1. Out of the four accused in c. C. No. 274 of 1974 on the file of the chief judicial magistrate's court, Kottayam, The 1st and 2nd accused have filed this petition. The 1st petitioner is the 1st accused and the 2nd petitioner is the 2nd accused. The first petitioner is described as the president of the hindustan motors ltd., Hind motor, Hooghly, West bengal, And the 2nd petitioner is described as mr. S. K. Datta, Service co - ordination manager, Hindustan motors ltd., Hind motor, Hooghly, West bengal (project service division). The 3rd and 4th accused are respectively, M/s. Marikkar (motors) ltd, Trivandrum and mr. Ummer, Manager, M/s. Marikkar (motors) ltd., Kottayam. The complainant in the criminal case is one k. M. Joseph of kanjirappally.

2. The averments in the complaint against the four accused persons are, In short, As follows. The complainant booked with the branch office of m/s. Marikkar (motors) ltd., Kottayam on 3 - 111973, For the purchase of a new ambassador car for his daughter. Necessary earnest money of rs. 4000/ - was deposited. The complainant received the intimation that the car was ready for delivery and he paid rs. 34,479. 00 on 29 81974 and the car was registered as k. L. O. 2847. The complainant took delivery of the car on 5 - - 91974. After taking delivery of the car, The complainant discovered several defects to the car. There was profuse smoke in the exhaust and heavy oil consumption. The car was taken back to the 4th accused on 7 - 9 - 1974. The piston rings were changed and the car was given back to the complainant on 119 1974. Even after the repairs, The car was found to be unsatisfactory in its working. The complainant found that the bores were sleeved, Which allegation was denied by the 4th accused. The defects with the car are shown in para. 6 of the complaint as follows:

1. Abnormal sound from the engine and high oil consumption.

2. Excessive rear axil play and 'cling' sound from rear axle.

3. Unsteadiness of the vehicle on the road.

4. Tappets making huge noise.

5. Difficulty to operate gears, Especially 2nd gear.

6. 'hum' noise arising from water pump/ generator.

7. Clutch is very hard and also juddering, While the vehicle moves out.

8. Steering rattling.

9. Ineffective brakes and front wheel wobbling.

10. Inadequate weldings to many joints thereby car rattles too much on road".

3. On these materials a complaint was filed under s. 420 of the indian penal code read with s. 34 i. P. C. Against the four accused. The present application is filed under s. 482 cr. P. C. By the two petitioners before me, To call for the papers from the file of the chief judicial magistrate's court in c. C. No. 224 of 1974 and to quash the complaint.

4. It is stated in the petition that the first petitioner is manufacturing cars under licence issued by the government of india. The 3rd accused in the case is a dealer in kerala. The 2nd petitioner is the service co - ordination manager. The petitioners deny that any false representation was made by them and that the complainant was induced to part with money on such representation. They deny that they were aware that the car sold by them would be defective even at the time of booking the car. They also deny that they have committed any offence under s. 420 i. P. C.

5. Counsel for the petitioners contended that the averments in the complaint cannot constitute an offence against them. The first petitioner is a company and the 2nd petitioner is the service co - ordination manager. Neither of them can be held criminally liable.

6. The well - known case regarding exercise of jurisdiction under s. 561a corresponding to s. 482 of the new code is reported in r. P. Kapur v. State of punjab (air. 1960 s. C. 866). In the said decision, The categories of cases, Where jurisdiction under this section can and should be exercised have been detailed. The categories are the following:

" (i) where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, For instance, Furnish cases under this category.

(ii) where the allegations in the first information report or the complaint, Even if they are taken at their face value and accepted in their entirety, Do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not.

(iii) where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, It is important to bear in mind the distinction between a case where there is no legal evidence, Or where there is evidence, Which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561 a, The high court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate and ordinarily, It would not be open to any party to invoke the high court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.

broadly stated that is the nature and scope of the inherent jurisdiction of the high court under s. 561 - a in the matter of quashing criminal proceedings, And that is the effect of the judicial decisions on the point. "

7. It is contended by the petitioners that the present case would fall within the second category, Since from the allegations in the complaint, Even if they are taken at their face value, The offence which the petitioners are alleged to have committed, Has not been made out.

8. Counsel for the petitioners contended that the complainant has rushed to court with this criminal complaint, Which he could have agitated before a civil court, And in fact according to him a suit has already been filed as os. No. 116 of 1975 in the sub court at kottayam on 26 5 - 1975. He referred me to the passage occurring at page 1153 in the law of crimes by ratanlal, 31st edn. To make out that where the dispute involved is only civil, It is the duty of the aggrieved party to approach the civil court. According to him, The case spells out, If at all, Only a breach of contract, If the petitioners can be taken constructively as parties to the contract.

9. The petitioners' counsel invited my attention to the decision reported in k. S. Javari v. Bhagwat parshad (air. 1950 east punjab 155), Where the practice of rushing to criminal courts for expeditious settlement of disputes which should properly be decided by civil courts is deprecated and where the high court exercised its jurisdiction under s. 561a and quashed the complaint. Another case cited by counsel for the petitioners is that the decision reported in ladha shah v. Zaman ali (air. 1925 lahore 289), Where it is observed that

"parties should not be encouraged to resort to the criminal courts in cases in which the point at issue between them is one which can more appropriately be decided by civil court, And the tendency on the part of the litigants to do so should be checked by criminal courts who should be on their guard against lending their aid to such procedure."

