IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.07.2009 CORAM: THE HONOURABLE MR.JUSTICE C.S.KARNAN Crl.O.P.No.3069 of 2002 and M.P.No.1607 of 2007 1. Maruthi Udhyog Ltd., represented by its Managing Director R.S.S.L.N. Bhaskarudu 2. R.S.S.L.N. Bhaskarudu .. Petitioners Versus V. Lakshmanan represented by Power Agent A.M.Kuruvilla .. Respondent Petition filed under Section 482 Cr.P.C to call for the records in C.C.No.5929 of 2001 pending on the file of XIV Metropolitan Magistrate, Egmore, Chennai, and quash the same. For Petitioners : M/s. S.Raghunathan (No appearance) For Respondent : Mr.P.Visveswaran Government Advocate (Crl. Side) O R D E R The petitioners have filed the above petition to call for the records in C.C.No.5929 of 2001 pending on the file of XIV Metropolitan Magistrate, Egmore, Chennai, and quash the same. 2. The respondent/complainant has stated as follows: The complainant contended that on seeing an advertisement in the papers, he approached the third accused for the purchase of a brand new omni van, white colour. On 22.10.1997, the fifth accused, namely Shibu Matthew, Sales Executive met the complainant and after discussion, it was agreed that the third accused would arrange the loan for the said vehicle from the sixth accused namely M/s. Maruthi Countrywide Auto Financial Services. 3. The vehicle was identified by the fifth accused/sales executive to be purchased from the first accused, namely M/s. Khivraj Motors Ltd. The complainant was made to believe by the third https://hcservices.ecourts.gov.in/hcservices/ accused, 4th and 5th accused that a brand new vehicle would be provided and loan would be arranged. The complainant paid a sum of Rs.20,000/- to the fifth accused on 24.10.1997. Out of the said amount, Rs.16,000/- was paid to the first and second accused towards premium, so that the vehicle could be delivered within 48 hours at the premises of the complainant. The fifth accused handed over receipt of Rs.16,000/- towards additional margin money over and above the price fixed by accused No.8, namely M/s. Maruti Udyog Ltd. Further, the complainant paid Rs.49,550/- to the fifth accused towards payment for the new van. On 29.10.1997, a cheque for Rs.4,680/- was encashed by the first accused for incident premium of the new van. The amount was paid through fifth accused by way of cheque. Thereafter, the fifty accused remained absent from his office and could not be contacted. Hence, the complainant contacted the fourth accused, who confirmed that the formalities were over and the vehicle could be inspected on 31.10.1997 at the premises of the first accused. Subsequently, the fifth accused contacted the complainant and informed him that the vehicle identified by him is a rusted one and hence there was a delay in delivering the vehicle. 4. Subsequently, as the fifty accused did not contact him, the P.A on 04.11.1997 went to meet the third accused . The fourth accused was contacted and refund of the amount so far paid was sought by the complainant in order to cancel the order of the new van. The fourth accused represented to the complainant that he had spoken to the second accused an in unambiguous terms confirmed that there is no cause or concern about the quality of the vehicle and that they have identified a brand vehicle in show room condition. The complainant believed the fourth accused and agreed for the delivery of the car latest by 06.11.1997. 5. The complainant submits that on 06.11.1997, the P.A holder took delivery of the van by 7.30 p.m with one key missing. When this was informed to the first accused, it was stated that already a request was made to Maruti for the second key and it will be delivered to the complainant at the earliest. 6. The complainant submits that the registration certificate was given by the sixth accused only in January 1998 and the registration number of the vehicle is TN 202187. 7. The complainant states that he was using the vehicle and the services were carried out by the authorised dealers of accused No.8 as mentioned in the service manual and warranty conditions. When the colour of the part of the vehicle faded, the complainant took the vehicle to Union Motors Services, Chennai, authorised dealer of accused No.8 and an opinion was sought. M/s. Union Motors Ltd., issued an official certificate on 17.07.1998 that the alleged brand new vehicle is a tinkered, repainted and defective one. The complainant was shocked and verified the engine number and chassis number and found that it tallied with the registration book engine No.1553059 and Chassis Number 220235. But to his surprise the https://hcservices.ecourts.gov.in/hcservices/ registration book mentioned the colour of the vehicle as harvest green. The complainant wanted only a white maruti van and when the book showed it as harvest green, the complainant grew suspicious and questioned all accused. Accused No.2 represented that it was a clerical error. 8. On further enquiry the complainant found out from Union Motors Ltd., that the inspection of the vehicle was carried out by them in the presence of one of the Service Engineers, Mr.M.Lakhmi Narayanan of Maruti Udyog Ltd., who was present at their premises at Ekkatuthangal, Chennai. 9. The complainant referred the matter immediately for an opinion of accused No.8, through their regional office at Chennai regarding the quality and safety of the vehicle. The accused No.8 remained quiet without making any commitments inspite of two inspections carried out by them. The complainant believed that all accused, with a common intention of sharing a wrongful gain by way of a fraudulent act, committed breach of trust and cheated him. 10. The complainant grew suspicious and verified invoice No.1267 dated 31.10.1997 issued by the accused No.1, which shows entries for Rs.1,70,000/- (Rupees one lakh seventy thousand only) dated 29.03.1997 and entry for Rs.25,000/- dated 11.06.1997. The complainant personally reported these discrepancies to the accused No.8 as had paid the first amount on 24.10.1997 only, but no reply was received. 11. The complainant registered a certificate regarding safety of the vehicle but as on date the same was not issued. The non-issuing of the certificate coupled with the back dated entries in the invoice and certificate of Maruti's official dealer led to the conclusion that the vehicle is an old one and not of show room condition for which a customer is entitled when he buys a new vehicle from the show room of a dealer of an ISO certified company. 