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2021 DIGILAW 66 (MAN)

Mohit Khanna v. State of Manipur

2021-10-29

M.V.MURALIDARAN

body2021
JUDGMENT This Criminal Petition has been filed by the petitioner under Section 482 Cr.P.C. to quash the Criminal Complaint Case No.55 of 2014 pending on the file of the Learned Chief Judicial Magistrate, Imphal East filed by the second respondent herein. The second respondent is the complainant in the Criminal Complaint Case. 2. Heard Mr. Munish Kochhar, the learned counsel for the petitioner, learned counsel for the State and Mr. T. Rajendra, the learned counsel for the second respondent/ complainant. 3. Assailing the Criminal Complaint Case proceeding instituted by the second respondent against the petitioner before the learned Chief Judicial Magistrate, Imphal East, Mr. Munish Kochhar, the learned counsel for the petitioner submitted that the allegations made in the said complaint are vague as it mentions about various agreements with two different companies i.e. M/s.Mekaster International Private Limited and M/s.Mekaster Engineering Private Limited stated to have been entered into by the second respondent/complainant company at different times and on different dates without giving any specific clarification and background regarding agreements entered with each company and their relevance and continuity with each other and that even the payments made by the second respondent company are mentioned in a vague manner and the relief is sought against the petitioner and assigned the position in only one company i.e. Chief Executive Officer of M/s.Mekaster Engineering Private Limited. 4. The learned counsel further submitted that even in the memo of parties of the complaint filed, the petitioner herein has been arrayed as the second accused as “Shri Mohit Khanna, CEO, Mekaster” and it has not even been mentioned as to the petitioner is the CEO of which entity named Mekaster and in fact, in the complaint, it is stated that the accused No.2 is serving as CEO of Marketing Mekaster Engineering Private Limtied. 5. The learned counsel next submitted that the relief sought in the complaint is to punish the accused persons and the company for the offences allegedly committed by them under Sections 417, 419, 420 and 34 IPC without even a whisper about any criminal offence being committed by the accused persons or any intention to do so on their part. The accused mentioned in the complaint, in any case, were acting on behalf of the company and not in their individual capacity. 6. The accused mentioned in the complaint, in any case, were acting on behalf of the company and not in their individual capacity. 6. The learned counsel then submitted that there is no allegation against the petitioner in the complaint that he was in-charge of the company or was running the day-to-day business of the company. Moreover, all the agreements were entered into between the second respondent complainant company and with M/s.Mekaster International Private Limited and M/s.Nekaster Engineering Private Limited and all payments have been made by the complainant to the said two companies on various dates. However, none of the companies as stated above have been impleaded as accused in the complaint filed by the second respondent. The learned counsel also submitted that a civil case has been coloured as criminal case by the complainant. The petitioner herein is totally not related to the grievance of the complainant company and even if the averments made in the complaint are taken on their face value, no case is made out against the petitioner herein and therefore, the continuation of the criminal complaint is totally abuse of process of law and therefore, the same is liable to be set aside. In support, the learned counsel relied upon the following judgments: (i) Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 : 2007 Legal Eagle (SC) 1131. (ii) Sharad Kumar Sanghi v. Sangita Rane, (2015) 12 SCC 781 : 2015 Legal Eagle (SC) 235. (iii) Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661 : 2012 Legal Eagle (SC) 211. 7. Per contra, Mr. T. Rajendra, the learned counsel for the second respondent submitted that an order for supply of one road header was placed with M/s.Mekaster Engineering Limited (for short “MEL”) on 22.3.2011, for which payment of Rs.5 crore has been made and as per the purchase order, MEL shall take back the machine in case of non-performance of the machine as per the pre-determinated norms after installation at the work site and that it was mutually decided that MEL has to refund Rs.4.40 crore on taking back the underperformed machine. He would submit that subsequently under the agreement dated 7.12.2012, the complainant is to place supply to purchase three shotcrete machines from MEL instead of refunding Rs.4.40 crore which was to be refunded by MEL. He would submit that subsequently under the agreement dated 7.12.2012, the complainant is to place supply to purchase three shotcrete machines from MEL instead of refunding Rs.4.40 crore which was to be refunded by MEL. As per the agreement, one machine is to be supplied in December, 2012 and two in January, 2013 and that the balance amount of Rs.2.84 crore remains after delivery of one shotcrete machine. 8. The learned counsel for the second respondent further submitted that after the supply of the first machine, by an agreement dated 20.11.2013, it was agreed to supply two machines by the MEL and a further amount of Rs.100 lakh only was released by the complainant to MEL and that the delivery schedule of the first unit was within eight weeks on or after the receipt of advance payment from the complainant and the second unit was within eight weeks on or after the receipt of advance payment from the complainant. According to the learned counsel for the second respondent, the said approach of the accused was with a criminal mind and with an intention of deceiving the complainant. 