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2016 DIGILAW 223 (ALL)

MANOJ SRIVASTAVA v. STATE OF U. P.

2016-01-18

RAMESH SINHA

body2016
JUDGMENT : Hon'ble Ramesh Sinha, J. 1. By means of this application the applicants has challenged the impugned charge-sheet No.25 dated 31.01.2012, as well as the entire criminal proceedings of Case No. 1244 of 2012, arising out of Case Crime No. 926 of 2011(State Vs. Inder Sharma and others), under Section 406 IPC, Police Station Kotwali, District Ghaziabad, pending before the Additional Chief Judicial Magistrate, Court No.7, Ghaziabad. 2. The brief facts of the case are that a first information report was lodged by the opposite party no.2 (here-in-after referred as the informant), on the allegation that the applicants on 20.11.2007 alongwith the co-accused Inder Sharma, who is the Managing Director of the M/s Newtech India Ltd. have proposed the informant to work with them through E-mail and at their request the informant has allegedly worked for Rs. 14,89,516/- and also gave bill of the aforesaid amount to the applicants' Company, which was not paid. The informant moved an application under Section 156(3) Cr.P.C. before the Magistrate, with a prayer to direct the officer of the concerned police station to register the first information report against the applicants and co-accused persons, and the learned Magistrate ordered for the same. In pursuance of which the first information report was registered on 12.12.2011 against the applicants, as Case Crime No. 926 of 2011, under Sections 406, 420, 467, 468, 471, 506, 120-B IPC, Police Station Kotwali, District Ghaziabad. The investigation of the case was carried out and the statement of witnesses were recorded under Section 161 Cr.P.C. and thereafter the charge-sheet was submitted against the applicants on 31.01.2012 for the offence under Section 406 IPC. On 13.04.2012 the learned Additional Chief Judicial Magistrate, Court No.7, Ghaziabad has taken cognizance of the aforesaid offence and issued summons against the applicants for facing trial under Section 406 IPC. The applicants did not appear before the court concerned, in pursuance of the aforesaid summoning order, hence non-bailable-warrant has been issued against the them on 22.10.2012, hence the present application has been filed by the applicants for quashing the of the impugned charge-sheet and all consequential proceedings of the aforesaid case. 3. Heard Sri A.M. Tripathi, learned counsel for the applicants Sri Dinesh K. Singh, learned counsel for the opposite party no.2 and Sri Nikhil Chaturvedi, learned AGA appearing for the State and perused the record. 4. 3. Heard Sri A.M. Tripathi, learned counsel for the applicants Sri Dinesh K. Singh, learned counsel for the opposite party no.2 and Sri Nikhil Chaturvedi, learned AGA appearing for the State and perused the record. 4. It has been argued by the learned counsel for the applicant that it is a pure dispute of accounts between the two Companies for which the appropriate remedy is filing a civil suit. He submitted that as the applicants are the employees of M/s Newtech India Ltd, which is a Company registered under the Indian Companies Act, 1956, and having its registered office at B-14 A Devika Towers Nehru Place, New Delhi. Applicant no.1 was the then working as Deputy General Manager (Project), Newtech India Ltd, B-27, Info City, Sector-34, Gurgaon (Haryana), and the applicant no.2 was working as Site Incharge of the said Company. The Company of the applicants was having business with the informant Company i.e. M/s Yash Construction Company. 5. He further argued that the informant filed a Suit No. 305 of 2011 in the Court of the District Judge, Saket, New Delhi on 04.03.2011 and the aforesaid suit has been dismissed on 30.09.2011 on the ground that the court has no jurisdiction to entertain the same. After the dismissal of the civil suit on the ground of territorial jurisdiction the opposite party no.2 has filed the present criminal prosecution against the applicants by moving an application under Section 156(3) Cr.P.C. and lodged a first information report for a dispute between the parties which is purely of civil nature and dispute of the accounts between the two Companies. 6. He urged that the applicants being an employees of the Company cannot be held responsible for the act of the Company for not paying the dues to the informant. He submitted that if the informant has any grievance he can proceed against the Company which has a legal entity. Moreover the Company has also not been impleaded as a party in the present case and the applicants being an employees of the Company, a first information report has been lodged for their prosecution which is wholly unwarranted. In support of his arguments he has placed reliance of the judgment passed by Apex Court in the case of 'R. Kalyani Vs. In support of his arguments he has placed reliance of the judgment passed by Apex Court in the case of 'R. Kalyani Vs. Janak C. Mehta and others, reported in 2008 STPL(LE) 40907 SC' and another judgment passed by Apex Court passed in 'Aneeta Hada Vs. Godfather Travels And Tours Pvt. Ltd., reported in 2012-LAWS (SC)-4-31' and submitted that in the said judgment it was held that if a person has to be proceeded with as being vicariously liable for the acts of the Company, the Company must be made an accused, and in the instant case neither the Company has been made an accused in the first information report nor any charge-sheet has been submitted against it, hence he prays that the impugned charge-sheet and the entire proceeding against the applicants be quashed. 