Om Prakash Gupta @ O.P.Gupta vs The State of Bihar

This application, under Section 482 of the Code of Criminal

Procedure, is directed against the order dated 10.09.2013 passed in Siwan

(M) P.S. Case No.288 of 2012, whereunder the court of the Chief Judicial

Magistrate, Siwan, took the cognizance of the offence under Sections 420,

406, 379, 448, 307, 427 and 506 / 34 of the Indian Penal Code against the

accused-petitioners.

The facts, leading to this application, are that the opposite

party no.2 Om Prakash Singh gave a written report on 05.08.2012 before

the Officer Incharge, Siwan (O.P. Mahadeva) Police Station to the effect

that his wife Dr. Ira Sinha purchased Mayura-200 Machine through M/s.

Logotech (India) Private Limited, 403 F.I.E. Patparganj, Delhi of which

Om Prakash Gupta alias O.P. Gupta (petitioner no.1) is the Director and

Rupender Chabra alias Rupinder Chabra alias R. Chabra (petitioner no.2) is

the Technical Director. Dr. Ira Sinha, the wife of the opposite party no.2,

used to deposit the comprehensive maintenance charge to the Said Firm

yearly for maintenance of Mayura-200 Machine. Due to regular problems

and non accuracy result of Myura-200 Machine, Dr. Ira Sinha, the wife of

the opposite party no.2, contacted the manufacturer of Mayura-200

Machine, namely, M/s. Logotech Private Limited at italy then the Company

directed to M/s. Key Pharma Limited, A-1, Community Centre, Narayan

Industrial Area, Phase-II, New Delhi, to look after and solve the problem of

Mayura-200 Machine. Accordingly, on 17.04.2012, Engineer Prasoon

came and checked Mayura-200 Machine and disclosed that the original

parts have been removed from it and due to that reason, Mayura-200

Machine is not giving the accurate result. He also changed some duplicate

parts fitted in the Machine, which were available with him and asked to

inform the Company about fitting of duplicate parts in Mayura-200

Machine and also issued certificate in that regard. On knowing about the

duplicate parts fitted in Mayura-200 Machine and about committing

mischief by M/s. Logotech (India) Private Limited by exchanging the

original parts of Myura-200 Machine, which was purchased on payment of

Rs.11,00,000/-, the opposite party no.2 and his wife Dr. Ira Sinha was very

much shocked. Later on, on 19.04.2012, Engineer Prasoon talked to the

opposite party no.2 on phone that O.P. Gupta (petitioner no.1) and R.

Chabra (petitioner no.2), Director and Technical Director of M/s. Logotech

(India) Private Limited respectively are annoyed with him and giving

threatening asking him to take back the certificate of service and he also

made request to return the certificate but the opposite party no.2 refused.

Thereafter, on 20.04.2012, O.P. Gupta (petitioner no.1) and R. Chabra

(petitioner no.2) talked to Dr. Ira Sinha, the wife of the opposite party no.2,

on phone and started giving pressure to return the certificate of service of

the Machine disclosing fitting of the duplicate parts but she refused. On

05.08.2012, in the evening, R. Chabra (petitioner no.2) alongwith one

another person entered in the clinic of the opposite party no.2 and

introduced that person as O.P. Gupta (petitioner no.1), the Director of M/s.

Logotech (India) Private Limited. At that time, four persons were also with

them. R. Chabra (petitioner no.2) allured to opposite party no.2 with

several modes to return the certificate as issued by Engineer Prasoon,

saying that unless and until certificate is returned, his distributorship will be

cancelled by the Company. When the opposite party no.2 refused to return

the certificate then both became annoyed and started to abuse. On protest

made by the opposite party no.2, R. Chabra (petitioner no.2) ordered to his

associates, who were armed with pistol to kill him. Thereafter, one person,

pointed the pistol at the neck of the opposite party no.2 and fired but the

same was missed. On raising ''hullah'' by the opposite party no.2, the

neighbours rushed there and, thereafter, both the petitioners moved from

there carrying the briefcase of the opposite party no.2 containing laptop,

cash Rs.20,000/- and other documents boarding on the Scorpio vehicle. As

such, the accused-petitioners committed mischief with Dr. Ira Sinha, the

wife of the opposite party no.2, by replacing the duplicate parts in mayura-

200 Machine by removing the original parts.

On the basis of the aforesaid written report of the opposite

party no.2, Siwan (M) P.S. Case No.288 of 2012 under Sections 420, 406,

379, 448, 307, 427 and 506 / 34 of the Indian Penal Code was instituted on

05.08.2012 against the accused-petitioners and, on investigation, the police

submitted the chargesheet against them under the aforesaid Sections.

