A.S.BAINS J. - (1.) THESE two petitions (i.e. Cri. M. No. 5931-M and 6250-M or 1982) 'under section 481, Criminal Procedure Code, for quashing the proceedings pending against the petitioners Under section 420 read with section 34, Indian Penal Code, in the Court of the Sub Divisional Judicial Magistrate, Malerkotla, will be disposed of by this common order as these arise out of the same complaint.
(2.) THE petitioner in Cr. M. No. 5931-M of 1982 is the President of the kegg Farms, which is a poultry breeding organisation in the country establishment 1967. Petitioner No. 1 Shashi Kapur is the Vice President of the Kegg Farms and petitioner No 2 Mahabir Singh is Area Manager (Dhuri) of the said Farms. Kegg Farms is recognised by the Department of Science and Technology. Respondent Jagjit Singh filed a complaint under section 420 read with section 34, Indian Penla Code, against the petitioners on 22nd July, 1982, in the Court of the Sub-Divisional Judicial Magistrate, Malerkotla, The complainant briefly, is that on 3rd February, 1982, Shashi Kapur, Vice President. Marketing, Kegg Firms and Mahabir Singh alleged to be the Sales Manager of the Kegg Farm at Ludhiana, went to the house of the respondent and persuaded him to by golden Keystone chicks produced by the Kegg Farms, whose owners are Vinod Somnath Kapur and Shashi Kapur, petitioners, amongst others. The representation which Shashi Kapur and Mahabir Singh petitioners are alleged to have made was that "the Kegg Farm chicks are free from Marek's disease and they are fully protected against the disease by vaccination of the day-old chicks in the hatchery". The said persons are alleged to have further represented that "they are owners and Sales Manager respective of the Kegg Farms and the fact that they are representing is in the full knowledge of accused No. I." Upon this representation the respondent claims to have paid them Rs. 2,000/-in cash being advance for the supply of 3500 pullet chicks at the rate of Rs. 4.40 per chick. It is further averred in the complaint that on 10th February, 1982. Mahabir Singh obtained from the respondent a bark draft No. 311176 dated 10th February, 1982 drawn in favour of the Kegg Farms for Rs. 10,000/- There after, on 24th February, 1982, Mahabir Singh petitioner again went to the respondents form to deliver chicks that be had ordered. However, instead of 3500 chicks, he delivered 3920 chicks (420 in excess of the number paid for) to the respondent (complainant). At that time, Mahabir Singh petitioner was paid Rs. 3400/- in cash, thus completing the price of Rs. 1540/- for 3500 chicks. It is further alleged in the complaint that after nine weeks the chicks started dying. Post-mortem of the dead chicks is stated to have been conducted on 28th April. 1982 onwards by P.W. 4 Dr. Rajinder Singh Veterinary Assistant Surgeon, Government Poultry Farm, Malerkotla. This doctor declared Marek's Disease and also told that this disease carries no treatment and will take heavy toll. On 11th June, 1982, PW. Dr. Gurcharan Singh, Deputy Director Poultry also visited the Farm of the respondent (complainant). He fond Marek's Disease in acute form in the flock and intimation of this fact was claimed to have been sent by the respondent to the petitioners by a telegram, but without any response. Till 22nd July, 1982, the complainant is alleged to have lost 1320 birds and there was every likelihood of more deaths due to Marek's Disease in the flock. The complainant-respondent further claims that but for representation made by the petitioners, he would not have bought chicks from the Kegg Farms and, thus, he had suffered a loss to the tune of Rs. 20,000/, over and above the price of chicks at Rs. 15400/-. The learned Magistrate vide his order dated, 13th At gust, 1982, arrived at the conclusion that sufficient ground was made out for issuance process against the accused (Petitioners) under section 420 read with section 34, Indian Penal Code, and the accused were ordered to be summoned through bailable warrants in the slum of Rs. 2,000/- for 8th September, 1982.
