The claim of manufacturing defect in a purchased vehicle and the initiation of a consumer case against the manufacturer do not justify quashing a complaint case under Section 138 of the Negotiable Instrument Act, 1881.

JUDGMENT :

Suman Shyam, J.

Heard Ms. P. Misra, learned counsel for the petitioner. I have also heard Mr. B.B. Gogoi, learned Addl. P.P. Assam appearing for the respondent No. 1 and Mr. S.N. Krishnatraya, learned counsel representing respondent No. 2.

2. This application has been filed under Section 482 Cr.P.C. with a prayer to quash the complaint case registered as C.R. Case No. 3434C /2018 under Section 138 of the Negotiable Instrument Act, 1881 pending in the court of learned Judicial Magistrate, 1st Class, Kamrup (M), Guwahati.

3. The facts of the case, as apparent on the face of the record, briefly stated, are that the petitioner/ accused had purchased a Mahindra Maximo vehicle bearing registration No. AS-01DC-5107 by availing loan for a sum of Rs. 3,53,430/- from the complainant/ respondent No. 2. The manufacturer of the vehicle is M/s Mahindra & Mahindra Ltd., which is a company registered under the Companies Act, 1956 having its office at Mumbai, India. The financial assistance was availed by the petitioner from the respondent No. 2 based on a hire purchase agreement and with a view to secure the loan, the petitioner had allegedly issued a cheque bearing No. 086029 dated 24-01-2018 for an amount of Rs. 3,51,005/- in favour of the complainant. But when the petitioner had defaulted in paying the installment dues, the cheque was deposited with the Union Bank of India which was dishonoured. When notice demanding payment of the amount issued to the petitioner did not meet with any favourable response, the complaint case was instituted by the respondent No. 2.

4. Ms. Misra, learned counsel for the petitioner submits that the vehicle was defective and despite complaint made to the manufacturer, the defect was not removed, as a result of which, her client had returned the vehicle and had also initiated a proceeding being CPC No. 557/2012, which is pending disposal before the District Consumer Dispute Redressal Forum, Chandmari, Guwahati. The learned counsel submits that since there is a complain of manufacturing defect in the vehicle, hence, until such time the proceeding initiated by the petitioner under Section 12(1) of the Consumer Protection Act, 1986 is disposed of, the respondent No. 2/ complainant should not be permitted to proceed against the petitioner under Section 138 of the Negotiable Instrument Act, 1881. As such, a prayer for quashing the complaint case has been made in this petition.

5. Mr. S.N. Krishnatraya, learned counsel for the respondent No. 2, on the other hand, contends that the manufacturer of the vehicle is a different company which has nothing to do with the respondent No. 2 and therefore, his client cannot be held responsible for manufacturing defect, if any, in the vehicle purchased by the petitioner. According to Mr. Krishnatraya, the loan agreement entered by and between the parties authorizes his client to recover the dues from the petitioner and when the cheque was dishonoured, the respondent No. 2 was left with no option but to initiate a proceeding under Section 138 of the N.I. Act for recovery of the outstanding dues.

6. I have considered the arguments advanced by the learned counsel appearing for the parties and have also gone through the materials available on record. At the very outset, it is to be noted herein that although Ms. Misra has denied that her client had issued the cheque No. 086029 in favour of the respondent No. 2, the execution of the loan agreement between the parties and availing financial assistance for purchase of the vehicle by the petitioner is not in dispute in this case. Be that as it may, whether the cheque had been issued by the petitioner so as to discharge his debt towards the respondent No. 2/ complainant is a matter that can be gone into only during the trial of the complaint case. The correctness of the allegations made in the complaint case cannot be ascertained by this Court in an application filed under Section 482 Cr.P.C. seeking quashing of the complaint case. Tha