2000 ALL MR (Cri) 432
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.S. PARKAR, J.

Abhay Firodia Vs. Devji Shah & Anr.,

Cri. Appln. No. 2603 of 1992

27th August, 1999

Petitioner Counsel: N. K. THAKKAR
Respondent Counsel: Smt. R. P. SABHARWAL, A.P.P.

Penal Code (1860), S.420 - Offence of cheating - Accused was dealer of Tempo - Trax jeep - Sold jeep on understanding that it gave average of 17 k.m. per litre of fuel - It was alleged that jeep sold gave only 10 k.m. average and its brakes also did not work properly - Managing Director of manufacturer of jeep also made co-accused - No case made out against him - Accused dealer died during pendency of case - Process against Managing Director quashed.

Criminal P.C. (1973), S. 482. (Paras 5, 6)

JUDGMENT

JUDGMENT :- This petition is filed for quashing the process issued by the Additional Chief Metropolitan Magistrate, 24th Court at Borivali, Bombay for offence under section 420 read with section 34 and/or 114 of the Indian Penal Code against the petitioner and another accused in Case No. 40/S of 1991.

2. The Respondent No.1 had filed the complaint against the petitioner, original accused No. 9, who is the Managing Director of Bajaj Tempo Limited and another accused by name Raju Shah, since deceased, who was the Managing Director of "Car Mart Private Ltd.," the dealers of the vehicle, having their office in Bombay. The said complaint was filed on 19th January, 1990 in the Additional Chief Metropolitan Magistrate's 24th Court at Borivali, Bombay for alleged offence under section 420 read with section 34 and/or 114 of Indian Penal Code. The main allegations made in the complaint are that the complainant was doing business in partnership in the name of "M/s. Perfect Metal Anodising and Pressing Works". The petitioner-company was manufacturing Matador-Tempo vehicles and TRAX Jeep. Sometime in August 1988 the employee of the original accused No.1, i.e. the dealer, had visited the complainant and gave a printed brochure to the complainant about vehicle called as "Tempo-Trax". The accused No.1 informed the complainant that the said vehicle was free from all defects and gave average of 17 k.m. per litre of fuel. The accused No.1 had given an warranty that if there was any complaint then the purchase amount will be refunded. The complainant then agreed to purchase the Tempo Trax being No. BLN 6102 for the invoice of Rs. l,29,394/- prepared by accused No. 1. The complainant booked for the vehicle on 10th March, 1989 and paid a sum of Rs. 1,27,000/- against the receipt dated 10th March, 1989.

3. After the purchase of the vehicle, the complainant did not find the vehicle as per the assurances given by accused No. 1 the dealer. It is the allegation in the complaint that although the dealer had assured that the vehicle would give average of 17 k.m. per litre of fuel, the vehicle was giving average of only 10.5 k.m. per litre of fuel. There was frequent brake failure and, therefore, he wanted the accused to take back the vehicle and return his money. When the complainant proceeded on 15th August 1989 to go to Lonavala with his family members, the brake of the vehicle suddenly failed. Thereafter, the brake started working automatically. The brake had again failed in the last week of August 1989 and therefore the vehicle was sent to the workshop of accused. It is alleged that the dealer failed to give assurance and guarantee of safety nor he allowed long distance trial of the vehicle as desired by the complainant. The complainant says that he had paid a total amount of Rs. 1,94,068/- to the accused No. 1 towards the purchase price of the vehicle.

4. From the complaint it appears that all the allegations have been directed against accused No.1 who was the dealer and had sold the vehicle in question to the complainant. The present petitioner is the Managing Director of the Company who are the manufacturers of the vehicle in question. After the said complaint was filed, the trial Court had, initially, directed the enquiry under section 156(3) of the Criminal Procedure Code by its earlier orders dated 20th September, 1990 and 16th October 1990. The petitioner has annexed a copy of the police report Exhibit-B dated 7-11-1990. Thereafter the Magistrate had issued another order and directed the police to make report about the working of the similar vehicles purchased by the police and, therefore, the report dated 5-3-1991 was filed in the Court, copy of which is annexed at page 26 of the paper book. The said report shows that about 73 similar vehicles were purchased by the police and their working was good. In any event, the allegation of cheating have been levelled against the dealer who was arraigned as accused No. 1, who, I am told, has died.

5. After reading the complaint I find that no prima facie case is made out against the present petitioner for cheating. It is well established that if the complaint does not make out a prima facie case, then accused should not be made to face trial unnecessarily. The petitioner is a Managing Director of the Manufacturing Company. After filing of this application stay was granted by this Court of the further proceedings in the case. The complainant, though served, has remained absent, nor has he filed any return or affidavit in this Court denying the averments made in the petition.

6. In the circumstances, I am of the opinion that this is a fit case where the inherent powers of this Court under section 482 of Criminal Procedure Code should be exercised to quash the complaint which does not make out any case against the present petitioner.

7. In the result, this application is allowed. The process issued in Case No. 40/S of 1991 by the Additional Chief Metropolitan Magistrate's, 24th Court at Borivali, Bombay is hereby set aside and quashed against the present petitioner only. Rule is made absolute in terms of prayer clause (a) of the petition against the petitioner.

Application allowed