10. Of course, These principles are well known. Perhaps, The object of the complainant, Is to pressurise the company to get his grievances redressed as expeditiously as possible. The petitioners seek protection under cover of the decisions on technical pleas.

11. Counsel for the petitioners also relied upon the decision reported in esso standard v. Udharam (1971) 75 bombay law reporter 417) to uphold the first petitioner's contention, Who is a company, That it cannot be made liable for the offence under s. 420. I need only refer to the head - note which reads as follows;

"a company can be held liable for an offence involving proof of mens rea when such an offence is committed by its officer provided it is proved as a matter of fact that in committing the offence the officer was acting within the limits of his authority on behalf of the company.

the law attributes to the company intention of the officers of the company under certain circumstances. The company's intention can be ascertained only when the company in a general body or at the meeting of the board of directors or in accordance with the memorandum of association or articles of association has expressed that intention in the form in which it should be expressed. "

in this decision, A division bench of the bombay high court upheld the plea for invocation of s. 561 a and in so doing relied upon a decision reported in ta co supermarkets ltd, V. Nattrass ((1971) 2 all. E r. 127), Where the liability 01 the company for an offence of cheating is discussed. I am only referring to the headnote in that decision:

"in the case of a large - scale business, The owner, Whether a natural person or a limited company, Could not personally supervise the activities of all his servants which might lead to the commission of an offence under the 1968 act; it would therefore be consistent with the taking of reasonable precautions and the exercise of due diligence to institute an effective system to avoid the commission of offences under which superior servants were instructed to supervise inferior servants whose acts might otherwise lead to the commission of an offence; this was not the delegation of the duty in exercise of due diligence but the performance of that duty, When the owner was a limited company failure to exercise due diligence on its part would only occur where the failure was that of a director or senior manager in actual control of the company's operations who could be identified with the controlling mind and will of the company; whether the company had exercised all due diligence was question of fact but, If it had been so, There was no rule that it was nevertheless liable for the act or default of one of its subordinate managers who was not identifiable with the company if that act or default consisted of a failure on the manager's part properly to exercise supervisory functions over other servants of the company; the manager's failure would, On the contrary, Constitute an act or default of 'another person' ie., A person other than the company."

12. In hari prasad chamaria v. Bishun kumar surekha (1973 (2) s. C. C. 823), The supreme court held that a complaint arising out of breach of contractual obligations can be properly agitated in a civil court and upheld the quashing of the complaint by the high court under s. 561 a of the criminal procedure code.

13. On a consideration of the facts of this case and the principles of law governing such cases. I am constrained to hold, Though reluctantly, That an offence under s. 420 read with s. 34 ipc. Cannot be made out as against the petitioners even if the allegations in the complaint are taken at their face value. The only alternative therefore for me is to allow the plea of the petitioners and to quash the complaint as against them. The petition is allowed accordingly.

14. Before parting with this case, It is appropriate to refer to certain disturbing facts that have come to my notice. During the course of the arguments, The petitioners' counsel referred to two cases which were disposed of by the madras high court as well as by the delhi high court, In which the identical company, Hindustan motors, Were involved. Those were also complaints filed, Alleging that the ambassador cars delivered to the complainants therein suffered from serious defects. The averments in those complaints make painful reading. Since certified copies of the orders are not placed before me, I refrain from referring to them in detail. The madras case is crl. M. P. 9 of 1974 and the delhi case is crl. R. P. 200 of 1973.

15. In those two cases also the hindustan motors succeeded in getting the complaints quashed. But the alarming and disturbing circumstance that has emerged out of the disclosure of the facts is. That all is not well with the manufacture of ambassador cars. It does not rebound to the credit of one of the foremost private sector undertakings in this country to invite such complaints against it, In courts of law regarding

vehicles delivered by them. In addition to the materials placed before me,1 can take judicial notice of the fact that there have been complaints against the motor cars supplied by hindustan motors. I do so on a report that appeared in "the hindu" of october 23,1975 at page 8.

16. Today, Under the new scheme of things, When the nation is getting geared to a sense of discipline, Honesty and purposefulness, It ill behoves a great private sector undertaking, The hindustan motors to expose itself to such complaints, Not wholly unjustifiably. This state of affairs is disappointing and disheartening. The report which appeared in the hindu mentioned above discloses that the ministry of defence will begin shortly testing of the three passenger cars produced in the country on behalf of the ministry for industry. This is being done to ensure quality control to passenger cars following repeated complaints from users. On technical pleas a citizen can be defeated in court. He does not have sufficient resources to fight a big company after paying through his nose for a car. It is heartening to note that the government have become alive to the complaints from the public and have initiated necessary steps to ensure quality of the cars. Though not strictly necessary for the disposal of this petition, I felt it my duty to express myself, Although with considerable self - imposed restraint.

in the result, The crl. M. P. Is allowed. Allowed.