Om Prakash Singh vs The State Of Bihar

Non­Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.857 OF 2018 (Arising from SLP(Crl.) No.387/2018)

OM PRAKASH SINGH ...APPELLANT

VERSUS

THE STATE OF BIHAR & ORS. ..RESPONDENTS

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

1. Leave granted.

2. Signature Not Verified This appeal is directed against the judgment dated 16.10.2017 Digitally signed by VISHAL ANAND Date: 2018.07.11

passed by the High Court of Judicature at Patna in Criminal 16:30:31 IST Reason:

Miscellaneous No. 52088/2013 allowing the petition filed by 2

respondent nos. 2 and 3 herein under Section 482 of the Code of

Criminal Procedure. By the impugned judgment, the High Court

has set aside the order dated 10.09.2013 passed by the Chief

Judicial Magistrate, Siwan, Bihar in Siwan (M) P.S. Case No.

288/2012, taking cognizance of the offence under Section

420/406/379/448/307/427 and 506 read with Section 34 of the

Indian Penal Code against the accused­respondent nos. 2 and 3

herein.

3. Brief facts leading to this appeal are that on 30.05.2006, Dr.

Ira Sinha purchased fully automatic Biochemistry Analyser model

“Echo Plus” along with standard accessories from M/s Logotech

(India) Private Limited (hereinafter called ‘the Logotech’), of which

respondent nos. 2 and 3 are Director and Technical Director

respectively. The sale consideration of the said machine was Rs.7

lakhs. The machine was supposed to be fully automatic

Biochemistry Analyser with free warranty maintenance for a period

of three years. However, a maintenance of Rs.20,000/­ per annum

was to be paid by the purchaser after expiry of three years. The

appellant is the husband of Dr. Ira Sinha. It was found out by the 3

appellant and his wife that the Biochemistry Analyser purchased by

them was not functioning properly and was showing inaccurate

results due to manufacturing defect. Though, several visits were

made by the maintenance agents of the Logotech for repairing the

machine, the same was not successful. Thereafter, as suggested by

the officials of the Logotech, Dr. Ira Sinha relying upon the

assurance and recommendation of the officials of the Logotech,

purchased a random access fully automatic analyser model “Miura­

200” along with standard accessories from the Logotech in

exchange of the earlier model “Echo Plus” on 25.07.2007. The sale

price of “Miura­200” was Rs.11 lakhs. Thus, Dr. Ira Sinha had to

pay balance amount of Rs.4 lakhs extra (i.e. over and above Rs.

Seven lakhs). On payment, as mentioned supra, “Miura­200” model

was installed in Prachi Pathological Clinic of Dr. Ira Sinha.

However, annual maintenance costs of Rs.40,000/­ was to be paid

by the purchaser after expiry of free warranty period.

4. Unfortunately, “Miura­200” model was also not functioning

properly and regular problems were being faced in the use of the

said machine at the pathological clinic of Dr. Ira Sinha. The 4

officials of the Logotech were not paying proper attention and care,

though several repeated complaints were made by the purchaser.

Being aggrieved, Dr. Ira Sinha lodged an FIR in Siwan Police Station

on 24.03.2008, which came to be registered as case no.61/2008

under Sections 420/406/384/386 read with Section 34 of the

Indian Penal Code, at Police Station, Siwan. The charge sheet was

submitted by the said police station before the Magistrate, who took

cognizance of the offences. However, the High Court of Judicature

at Patna in Criminal Miscellaneous No. 36923/2008 quashed the

cognizance order passed by the Chief Judicial Magistrate, Siwan.

5. Despite receipt of annual comprehensive maintenance cost of

Rs.40,000/­, the officials of the Logotech were not resolving the

issues faced in the functioning of “Miura­200” model. Therefore,

Dr. Ira Sinha contacted the manufacturer of “Miura­200” model,

Logotech, Rome, Italy with her grievances. The manufacturer

directed the third­party service provider, i.e., “Key Pharma Limited,

Delhi”, to look after and solve the problems of “Miura­200” machine

purchased by Dr. Ira Sinha. Service engineer/ technical

representative of Key Pharma Limited visited the pathological clinic 5

of Dr. Ira Sinha to check the machine in question. After an in

depth verification of the machine, it was found that the original

parts of the machine have been replaced by duplicate parts, causing

inaccurate results. Hence, the technical expert changed some of

the duplicate parts with original parts as they were readily available

with him at that time. He promised that he would inform the top

officials of the manufacturer about the fiddle play of the Logotech.

The said engineer/ technical service expert, issued a report (i.e.

