Ratan Singh Hanspal and Another vs State of U.P. and Another

Rajesh Dayal Khare, J.—Heard learned Counsel for the applicants, learned A.G.A. for the State and Sri S.P. Singh, learned Counsel for the opposite party No. 2.

The present application u/s 482 Cr.P.C., has been filed for quashing the proceedings of Criminal Case No. 1640 of 1998 (Virendra Kumar v. Ratan Singh Hanspal and Anr.), pending before learned IInd Additional Chief Judicial Magistrate, Varanasi.

Learned Counsel for the applicant has contended that the applicant No. 1 is the proprietor of the firm namely, M/s New Hanspal Garrage Machine and the applicant No. 2 is the son of applicant No. 1 who are supplier of the fitter machine known as F.I.P. Test Work Hydraulic Unit Testing Machine (hereinafter to be referred as machine in question). It is further contended that the opposite party No. 2 purchased the machine in question after payment of Rs. 1,25,000/- but it appears that there was some manufacturing defect in the machine supplied to the opposite party No. 2 and when the opposite party No. 2 approached the applicants for return of his money, the applicants refused on account of which, the opposite party No. 2 filed the present complaint against the applicant and thereafter, the opposite party No. 2 filed a case before Consumer Forum, Varanasi for recovery of the amount of Rs. 1,25,000/- from the applicants which was decreed by the Consumer Forum vide its order dated 09.04.1997, copy of which is annexed as Annexure-3 to the affidavit accompanying the application. It is further argued that pursuant to the order of Consumer Forum, the compromise between the parties were entered, pursuant to which a sum of Rs. 1,25,000/-, was paid by the applicants to the opposite party No. 2, copy of the compromise deed is annexed as Annexure-4 to the affidavit accompanying the application. Thereafter compromise deed was also filed before the Consumer Forum bringing on record that the decretal amount has been paid to the opposite party No. 2 and the execution proceedings against the applicants be withdrawn, copy of which, is annexed as Annexure-7 to the affidavit accompanying the application. It is also contended that the opposite party No. 2 also moved an application alongwith an affidavit before learned IInd Additional Judicial Magistrate, Varanasi stating therein that the complaint be dismissed as not pressed as t he parties have entered into compromise, copy of which, is annexed as Annexure-6 to the affidavit accompanying the application. It is further contended that thereafter, the opposite party No. 2 took a somersault and the application was moved stating therein that he does not want any compromise, therefore the matter may be proceeded and summoning order has been passed against the applicants. Learned Counsel for the applicants has further contended that the matter is purely of civil nature which is authenticated by the affidavit of the opposite party No. 2 filed before the Consumer Forum Varanasi and has argued that pursuant to the order of the Consumer Forum, the amount of Rs. 1,25,000/- was paid to the opposite party No. 2 and the opposite party No. 2 also filed an affidavit admitting the same. It is further contended on behalf of the applicants that no offence under the charged Sections is made out against the applicants as there was no intention on behalf of the applicants to cheat the opposite party No. 2 and even if any proceedings were to be drawn by the opposite party No. 2, it ought to have been drawn against the manufacturer of the defective machine and not the supplier thereof.

Learned Counsel for the applicants has relied upon the Judgment of Hon''ble Apex Court reported in Dalip Kaur and Others Vs. Jagnar Singh and Another, . to show that fraudulent and dishonest intention must exists from the very inception to constitute t he offence of cheating of non-refund of the amount of advance which results in breach of contract does not constitute the offence of breach of trust, for the aforesaid argument learned Counsel for the applicants also placed reliance upon the Judgment reported in 200 (4) SCC 168 Hridaya Ranjan Prasad Verma and Ors. v. State of Bihar and has contended that the matter is purely of civil nature and therefore, the initiation of the criminal proceedings is abuse of the process of law. Learned Counsel for the applicants has lastly placed reliance upon the Judgment of Hon''ble Court reported in Alpic Finance Ltd. Vs. P. Sadasivan and Another, in support of his contention.

Sri S.P. Singh, learned Counsel for the opposite party No. 2 has contended that the offence under the charged Sections is made out against the applicants in view of the fact that the applicants have intentionally supplied the defective machine to the opposite party No. 2 and when the money was demanded back from the applicants, they refused to pay the same, therefore, the offence under the charged Sections is made out. Sri Singh has referred to the paragraph No. 7 of his counter affidavit wherein it has been stated that although compromise was reached between the parties and a sum of Rs. 1, 25,000/- was paid by the applicants to the opposite party No. 2 but since the remaining balance amount of Rs. 50,000/- as per terms and conditions of the compromise was due, therefore, the application for withdrawal of the criminal proceedings was not pressed. It is thus, contended that in fact there was no compromise reached between the parties. Sri Singh has further contended that the present 482 Cr.P.C., application has been filed after summoning of the applicants under the charged Sections which has been passed after recording of the statements u/s 200 and 202 Cr.P.C., which order suffers from legal infirmity which may warrants any interference by this Court and the defence of the applicant cannot be seen at this stage which can only be considered by the Trial Judge, therefore, the present application deserves to be dismissed.

Learned A.G.A. has contended that the proceedings of the present case as prayed, cannot be quashed.

After hearing the learned Counsel for the applicants, learned Counsel for the opposite party No. 2 as well as learned A.G.A. and after perusing the averments made in the present application, the prayer for quashing the proceedings is hereby refused.

Interim order, if any, stands vacated.

The present application is finally disposed off with the direction that in case, the applicants files an application for discharge before the concerned Court below within a period of one month from today, the same shall be considered and disposed off as expeditiously as possible in accordance with law, after hearing the concerned parties preferably within a period of four months thereafter.

For a period of six months or till the disposal of the aforesaid application whichever is earlier, no coercive action shall be taken against the applicants in the aforesaid case.