Vikas Sethi vs Rajeev Singh

Sanjay Kumar Gupta, J

The petitioner has challenged order dated 23.02.2010, by virtue of which cognizance under Section 420 of Ranbir Penal Code has been taken by the trial Court against the petitioner.

In the petition, it has been stated that in the complaint the allegation against the petitioner herein is that he approached the respondent for the fitting of aluminium composite sheets, fittings of glass and supply of glass. It was also submitted in the complaint that the accused person made an assurance to the complainant that in case any defect with respect to the fitting and supply of glasses arise, the petitioner who is accused in the complaint shall repay the whole of the amount. It is also submitted in the complaint that after being allured and assured by the accused i.e. the petitioner herein, the complainant purchased the material from him. It is mentioned in the complaint that after finishing of the work, the said work started showing problems. It is also mentioned that request was made to replace the front glass door and the machine as it was not fixed properly, whenever the door is opened or closed a strange noise used to come from the glass door. A request apprehending the fall of the door was made to the accused but no response was given to the complainant. The accused by deceitful means induced the complainant ie. the respondent to purchase the defective glass and engage him for fitting it in January, 2009. It is again mentioned that the petitioner has deliberately declined to rectify and change the defective glass.

It is stated in the petition that from the bare perusal of the complaint, as well as statement, the offence under Section 420 RPC is not made out. However, the allegations are false, baseless and concocted. Further stated that on 20.12.2007 the respondent herein issued an order to the petitioner herein to purchase glasses for their dealership and thereafter the petitioner finished the work accordingly. It is also to be mentioned here that the respondent has given the certificate of satisfaction on 19.02.2009. That the work done by the petitioner was satisfactory in terms of quality and time schedule. That as the pending amount has not been paid to the petitioner, so he served notices to the respondent. It is stated that instead of paying the amount to the petitioner, the respondent has filed the criminal complaint. The complaint and the statement do not disclose any offence.

I have considered the grounds taken in memo of petition and perused the complaint. The relevant para of complaint reads as under:-

"1. That the complainant is Assistant General Manager working in M/S Trehan Automotives Pvt. Ltd Sidhra, Jammu, Jammu who commands great respect and unimpeachable reputation in the society.

That, however, in the month of January, 2009, where the complainant started the construction of the showroom situated at Sidhra, Jammu, he was approached by the accused person for the fitting of aluminium composite sheets, fitting of glass and supply of glass. The accused person made a assurance to the complainant that in case any defect will arise with respect to the fitting and supply of glasses, the accused shall repay the whole of the amount to the complainant or he will rectify the problem as and when required on its own expenses.

That the complainant after being allured and assured by the accused, purchased the material from him with a bonafide intention that the accused has already promised him for providing the proper service and in case of any defect in the material, the same shall be replaced by the accused at his own costs.

That immediately after finishing of work, the said work started showing problem. The glass developed a problem owing to its inherent defecting manufacturing. A request was made to replace the front glass door and the machine as it was not fixed properly, whenever the door was opened or closed a strange noise used to come from the glass door. A request apprehending the fall of the door was made to the accused but no response was given to the complainant..

That the accused has by deceitful means induced complainant to purchase the defective glass and engage him for fitting it on January, 2009. That apart, he has deliberately declined to rectify and change the defective glass. He has, therefore, committed offence, punishable under Section 420 of the RPC."

On the basis of this complaint, the court below recorded the statements of the petitioner as well as the witnesses and took cognizance on 23.02.2010. The order of cognizance reads as under:-

"The instant complaint came to be presented before the Ld. CJM, Jammu who has transferred the same to this court for disposal under law. The compilation of the complaint is reported to be in order. Let the same be numbered and diarised.

Briet facts of this complaint are that the complainant is Assistant General Manager, working in M.s Trehan Automotives Pvt. Ltd Sidhra, Jammu and has a great respect and unimpeachable reputation in the society, that in the month of January, 2009, the complainant started the construction of the showroom situated at Sidhra Jammu, the complainant approached the accused person for the fitting of aluminum composite sheets, fitting of glass and supply of glass, the accused person made an assurance to the complainant that in case any defect will arise with respect to the fitting and supply of glasses, he (accused) shall repay the whole of the amount to the complainant or he will rectify the problem as and when required on his own expenses, that the complainant after being allured and assured by the accused, purchased the material from him with a bonafide intention that the accused has already promised him for providing proper service and in case of any defect in the material, the same shall be replaced by the accused at his own costs, that immediately after finishing of work, the said work started showing problem, the glass developed a problem owing to its inherent defective manufacturing, a request was made to replace the front glass door and the machine as it was not fixed properly, whenever the door was opened or closed a strange noise used to come from the glass door, a request apprehending the fall of the door was made to the accused but no response was given to the complainant, a photocopy of the request letter is also enclosed with the complaint, that the accused has by deceitful means induced compiainant to purchase the defective glass and engage him for fitting it on January 2009, that apart he has deliberately declined to rectify and change the defective glass, that the accused has therefore committed offence u/s 420 of RPC. Statement of complainant in support of the complaint on oath has been recorded. Complainant in his statement has retreated the facts as made in the complaint. Statement of Sanjay Shan Witness of the complainant has also been recorded; same shall form part of the file.

In view of the facts and circumstances of the case statement of the complainant and his witness recorded today offence u/s 420 RPC is prima-facie made out against the accused and in my opinion there is sufficient ground for proceeding against the accused. Hence summoned be issued to the accused. Put up on 23-04-2010."

For constituting the offence under section 420 RPC, it has to be shown that intention of accused right from beginning was deceitful. Here in this case, it is nowhere alleged in the complaint, even for the sake of it, that since beginning the accused/petitioner had dishonest or fraudulent intention of cheating the respondent. As per contents of complaint, after finishing of work, the said work started showing problem. The glass developed a problem owing to its inherent manufacturing defect. A request was made to replace the front glass door and the machine as it was not fixed properly, whenever the door was opened or closed a strange noise used to come from the glass door. A request apprehending the fall of the door was made to the accused but no response was given to the complainant. So it shows some installation problem; for that purpose respondant has remedy to file consumer complaint or seek compensation/damages in civil court. So dispute appears to be of a predominantly civil nature. In State of Haryana and others Vs. Bhajan Lal and others reported in 1992 Supp (1) SCC 335, wherein it is held that 'a criminal proceeding is manifestly attended with malafide intention and/or the proceeding is maliciously instituted with object to serve the oblique purpose of recovering the amount, such proceeding needs to be quashed and set aside.' The allegations made in the present complaint, even if after taken as they are, also do not make out ingredients of the criminal offence under section 420 RPC, though at the most they may attract civil dispute, for which respondant has civil remedy.

In view of above, this petition is allowed. The impunged complaint as well as order of taking cognizance dated 23.2.2010 are quashed.