IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1609 of 2009 MD.TAJUDDIN & ANR Versus STATE OF BIHAR ----------- 4, 23.7.2010. Heard. The allegation in the complaint petition is that after purchasing a washing machine of a particular make from the particular retailer on payment of a particular amount, the machine went defective time and again and in spite of repair being carried out, the machine could not be working satisfactorily as a result of which the complainant wanted the manufacturers through the present petitioners to replace the machine by a fully functional machine. That not having been done, the complainant filed the complaint petition. The learned Magistrate after holding an enquiry into the allegations came to the conclusion that the grounds were sufficient for proceedings against the petitioners as they appeared committing offences under Sections 406 and 420 of the IPC. After having perused the complaint petition what the court finds is that there was no entrustment of the property by the - 2 - complainant to the accused persons. It was a commercial transaction of selling and purchasing manufactured goods, may be in the form of a washing machine. While buying the machine the complainant was required to pay a price which could be fixed by the manufacturers and on payment of the price the complainant admittedly received the machine. The machine was defective. It could not be giving rise to an inference that it could be an act which could be said to be dishonest only with a purpose to misappropriating the entrusted properties. Above all, there was no entrustment of any property which pre-supposes the transfer of a particular property from one person to the other who is accused of committing the offence. Likewise, there is no element of cheating so that one could justify the summoning of the petitioners for committing the offence of Section 420 of the Penal Code. In addition to the above facts of the case do not indicate that on account of being cheated the complainant was made to deliver to the accused persons any property. Thus, the court finds that the ingredients of the two Sections for which the accused persons - 3 - were summoned were at all not constituted by facts alleged. In the result, the order taking cognizance dated 17.6.2008 in Complaint Petition No.1508(C)of 2008 appears completely erroneous and the continuance of the proceedings of that complaint petition shall be a complete abuse of the process of the court. In the above circumstances, the petition is allowed. The order impugned is hereby quashed. Before this court parts with the order it wants to point out that the facts alleged might constitute a good cause for action before a forum created for the redressal of the grievances of the consumer. If the complainant approaches any forum of that nature, the belated filing of the complaint petition shall never be treated as intervening into her rights to approach the forum. B.Kr. ( Dharnidhar Jha, J. )