AMARESHWAR SAHAY, J. - (1.) BOTH the above -mentioned criminal miscellaneous petitions arise out of the same impugned order and the prayer of the petitioners in both the cases are also the same and, as such, both the petitions were taken up and heard together and are being disposed of by this common judgment.
(2.) IN Cr. Misc. No. 19706/1999, the petitioner No. 1 Shri A.I. Rebelo is the General Manager, Commercial Vehicle, Spares, Hire - Purchase and Sales Administration whereas petitioner No. 2 Shri Ratan Tata is the Director of M/s. Tata Engineering and Locomotive Company Limited (TELCO). So far as Cr. Misc. No. 19846/1999 is concerned, the petitioner No. 3 is the dealer of M/s. TELCO, whereas petitioner Nos. 1 and 2 are partners of the dealership firm and petitioner No. 4 is the Works Manager of the dealer. The prayer in both the petitions is to quash the order taking cognizance dated 30th July, 1999 and also to quash the entire criminal proceeding against them in connection with PCR Case No. 228/1999, in which, the Court below has taken cognizance of the offences under Sections 406, 427, 420/120B of the Indian Penal Code against all the accused persons including the petitioners. The facts in short giving rise to these two applications are that O.P. No. 2 Delip Kumar Patwari filed a complaint case before the Chief Judicial Magistrate, Dumka, against six persons, alleging commission of the offences under Sections 406, 427, 420/120B of the Indian Penal Code, which was registered as PCR Case No. 228/1999. The allegations in the complaint petition are: (a) On 10.7.1997 the complainants wife purchased one LP 1312 TC Bus Chasis, from the accused No. 3, i.e. Shri Mohan Himmatsingka, Proprietor of Phooltas Auto Ltd., Layak Bhavan, Boring Canal Road, Patna, the authorized dealer of M/s. Tata Engineering and Locomotive Company Ltd. (hereinafter referred to as TELCO") and the said bus chasis was registered and numbered vide registration No. BR -08 -P -7171. At the time of purchase the authorized dealer of TELCO as well as TELCO through its dealer and agencies assured the complainant and his wife that the said model No. LP 1312 TC was one of the best vehicles and there should not be any defect in its operation, performance, efficiency and relying on that assurance and reposing faith on the accused Nos. 1 and 4, the complainant purchased the said Model LP 1312 TC bus. At the time of purchase warranty was also issued in respect of the said bus for a period of two years or for running of the vehicle for 2,00,000 K.M. whichever is earlier. (b) On 24.2.1999, the engine of the vehicle in question was ceased to work, due to manufacturing defect within the warranty period and necessary information was given to the accused persons and local dealer M/s. R.A. Himmatsingka and Co. at Dumka by the complainant, when the accused Nos. 1 and 4, i.e. Mr. Rahul Himmatsingka, partner of the dealer and A.K. Jana, the Works Manager of the dealer asked the complainant to bring the bus to their workshop. Subsequently, the complainant handed over the bus to the accused Nos. 1 and 2, i.e. to the dealer on 26.2.1999. (c) After the bus was received by the accused No. 1 as aforesaid; the accused Nos. 1 and 4 took the plea that the period of warranty had already expired, when in fact the period under warranty was till in force. The accused Nos. 3 and 4 also demanded 5 percent of the cost of changing the engine of the bus in question illegally, from the complainant. However, the accused Nos. 1 and 2 after checking the engine of the bus in question in presence of the service engineer of manufacturer TELCO accepted that it was due to manufacturing defect that the engine got ceased and accordingly, accepted the claim of the complainant and assured to replace the said engine. (d) Though the accused Nos. 1 and 4 accepted the claim of the complainant and assured to replace the engine of the vehicle in question but on various plea they did not take any step in the matter, in spite of repeated approach made to them by the complainant and neither the defect of the engine was repaired nor the same was changed. (e) Subsequently TELCO, stopped the production of the Model No. 1312 TC Chasis, because several complaints were received from the customers in respect of the engine of the said model and the said model was found defective for which the company had to settle various complaints with regard to the engine of the said model covered under warranty. (f) The complainant was/is facing loss of Rs. 1,000/ - per day for non - plying the bus due to the defective engine and the accused persons could not remove the defect since 24.2.1999. The complainants wife also filed a Consumer Case No. 5/1999 against the accused persons before the Consumer Dispute Redressal Forum, Dumka. (g) When the defects of the aforesaid model No. 1312 TC were detected and a large number of vehicle of the aforesaid model were manufactured, the accused No. 5 (the petitioner No. 1 herein), i.e. the General Manager of TELCO and accused No. 6 (the Director of TELCO and the petitioner No. 2 herein) in connivance with their dealers, including the accused Nos. 1 and 3 in order to cheat the purchasers started selling the said model and in this manner the complainant and his wife, being the registered owner of vehicle No. BR -08 -P -7171, were cheated by them. (h) Though the complainant gave several information but no step for the replacement of the said defective engine of the bus in question was made either by the manufacturer or by their authorized dealers and finally on 11.6.1999, the complainants wife received a registered letter from the accused Nos. 1 and 2 in which it was stated that M/s. R.H. Himmatsingka and Co. is not supposed to guard the vehicle as it is parked at the risk and responsibility of the complainants wife. After sending the aforesaid letter the accused has replaced 4 new tyres of the said vehicle and some other costly parts and misappropriated the same, either by selling those or using the same for their own purpose, which has resulted in a loss of Rs. 45,000/ - to the complainant and his wife. (i) Finally when the complainant issued a letter to the accused Nos. 1 and 2 for return of the vehicle without the engine, the accused persons flatly refused to hand over the same and they also made a demand of Rs. 1,525/ - as parking charge from the complainant. This conduct of the accused shows their dishonest intention to misappropriate the entrusted property so that the complainant may suffer loss. Thus the accused persons have committed offence punishable under Sections 406, 427, 420/120B of the Indian Penal Code.
(3.) THE enquiry under Section 202, Cr PC was made and thereafter, by order dated 30th July, 1999 after finding prima facie case against all the accused persons the learned Magistrate issued summons against them to appear and face trial. 5. Mr. K.T.S. Tulsi, learned senior counsel appearing for two petitioners, i.e. Shri A.I. Rebelo, General Manager and Shri Ratan Tata, Director of M/s. TELCO limited in Cr. Misc. No. 19706/1999, submitted that even if the allegations made in the complaint petition on their face value are take to be correct, they do not constitute any offence for which cognizance has been taken by the Court below. He further submitted that there is no allegation at all that the two petitioners at any time met the complainant. It is also not alleged that they made any representation or misrepresentation to the complainant at the time of supply of the vehicle. From the allegations it does not appear that the said two petitioners conspired with the other accused persons for the sale of the vehicle in question. He further submitted that even if it was established that the engine supplied to the complainant by the authorized dealer was defective it would still not amount to any offence and the complainant would at best be entitled to replacement of engine and for damages, which is purely a civil dispute but the complainant has converted the civil dispute into a criminal case merely as a pressure tactics for forcing settlement in purely a civil dispute. The ingredients of the offences for which the cognizance has been taken are totally absent and, therefore, the whole prosecutions against these two petitioners are liable to be quashed. In order to substantiate his arguments, the learned senior counsel relied on the following decisions: ; Indian Oil Corporation v. NEPC India Limited ; State of A.P. v. Golconda Linga Swamy and Anr. ; Hira Lal Hari Lal Bhagwati v. CBI, New Delhi ; S.W. Palanitkar and Ors. v. State of Bihar and Anr. ; Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate.;