(3.) MR . Hardev Singh, learned counsel for the petitioners, canvassed that even if the allegations in the complaint may be accepted at their face value, no offence is made out under section 420 read with section 34 Indian Penal Code, against the petitioners. I find merit in his contention. The representation made by the petitioners, according to the complaint, was as under : "The Kegg Earms chicks are free from Marek's disease and they are fully protected against the disease by vaccination of the day-old chicks in the hatchery They are the owners and Sales Manager respectively of the Kegg Farms and the fact that they are representing is in the full knowledge of accused No. I" Upon this representation the complainant-respondent claims to have paid the amount of Rs. 15400/- as price for 3500 chicks, but the chicks supplied were in fact 3970 i.e. 420 in excess of the number paid for. These facts are not disputed. It is further stated that the chicks started dying on 28th April, 1982 i.e. aRer 9 weeks of the supply of the chicks by the petitioners and that upto 22nd July, 1982, 1320 chicks died and, thus, a loss of Rs. 15,400/- a further loss of Rs. 20,000/- on account of rearing those bribes was caused by the petitioners to the respondent. From the aforesaid representation it cannot be inferred that the petitioners cheated the complainant respondent. The aforesaid representation was only to the effect that the chicks were free from Marek's disease and they were fully protected against the disease by vaccination of the day-old chicks in the hatchery. There is no allegation in the complaint that the chicks were, in fact, not vaccinated or that when they were supplied by the petitioners they suffered from Marek's disease. According to the averment made in the complaint itself, the chicks started dying only after 9 weeks of their supply. It may be that in spite of the vaccination the chicks started developing Marek's disease. No authority is shown to me that if the chicks are vaccinated against Marek's disease, when the disease cannot develop. Moreover, the representation does not infer that no chicks will die ever. The factors which car ? be responsible for failure of vaccination against Marek's disease or what might more properly be described as the cause of a significant incidence of Marek's disease in vaccinated flocks are discussed in an article of Mr. M.P. Bigga titled as "Vaccinated against Maek's Disease in Layers and Breeders" published by, the Department of Science and Technology in ZOOTECNICAL International, July, 1992. Biggs is of the opinion that "no vaccine is 100% effective in all circumstances and this is certainly true for vaccines against Marek's Disease". This expert talk was as given by Mr. P.M. Higgs and the report presented at the 3rd Scientific Meeting organised by IVAZ Biologic Laboratories Padua, 1982. Counsel for the complainant respondent could not show we any a authority which was taken a contrary view that vaccination against Marek's Disease can never fail and the doctors produced by the complainant also did not say that there was no vaccination of the chicks and that the Marek's Disease cannot develop after vaccination. According to Dr. Rajinder Singh (P.W. 4), Assistant Veterinary Surgeon, the chicks dies of Marek's Disease and that this disease did not carry any treatment and takes heavy toll. Dr. Gurcharan Singh,, Deputy Director. Poultry, also visited the respondent's farm and found Marek's disease in acute form. The learned Magistrate relied upon the evidence of Jagjit Singh complainant respondent, Who appeared as P.W. 1, Mohd. Yasin (P.W. 2), Rajinder Singh (P.W. 3) Dr. Rajinder Singh, Veterinary Assistant Surgeon (P.W. 4) Sher Singh (P.W. 5). Mohd. Yasin (P.W. 2) is a Clerk in, the Punjab and Sind Bank, who had produced the photostat copy of the original voucher vide which a Bank Draft dated 10th February, 1991 for Rs. 10,000/- issued to the complainant-respondent in favour of Kegg Farms, New Delhi. Rajinder Singh (P.W 3) is a witness to the misrepresentation which induced the complainant-respondent to buy chicks from the petitioners. P.W. A Dr. Rajinder Singh is the person who conducted post-mortem examination on the dead chicks. The learned Magistrate observed that the representation made by the accused (petitioners) is proved to be fraudulent as they had represented that they produced the chicks which are resistant to Marek's Disease and that they vaccinate the dav-old chicks in the hatchery against this disease." From the account given by Dr. Rajinder Singh (P.W 4), who conducted the post-mortem examination on the dead Chicks, the Magistrate came to the conclusion that the representation made by the accused (petitioners) that they made the birds immune by vaccinating against Marek's Disease was wrong and that the falsehood of the representation was very much known to them. The Magistrate further observed that "by making the wrong statement they induced the complainant to deliver to them the amount of Rs. 15400/- for the supply of 3500 chicks which he would not have paid if the complainant knew that the chiks supplied by the accused were not immune from Marek's disease or that the representation made by the accused was wrong." As observed earlier, it is not the case of the complainant-respondent that the chiks supplied to him had not been vaccinated against Marek's disease. It is also not the case of the complainant that the chicks were already suffering from Marek's disease before they arrived at his farm. It is not stated in the complainant that Marek's disease could not be contracted in the conditions obtaining in the respondents farm. No fraudulent intention can be inferred from these facts. It may be noticed that against 3500 chicks ordered by the respondent and actually paid for, 420 chicks in excess were supplied by the petitioners free. Thus, in this situation, I am of the view that no case is made out for the offence under section 420 read with section 34, Indian Penal Code.;