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Samsung India Electronics Pvt. … vs State Of Bihar & Anr on 5 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.9568 of 2018
Arising Out of PS.Case No. -410 Year- 2017 Thana -PATNA COM PLAINT CASE District-
PATNA

Samsung India Electronics Pvt. Ltd., a Company incorporated under the Companies
Act, 1956 having its registered Office at 6th Floor, DLF Center, Sansad Marg, P.S.-
Sansad Marg, New Delhi- 110001 through its authorized Signatory, Manager
(Legal) Mr. Manish Kumar son of Late Mukhtar Singh,resident of 504D, Regent,
Shipara Suncity, Indirapuram, P.S.- Indrapuram, Gaziabad, Utter Pradesh.

…. …. Petitioner/s
Versus

1. The State of Bihar.

2. Nikhil Kumar son of Sri Pawan Kumar Sah, resident of G/5, ABC Complex,
Exhibition Road, P.S.- Gandhi Maidan, District- Patna.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Chitranjan Sinha, Sr. Advocate
: Mr. Rajesh Ranjan, Advocate
For the Opposite Party No.2 : Mr. Rajeev Sah, Advocate
For the State : Mr. Ashok Kumar, APP

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 05-03-2018

Heard Mr. Chitranjan Sinha, learned Senior Advocate

appearing for the petitioner, Mr. Ashok Kumar, learned Additional

Public Prosecutor for the State and Mr. Rajeev Sah, learned

Advocate, who appeared suo motu on behalf of the complainant

opposite party no.2.

2. This application under Section 482 of the Code of

Criminal Procedure (for short ‘the Cr.P.C.’) has been filed by the

petitioner for quashing of the order dated 11.10.2017 passed in
Patna High Court Cr.M isc. No.9568 of 2018 dt.05-03-2018

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Complaint Case No.410(c) of 2017 by the learned Judicial

Magistrate, 1st Class, Patna by which she has summoned the

petitioner and three others under Section 204 of the Cr.P.C. after

finding a prima facie case to be made out under Sections 406 and 420

of the Indian Penal Code (for short ‘the IPC’).

3. The short facts of the complaint according to the

complainant are that he is a businessman residing in Patna. He

purchased a Samsung Grand Prime 4G Smart Phone on 08.01.2016

on payment of rupees ten thousand from a shop named as ‘New Mahi

Telecom’ situated at Twin Tower, South Gandhi Maidan, Patna. After

4-5 months, the said phone began to give trouble and the same was

presented to M/s Baidnath Electronics, the Samsung authorized

service centre, but even after keeping the phone for 2-3 days problem

in the phone could not be sorted out. Thereafter, the said phone was

sent to the said service center on several occasions, but no

improvement was made in the performance of the phone rather the

phone allegedly began to heat up and battery backup was also

affected adversely. Again, on 26.12.2016, the phone was sent to the

service centre, but the same was not handed over to the complainant

on the fixed date. Thereafter, the complainant lodged his complain to

the consumer care centre of the company, but even after repeated

assurance, his phone was returned to him in damaged condition which
Patna High Court Cr.M isc. No.9568 of 2018 dt.05-03-2018

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he refused to accept. Thereafter, he sent a legal notice dated

20.01.2017, which was not replied by the petitioner company.

4. On the basis of the aforesaid allegations, the

complainant alleged that the accused persons have cheated him by not

fulfilling the promise of the warranty and proper service. It was also

alleged that the accused persons are selling inferior products and

misappropriated his money on false promise of providing quality

product.

5. The complainant was examined on solemn affirmation

under Section 200 of the Cr.P.C. and on behalf of the complainant

one more witness was examined in course of enquiry conducted

under Section 202 of the Cr.P.C. After conducting enquiry, the

learned Magistrte vide her order dated 11.10.2017 summoned all the

accused persons named in the complaint. They are Samsung India

Electronics Private Limited, Managing Director, Samsung India

Electronics Private Limited, Mr. Ashwathi Nair, Senior Executive

Customer Experience, Samsung India Electronics Private Limited and

M/s Baidnath Electronics, an authorized service centre of the

Company situated at Patna.

6. Assailing the impugned order dated 11.10.2017, learned

Senior Advocate appearing for the petitioner submitted that allegation

of selling of inferior or faulty products made by the complainant is
Patna High Court Cr.M isc. No.9568 of 2018 dt.05-03-2018

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false and fabricated. He submitted even if the entire allegations made

in the complaint are taken to be true at its face value, at best, a civil

claim would be made out, but just in order to extort money from the

petitioner and blackmailing the accused persons essentially a

consumer dispute has been given a colour of criminal case. The

averments made in the complaint would clearly show that the

complainant had used the phone for more than eleven months without

any complaint and his first claim was recorded in the company

authorized service centre on 12.12.2016. His phone was delivered to

him after necessary repair, but he refused to receive the same

complaining deficiency in the service.

7. On the other hand, learned Advocate appearing for the

complainant submitted that there is no error in the order impugned

passed by the learned Judicial Magistrate whereby the petitioner and

others have been summoned to face trial. He submitted that the

allegations made in the complaint do attract ingredients of cognizable

offences punishable under Sections 406 and 420 of the IPC. The

complainant was assured of the quality of the phone by the accused

persons and the promise made by the accused persons regarding

quality of phone set was apparently false as the same went out of

order within few months of purchase. He submitted that simply

because the complainant may also have remedy before the consumer
Patna High Court Cr.M isc. No.9568 of 2018 dt.05-03-2018

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court, the same would not mean that he would be barred to launch

criminal prosecution against accused persons, if ingredients of the

offences alleged are clearly attracted.

