Raj Rani Dhanda vs Commissioner Of Police And Anr.
2005 Latest Caselaw 1775 Del

JUDGMENT

R.C. Jain, J.

1. The petitioner-M/s Raj Rani Dhanda has filed this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeking directions on respondents No. 1 to 3 i.e. Respondent No. 1-Commissioner of Police, Delhi, Respondent No. 2-Deputy Commissioner of Police, South District, Houz Khas, New Delhi and Respondent No. 3-S.H.O. Police Station Sarita Vihar to register a case of cheating against respondents No. 4 to 8 and after registration of the case to carry out the investigation in the matter.

2. The petition has been filed with the averments and allegations that on 13.7.2003 the petitioner had booked a Skoda Octavia Elegance Car Sea Blue Colour with Continental Auto Services, A-13, Mohan Coop. Industrial Estate, Mathura Road, Opp. Sarita Vihar, New Delhi and deposited a draft for Rs. 3,77,000/- and the Company promised to effect the delivery of the car on 18.7.2003. Respondent No. 4-Sh.J.S. Bhasin and Respondent No. 6-Sh. Neeraj Karoul are stated to be the owner of the said Continental Auto Services while Respondent No. 4-Sh.Monto Bhasin and Respondent No. 7-Mr.Sumit are stated to be the employed as Sales Manager and Employee of the said Continental Auto Services. On 18.7.2003, the petitioner along with her husband and son, both practicing Advocates in Delhi Courts, went to Continental Auto Services in order to take the delivery of the car. The petitioner was given the delivery of a Skoda Octavia Car (Deep Sea Blue Elegance Petrol Car) bearing Chassis No. TMBBEJIU02A077464 and Engine No. AEG634494 without carrying out PDI (Pre-delivery inspection) but the sale invoice given to her was of an altogether different car of Cayenne Orange Colour with Chassis No. TMBBEJIU92/A007561 and Engine No. AEG634490. After taking the delivery of the car when the son of the petitioner was driving the car on 19.7.2003 he noticed that the car started missing and there were many other defects and so he contacted the respondent-company and on their instructions, he took the car to their showroom and complained to Respondent No. 4-Mr.J.S Bhasin about the delivery of defective car. With great reluctance, the car was exchanged with another car even which according to the petitioner was not in perfect order and was not functioning to her satisfaction. It is also alleged that when the petitioner and her son pointed out the above discrepancy in the Sales Voucher and the actually delivered car. Respondent No. 7-Mr. Sumit at the behest of respondent No. 4-Mr. J. S. Bhasin, snatched away the invoice from the hands of the petitioner and tore it away. According to the petitioner, the respondent had the bad intention to cheat the petitioner from the very beginning inasmuch as the defective car was delivered with a Sales Voucher containing Chassis and engine number of an altogether different car. The petitioner made a complaint to SHO, Police Station, Sarita Vihar, on 24.7.2003 praying for taking action against the said dealer and their functionaries but without any success, hence this petition.

3. The matter came up for hearing in the first instance before the Division Bench of this Court on 8.9.2003 and the Division Bench issued notice to respondents and called upon them to file reply/status report in the matter.

4. Status report dated 6.9.2003 has been filed by SHO, P.S. Sarita Vihar. The Report brings out that on receipt of the complaint dated 24.7.2003 from the petitioner, an enquiry was conducted and then opinion of the prosecution Branch was sought who opined that since the car of the petitioners has been changed and the Chassis No. and Engine No. mentioned in the sales invoice were due to clerical mistake thus no cognizable offence was made out and hence no FIR was registered and the complaint of the petitioner was filed. A further status report dated 4.12.2003 similarly brought out that though the invoice given to the petitioner on 18.7.2003 bears wrong chassis No. and Engine No. which was due to clerical mistake but the Gate Pass of the same date bears the correct Engine No. and Chassis No. and the colour of the car which was delivered to the petitioner and which car was later exchanged, no offence was made out.

5. Reply/counter affidavit has been filed on behalf of respondents No. 4 to 7 thereby raising preliminary objections stating that the present petition is an abuse of the process of law and has been moved for non-bonafide objectives; the complaint filed by the petitioner does not disclose commission of any cognizable offence and the allegations made in the petition are scandalous and defamatory in nature. It is, however, not disputed that the petitioner was delivered Skoda Octavia Elegance Car Sea Blue Colour bearing Chassis No. TMBBEJIU02A077464 and Engine No. AEG634494 bearing the same details on the gate pass but the computer invoice issued on that date contained a different Chassis No. TMBBEJIU92/A007561 and Engine No. AEG634490 of a Cayenne Orange Colour car which car had already been being sold by the respondents sometime back. It is sought to be explained that the error in the invoice had occurred because it was computer generated by an official who was not well-versed and that it was late in the evening. It is pleaded that when the petitioner complained of the defect in the car, on her insistence another car bearing Chassis No. TMBBE J1U 32A 007894 and Engine No. AEG 634639 was delivered to the petitioner on 21.7.2003. It is denied that there was any dishonest intention on the part of the respondents to deliver a defective car under incorrect invoice. It is denied that respondent No. 7-Sumit had torn away the invoice of the vehicle after taking it from the son of the petitioner on 19.7.2003. It is denied that the petitioner is entitled to any relief in the matter.