Thereafter, the Chief Judicial Magistrate, Siwan, took the cognizance of the

offence under Sections 420, 406, 379, 448, 307, 427 and 506 / 34 of the

Indian Penal Code against the accused-petitioners through the impugned

order dated 10.09.2013.

Learned counsel for the petitioners submitted that,

admittedly, the petitioners are Director and Technical Director of M/s.

Logotech (India) Private Limited respectively having its registered office at

403, F.I.E., Patparganj, New Delhi, and are engaged in sale and purchase of

electronic equipments of M/s. Logotech Private Limited situated at Italy.

The opposite party no.2 Om Prakash Singh and his wife Dr. Ira Sinha are

doctors and running the clinic at Gaushala Road, Siwan. Dr. Ira Sinha in

the month of May, 2006 offered to purchase fully automatic Biochemistry

Analyser Model Echo Plus Machine and, thereafter, the representative of

the accused-petitioners visited the clinic of Dr. Ira Sinha, the wife of the

opposite party no.2, and entered into an agreement and, accordingly, on

30.05.2006, Dr. Ira Sinha purchased fully automatic Biochemistry Analyser

Model Echo Plus Machine. According to the terms of the agreement, the

Echo Plus Machine was being maintained by the Company of the

petitioners till 12.10.2007. The employees of Dr. Ira Sinha, the wife of the

opposite party no.2, were not well versed in handling the machine, then on

the request of Dr. Ira Sinha, new model of the aforesaid Machine in the

name of Mayura-200 was supplied to her in terms of the agreement dated

23.07.2007 and the same was installed in the clinic of Dr. Ira Sinha, the

wife of the opposite party no.2, and the machine was working in the proper

condition. After seven months, Dr. Ira Sinha, the wife of the opposite party

no.2, informed the Company of the petitioners about some problem in

Mayura-200 Machine. Thereafter, one engineer was sent by the Company

of the petitioners at the clinic of Dr. Ira Sinha, the wife of the opposite

party no.2, and then it was detected that tube of the machine was damaged

by the rat and the same was replaced by the engineer with a warning that if

in future any part would be damaged, the Company will charge the price of

the part on which Dr. Ira Sinha, the wife of the opposite party no.2, became

annoyed and made complaint to the petitioners'' Company and also lodged

Siwan(Mufassil) P.S. Case No.61 of 2008 against Faiz Ahmad, Director

Marketing, I.A. Hashmi, Sales Executive and R. Chhabra (petitioner no.2),

Technical Director, of M/s. Logotech (India) Private Limited with false

allegation in which on investigation, the police submitted the chargesheet.

Thereafter, the Chief Judicial Magistrate, Siwan, took the cognizance of the

offence under Sections 406, 420, 384 and 386 / 34 of the Indian Penal Code

vide order dated 29.08.2008 against them. Against the aforesaid order of

taking cognizance of the offence, Faiz Ahmad, Director Marketing, I.A.

Hashmi, Sales Executive and R. Chhabra (petitioner no.2), Technical

Director, of M/s. Logotech (India) Private Limited, filed Criminal Misc.

No.36923 of 2008 under Section 482 of the Code of Criminal Procedure,

and the aforesaid cognizance order was quashed by this Court vide order

dated 16.11.2011. Thereafter, with an ulterior motive to put undue

pressure and in vengeance, the opposite party no.2, the husband of Dr. Ira

Sinha, lodged the present Siwan (Mufassil) P.S. Case No.288 of 2012

against the petitioners on 05.08.2012 under Sections 420, 406, 379, 448,

307, 427 and 506 / 34 of the Indian Penal Code with respect to the same

Mayura-200 Machine in which the cognizance of the offence is taken

against the petitioners through the impugned order dated 10.09.2013. It is

further submitted that since the petitioner no.2 R. Chabra, Faiz Ahmad and

I.A. Hashmi were made accused in Siwan (Mufassil) P.S. Case No.61 of

2008 lodged by Ira Sinha, the wife of the opposite party no.2, in the year

2008 and the order of taking cognizance of the offence against them was

assailed before this Court by filing Criminal Misc. No.36923 of 2008,

which was quashed on 16.11.2011, therefore, no question arises about

doing the maintenance work of the Mayura-200 Machine by the Engineer

of the petitioners after lodging of Siwan (M) P.S. Case No.61 of 2008. In

fact, after quashing the cognizance order dated 29.08.2008 passed in

Siwan(M) P.S. Case No.61 of 2008 by this Court, the present case has been

lodged by the opposite party no.2 making false allegation of coming the

petitioners at his clinic, giving threatening to return the certificate issued by