Service Report) dated 17.04.2012 under his signature evidencing

fitting of duplicate parts of the machine in place of the original

ones. The copy of the report is also furnished along with the

appeal. Having come to know about such service report against

respondent nos. 2 and 3, they started threatening the purchaser to

return back the copy of the service report to them, for which the

appellant and his wife refused. They even threatened with dire

consequences of taking away their life. According to the appellant,

respondent nos. 2 and 3 even tried to shoot them and allegedly

tried to take back the service report dated 17.04.2012 from their

possession. Having no other go, the appellant lodged an FIR before 6

Siwan Police Station, which came to be registered as Siwan (M) P.S.

Case No. 288/2012 for the offences under Sections

420/406/374/448/307/ 427 and 506 read with 34 of the Indian

Penal Code. In the said matter, the charge sheet came to be filed by

the police station after due investigation before the Chief Judicial

Magistrate, Siwan, Bihar. The Chief Judicial Magistrate, Siwan,

took cognizance of the offences. The said order of cognizance was

questioned by respondent nos. 2 and 3 before the High Court of

Judicature at Patna by filing petition under Section 482 of the Code

of Criminal Procedure. The said petition was allowed by the

impugned judgment. Hence, this appeal.

6. Having heard the learned Advocates from both the sides, we

find that the High Court is at fault in allowing the petition filed

under Section 482 of the Code of Criminal Procedure without duly

appreciating the facts and circumstances of the case and without

effectively considering the allegations made in the complaint and

materials found in the charge sheet. The High Court is mainly

influenced by the factum that the earlier order of taking cognizance

was quashed while deciding the present matter. In our considered 7

opinion, it is an error to conceive that the present proceedings

based on the subsequent complaint are liable to be quashed merely

because the earlier criminal proceedings were quashed. The High

Court rather advanced erroneously on the basis of presumptions

and conjectures, without considering the merits of the matter.

7. It is pertinent to note that the subsequent FIR dated

05.08.2012 from which the present proceedings emerge is thrust

upon discovery of a new fact of replacing the original parts with the

duplicate ones. The subject matter of the complaint is in relation to

the superior model “Miura­200”, upgraded on the advice of the

respondent­company. Though, the appellant and his wife agreed

and got their machine upgraded to “Miura­200” by paying Rs.4

lakhs extra, it is found by the technical expert appointed by the

manufacturer that the “Miura­200” supplied by respondent nos. 2

and 3 was containing duplicate parts. In other words, the original

parts were replaced by the duplicate parts at the time of supply of

machine to the appellant, and subsequently the machine was not

working properly resulting in inaccurate results. Thus, it is clear

that the subsequent complaint dated 05.08.2012 is based on new 8

set of facts and new set of allegations and not based on old set of

allegations as have been made in the FIR dated 24.03.2008. It is

needless to repeat that the FIR dated 24.03.2008 was based on the

allegations of non­functioning of the machine in addition to delay

and carelessness of respondent nos. 2 and 3 in getting the machine

repaired. At that time, the appellant and his wife were not aware

about replacement of the original parts with the duplicate ones.

The Service report of “Key Pharma Limited” was not in existence at

that time. Therefore, the Chief Judicial Magistrate, Siwan was

justified in taking the cognizance, since prima facie case is found

against respondent nos. 2 and 3.

8. This Court in the case of Udai Shankar Awasthy v. the State of

U.P. [(2013) 2 SCC 435, para 30] has observed that “the law does

not prohibit filing or entertaining of the second complaint even on

the same facts provided the earlier complaint has been decided on

the basis of insufficient material or the order has been passed

without understanding the nature of the complaint or the complete

facts could not be placed before the Court, or where the

complainant came to know certain facts after disposal of the first 9

complaint which could have tilted the balance in his favour.

However, the second complaint would not be maintainable wherein

the earlier complaint has been disposed on full consideration of the

case of the complainant on merit”. In the matter on hand, the

complainant/appellant came to know certain facts relating to the

replacement of parts of the machine after the disposal of the first

complaint, that too after getting a service report from “Key Pharma

Limited, Delhi”, and, therefore, there is no bar for the appellant to

lodge second complaint.

9. Looking to the complaint and the charge­sheet, it is clear that

the complainant has made host of allegations. The police after due

investigation filed the charge­sheet. On going through the available

material, we find a prima facie case against respondent nos. 2 and

3. Since the case has to be tried, we desist ourselves to comment

any further on the merits of the matter. We make it clear that the

observations made by us are only for disposal of this appeal. That

these observations of ours will not influence the trial court while

deciding the case. Since, we find prima facie material against

respondent nos. 2 and 3, the High Court is not justified in quashing 10

the proceedings. Accordingly, the impugned judgment of the High

Court is set aside. The order of taking cognizance passed by the

Chief Judicial Magistrate, Siwan, in Siwan (M) P.S. Case No.

288/2012 stands restored.

..…………………………………….J. [N.V. RAMANA]

……………………………………….J. [MOHAN M. SHANTANAGOUDAR] NEW DELHI;

JULY 11, 2018.