Rajesh Dayal Khare, J. - (1.) HEARD learned Counsel for the applicants, learned A.G.A. for the State and Sri S.P. Singh, learned Counsel for the opposite party No. 2.
(2.) THE present application under Section 482 Cr.P.C., has been filed for quashing the proceedings of Criminal Case No. 1640 of 1998 (Virendra Kumar v. Ratan Singh Hanspal and Anr.), pending before learned IInd Additional Chief Judicial Magistrate, Varanasi. Learned Counsel for the applicant has contended that the applicant No. 1 is the proprietor of the firm namely, M/s New Hanspal Garrage Machine and the applicant No. 2 is the son of applicant No. 1 who are supplier of the fitter machine known as F.I.P. Test Work Hydraulic Unit Testing Machine (hereinafter to be referred as machine in question). It is further contended that the opposite party No. 2 purchased the machine in question after payment of Rs. 1,25,000/ - but it appears that there was some manufacturing defect in the machine supplied to the opposite party No. 2 and when the opposite party No. 2 approached the applicants for return of his money, the applicants refused on account of which, the opposite party No. 2 filed the present complaint against the applicant and thereafter, the opposite party No. 2 filed a case before Consumer Forum, Varanasi for recovery of the amount of Rs. 1,25,000/ - from the applicants which was decreed by the Consumer Forum vide its order dated 09.04.1997, copy of which is annexed as Annexure -3 to the affidavit accompanying the application. It is further argued that pursuant to the order of Consumer Forum, the compromise between the parties were entered, pursuant to which a sum of Rs. 1,25,000/ -, was paid by the applicants to the opposite party No. 2, copy of the compromise deed is annexed as Annexure -4 to the affidavit accompanying the application. Thereafter compromise deed was also filed before the Consumer Forum bringing on record that the decretal amount has been paid to the opposite party No. 2 and the execution proceedings against the applicants be withdrawn, copy of which, is annexed as Annexure -7 to the affidavit accompanying the application. It is also contended that the opposite party No. 2 also moved an application alongwith an affidavit before learned IInd Additional Judicial Magistrate, Varanasi stating therein that the complaint be dismissed as not pressed as the parties have entered into compromise, copy of which, is annexed as Annexure -6 to the affidavit accompanying the application. It is further contended that thereafter, the opposite party No. 2 took a somersault and the application was moved stating therein that he does not want any compromise, therefore the matter may be proceeded and summoning order has been passed against the applicants. Learned Counsel for the applicants has further contended that the matter is purely of civil nature which is authenticated by the affidavit of the opposite party No. 2 filed before the Consumer Forum Varanasi and has argued that pursuant to the order of the Consumer Forum, the amount of Rs. 1,25,000/ - was paid to the opposite party No. 2 and the opposite party No. 2 also filed an affidavit admitting the same. It is further contended on behalf of the applicants that no offence under the charged Sections is made out against the applicants as there was no intention on behalf of the applicants to cheat the opposite party No. 2 and even if any proceedings were to be drawn by the opposite party No. 2, it ought to have been drawn against the manufacturer of the defective machine and not the supplier thereof.
(3.) LEARNED Counsel for the applicants has relied upon the Judgment of Hon'ble Apex Court reported in : 2009 (14) SCC 696 Dalip Kaur and Ors. v. Jagnar Singh and Anr. to show that fraudulent and dishonest intention must exists from the very inception to constitute the offence of cheating of non -refund of the amount of advance which results in breach of contract does not constitute the offence of breach of trust, for the aforesaid argument learned Counsel for the applicants also placed reliance upon the Judgment reported in, 200 (4) SCC 168 Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and has contended that the matter is purely of civil nature and therefore, the initiation of the criminal proceedings is abuse of the process of law. Learned Counsel for the applicants has lastly placed reliance upon the Judgment of Hon'ble Court reported in : 2001 (3) SCC 513 Alpic Finance Ltd. v. P. Sadasivan and Anr. in support of his contention.;