8. I have heard learned counsel for the parties and perused

the record.

9. To constitute an offence of cheating, as defined under

Section 415 of the IPC, it is imperative that the intention of the

parties at the time of making the promise was dishonest and

fraudulent.

10. In Hriday Ranjan Prasad Verma and Others vs.

State of Bihar and Others [(2000)4 SCC 168], the Supreme Court

held the offence of cheating defined under Section 415 requires:-

“(1) deception of any person;

(2)(a) fraudulently or dishonestly inducing that
person

(i)to deliver any property to any person, or

(ii)to consent that any person shall retain
any property; or

(b)intentionally inducing that person to do
or omit to do anything which he would not
do or omit if he were not so deceived, and
which act or omission causes or is likely to
cause damage or harm to that person in
body, mind, reputation or property.”

Patna High Court Cr.M isc. No.9568 of 2018 dt.05-03-2018

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11. Hence, ingredients of inducement, promise and

dishonest intention are sine quo non for constituting an offence of

cheating. Those ingredients are entirely missing in the case in hand.

12. In Hriday Ranjan Prasad Verma (supra), the

Supreme Court further held as follows:-

“To hold a person guilty of cheating it is
necessary to show that he had fraudulent or
dishonest intention at the time of making the
promise. From his mere failure to keep up
promise subsequently such a culpable intention
right at the beginning, that is, when he made the
promise cannot be presumed.”

13. In the present case, the admitted case of the

complainant is that the authorized service centre of the petitioner

company attended the complaint made by the complainant and

returned the phone after repair. However, the complainant was not

satisfied with the service rendered by the authorized service centre.

Thus, he refused to receive the phone. The said act of authorized

service centre cannot be said to be an act of dishonest intention right

from the beginning, as mere failure to keep up the promise cannot be

said to be an offence of cheating. Moreover, there was no occasion

for the petitioner company to make any promise at the initial stage.

14. The phone in question was admittedly sold and sale
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amount was received by the local shop-keeper, who was acting

independently. The petitioner company was responsible only for

after sale service, which it has performed through its authorized

service centre in accordance with the terms and conditions of the

warranty.

15. Apart from Section 420 of the IPC, as noted above,

the learned Magistrate has also taken cognizance of the offence

punishable under Section 406 of the IPC. Section 406 of the IPC

prescribes punishment for the offence of criminal breach of trust

defined in Section 405 of the IPC.

16. In Binod Kumar and Others vs. The State of Bihar

and Another [(2014) 10 SCC 663, the Supreme court laid down as

follows:-

“Section 406 IPC prescribes punishment for
criminal breach of trust as defined in Section 405
IPC. For the offence punishable under section
406 IPC, prosecution must prove:

(i) that the accused was entrusted with property
or with dominion over it; and

(ii) that he (a)misappropriated it, or (b) converted
it to his own use, or (c) used it or (d) dispose of it.

The gist of the offence is misappropriation done
in a dishonest manner. There are two distinct
parts of the said offence. The first involves the
fact of entrustment, wherein an obligation arises
Patna High Court Cr.M isc. No.9568 of 2018 dt.05-03-2018

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in relation to the property over which dominion
or control is acquired. The second part deals with
misappropriation which should be contrary to the
terms of the obligation which is created.”

17. In Rashmi Kumar(smt.) vs. Mahesh Kumar Bhada

[(1997) 2 SCC 397, the Supreme Court held as follows:-

“The essential ingredients for establishing an
offence of criminal breach of trust as defined
in Section 405 and punishable under Section
406, IPC with sentence for a period upto three
years or with fine or with both, are:(i)
entrusting any person with property or with any
dominion over property; (ii) the person
entrusted dishonestly misappropriating or
converting to his own use that property; or
dishonestly using or disposing of that property
or wilfully suffering any person so to do in
violation of any direction of law prescribing the
mode in which such trust is to be discharged, or
of any legal contract made touching the
discharge of such trust.”

18. In the present case, even if the entire averments made

in the complaint petition are taken at its face value, none of the

ingredients of Sections 405 and 406 of the IPC are attracted.

19. In view of the discussions made above, I am of the
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considered opinion that allowing the prosecution to continue on the

basis of the complaint would amount to an abuse of process of the

court. The court below failed to appreciate that a dispute of civil

nature has been given a cloak of criminal proceeding. The learned

Magistrate before summoning the accused persons was required to

appreciate the well settled position in law that criminal proceedings

are not a short cut for resolving disputes of civil nature.

20. In view of the discussions made above, the impugned

order passed by the court below cannot be sustained.

21. Accordingly, the impugned order dated 11.10.2017

passed by the learned Judicial Magistrate, 1st Class, Patna in

Complaint Case No.410(c) of 2017 and the entire proceedings

arising out of said complaint are set aside.

(Ashwani Kumar Singh, J)
Md.S./-

AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 11.03.2018
Transmission 11.03.2018
Date

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