S. Burman @ Satidas Burman vs State of Jharkhand and Shri Basudeo Mishra

D.K. Sinha, J.—The Petitioner has invoked the inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure for quashment of his criminal prosecution in Complaint Case No. 108/1998, including the order dated 21st September, 2001 by which processes were directed to be issued against him by Ms. Premlata Tripathi, Judicial Magistrate, 1st Class, Bokaro for the alleged offence under Sections 406/420/120-B of the Indian Penal Code. The case is presently pending in the court of Sri A. Kumar, Judicial Magistrate, 1st Class, Bokaro.

Prosecution story in short was that the complainant-opposite party No. 2 Shri Basudeo Mishra had filed Complaint Case No. 108/1998 before the Chief Judicial Magistrate, Bokaro against as many as nine accused persons alleging, inter alia, that in January, 1997, TELCO in association with M/s. Enar Industrial Enterprises Ltd. (the Dealer) organized a seminar at Bokaro Steel City where the accused persons highlighted the features of a newly made chassis branded as 1312 TC. It was canvassed that the chassis had good engine carrying warrantee for 1 1/2 years and the facility of service for eight years. Being induced, the opposite party No. 2 purchased the said chassis branded as 1312 TC and started plying the Bus. However, after a short while, defects in the engine as well as in the radiator developed, which could not be cured immediately on account of non-availability of spare parts and also in absence of trained technicians and therefore the complainant being aggrieved, alleged that the accused committed offence under Sections 406/420/120-B of the Indian Penal Code.

Mr. V.P. Singh, the learned Sr. Counsel, appearing on behalf of the Petitioner, submitted that the complainant had arrayed the accused by designation that was provided by the Company simpliciter without naming individual. The complainant had arrayed the General Manager (Sales) of the Company as accused No. 3 and also arrayed the Area Service Manager of the Company as accused No. 5 without disclosing their names. Petitioner, however, in the said complaint stands arrayed as accused No. 4 in the capacity of the Regional Manager (Sales) along with one Mr. Ramlingam, the then Service Engineer of the Company, who also stands arrayed as accused No. 6. Both the Petitioner and the said Ramlingam were no longer in service serving the said Company TELCO.

Mr. Singh, appearing for the Petitioner, explained that neither the Petitioner nor the Company was ever served the process of the Court. However, the Company could gather that the complaint was filed on 24.4.1998 and the same was pending for issuance of processes until 21st September, 2001 pursuant to the statement of the complainant on his solemn affirmation and evidence of three enquiry witnesses viz. Manindranath Jha, Vijay Kumar Adhikari and Kajal Sen. Thereafter, processes were directed to be issued by the order dated 21st September, 2001 against all the accused for the prima facie alleged offences punishable under Sections 406/420/120-B of the Indian Penal Code.

Against the impugned order dated 21.9.2001 the accused Nos. 2, 7 and 8 moved this Court for quashment of their entire criminal proceedings and filed the Cr.M.P. No. 264 of 2004 u/s 482 Code of Criminal Procedure which was allowed by this Court on 12.6.2006. In the said petition, fact was brought to the notice of this Court that the opposite party No. 2 was not the owner of the vehicle in question and in support thereof, photocopy of the Bill dated 27.1.1997 was annexed, which demonstrated that the vehicle in question was purchased by one Karuna Mishra wife of the complainant-opposite party No. 2. The Petitioners of the said petition further contended that all the wear and tear of the Bus in question was caused due to its excessive use as it had already covered more than 1,06,694 Kms. within a very short period. The documents were produced in the petition u/s 482 Code of Criminal Procedure showing the services provided by the Company ( Tata Motors) and the satisfaction note executed by the opposite party No. 2. The facts, which were pointed out by the co-accused in Cr.M.P. No. 264 of 2004, remained uncontroverted by the opposite party No. 2, as such, the entire criminal prosecution of the accused Nos. 2, 7 and 8 was quashed with the observation of this Court recorded in Cr.M.P. No. 264 of 2004,

Under these circumstances, it cannot be said by any stretch of imagination that the Petitioners, who are Managing Director as well as Works Manager and Sales Officer had had any dishonest intention right from the beginning to induce the complainant to part with the money for purchasing the vehicle and as such the prosecution of the Petitioners can be said to be an abuse of the process of the court and consequently order taking cognizance is also bad. In that view of the matter, the entire criminal proceeding of Compliant Case No. 108 of 1998 pending in the court of Chief Judicial Magistrate, Chas at Bokaro, including the order taking cognizance is hereby quashed so far the Petitioners are concerned. Accordingly, Criminal Miscellaneous Petition is allowed. It goes without saying that any observation made shall not be prejudicial to the right of the parties in seeking other remedy available.

In spite of valid service of notice, opposite party No. 2 did not prefer to enter appearance in this Criminal Miscellaneous Petition.

Heard Mr. T.N. Verma, the learned A.P.P. on behalf of the State, who did not dispute the contention that Petitioner had any kind of personal involvement or mens rea for the alleged offence.

Having regard to the facts and circumstances of the case, I find that the Petitioner S. Burman @ Satidas Burman, whose name stands at serial No. 4 of the complaint petition, filed on behalf of the opposite party No. 2, could not be held criminally accountable for the alleged offence under Sections 406/420/120-B of the Indian Penal Code, who was only the Regional Manager (Sales), TELCO now known as Tata Steel. It would be relevant to mention that the complaint is silent about the role which could be attributable to the Petitioner and that the essential ingredients to constitute an offence of cheating could be the dishonest intention of the person to deceive since the very inception of the transaction but no such specific dishonest intention of the Petitioner could be demonstrated in the compliant case or in the evidence during enquiry u/s 202 Code of Criminal Procedure. I have reason to observe that before issuing processes, the learned Judicial Magistrate without application of judicial mind issued processes as also against the Petitioner, which tantamount to misuse of the process of the Court and I further find that the defence case of the Petitioner is fully covered by the decision of this Court recorded in Cr.M.P. No. 264 of 2004 on 12.6.2006.

In view of the above discussions, this Criminal Miscellaneous Petition is allowed and the entire criminal prosecution of the Petitioner S. Burman @ Satidas Burman in Complaint Case No. 108/1998 pending before the Judicial Magistrate, 1st Class, Bokaro is quashed, however, with the observation that this order will not preclude the complainant to redress his grievance if at all, by any alternative remedy.