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Judgment
Through the instant petition filed under section 561-A Cr.P.C., the petitioner seeks quashing of the order dated 29.09.2010, whereby the cognizance has been taken by the learned Judicial Magistrate 1st Class, Kathua against him and proforma respondents 2 to 5.
It has been stated that from the bare perusal of the complaint, it is evident that it is a civil dispute, therefore, no offence under section 415 RPC is made out against the petitioner. The transaction between the petitioner and respondent No. 1 was purely a commercial transaction. The Court below has not followed certain principles of law while taking cognizance, therefore, no offence under sections 34, 120-B RPC has been made out. There is even not a whisper about particular defect in the system supplied by the petitioner.
The petitioner has assailed the validity of order dated 29.09.2010 passed in the said complaint and all the consequential criminal proceedings initiated against him precisely on the following grounds:-
a) That no offence under sections 415 is made out against the petitioner and there are no ingredients of the offence of cheating made out in material on record. The transaction between the petitioner and the respondent No. 1 was purely commercial transaction. The petitioner has not deceived the respondent No. 1, fraudulently or dishonestly induced the respondent No. 1 of delivery in the property or consented that any person was retained in the property or has intentionally induced the respondent No. 1 of delivery in the property or consented that any person was retained in the property or has intentionally induced the respondent No. 1 to do or not to do anything which he would have not done or committed during the course of such commercial transaction. There was no omission on the part of the petitioner, causing damage to the respondent No. 1. As aforesaid all the material of the system was without any defect and alright and at the time of its receipt, it was received after recording satisfaction by the petitioner. There is no material on record to show that there was any dishonesty or concealment of facts in the alleged deception. The requisite temperature in the alleged system is not being achieved by the respondent No. 1 due to non-following of the recommendations of the Engineers of the petitioner and lapse on the part of the respondent No. 1. In the reply notice all these facts were intimated to the petitioner No. 1 but he has deliberately and with mala fide intention superannuated all these things in the complaint and has approached the Hon'ble Court with unclean hands.
b) That it is settled law that in order to carve out an offence of cheating, dishonest intention of the accused should be made out at the beginning of the negotiation. There is a fine distinction between mere breach of contract and offence of cheating and unless fraudulent or dishonest intention is shown right at the beginning of the transaction i.e. the time when offence is said to have been committed, the offence is not made out. From the material on record it is clear that the petitioner did not procure order with fraudulent or dishonest intention or supplied material accordingly. The offence under Section 420 RPC is also not made out from the entire material on record. The transaction between the petitioner and respondent No. 1 was purely a commercial transaction and there was no ingredient of crime in it.
c) That from the material on record it is also not gatherable that offence under Sections 34 or 120-B RPC is made out. The proforma respondent Nos. 2 to 5 are the employees of the petitioner company and they never agreed to do any illegal act or any act which is not legal by illegal means. The complaint does not explain how criminal conspiracy has been hatched between the petitioner and the respondent Nos. 2 to 5.
d) That the complaint is also illegal because it has not been filed against the Directors of the Company.
e) That the respondent company has also qualified engineers but neither in the Legal Notice nor in the complaint, there is even a whisper about any particular defect in the system supplied by the petitioner. The petitioner company had supplied similar system to many units in the country and has never received any complaint from any unit. The unit supplied to the respondent No. 1 is absolutely perfect without any fault and the engineers of the respondent No. 1 are unable to point out any defect in the system. The requisite temperature is not being achieved by the respondent No. 1 due to lapse as mentioned above. The Engineers of the petitioner company have collected evidence showing that there is non-insulation of pipes, repair of Level Indicators, removed lines from trenches full of water causing mainly loss of temperature. The complaint is an after thought in order to black mail the petitioner.
f) That there was no material on record to issue process against the petitioner herein and the learned Magistrate was under a legal obligation to record his satisfaction before issuing the process and in case the material was not adequate it could not have been got investigated the matter before issuing process. This has not been done before issuing process by the learned Magistrate, therefore, the order impugned is required to be set aside.
g) That respondent No. 1 has already encashed the Bank Guarantee given by the petitioner amounting to Rs. 2.00 lacs as per the purchase order and hence not paid the balance 10% of the material supplied and in order to deprive the petitioner the balance payment, the respondent No. 1 has filed the said complaint in order to put pressure on the petitioner in order to escape its liability to the petitioner to the tune of Rs. 2.00 lacs.
I have heard counsel for the petitioner as well as respondent No. 1 and gone through the record.
Learned counsel for the petitioner has reiterated all the grounds taken in the memo of petition. Whereas counsel for respondent has supported the order impugned.
From the perusal of record of the court below, it is evident that respondent No.1 has filed a Criminal Complaint against the petitioner and the respondent Nos. 2 to 5 under Sections 415, 420, 34 and 120-B RPC. At the time of presentation of the Complaint on 14.09.2010, the Court below recorded the statement of complainant and directed him to produce the witnesses in support of his complaint on the next date of hearing, i.e., 21.09.2010. It further appears that from the interim order dated 21.09.2010, the Presiding Officer was on leave and the next date was fixed for 29.09.2010. The order dated 29.09.2010 would reveal that the Court below without taking cognizance and recording the statements of the witnesses as per the previous orders, issued summon to the accused. Meanwhile, petitioner has filed the present petition. Admittedly, in this case, the Court below has not taken cognizance in terms of Section 204 Cr.P.C. before issuing notice to the petitioner and respondent Nos. 2 to 5. Therefore, order of issuing of notices to petitioner and Performa respondents is palpably wrong, illegal and incorrect and the same is required to be set aside. Court below has dealt with the matter in a very causal manner.
In view of the above, without commenting on merits of complaint, the instant petition is allowed and all the orders passed in the Complaint after 29.09.2010, are set aside. The Court below is directed to proceed in the matter and pass the order according to law. As no cognizance has been taken by the court below, so petitioner and Performa respondents are not supposed to appear before court below. File of court below be sent back along with this order.