D .N.UPADHYAY,J - (1.) This writ application has been filed for quashing of the entire criminal prosecution of the petitioners arising out of Complaint Case No. 298 of 2009 and the Order Dated 10.07.2009, whereby the petitioners have been summoned and directed to face trial for the offences punishable under Sections 403, 418/34 of the Indian Penal Code.
(2.) THE brief facts behind institutions of Complaint Case No. 298 of 2009 is that the Complainant/Respondent No. 2 is the proprietor of M/s. Classic Automobiles, a Dealer of M/s. Tata Motors Ltd. (Car Division) whereas the Accused/Petitioner No. 1 - M/s. Appollo Health and Life Style Limited is a Company incorporated under the Indian Companies Act, 1956 having its registered office at 19, Bishop Gardens, R.A. Puram, Chennai - 600028. The Accused/Petitioner No. 2 is the Chief Executive Officer and the Accused/Petitioner No. 3 is the General Manager of the said Company. It is alleged that the Respondent No. 2, upon fraudulent inducement of the accused/petitioners entered into a Memorandum of Understanding on 7th August, 2007 for setting up a Clinic under the name of "The Appollo Clinic  at Dhanbad. The Respondent No. 2, upon fraudulent inducement of the accused persons, has made payment of a sum of Rs.28,09,000/ -as Licence Fee including Service Taxes to the Accused/Petitioner No. 1 vide Demand Draft No. 384949, Dated 6th August, 2007 drawn on ICICI Bank Limited, Dhanbad. As per Clause 6, the Memorandum of Understanding was valid for a period of thirty (30) days. It is further alleged that having deceptive intention and mensrea, no licence within the said period of thirty days was granted and, therefore, the Respondent No. 2 sent e -mail on 01.12.2008 for refund of the amount but no reply was given. Then the Complainant again e -mailed on 25.12.2008 requesting to refund of the amount deposited by him. The Respondent No. 2 had also sent Legal Notice to the petitioners but they did not refund the amount and illegally retained the same causing wrongful loss to the Respondent No. 2 and also for wrongful gain to them. After making all correspondences, when the amount was not refunded, the Respondent No. 2 filed a Complaint in the Court of Chief Judicial Magistrate, Dhanbad and after enquiry, an Order under Section 204 of Cr.P.C. on 10.07.2009 summonning the accused persons to face trial for the offences under Sections 403, 418/34 of the Indian Penal Code, was passed. The petitioners have challenged the impugned Order dated 10.07.2009 passed in Complaint Case No. 498 of 2009 and also the entire criminal prosecution arising out of the said Complaint case on the ground that the impugned criminal proceeding is an abuse of the process of law, if allowed to continue. The Court below has wrongly passed the order directing the petitioners to face the trial for the offences punishable under Sections 403, 418/ 34 of the Indian Penal Code. As a matter of fact, the allegations levelled against the petitioners in the Complaint do not constitute the offences for which the petitioners have been summoned. There was no dishonest or fraudulent inducement on the part of the petitioners and it is incorrect to say that the Respondent No. 2 had delivered the amount on being fraudulently induced. It was the Respondent No. 2 who approached the petitioners for grant of licence for running a Health Clinic in the name of Appollo Clinic and he had been intending to use the goodwill of the Petitioner No.1.
(3.) THE Memorandum of Understanding was signed by the parties knowing full well the terms and conditions and according to Clause -4, the amount paid was non refundable and non adjustable and shall not carry any interest thereon. Only by inserting or using words like 'Fraudulent and Dishonest Intention in the complaint, it would not constitute the offence of cheating.;