HARI SHANKAR PRASAD, J. - (1.) HEARD learned counsel for the petitioners. Nobody appears either on behalf of respondent No.1 State of Bihar or respondent no.2 Sachidanand Sah.
(2.) THIS application, under Articles 226 and 227 of the Constitution of India, has been filed with a prayer to issue appropriate writ/order/direction for quashing the entire criminal proceeding against the petitioners in complaint case no. 145/2000 including the order of taking cognizance dated 22.4.2000 under Sections 420 and 409 of the Indian Penal Code, passed by Sri S. S. Rao, learned Judicial Magistrate, Ranchi. The case of these petitioners lies in a very narrow compass. A complaint case bearing 145/2000 was filed against the petitioners by respondent no.2 in the court of learned Chief Judicial Magistrate, Ranchi on 30.3.2000 alleging therein that offence under Sections 420 and 409 I.P.C. have been committed by, the accused persons who are petitioners here on 23.12.98 onwards. Respondent no.2/complainant booked one Maruti Omni 5 seater Van with the accused no.4 of the complaint petition M/s. Ashish Automobiles, Ranchi (hereinafter to be referred as dealer) while M. K. Somani being the Proprietor of this firm and due receipt for the booking was given to the respondent no.2/complainant. Respondent no. 2/complainant alleged that he had booked the vehicle after taking loan of Rs. 1.50 lakh and he was paying interest and after delay of three months when he did not get delivery of the vehicle, then he sent letters to all the accused persons and also requested the petitioners to deliver the vehicle through another dealm at Ranchi. The complainant thereafter alleged that he received a communication from the dealer that the van would be delivered to him before 31.3.99 and vide letter dated 30.3.99, he was assured by the dealer that he would be compensated with interest @ 18% per annum till the date of delivery as also one free extra service over and above three free services generally given to the purchasers of the new vehicle. Respondent no. 2/Gomplainant sent a legal notice on 19.6.99 to the dealer demanding delivery of the vehicle or refund of the money with 18% interest per annum with reminders but to no effect, then complaint for cheating and criminal breach of trust punishable under Sections 420 and 409 I.P.C. was filed.
(3.) IT is submitted on behalf of the petitioners that they are not at all liable for the action of the dealer. It is also pointed out that dealer himself sent a letter admitting his fault and undertook to deliver the vehicle by 31.3.99 and also assured to compensate by paying interest at the rate of 18% per annum till the period of delivery and, therefore, petitioners are not at all liable for the lapse on the part of the dealer. It was further submitted that from perusal of the complaint petition, it will appear that entire allegation is against the dealer of the vehicle and not against the petitioners and agreement has been entered into between the respondent no.21 complainant and dealer, not with respondent no. 2/complainant and petitioners and, therefore, petitioners are not at all liable and no case is made out against them. It is also pointed out that as per the dealership agreement with the Maruti Udyog Limited and the dealer; the entire responsibility of delivery of vehicle to the credited customers' vests on the dealer and it is he alone who is liable if the delivery is not made to the credited customer. In this connection, learned counsel drew my attention to Clauses 5, 18 and 19 of the dealership agreement in between Maruti Udyog Limited and M/s. Somani Swiss Industries Ltd., according to the terms of which, company will not be liable and those Clauses are quoted herein below. "5. Limits of Authority: Nothing in this Agreement shall made or be deemed to make the Dealer the agent or representative of the Company for any purpose and the Dealer shall not describe or represent itself as such. The Dealer has no right or authority to bind the Company by any contract or representation whatsoever with or to any third party or to assume any obligation of any third party on behalf of the Company. The Company shall not be responsible nor shall the Dealer have any authority to render the Company responsible for any deposits received by the Dealer from Purchasers of Products. 18. Delivery of Products: The shipping transport and insurance arrangements in respect of Products sold by the Company to the Dealer shall be those determined by the Company from time to time. The Company will endeavour to fulfil orders for Products accepted by it in accordance with the Dealer's delivery requirement but the Company will not be liable for any failure, delay or error in delivery or any consequential loss arising therefrom, howsoever, caused or for failure to incorporate in the Products any new design or improvement. If in the opinion of the Company, it is not possible to supply fully the demand of the Dealer, the Company reserves the right to apportion Products which are available among its Dealers and other Customers according to the Company's absolute discretion and to delay the delivery of or to cancel any or all orders previously accepted. 19. Company's Liability: After dispatch of the Products from the Company's factory the Company's liability in respect of any defect in the Products will be limited to the Company's obligations under the Warranty Clause. The Company will have no other liability and all risks will be on Dealer's account.";