Engineer Prasoon about fitting of duplicate part in Mayura-200 Machine

and pointing the pistol upon the opposite party no.2 and moving from there

with the briefcase.

Learned counsel for the opposite party no.2 submitted that

there is no illegality in the impugned order. He further submitted that in the

present case, both the petitioners alongwith some unknown having pistol

came at the clinic of the opposite party no.2 and his wife Ira Sinha and gave

threatening to return the certificate issued by Engineer Prasoon about fitting

of duplicate part in Mayura-200 Machine and when the opposite party no.2

refused to return the certificate, then both the petitioners abused him on the

point of pistol and also made firing but the same was missed and they also

took his briefcase containing laptop, cash Rs.20,000/- and other documents

and moved from there boarding on the Scorpio vehicle but he fairly

conceded that regarding misbehaviour of Engineer of the petitioners''

company in the maintenance of same Mayura-200 Machine, Dr. Ira Sinha,

the wife of the opposite party no.2, had lodged Siwan (Mufassil) P.S. Case

No.61 of 2008 in which the cognizance of the offence was taken under

Sections 406, 420, 384 and 386 / 34 of the Indian Penal Code by the Chief

Judicial Magistrate, Siwan, vide order dated 29.08.2008 but the said order

was quashed by this Court vide order dated 16.11.2011 passed in Criminal

Misc. No.36923 of 2008.

Admittedly, regarding non attending the problem of same

Mayura-200 Machine, claimed by Ira Sinha, the wife of the opposite party

no.2 had lodged Siwan (Mufassil) P.S. Case No.61 of 2008 in which Faiz

Ahmad, Director Marketing, I.A. Hashmi, Sales Executive and R. Chhabra

(petitioner no.2), Technical Director, of M/s. Logotech (India) Private

Limited, were made accused. In the aforesaid case, the cognizance of the

offence under Sections 406, 420, 384 and 386 / 34 of the Indian Penal Code

was taken against them vide order dated 29.08.2008 by the Chief Judicial

Magistrate, Siwan. Thereafter, against the aforesaid cognizance order dated

29.08.2008, Faiz Ahmad, Director Marketing, I.A. Hashmi, Sales Executive

and R. Chhabra (petitioner no.2), Technical Director, of M/s. Logotech

(India) Private Limited, filed Criminal Misc. No.36923 of 2008 before this

Court which was quashed vide order dated 16.11.2011. As such, on

making complaint by Dr. Ira Sinha, the wife of the opposite party no.2,

about non functioning of Mayura-200 Machine properly, and sending the

Engineer by the petitioners for repairing of Mayura-200 Machine after

lodging of Siwan (M) P.S. Case No.61 of 2008 is quite unreasonable. The

further allegation against the petitioners that they being the Director and

Technical Director of M/s. Logotech (India) Private Limited, Delhi, came

from Delhi with some antisocial elements at the clinic of the opposite party

no.2 at Siwan and abused and gave threatening to the opposite party no.2

appears to be unreasonable and not believable. As such, Siwan (M) P.S.

Case No.288 of 2012 appears to be lodged by the opposite party no.2

against the petitioners with an ulterior motive to put undue pressure in

vengeance.

Having regard to the facts and circumstances of the case, the

continuance of the criminal proceedings on passing the impugned order

dated 10.09.2013 in Siwan (Muffasil) P.S. Case No.288 of 2012 by the

court of the Chief Judicial Magistrate, Siwan, for the offence under

Sections 420, 406, 379, 448, 307, 427 and 506 / 34 of the Indian Penal Code

against the accused-petitioners would amount to an abuse of the process of

the court.

Accordingly, the impugned order dated 10.09.2013 passed in

Siwan (M) P.S. Case No.288 of 2012 by the court of the Chief Judicial

Magistrate, Siwan, and the entire criminal proceedings of the aforesaid

case, are hereby quashed and this application is allowed.