MONOJ KUMAR MUKHERJEE, J. - (1.) IN this revisional application the four petitioners pray for quashing the proceeding of Case No. C -2536 of 1977, now pending against them in the 6th Court of the Metropolitan Magistrate, Calcutta, under Sections 120B and 420 of the Indian Penal Code.
(2.) THE case has been instituted on a complaint filed by the opposite party, Radha Krishna Agarwalla, Managing Director of M/s. Calicut Engineering Works (P) Ltd., of 26A, Camac Street, Calcutta. The material allegations on which the complaint is based are as follows: The petitioner No. 1 is the Manager of the Machinery Division of Batliboi and Co. (P) Ltd. (hereinafter referred to as the Company) having its Branch Office at 26. R. N. Mukherjee Road, Calcutta. The petitioners Nos. 2, 3 and 4 are the Principal Officers of the Company and are attached to its Head Office at Bombay. The complainant was on the look out of one Gear Hobbing Machine which was to be installed at the complainant's factory at 1/2B, Khagendra Chatterjee Road, Calcutta -2 for a better output in manufacture of Gear. The petitioners Nos. 2, 3 and 4 sent, on behalf of the Company, the petitioner No. 1, to the complainant's office in or about the middle of January, 1977 and he represented that having come to learn that the company of the complainant was on the look out of one imported Gear Hobbing Machine, he had been sent by the other three petitioners to negotiate for sale of one of such machine. He further stated that as the Manager of the Machine Tools Division he was instructed by the other petitioners to negotiate the sale. The petitioner No. 1 further stated that the Company represented Strojimport Foreign Trade Co. Ltd., Czechslovakia (hereinafter referred to as the foreign Company) and was permitted by State Trading Corporation to import and sell the said machine in India and if the complainant was interested to purchase such machine the petitioners would be able to supply a brand new latest model which was known as Model OF -16 Gear Hobbing Machine. The petitioner No. 1 further represented that he would be able to make delivery of the said machine from the incoming consignment which had already been shipped to Bombay Port. The petitioner No. 1 handed over a printed leaflet showing the data and illustration of OF -16 Gear Hobbing Machine, As the complainant was hesitating to finalise the transaction, the price of the machine being over 8 lakhs of rupees, the petitioner No. 1 represented that the new model OF -16 was much more economic and productive and was used for precision jobs and that Mr. A. Golasik and Mr. F. Kulisik of the Foreign Company who were coming to India shortly would be in a position to explain the working and technicalities of the said machine to the complainant to his entire satisfaction. As per the said arrangement the petitioners Nos. 2, 3 and 4 sent the petitioner No. 1, Mr. A. Golasik and Mr. F. Kulisik to the complainant's place of business on or about Feb. 18, 1977 and all of them represented and assured that a new machine of OF -16 Model would be supplied and if payment was made before delivery there would be certain concessions in the price. The complainant being thus induced by the aforesaid representation, which ultimately proved to be false, placed an order for supply of one new machine of OF -16 Model for Gear Hobbing and advanced a total sum of Rs. 8,24,474.67 (Rupees Eight Lakhs Twenty -four thousand four hundred seventy -four and paise sixty -seven only) in full and final payment of the said machine on three different dates, namely, 2 -3 -77, 29 -3 -77 and 30 -3 -77 by cheques. The machine with accessories were delivered in five boxes on 31 -3 -77 and at the time of delivery the contents could not be verified and this fact was duly intimated by the company of the complainant to that of the petitioners'. On 1 -4 -77 the boxes were opened and to the utter surprise of the complainant and his men it was found that: (a) Marking on the boxes were hand written and not stencil cut as in the usual practice by the manufacturers. Even there do not indicate the name of the ship. Invoice No. Custom's Import clearance etc. as per normal overseas practice. (b) The whole consignment was repacked in five wooden crates out of which one was completely broken, bringing out the parts packed in it. (c) No packing list could be found in any of the packing cases nor operation and maintenance manual nor even catalogue, maker's name, year of manufacture etc. which is invariably included in the crates in all overseas packings. (d) Going into further details it was observed that there were 8 tubful of water accumulated inside the cavity of the machine. (e) The machine was badly rusted on most of the vital part's bright surfaces, pitted on many places and weathered for a pretty long period. (f) It was repainted locally as is evident from the fact that even some instructions plates have been painted over and from the spillage paint marks on bright surfaces and even on rusted portions of the machine. (g) The machine supplied is machine No. 0436140, Type FO -16 which is an old model as against Type OF -16, the latest design of the manufacturer for which the petitioner placed an order and made advance payment before delivery was effected. It was further detected that many vital parts were old and of different design and even the electrical and electronical control panel and motors had either been repaired or replaced in an attempt to give it a new outlook. The complainant immediately appointed two reputed surveyors and both of them gave their detailed survey report which was annexed to the complaint. The general finding of both the experts were that the company supplied FO -16 Gear Hobbing Machine in place of OF -16 and the same was old, repainted, repacked and heavily damaged by rain water and rusted and some of the parts were missing. The complainant immediately wrote a letter to the, company on 2 -4 -77 stating inter alia that a wrong, old and defective machine had been supplied instead of a new one as was represented. The complainant also sent one of its Directors to Bombay and explained the discrepancies to the petitioner No. 4 at his Bombay office who suggested refund of the money paid by the complainant and to take back the machine in case no new Model OF -16 could be suplied by them. The complainant also wrote a letter to Mr. A. Golasik on 6 -4 -77 intimating that an old, rusted and different machine had been supplied. The petitioners neither replied to the said letters nor took any step to replace the machine or refund the money.
(3.) FROM the above facts and circumstances the complainant concluded that the petitioners entered into a criminal conspiracy to cheat the company of the complainant and in pursuance of the said criminal conspiracy they made false representation to the complainant and thereby induced the complainant to pay the price of the machine before delivery which he would not have paid had he not been so cheated by the petitioners. According to the complainant, the petitioners had the dishonest intention and fraudulently induced the complainant to pay the price of the machine in advance although they had no intention to deliver the machine of OF -16 Model. The complainant accordingly prayed for warrant of arrest against the petitioners for having committed offences punishable under Sections 120B/420 of the Indian Penal Code.;