facts stated in the complaint are true, still offence of cheating is not made out. Moreover, as observed by the revisional court in paragraph 8, fuel efficiency depends upon several other factors like road condition, load, driving habit etc. 8. Section 418 of the I.P.C. deals with cheating with knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract to protect. In this case, there is nothing on record to show that respondent Nos. 1 and 2 had any knowledge that particular truck that was sold to the petitioner would give less average than the average which other trucks of same model are giving. There is no averment regarding this aspect. I agree with the conclusion in para 10 of the judgment that the fraudulent or dishonest intention is not spelt out in the complaint. The revisional Court also referred to illustration (g) under section 415 of the Indian Penal Code. ( 9 ) 9. In the facts and circumstances of the case, in my opinion, this is not case where interference can be made with the findings arrived at by the revisional court. In the result, the writ petition is dismissed in limine. [P.R. BORKAR,J.] snk/2010/FEB10/crwp996.09