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TMI Blog2020 (6) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of law. In the given case, there is nothing to reflect about fraudulent or dishonest intention at the time the petitioner sold the vehicle, as the complainant/respondent No. 2 purchased the vehicle by signing all the relevant documents, got the vehicle registered and vehicle run on the road for more than a year. The vehicle was brought to the dealer for servicing upto the warranty period without any complaint and only after warranty period, there was some starting problem. The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. In the instant case, nothing emerges to indicate that the petitioners dishonestly induced the complainant to deliver money to them. Cheating is an essential ingredient to an offence under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of cheating is not made out from the face of the complaint and consequently, no offence under Section 420 is made out. Admittedly, the complainant/respondent No. 2 has lodged her complaint before the Consumer Forum, claiming damages etc. and the said forum can suitably address the issue reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm Universal Automobiles. 6. The respondent No. 2 as complainant filed the aforesaid complaint before the learned CJM, Kamrup (M), Guwahati, contending, inter alia, that on being approached by the agents of the dealers of the company, the complainant booked a Dost Express Passenger Vehicle manufactured by Ashok Leyland Private Limited on 03.06.2014, by depositing the booking amount of ₹ 10,000/- (Rupees Ten Thousand) only. She has also deposited ₹ 1,55,595/- (Rupees One Lakh Fifty Five Thousand Five Hundred Ninety Five) only as down payment against the aforesaid vehicle. Subsequently, she paid a sum of ₹ 1,00,000/- (Rupees One Lakh) only on 08.07.2014, towards the cost of the aforesaid vehicle. She has stated that the accused persons have assured her that they will return the additional sum ₹ 1,00,000/- (Rupees One Lakh) only, once they receive the financed amount from the financer Bank. She has stated that the accused have initially issued invoice bearing Invoice No. SLAPL/SALES/0021/14-15, dated 04.08.2014, for an amount of ₹ 7,25,888/- (Rupees Seven Lakhs Twenty Five Thousand Eight Hundred Eighty Eight) only and Sale certificate in Form-21, sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 21.10.2016. Challenge to the aforesaid order of taking cognizance as well as entire proceeding, has been made by the accused persons, by way of the present two petitions. 8. According to the accused petitioner Nos. 1 and 2, i.e., M/s Ashok Leyland and its Managing Director, the learned trial Court has wrongly taken cognizance against them. It has been pointed out that the learned trial Court only directed OC, Garchuk Police Station for limited investigation under Section 202 CrPC, and the Police report furnished on 18.10.2016 (reflected in the order dated 21.10.2016) that the Police has registered a separate case vide Gorchuk PS Case No. 529/2016 under the same Sections of law, and in the said police report, accused persons Skylight Automotive Pvt. Ltd and its MD, has been implicated for the offence alleged, but the report is silent as about the complicity of the manufacturer and others. Moreso, the learned trial Court by ignoring the fact that Police has registered a separate case which was not directed, cognizance taken by the Court which is blatant illegality. Accordingly, it is contended that the learned trial Court took cognizance against petitioner Nos. 1 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2014 for an amount of ₹ 7,25, 888/- and sale certificate in Form-21, showing the engine number and chassis number, but at the time of actual delivery, complainant refused to accept the said vehicle and requested to change the aforesaid vehicle by another. Subsequently, another brand new vehicle was delivered to the complainant by executing fresh sale certificate in Form-21 dated 05.09.2014. In the said fresh sale certificate, chassis number of the said vehicle was actually incorporated and she has received the same with full consent and without any objection. At the time of delivery of the vehicle complainant was fully aware of the colour and chassis number etc. of the said vehicle, as she has signed all the relevant papers, relating to the registration of the vehicle. It is stated that the vehicle, which was delivered to the complainant was a brand new vehicle and it has passed all the quality control test conducted by the manufacturer and also by statutory bodies. The DTO, Kamrup (M) has also issued fitness certificate against the aforesaid vehicle and as a new one. As such, allegation that she was delivered a different vehicle from the one shown to her by resorting forge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, it is clear that regular servicing of the vehicle was provided on each and every occasion and in support of the contention, the petitioners side has produced all the documents pertaining to the purchasing of vehicle, registration, free servicing as well as paid servicing and the legal notice of the complainant and their reply to the notice. On the basis of such documents, it has now been refuted that the complaint which has been lodged after more than 1 year of the purchase and after the warranty period, raising false and vexatious allegations is bad in law and such complaint is liable to be quashed and set aside. 12. Resisting the claim of the petitioners and denying their contentions, the respondent No. 2/complainant in her affidavit-in-opposition has submitted that the learned trial Court has rightly taken cognizance of the offence and there being prima facie case against the petitioners for the offence alleged, the present petitions are liable to be dismissed. In paragraph-4 of the affidavit, it is submitted that apart from the criminal complaint, respondent No. 2 has also filed a Consumer Case No. 99/2016 against the petitioner, i.e., petitioner/dealer/sub-dealers as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the dealer or before the manufacturer that she has been delivered a different vehicle with different colour and number and only after running the vehicle for more than a year by engaging a driver, she has now lodged a complaint, which is itself barred. 14. An additional affidavit has also been filed by the petitioner Nos. 1 and 2 to bring on record certain documents between the dealer and the manufacturer, wherein it has been submitted that as per the dealership agreement entered between the petitioner No. 1 and Skylight Automotive Pvt. Ltd. dated 07.12.2015, w.e.f. 01.06.2015 to 31.05.2018, the vehicles were sold by the Company to the dealers on a principal basis and the dealers used to sell the vehicles as per customers choice. As per their record, both white coloured and aqua-green coloured cargo vehicles were sold to the dealer. It is the dealer s prerogative to sell those vehicles to its customers as per choice and requisition. The customer visit, inspect the vehicles in the showroom and places the order for the vehicle of his choice by colour and other specifications. Once a vehicle is sold to the customer, the dealer has the option based on local RTO requirements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue on the face of it, as one of the vehicles appear to have been financed by the State Bank of India, Goalpara Branch, as well as the entries that the respondent No. 3 has been made in the DBM (sap) system, which shows that the vehicle is financed by State Bank of India. It is not possible that the said Bank would have extended any financial facilities without the complainant signing bank hypothecation documents. 