Alexey B. Agibalov vs The State of Jharkhand and Others

Prashant Kumar, J.—This writ application has been filed for quashing the F.I.R., so far it relates to the petitioner, namely, Alexey B. Agibalov, in connection with Ramgarh P.S. Case No. 75 of 2014 (G.R. No. 734 of 2014) pending in the Court of learned Sub-Divisional Judicial Magistrate, Hazaribagh, under Sections 406 /420 /467 /468 /471 /34 of the Indian Penal Code. It is alleged that the complainant, M/s. Chanani Transport had purchased 10 tippers, namely, Kamaz 6540, manufactured by Kamaz Vectra Motors Limited, after going through the booklet and warranty papers of the aforesaid tippers for a sum of Rs. 3,25,00,000/-. It is stated that after sometime, the aforesaid tippers become defective. Thereafter, the complainant written to Kamaz Vectra Motors Limited for changing the said vehicles, as per the guarantee given by the said company. It is stated that a meeting took place in between the complainant''s officers and officers of the Kamaz Vectra Motors Limited and in that meeting on 8.4.2012, the Kamaz Vectra Motors Limited had agreed to replace the 10 tippers with 5 new model tippers i.e. Kamaz 6520 model. However, the said agreement is subject to some conditions, mentioned in the said minutes itself.

It is alleged that even after the aforesaid assurance, the Kamaz Vectra Motors Limited had not replaced the defective vehicles with 5 new tippers and, hence the complainant alleged that the Kamaz Vectra Motors Limited represented by this petitioner, has cheated the complainant. Therefore, the present case has been filed.

Sri Pandey Neeraj Roy, learned counsel appearing for the petitioner submits that from the allegations made in the F.I.R./complaint petition, no offence made out against the petitioner. He submits that there is nothing in the F.I.R. to show that petitioner had deceived the complainant in his personal capacity, nor there is any averment in the complaint petition to show that on the assurance of this petitioner, the complainant had purchased 10 tippers and delivered the money to the company. Under the said circumstance, the offence of cheating not made out against the petitioner. It is further submitted that there is no averment in the F.I.R. to show that complainant has entrusted any property to the petitioner, which the petitioner has misappropriated, thus no offence made out under Section 406 of the Indian Penal Code. Sri Pandey Neeraj Roy further submits that there is no allegation in the F.I.R. that the petitioner has committed forgery. Thus, the offence under Sections 467 , 468 , 471 of the IPC are also not made out against the petitioner. Sri Roy submits that this is a case of pure and simple civil dispute because admittedly the Kamaz Vectra Motors Limited had supplied 10 tippers to the complainant as ordered by it. It is alleged that the above tippers became defective after some time. Therefore, in view of the judgment of Hon''ble Apex Court in Sharon Michael and Others Vs. State of Tamil Nadu and Another, , the dispute between the parties is civil in nature and hence no criminal offence made out against the petitioner, therefore, the F.I.R. lodged against the petitioner be quashed.

On the other hand, Sri A.K. Sahani, learned counsel appearing for the Resp. No. 2 (Complainant/informant), submits that petitioner, who is the Chief Executive Officer of Kamaz Vectra Motors Limited has assured the complainant for replacing the 10 defective tippers by 5 new model tippers, which will manifest from the minutes dated 8.4.2012, but in spite of that assurance, petitioner has not delivered the 5 new model tippers and therefore, the offence of cheating made out. He submits that the aforesaid minutes has been signed by the petitioner in his personal capacity, therefore, offence under Section 420 of the IPC made out against him.

Having heard the submissions, I have gone through the records of the case. It is an admitted position that as desired by the complainant, the Kamaz Vectra Motors Limited has delivered 10 Kamaz tippers 6540 to the complainant for a sum of Rs. 3,25,00,000/-. There is nothing in the complaint petition to show that the said purchase was made by the petitioner on the persuasion of the petitioner rather in paragraph No. 2, the complainant specifically mentioned that he agreed to purchase the tippers after going through the booklets and warranty papers of the company. It is also nowhere mentioned that the said booklet and/or warranty papers bears the signature of this petitioner. It is also worth mentioning that at the time of delivery of the aforesaid 10 tippers, there was no defect in the said tippers. The said defect were detected after sometime. Thus, it is clear that at the time of delivery of the said tippers, the intention of the company, of which the petitioner is Chief Executive Officer, is not of cheating the complainant. The main grievance of the complainant against this petitioner is that the petitioner in the meeting dated 8.4.2012, had assured the complainant for replacing the aforesaid 10 defective tippers with 5 new model tippers, but he has not done so. There is nothing in the F.I.R. to show that the complainant had done anything in pursuance of the aforesaid assurance given on 8.4.2012 i.e. by delivering 10 tippers as mentioned in the said minutes. Thus, in my view, even assuming that the petitioner has given some assurance on 8.4.2012 then also, no offence of cheating made out against him.

From perusal of entire F.I.R./com-plaint petition, I find that there is no allegation that the complainant had entrusted any property to this petitioner which was misappropriated by him. Likewise there is also no allegation that the petitioner created any false document for cheating the complainant.

In similar circumstance in Sharon Michael and Others Vs. State of Tamil Nadu and Another, (supra) , Hon''ble Supreme Court has held that if defective material supplied to the purchaser, then the dispute between the parties is civil in nature. In view of the aforesaid facts and circumstance, I allow this writ application and quash the F.I.R., so far it relates to the petitioner, namely, Alexey B. Agibalov, in connection with Ramgarh P.S. Case No. 75 of 2014 (G.R. No. 734 of 2014) pending in the Court of learned Sub-Divisional Judicial Magistrate, Hazaribagh, under Sections 406 /420 /467 /468 /471 /34 of the Indian Penal Code.