6. A separate counter affidavit stands filed on behalf of respondent No. 8-Managing Director of M/s Skoda Auto Limited mainly pleading that he had no concern with the transaction(s) or any acts of commission or omission alleged by the petitioner against respondents No. 4 to 7 and as he is a person sitting at a far distance and not responsible for day-to-day functioning of respondents No. 4 to 7.

7. The petitioner filed rejoinder thereby controverting the pleas raised by the respondents and reiterating the averments made in the petition.

8. I have heard Mr. J.P. Dhandha learned counsel representing the petitioner, Ms. Mukta Gupta learned standing counsel representing respondents No. 1 to 3, Mr. Sunil Mittal learned counsel representing respondents No. 4 to 7 and Mr. Vinay Sharma learned counsel representing respondent No. 8 and have bestowed my thoughtful consideration to their respective submissions.

9. Learned counsel for the petitioner has urged that the undisputed/admitted facts and circumstances disclosed in the petition would constitute an offence of cheating as defined in Section 415 of the Indian Penal Code. He submitted that from the very beginning respondents No. 4 to 7 had the malafide/dishonest intention to cheat the petitioner by making a delivery of a defective car to the petitioner knowing fully well that the car was defective and for that purpose, a sale invoice containing the particulars of a different car which had been sold away sometimes past was issued so as to deprive the petitioner from making any claim in respect of the defective car delivered to the petitioner. In this connection he has sought support from a few decisions of the Supreme Court viz in the cases of Sudhir Kumar Mukherjee and Sham Lal Shaw v. State of West Bengal and in the case of G.V. Rao v. L.H.V. Prasad and Ors. . In the first case, the Court had the occasion to interpret the provisions of Section 415 IPC more particularly the explanation appearing in the Section which says that a dishonest concealment of a fact is a deception within the meaning of said Section. On the basis of the facts and circumstances of the said case, the Court held that an offence under Section 420 read with Section 511 was clearly made out against the appellant. In the second case, a complaint was filed by a petitioner under Sections 415, 419, 420 read with Section 34 on the allegations that respondent had cheated him by intentionally inducing him to marry a girl of lower cast/community on representation that she belongs to a forward cast/community. The Police after investigation submitted a charge-sheet but the the High Court under Sections 482 Cr.P.C. had quashed the FIR on the ground that Chapter XVII Cr.P.C. deals with properties and, therefore, Section 415 IPC also pertains to property which in the above facts and circumstances was not involved. However, the Supreme Court on a consideration that the matter arose out of an matrimonial discord between the husband and wife, observed that the attempt ought to have been made to settle the matter between the parties rather the High Court interfering in the matter in its supervisory jurisdiction. The Court laid down the following principle:-

Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property, the second part need not necessarily relate to property. In the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. A guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person must be established. This part speaks of intentional deception which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. The intentional deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property.

10. Bearing in mind the legal proposition which emerges out of the above decision and also on a true interpretation of Section 415 of the Penal Code, it is to be seen if it is possible to infer any dishonest intention on the part of respondents No. 4 to 7 to deceive the petitioner or had any oblique motive. In the opinion of this Court, the answer should be a plaint "No" because respondent No. 4 is an authorised dealers in new cars and the main function of the dealer of the car being to receive cars from the manufacture and to deliver it to the customers for a consideration. With the said function, of course, are attached to several responsibilities to ensure that the car so delivered is a perfect car without any defects and that in case any defect is reported in the car to rectify the same or to replace the car if the defect is such which is incapable of rectification. It is not the case of the petitioner that respondent No. 4 had any previous enmity with her or had any other motive to deliberately deliver a defective car to her. In any case, the defective car delivered to the petitioner was replaced with another car within two-three days of the delivery of the allegedly defective car. So far as the issuance of the incorrect sale invoice is concerned, the same appears to be due to some inadvertent mistake on the part of the employee of respondent No. 4 who it appears was not well-versed in generating the computer invoice and there is every possibility that he might have committed such a mistake because the hand prepared gate pass contained the correct particulars of the car in question. Therefore, taking into account all relevant facts and attendant circumstances, it is almost impossible to infer that respondents No. 4 to 7 had any intention what to talk of dishonest intention to cheat the petitioner by delivering a defective car to her. Consequently it must be held that the averments and allegations contained in the complaint dated 24.7.2003 taking the same on its face value would not make out the offence of cheating as defined under Section 415 IPC and punishable under Section 420 Cr.P.C. So far as commission of any other offence in regard to the criminal intimidation etc. can be also said to have been made out on the above facts and circumstances of the case.

11. In view of the aforegoing discussion, this Court must hold that the present petition has not merits and no further action or direction as sought for by the petitioner is called for in the matter. However, it would be for the petitioner to work out her remedy, if any, in regard to the deficiency in service and alleged harassment and mental torture etc. which she claims to have suffered on account of the delivery of the defective car to her.

With these observations, the petition is hereby dismissed.