9. The learned counsel next submitted that on 20.11.2013 the complainant placed a supply order for two machines to the manufacturer M/s.Putzmeister Iberica, Madrid directly as requested by the MEL and the accused on their statement that it is required to carry out High Sea Sales to make invoice in favour of the complainant Coastal Projects Limited. Subsequently, on 17.12.2013, the Vice President of MEL namely Sudeep Thakore informed that the first unit of the shotcrete machine will be delivered by December, 2013 and the second unit will be in January, 2014. Further, on 25.3.2014, the Vice President assured the complainant that both the machines will be delivered within April, 2014, but has failed to deliver the machines. 10. The learned counsel then submitted that finding delayed tactics of MEL for delivery of machines and being suspicious of the real intention of the MEL on the issue, the matter was taken up with the manufacturer directly to ascertain the factual position. 10. The learned counsel then submitted that finding delayed tactics of MEL for delivery of machines and being suspicious of the real intention of the MEL on the issue, the matter was taken up with the manufacturer directly to ascertain the factual position. The manufacturer M/s.Putzmeister Iberica, by a letter dated 6.8.2014, replied that they have not been informed or involved in any negotiation and discussions that the complainant may have had with the MEL with regard to the requirement of delivery of two machines and that they have not received any payment with regard to the above order. As a result, the complainant has filed the criminal complaint against the Vice President Sudeep Thakore, Chief Executive Officer Mohit Khanna of MEL and after satisfaction, the Chief Judicial Magistate, Imphal East has taken cognizance of the offence and issued warrant to the accused. 11. The learned counsel for the second respondent argued that warrant of arrest was issued not for convicting the accused, but only the first step of the criminal proceeding and due trial of the case by producing evidence by both sides and the accused have enough chance to prove their case. Since the Chief Judicial Magistrate has got vast power to take cognizance of the offence and accordingly, after following the procedure, the Learned Chief Judicial Magistrate has taken cognizance of the offence and therefore, there is no infirmity in it and there is no necessity to invoke the provisions of Section 482 Cr.P.C. to quash the said criminal proceedings initiated by the second respondent. The learned counsel for the second respondent submitted that it is not necessary that a complaint should verbatim reproduce in the body of the complaint all the ingredients of the offence he is alleging nor is it necessary that the complainant should state so many words that the intention of the accused was dishonest or fraudulent. 12. The argument of the learned counsel for the second respondent is also that there are seven categories of cases where power under Article 226 or the inherent power under Section 482 of Cr.P.C. could be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice and that in the present complaint of the second respondent does not fall in the said seven categories. In support, the learned counsel for the second respondent relied upon the following decisions: (i) State of Haryanan and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604 : 1990 Legal Eagle (SC) 707. (ii) Rajesh Bajaj v. State of NCT of Delhi and others, AIR 1999 SC 1216 : 1999 Legal Eagle (SC) 280. (iii) Trisuns Chemical Industry v. Rajesh Agrawal and others, AIR 1999 SC 3499 : 1999 Legal Eagle (SC) 1024. (iv) Mohit @ Sonu and another v. State of Uttar Pradesh and another, (2013) 7 SCC 789 : 2013 Legal Eagle (SC) 439. 13. This Court considered the submissions raised by the learned counsel appearing on either side and also perused the materials available on record. 14. It appears that the Criminal Complaint Case No.55 of 2014 has been filed by the second respondent - M/s.Coastal Projects Limited under Section 200 Cr.P.C. against (i) Sudeep Thakore, Vice President, Marketing of M/s.Mekaster Engineering Limited, Himachal Pradesh and (ii) Mohit Khanna, CEO of M/s.Mekaster Engineering Limited and the working capacity of those two has been stated by the complainant in paragraph 2 of the complaint. Admittedly, the complainant has not made the company in question as an accused in its complaint and in paragraph 12 of the complaint, the complainant stated that the acts of the accused/company are punishable under Sections 417, 419, 420 and 34 IPC as the said accused persons/company never delivered the machines within time till today under one pretext or another. 15. It also appears that the first agreement dated 7.12.2012 was allegedly executed between the complainant and M/s.Mekaster International Private Limited, through its authorized representative, the present petitioner herein as CEO of the said company and the second agreement dated 20.11.2013 was allegedly executed between the complainant and M/s.Mekaster Engineering Limited, through its authorized representation, the petitioner herein and on the same date i.e. 20.11.2013, the complainant placed an order to one M/s.Putzmeister Iberica, S.A. Camino de Hormigueras 173, 28031-Madrid for purchasing two concrete spraying system SIKA PM 500 PC with first 50 Hrs service kit along the machine in two numbers. 