Point of Law : Making of a false representation is one of essential ingredients to constitute offence of cheating under Section 420 IPC - In order to bring a case for offence of cheating, it is not merely sufficient to prove that a false representation has been made, but, it is further necessary to prove that representation was false to knowledge of accused and was made in order to deceive complainant.

ORDER :

Rumi Kumari Phukan, J.

1. Both above petitions are taken up together for hearing and disposal as the cases are between same parties and on the same subject-matter.

2. Heard Ms. M Hazarika, learned Senior Counsel, assisted by Mr. M.K. Borah, learned counsel appearing for the petitioner in Criminal Petition No. 984 of 2016. Also heard Mr. S.N. Tamuly, learned counsel for the petitioner in Criminal Petition No. 4 of 2017 as well as Mr. R Gaur, learned counsel for the respondent in both the petitions.

3. Both the petitions have been preferred under Section 397, read with Section 482, Cr.P.C. and read with Article 227 of the Constitution of India, praying for setting aside and quashing of Complaint Case No. 2974c of 2014, arising out of the complaint filed by the respondent No. 2, now pending before the Court of learned SDJM (S) No. 2, Kamrup (M), Guwahati, whereby the learned Court has taken cognizance of the offence under Sections 409/418/420/465/468, read with Section 120-B of IPC.

4. The petitioner, M/s. Ashok Leyland Ltd. is a public limited company, incorporated under the Companies Act, 1956, represented by its Company Secretary and carrying on business of manufacturing of commercial vehicles over the last 66 years. Mr. Binod Kumar Dasari is the Chairman and Managing Director of Ashok Leyland, who is responsible for the day-to-day affairs of the company.

5. The petitioner, M/s. Skylight Automotive Pvt. Ltd. is a company incorporated under the Companies Act, having its registered office at Jalukbari, Kamrup, and working as an authorized dealer of light commercial vehicle manufactured by Ashok Leyland Ltd. M/s. Universal Automobiles is a proprietorship firm and is an commission agent of Skylight Automotive Private Limited. Mofiyal Rahman is a self-employed youth, who is earning his livelihood by doing business under the proprietorship firm Universal Automobiles.

6. The respondent No. 2 as complainant filed the aforesaid complaint before the learned CJM, Kamrup (M), Guwahati, contending, inter alia, that on being approached by the agents of the dealers of the company, the complainant booked a Dost Express Passenger Vehicle manufactured by Ashok Leyland Private Limited on 03.06.2014, by depositing the booking amount of Rs. 10,000/- (Rupees ten thousand) only. She has also deposited Rs. 1,55,595/- (Rupees one lakh fifty five thousand five hundred ninety five) only as down payment against the aforesaid vehicle. Subsequently, she paid a sum of Rs. 1,00,000/- (Rupees one lakh) only on 08.07.2014, towards the cost of the aforesaid vehicle. She has stated that the accused persons have assured her that they will return the additional sum Rs. 1,00,000/- (Rupees one lakh) only, once they receive the financed amount from the financer Bank. She has stated that the accused have initially issued invoice bearing Invoice No. SLAPL/SALES/0021/14-15, dated 04.08.2014, for an amount of Rs. 7,25,888/- (Rupees seven lakhs twenty five thousand eight hundred eighty eight) only and Sale certificate in Form-21, showing Engine No. XEH019081P and Chassis No. MB1AA22E2ERX75451, to her. The colour of the vehicle shown to her was white. She has further stated that the accused persons have later on delivered a DOST EXPRESS vehicle bearing Registration No. AS-25-AC-8255 (Colour AQUA Green) along with its registration certificate. According to her, vehicle delivered to her bears Engine No. YEH018022P and the Chassis No. MB1AA22-EXERY74793, which is different from the one mentioned in the Invoice and Sale Certificate issued to her. It was alleged that the accused persons in collusion with each other have delivered a damage/second hand vehicle to her and as such aforesaid vehicle has developed technical fault soon after its delivery. Hence, she has alleged that the petitioners have cheated her by playing fraud as they have delivered a defective/second hand vehicle to her. As the vehicle delivered to her was a faulty vehicle it has developed mechanical defects so