17. The financier has also provided finance to the complainant Ms Purnima Dey. This petitioner No. 1 has no role to play in any of the transactions that Ms Purnima Dey had with the dealer, that is respondent No. 3 or the financier. Further, the vehicle purchased by Ms Purnima Dey was never entrusted to the petitioner Nos. 1 and 2, there was no inducement whatsoever by the petitioner Nos. 1 and 2. The complainant never approached the petitioner No. 1 nor had ever met or discussed with petitioner No. 2. Just because the invoice issued by the respondent No. 3 mentioning the name of the Ashok Leyland, the petitioner Nos. 1 and 2 cannot be held liable for the conversion of the cargo vehicle to the passenger vehicle committed by the respondent No. 3, which may be at the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle of the complainant. From the documents annexed, it reveals that Third servicing of the vehicle was done on 22.01.2015 (kilometer reading 20150) for an amount of ₹ 1769/- for changing mobil filter and cost of 5 litres mobil. Fourth servicing was done on 26.02.2015 (kilometer reading - 30025 ) for changing gasket, fuel filter, oil filter, engine oil (5 litres), gear oil (2 litres), coolent (5 litres) for an amount of ₹ 4168/-. 16.04.2015 (km reading-42743), for changing bearing (4), oil ceal, engine oil (5 litres), greace, for an amount of ₹ 1894/-. Paid-servicing was made on following days:- 18.05.2015 (km reading-49829), for brake-pad, normal check-up, clutch adjust (vide Annexure -5), but no servicing was done for money problem. It was recorded in the job-card (customer voice) that everything is okay and the road-test was done along with the customer. 29.05.2015 (km reading- 52418), for changing oil filter (1), gear oil (2 litres), air filter (1), fuel filter (1), for an amount of ₹ 2528/-. 11.07.2015 (km reading-63081), for doing (MBR) Compl. Front suspension, MCASS with O Ring, BMARASSY bound front, for an amount of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hicle mentioned in the earlier sale certificate and invoice dated 04.08.2014 and that although there was a warranty of the vehicle for repairing for a period of 12 months from the date of sale or upto 50000 kilometres, whichever is earlier, but the vehicle and the engine damaged after four months of its run upto 20000 kilometres, but the dealer did not provide service according to the conditions and finding no alternative, the vehicle was repaired at M/s Noor Bharat Engineering Workshop at Goalpara, incurring ₹ 1,42,064/- and ₹ 1,17,800/-. In the second legal notice, exactly a similar contention has been raised demanding servicing of the vehicle as per the warranty period. In the aforesaid notices, there was no mention that the vehicle was old and defective one and also no allegation of any inducement. In response to the aforesaid notices, the dealer/Skylight Automotive Pvt. Ltd. made the reply vide Annexure-9, dated 05.10.2015, claiming that as the complainant/respondent No. 2 purchased and took delivery of the vehicle after verification of the engine number and chassis number etc. which was perfectly alright at the time of its delivery and hence, there is no questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factum of registration of a case on the same complaint, despite direction for limited investigation, took the cognizance of the offence under the same sections of law, which is apparently bad in law. 25. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint should reproduce the legal ingredients of the offence in verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. In Amit Kapoor Vs- Ramesh Chander; reported in 2013 ACR 258, it has been held by the Apex Court that the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 482 may not be exercised if the bar under Sections 397 (2) and 397 (3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the Court s jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders, which will be free from the bar of Section 397 (2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 415. Cheating- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat . The ingredients to constitute an offence of cheating are as follows:- i) There should be fraudulent or dishonest inducement of a person by deceiving him; ii) (a) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or (b) the person so induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived; and iii) in cases covered by (ii) (b) above, the act or omission should be one which caused or is likely to cause damage or harm to the person induced in body, mind, reputation or property. A fraudulent or dishonest inducement is an es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of vehicle by customer from the dealer by its own choice by executing all necessary documents and it is a purely business transaction. The dealer while selling a vehicle obviously explained the features/benefits to its customer and equally the customer by its option purchased such vehicle and such transaction cannot be termed as an inducement on the part of the manufacturer/dealer/ sub-dealer within the purview of law. In the given case, there is nothing to reflect about fraudulent or dishonest intention at the time the petitioner sold the vehicle, as the complainant/respondent No. 2 purchased the vehicle by signing all the relevant documents, got the vehicle registered and vehicle run on the road for more than a year. The vehicle was brought to the dealer for servicing upto the warranty period without any complaint and only after warranty period, there was some starting problem. The condition necessary for an act to constitute an offence under Section 415 of the Penal Code is that there was dishonest inducement by the accused. In the instant case, nothing emerges to indicate that the petitioners dishonestly induced the complainant to deliver money to them. Cheating is an essen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Distinction between mere breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the very time when he made a promise and entered into a transaction with the complainant to part with his property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a civil Court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. 35. Regarding cognizance taken by a Magistrate, in M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, a three Judge Bench of Hon ble Supreme Court observed as under: 28 Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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