IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40502 of 2009 1. M/s. Wipro GE Medical Systems Pvt. Ltd. Plot no.4, Kadugodi Industrial Area Sadar Mangla, Bangalore – 560067 through Venkataraman Raja @ V. Raja, Managing Director, Wipro GE Medical Systems Pvt. Ltd. 2. Mr. Shankar Annaswami, Former Managing Director, Wipro GE Medical Systems Pvt. Ltd., Plot No. 4, Kadugodi Industrial Area, Sadar Mangla, Bangalore – 560067 presently Managing Director, IBM India Ltd., Bangalore. 3. Mr. Venkataraman Raja @ V. Raja, son of Sri Subramanian Venkataraman, Managing Director, Wipro GE Medical Systems Pvt. Ltd., A/1, Golden Enclave, Airport Road, Bangalore. 4. Mr. Ashok Kakkar, son of Sri Raj Pal Kakkar, Director, Government Business, Wipro GE Medical Systems Pvt. Ltd., 249, 1st Floor, Okhla Industrial Area, Phase III, New Delhi – 110020. 5. Mr. Sunil Khurana, son of Sri Jagdish Chander Khurana, Vice President, Service, Wipro GE Medical Systems Pvt. Ltd., Unit 1, Level 4, Inventor, ITPL, Bangalore. 6. Mr. Ajay Kumar Singh, son of Commander Jagdish Narayan Singh, 404, Sri Srinivas Apartment, Hasmat Petitioner is an accused in a case under Sections Road, Sikundarabad – 11, Andhra Pradesh. 7. Mr. Kultaj Singh, son of Sri Surat Singh, Manager Service Sale – East, Wipro GE Healthcare Pvt. Ltd., 3rd Floor, 3 Pretoria Street, Kolkata – 700071 – Petitioners. Vs. 1. The State of Bihar, 2. Hospito India Pvt. Ltd., Buddha Colony, PS Buddha Colony, patna, through its Managing Director Dr. Arun Kumar Sinha, son of Late A.K.Sinha Sayar, resident of East Gandhi Nagar, Montessori School Lane, PS SK Puri, Patna – Opp. parties. … For the petitioners - Mr. Avanish Kumar Singh, Advocate. For the State – Mr. Jharkhandi Upadhyay, A.P.P. For opposite party no. 2 – Mr. Umeshwar Prasad Singh and Mr. Lalit Kumar Singh, Advocates. … 3 10.5.2010 Heard learned counsel for the petitioners and the counsel appearing on behalf of the complainant. This application has been filed against the order, dated 1.9.2007 passed by the Additional Sessions Judge, FTC III, Patna in Cr. Revision No.105 of 2007 and the consequential order, dated 21.11.2006 passed by the Judicial Magistrate, 1st Class, Patna in Complaint Case No. 404©/2005. A complaint petition has been filed on behalf of Hospito India Private Limited, Patna, opposite party no.2. In the 30 pages odd complaint petition the allegation is that M/s. Wipro GE Medical Systems 2 Pvt. Ltd., Bangalore had not supplied BMD QCT 3-D Spiral Module Software (Osteo) and had not fixed the post warrant comprehensive service contract charge and, therefore, they were liable for offences alleged to have been committed under sections 406, 415, 417, 418, 420, 425 and 426 of the Penal code. The complaint petition was dismissed by the Judicial Magistrate. The complainant being aggrieved by the order of dismissal filed a criminal revision before the Sessions Judge, Patna. The Addl. Sessions Judge, FTC III, Patna had rejected the reasons assigned by the Judicial Magistrate for rejecting the claim of the complainant which was that in the facts of this case the proper remedy lay before the consumer protection court under section 2(b) of the Act. The Additional Sessions Judge remanded the matter to the Judicial Magistrate for reconsideration of the matter. On reconsideration the Judicial Magistrate has taken cognizance under section 418 of the Penal Code which is under challenge. Several points have been raised on behalf of the petitioners. It has been submitted that the petitioners were not given notice in the criminal revision and as such the order of remand passed on 1.9.2007 is against the provisions of section 399(2) of the Cr.P.C. It is also submitted that petitioners 2 to 7 are not directly or indirectly involved in the said transaction and, therefore, they cannot be arrayed amongst the accused persons. It is submitted that except for the allegations against petitioner no.6 i.e. Ajay Kumar Singh that he in a conspiracy with others induced the complainant to place an order, gave assurance to provide BMD Scan facility in the system by not supplying the same, committed breach of 3 trust against the complainant company, there is no direct allegation that any of the petitioners participated directly in the said transaction. Apart from the submissions aforesaid, the petitioners rest their case on Annexures 3 and 4 of the complaint petition. Learned counsel appearing on behalf of the complainant has submitted that the parties had entered into an agreement to supply BMD Scan facility and during the transaction and talk it was agreed that the company would give the benefit of a comprehensive service contract chart and also supply BMD QCT 3-D Spiral Module Software (osteo), a software which is installed in the machine and can read the bone mineral density. The first contention on behalf of the petitioners is that in fact there was no agreement between the parties i.e. both the contention that there would be a provision for supply of software for BMD QCT 3-D Spiral Module, this aspect it is submitted is apparent from the documents filed with the complaint petition. I am quoting the said documents i.e. extract from letter, dated 30.8.2001 which is as follows : “Sub : Despatch Instruction for Wipro GE – HI SPEED Lx/I C.T. Scanner (Gold Seal equipment. Dear Sir/s We are pleased to place the dispatch Instruction for the equipment mentioned above. We are enclosing the Bank sanction letter for the same. We have already made payment of Rs. 5.00 lacs (rupees five lacs only) as an advance against the supply of the above equipment. During telephonic discussions with Mr. Anurag Behar regarding the equipment package the issues are remaining pending as mentioned below. (1) Fixation of post warranty comprehensive service contract charge. (2) BMD QCT 3-D Spiral Module Software (osteo) to be included in the package. The above points must be clarified before dispatch. Having confirmed the issues please dispatch the equipment at the earliest.” 4 The second document referred to is letter, dated 14.1.2002 issued to Wipro GE Medical Systems Limited by the Managing Director of Hospito India Private Limited which is as under : “Please refer to the Despatch Instruction dated 30/08/2001. Since no reply has come to us in regard to the conditions laid in the despatch instruction, i.e. BMD QCT 3-D Software and Fixation of Post Warranty Comprehensive Service Contract Charge at Rs.16 lacs during telephonic discussion with Anurag Behar, it is understood to have been accepted and confirmed by you.” On the basis of the aforesaid two documents it is said that M/s. Wipro had in fact by keeping silent on the two issues had agreed to supply the software in question and agreed to the clause relating to maintenance of the system supplied and as such during installation when complainant company found that the software had not been installed, they have raised the issue and filed the case. The documents aforesaid indicates that in fact petitioner no.1 had not agreed or accepted the clauses mentioned aforesaid. In business transaction keeping silent on any issue or point cannot lead to the presumption that the parties have agreed to the clause in question. It remains a debatable issue and cannot form the basis of presuming that the company has by remaining silent accepted the issues in question and non- performance of that particular issue, would amount to an offence under the Penal Code. It can or may be presumed that non-supply of essential items which are part of a particular machine, which would otherwise render the machine to be inoperative, may amount to a breach of contract and can be pursued under the provisions of the Consumer Protect Act or under the Civil Procedure Code. However, in the present case Annexure 3 5 cannot give rise to presumption of cheating. To commit an offence of cheating there must be an element of deception and the deception should take place in such a manner as to deprive the person concerned, of a valuable right which will cause some damage or harm to body, reputation and property. At this stage learned counsel for opposite party no.2 referred to two decisions in the case of Som Mittal vs. Government of Karnataka, (2008) 3 SCC 753 and Koppisetti Subbharao alias Subramanian vs. State of A.P, 2009 Cr. LJ 3480. These two decisions are not applicable in this case. Som Mittal’s case deals with the circumstances and facts which have to be considered for the purpose of granting anticipatory bail viz a viz the provisions of 482 of the Code of Criminal Procedure. The facts of the case in Koppisetti Subbharao alias Subramanian are very different to the facts of this case. In the present case on admitted facts no offence is made out under Section 418 of the Indian Penal Code as discussed above. In the present case the facts do not indicate that there was intention to cheat the petitioners. If the software in question were integral part of the machine itself, it could be presumed that the criminal offence was committed but as in the present case if it is a “add on” to the machine which was to be supplied, certainly it cannot be said that it was an integral part of the machine and, therefore, unless the parties agree to supply the same, no offence can be made out under section 418 of the Penal Code. For the reasons discussed above, this application is allowed 6 and the impugned orders are quashed. haque (Sheema Ali Khan, J.)