Criminal Application No.800 of 1997

7th July, 1997

Petitioner Counsel: Mr. A. S. BAJAJ
Respondent Counsel: Mr. K. M. GADHVE-PATIL, Mr. M. N. DESHMUKH

JUDGMENT

JUDGMENT :- This petition under Section 482 of the Code of Criminal Procedure, 1973, is filed for quashing the first information report filed against the petitioners for offences punishable under Sections 406, 420, both read with Section 34 of Indian Penal Code, in consequence of which Crime No.I-60/97 is registered at Cidco Police Station at Aurangabad.

2. The present respondent no.2 filed report at the Police Station, that he had placed an order for tractor manufactured by Mahindra & Mahindra Company, with Dealer, Nath Automobiles, Aurangabad. He had obtained loan from Janata Sahakari Bank for the purchase of tractor. He placed an order for the tractor of the make, 265-D-I. The price of the said tractor as quoted by the dealer was Rs.1,94,742/-. He, therefore, obtained demand draft in the name of Mahindra & Mahindra Company towards the price of the tractor and the demand draft was handed over to the dealer. The dealer, in his turn, sent the demand draft to the manufacturer, Mahindra & Mahindra Company. The demand draft was dated 4-6-1996. Thereafter, repeatedly he made enquiries with the dealer and the officers of the manufacturing company, for the delivery of the tractor. But he did not receive delivery of the tractor. Neither the dealer nor the officers of the company gave him proper help in this respect. Even through his Bank, he had written letter to the manufacturer for the delivery of the tractor, but in vain. On 17-12-1996, Ramnivas Bhandari, Proprietor of Nath Automobiles, issued a cheque for the amount of demand draft in favour of the complainant. He submitted that cheque through the bank on 30-12-1996. But it was not honoured. The complainant, therefore, has contended that the dealer, Ramnivas Bhandari; Anand Mahindra, one of the Directors of Mahindra & Mahindra Company; and Mr. Ravi Mathur, Regional Manager of Pune Office, in furtherance of their common intention, deceived the complainant, obtained draft of Rs.1,94,742/-, but did not deliver the tractor and then a cheque was issued which was dishonoured. On the basis of this F.I.R. crime was registered for offences punishable under Sections 406, 420, both read with Section 34 of Indian Penal Code.

3. The petitioner has contended that the transaction between the petitioner i.e. Mahindra & Mahindra Company and the dealer is of principal to principal basis. Though the price of the tractor is received by the demand draft from the purchaser, here the complainant, the dealer is responsible to give the delivery of the tractor to the purchaser. The amount received was credited to the account and there is no misappropriation of the amount. It is also contended that as per the order placed by the dealer, tractor was despatched to the dealer. If the dealer has failed to give delivery to the complainant, manufacturer or the officers of the manufacturing company are not responsible for that. There was no entrustment, as such, with the manufacturer, either of the price or the tractor, and there is no dishonest intention on the part of the petitioners to misappropriate the property. The cheque was not issued by the petitioners or by the manufacturing company. It was issued as per the complaint by the dealer without knowledge or without directions from the petitioners and, in such circumstances, if the cheque is dishonoured, the petitioners cannot be held responsible. The cheque was not drawn on the company's account. So, the cheque is not dishonoured by the company's bankers. It is, therefore, contended that neither the offence punishable under Section 406 nor offence punishable under Section 420 of Indian Penal Code, is made out from the F.I.R.

4. The investigation is in progress. The learned Additional Public Prosecutor has produced on record, the papers of investigation. The Police have attached the papers from the office of Mahindra & Mahindra Company with respect to this transaction, and from the documents seized, it is noticed that when the draft was received from the complainant, the dealer had sent the draft to the company along with the order for the tractor. But instead of mentioning the model no.265-D-I in the order, the model was mentioned as B-275-D-I. From the papers seized from the Company, during the course of investigation, it is noticed that on receiving this draft in due course, as per the order forwarded by the dealer, the manufacturing company had sent the tractor of make B-275-D-I to the dealer. Obviously, that was not the model ordered by the complainant and it was not delivered to the complainant. But if on receiving the price of the tractor as per the order placed by the dealer, the tractor is delivered by the manufacturer to the dealer, no offence is made out against the manufacturer, either for offence punishable under Section 406 or offence punishable under Section 420 of Indian Penal Code.

5. If any cheque was issued by the dealer in favour of the complainant, and if that cheque was not honoured, the manufacturer or the officers of the manufacturing company cannot be held responsible for these acts of the dealer. There is nothing on record indicating that the cheque was issued at the instance of the petitioners by the dealer when the dealer had not received the price of the tractor and the amount was credited in the account by the manufacturer, there was no question for dealer to issue any cheque and if he had issued any cheque to mislead the complainant, the present petitioners cannot be held responsible for that. So, for the dishonour of the cheque, the present petitioners cannot be prosecuted for offence punishable under Section 420 of Indian Penal Code. The F.I.R. and the papers of investigation, so far as the present petitioners are concerned, do not disclose any offence against the present petitioners. There was order for tractor of the make B-275-D-I, and non receiving the price for that, the tractor was sent to the dealer. So, for any further acts of the dealer, officers of the company cannot be held responsible.

6. Hence, the first information report, in consequence of which Crime No.I60/97 is registered at Cidco Police Station, Aurangabad, so far as present petitioners are concerned, for offences punishable under Sections 406 and 420, both read with Section 34 of Indian Penal Code, stands quashed. Both the petitioners cannot be prosecuted on the basis of this F.I.R. However, it is made clear that this order has nothing to do with respect to any offence that might have been registered or being investigated by the Police with respect to the dealer, Nath Automobiles, Aurangabad, and its proprietor, Ramnivas s/o. Kachardas Bhandari.

7. Criminal Application is, thus, allowed. Disposed as such.

Appeal allowed.