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
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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
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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
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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
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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.”
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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
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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