Ravi Nath Verma, J. - (1.) Invoking the inherent power of this Court under Sec. 482 of the Code of Criminal Procedure (in short 'the Code'), the petitioners have questioned the legality of the order dated 21.6.2004 passed by the learned Judicial Magistrate, Dhanbad whereby and whereunder the cognizance of the offence under Sec. 406/34 of the Indian Penal Code has been taken and direction has been given to issue summons to the petitioners and further prays for quashing of the entire criminal proceeding in connection with Complaint Case No. 258 of 2004. The facts of the case, which is relevant for the proper appreciation of the issue involved in this case, in short, is that at the instance of complainant Mangal Kumar @ Minu Agarwal, the aforesaid case was instituted under Ss. 406 and 420/34 of I.P.C. on the allegation that the complainant had purchased a Whirlpool Washing Machine -XL worth Rs. 9,393/ - on 4.10.2000 from the shop of an accused Mahesh Patel, who runs the shop under the name and style of Patel & Sons at Chiragora, Dhanbad and at the time of purchase, the present petitioners, who were the Company's employees, had assured to give good services to customers. There was seven years warranty period and on behalf the company, assurance was given to cover all risk of repair and maintenance during that period but in the month of April 2003, when the said washing machine developed some technical fault and became unworkable, the complainant made request to the petitioner No. 2 -Md. Riaj to repair the machine but as there was some major defect, he took away the washing machine for repairing in the workshop. It is alleged in the complaint petition that even after lapse of several days, the machine was not returned to him and on enquiry, nobody was giving correct information about the washing machine. Thereafter, the complainant contacted the accused No. 1 of the complaint case -the Managing Director of Whirlpool India Ltd., New Delhi, who advised him to contact the petitioner No. 1. On 18th February, 2004, when the complainant met with petitioner No. 1 at Company's Repair Centre at Matkuria and wanted to know about the washing machine, no satisfactory reply was given by the petitioner No. 1, whereafter this complaint was lodged.
(2.) It appears from the record that after recording of the statement of the complainant on solemn affirmation, other witnesses were examined and thereafter, the court below finding sufficient materials and prima facie case took cognizance of the offence under Sec. 406/34 I.P.C. by order dated 21.6.2004 and directed to issue summons to the petitioners. Being aggrieved by the said order of taking cognizance, the petitioners preferred this criminal miscellaneous petition.
(3.) Mr. Mazumdar learned senior counsel appearing for the petitioners assailing the order taking cognizance as bad in law and perverse and without application of judicial mind seriously contended that even if the allegations made in the complaint petition at their face value are taken to be correct, they do not constitute any offence. It was also submitted that even it be considered that there was some defect in the washing machine, it would still not amount to any offence as none of the ingredients responsible to constitute the offence under Sec. 406 I.P.C. is available and there was no criminal breach of trust or any dishonest intention on the part of the petitioners. It was further submitted that there is no criminal breach of trust rather it involves a civil wrong in respect of which the complainant may seek his redressal or remedies in a civil court the whole prosecution against these two petitioners are vitiated in law liable to be quashed.;