12. Two approved dealers of Maruti namely M/s. ABT and M/s.Mahalingam and Sons. accredited value of motor vehicles were approached and they also confirmed that the vehicle is a substandard one and not of show room condition. The complainant further states that he was cheated and the cost of the new vehicle had been collected by way of post dated cheque of Bank of Baroda with interest over and above Rs.16,000/- margin money and shared by accused 1 to 9. Accused No.1 and 2 adopted unfair trade practice and extorted money while accused Nos. 4 and 5 induced the complainant by stating that the vehicle is a brand new one and delivery of the vehicle will take place before 48 hours. In fact, a second hand damaged, repainted, tinkered, repaired and done-up vehicle was supplied by the accused, who also deals in second hand vehicles. The complainant states that accused 8 and 9 had not complied with conditions of warranty and their silence amounts to acceptance of their guilt and allowing accused No.1 to continue as their dealer inspite of the allegations https://hcservices.ecourts.gov.in/hcservices/ by the complainant, with proof, goes to show involvement of accused 8 and 9 in the conspiracy. 13. The complainant also submits that he is under continuous and severe stress and also mental agony while travelling by the damaged car as accused Nos. 8 and 9 inspite of repeated request refused to certify the credit worthiness contravening the warrant conditions. 14. The complainant submits that the sixth and seventh accused by showing receipt dated 29.03.1997 and 11.06.1997, which was not given by the complainant have committed an offence under Section 477- A IPC. The complainant submits that accused Nos. 8 and 9 have committed an offence under Section 420 IPC, by not replying or taking any action against the complaint, and have clearly formed a conspiracy in selling old vehicles as new one and ought to be punished under Section 120(b) of IPC. The complainant submits that all the accused have connived and that they ought to be punished under Section 120(b) of IPC along with other offence mentioned above. 15. The cause of action arose at the office of the 3rd, 4th and 5th accused, where the transaction, took place at Anna Nagar, Chennai. 16. The complainant submits that he has incurred a wrongful loss of Rs.2,05,611/37 plus Rs.16,000/- premium at the hands of the accused and he ought to be compensated to the tune of Rs.50,000/- towards damages incurred and legal expenses under Section 357 Cr.P.C. The complainant has mentioned six witnesses and furnished a list of 13 documents in support of his cases. 17. The learned XIV Metropolitan Magistrate has perused complaint and the sworn statement of the complainant for power of attorney and prima facie accepted that a case is made out against A1 to A9 under Sections 420 and 120-B IPC. and has taken it on his file under Sections 420 r/w. 120(b) of IPC against A1 to A9 and summons issued on 06.08.2001. 18. Now, the petitioners/accused Nos. 8 and 9 are challenging the proceedings in C.C.No.5929 of 2001. The first petitioner/Accused No.8 is engaged in manufacturing of cars and second petitioner/accused No.9 is the Ex-managing director of the first petitioner's company. Further, the petitioners contended that the respondent/complainant approached the District redressal forum in O.P.No.478 of 1998, alleging the same allegations mentioned in the private complaint before the XIV Metropolitan Magistrate, Egmore, Chennai. The petitioners have also appeared and filed the reply. While such a petition is already pending for the same cause of action, the respondent/complainant preferred a police complaint in F- 4, Thousand Lights Police Station in Crime No.329 of 1999 for an alleged offence under Section 420, 406, 477 r/w. 120(b) of IPC. The same was closed as mistake of facts by the police. Further, the complaint is baseless and has no prima facie and is lodged only with a view to harass the petitioner. The petitioners submit that even as https://hcservices.ecourts.gov.in/hcservices/ on date, the complainant is utilising the Maruti van purchased from the authorised dealers of the said company and there is no question of replacement after accepting delivery as early as 1997 itself. It is further alleged that the complainant has not made out any unfair trade practice in the said complaint and even if so assuming but not admitting, the respondent can only institute a suit for damages under the sale of goods act which is pure civil dispute. 19. The petitioners contend that as the vehicle was bought under hire purchase, the financier has a lien over the same and hence retains another key. Also the mentioning of a wrong colour of the maruti van is purely a topographical mistake made by the RTO authorities concerned and the manufacturers do not have any objection for the same to be altered in the books. 20. The learned counsels for the petitioners as well as the respondent argued the case and the citations submitted by the respondent's counsel, ie., (1) 1999 (II) CTC 243 (Rajesh Bajaj ..vs.. State NCT of Delhi) (2) IV (2001) CCR 117 (SC) (M. Krishnan ..vs.. Vijay Singh and another) (3) AIR 2002 SC 3372 (K.G.Premshankar ..vs.. Inspector of Police and another) have gone through. 21. After considering the contentions of the petitioners as well as the respondent, the Court is of the view that the case is fit for trial. So, the learned Magistrate has to come to a correct conclusion after examining all parties and verification of documents, witnesses etc., The petitioners 1 & 2 / accused 8 & 9 are also having role in the said car transaction. The case in the consumer forum is of civil nature. But C.C.No.5929 of 2001 has been taken on an alleged offence under Sections 420 r/w. 120(b) of IPC. 22. In the interest of justice, the Court is not inclined to interfere interfere with the proceedings in C.C.No.5929 of 2001 pending on the file of XIV Metropolitan Magistrate, Egmore, Chennai. Hence, the Criminal Original Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ mra To 1. The XIV Metropolitan Magistrate, Egmore, Chennai. 2. The Public Prosecutor, High Court, Madras 1 cc To Mr.S.Raghunathan, Advocate, SR.33316 1 cc To Mr.P.V.Visweswaran, Advocate, SR.33068 Crl.O.P.No.3069 of 2002 and M.P.No.1607 of 2007 rs(CO) SRA(30/7/2009) https://hcservices.ecourts.gov.in/hcservices/