7. Per contra learned Counsel for the opposite party no.2 has opposed the prayer for quashing of the charge-sheet and the entire proceeding of the case against the applicants and submitted that the applicants and the other co-accused person induced the informant to work with them for a contract awarded to the accused Company by M/s Tata Projects Private Limited at Kota, Rajasthan, and for that they took the 10% of awarded contract amount which comes around Rs. 3,16,000/- and given a work-order for an amount of Rs. 3,31,33,026/-. The applicants and the co-accused persons asked the informant to purchase the machinery for the purpose of execution of contract. The applicants and other co-accused persons fabricated the documents and issued entry pass showing the informant and his employees showing them as their own employees, and when the said act of the applicants was objected by the informant, the applicants and the said co-accused persons could not give any reply and asked the informant to leave the work, if they don't want to work as an employees of them. 8. He next argued that the present application under Section 156(3) Cr.P.C. was lodged much prior to the filing of the civil suit and the complaint was lodged at the concerned police station and when the police did not registered the first information report of the informant, hence he filed the application under Section 156(3) Cr.P.C. before the court below. 8. He next argued that the present application under Section 156(3) Cr.P.C. was lodged much prior to the filing of the civil suit and the complaint was lodged at the concerned police station and when the police did not registered the first information report of the informant, hence he filed the application under Section 156(3) Cr.P.C. before the court below. He submits that initially his application under Section 156(3) Cr.P.C. was rejected by the learned Magistrate, against which he preferred a revision before the Sessions Judge, against the order of dismissal of complaint under Section 156(3) Cr.P.C., because both the court below dismissed the said complaint on the point of jurisdiction, the informant challenged the orders of the both court below before this Court by filing application under Section 482 Cr.P.C. and after hearing the informant this Court has set-aside the order of the court below and remanded the matter to decide afresh. Thereafter, the informant filed a suit for recovery and it is wrong to say that after dismissal of the suit the informant initiated the criminal proceeding. 9. He further argued that the applicants with the connivance of the co-accused duped the informant to pay cash and machinery and work for them on a fabricated document with the sole purpose to cheat the informant. He submitted that a cognizable offence is disclosed against the applicants on the basis of the impugned charge-sheet and the Magistrate has summoned them for facing trial, hence the application is devoid of merits and is liable to be dismissed. 10. Considered the submissions advanced by the learned counsel for the parties and perused the record. The pleadings between the parties have been exchanged. 11. It appears from the record that admittedly there was business transaction between the two Companies, and there has been some dispute regarding payment of money between them, on account of which the informant also filed a civil suit for recovery of the amount, but the said suit was dismissed on account of territorial jurisdiction. 11. It appears from the record that admittedly there was business transaction between the two Companies, and there has been some dispute regarding payment of money between them, on account of which the informant also filed a civil suit for recovery of the amount, but the said suit was dismissed on account of territorial jurisdiction. The applicant being the then employees of the Company there is no material to show that they were responsible for day to day functioning of the Company, and the Company i.e. M/s Newtech India Ltd. is a registered Company under the Companies Act, and it has a legal entity which neither has been made as a party in the first information report nor the charge-sheet has been submitted against it. If there was any dispute between the two Companies regarding payment, the proper course which was available to the informant to realize the same by filing a civil suit before the competent court. The applicants cannot be held vicariously liable for any payment due not being paid by the applicant Company in the which the applicants were working as an employee. The charge-sheet which has been submitted against the applicants is for an offence under Section 406 IPC and during investigation no other offence was found to be disclosed against the applicants. It further appears from the record that a totally civil dispute between the parties is being given a colour of a criminal case, which appears to be misuse of the process of law. Moreover, no offence under Section 406 IPC is made out against the applicants on the basis of material collected during the course of investigating or the charge-sheet. 12. In view of the law laid down by the Apex Court in the case of 'R. Kalyani Vs. Janak C. Mehta and others, reported in 2008 STPL(LE) 40907 SC' and 'Aneeta Hada Vs. Godfather Travels And Tours Pvt. Ltd., reported in 2012-LAWS (SC)-4-31' and forgoing discussions, the impugned charge-sheet as well as the order taking cognizance and all consequential proceeding of the aforesaid case against the applicants, are hereby quashed.