16. On a perusal of the criminal complaint cause title, it is seen that the designation of the petitioner herein has not even been mentioned as to in which entity named Mekaster, the petitioner is acting as. 16. On a perusal of the criminal complaint cause title, it is seen that the designation of the petitioner herein has not even been mentioned as to in which entity named Mekaster, the petitioner is acting as. In para 2 of the complaint, the complainant stated that the petitioner is serving as CEO of M/s.Mekaster Engineering Private Limited, whereas in the first agreement alone it has been mentioned after the signature of the petitioner as CEO. 17. In a further perusal of the complaint, it is clear that there is no whisper about the criminal offence being committed by the petitioner and the Vice President. The petitioner and the Vice President of M/s.Mekaster Engineering Private Limited or M/s.Mekaster International Private Limited were acting on behalf of the aforesaid companies and not in their individual capacity. While so, filing criminal complaint against the petitioner and the Vice President in their individual capacity without making the companies in question as accused is not entertainable. In fact, while taking cognizance of the complaint, the Chief Judicial Magistrate has not taken into consideration the said aspect. While giving statement before the Learned Chief Judicial Magistrate, the Liaison Officer of the second respondent M/s. Coastal Projects Limited clearly stated that the acts of the accused company is punishable and prayed for action against the accused company. In his statement the Regional Head of M/s.Coastal Projects Limited namely on Shaik Moulali stated that the acts of the accused/company is punishable under Sections 417, 419, 420 and 34 IPC as the said accused persons/company never delivers the said machines in time. Admittedly, the statements of the Liaison Officer and the Regional Head of the complainant in accusing and praying the relief against the accused is contrary. It appears that resultantly they prayed for an action against the company and not against the individual. While so, the complainant ought to have impleaded the company as an accused in the complaint. 18. At this juncture, it is worth to refer the decision of the Hon’ble Supreme Court in the case of Sharad Kumar Sanghi (supra), wherein it has been held as under: “11. In the case at hand as the complainant’s initial statement would reflect, the allegations are against the Company, the Company as not been made a party and, therefore, the allegations are restricted to the Managing Director. In the case at hand as the complainant’s initial statement would reflect, the allegations are against the Company, the Company as not been made a party and, therefore, the allegations are restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the Company. There is no specific allegation against the Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened under certain statutes. …” 19. As stated supra, in the instant case, the complainant sought action against the company and not against any individual, particularly against the petitioner herein. 20. The learned counsel for the petitioner submitted that the present dispute is purely civil in nature and there is no element of criminal intent or wrongdoing and nothing has been revealed either in the complaint filed by the complainant or in the statements of witnesses recorded in the complaint of the existence of any criminal ingredient for any offence under Sections 417, 419, 420 and 34 IPC. 21. On a thorough perusal of the materials like the agreements, complaint and the statements, it is seen that it is a case of failure to deliver certain machines by the companies viz., M/s.Mekaster Engineering Private Limited or M/s. Mekaster International Private Limited respectively. Except for stating that the petitioner had lied to the complainant, no details have been mentioned either in the complaint or in the statements made before the Learned Chief Judicial Magistrate to attract the criminal jurisdiction. It appears that the said aspect was also not taken into consideration by the Learned Chief Judicial Magistrate while taking cognizance of the offence. Taking cognizance simply by recording the statement of the complainant is not enough and there must be some concrete satisfaction of the Magistrate concerned for taking the cognizance, issuing warrant and then proceeding with the case. At this juncture, the complainant contended that as a first step only the Learned Chief Judicial Magistrate has issued warrant of arrest and the petitioner can very well prove his case. The said submission of the learned counsel for the complainant cannot be countenanced as there must be some merit in the complaint while taking cognizance by the Magistrate. 22. At this juncture, the complainant contended that as a first step only the Learned Chief Judicial Magistrate has issued warrant of arrest and the petitioner can very well prove his case. The said submission of the learned counsel for the complainant cannot be countenanced as there must be some merit in the complaint while taking cognizance by the Magistrate. 22. By placing reliance upon the decision of the Hon’ble Supreme Court in the case of Inder Mohan Goswami (supra), the learned counsel for the petitioner submitted that the warrant either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind and the Court must carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive. 23. In Inder Mohan Goswari (supra), the Hon’ble Supreme Court held: “54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrunity of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.” 24. In the case on hand, the Learned Chief Judicial Magistrate after taking cognizance of the matter, issued warrant of arrest against the petitioner and another accused. When the complainant has not put forth its case in proper perspective and the company involved in the agreement has not been made as an accused in the criminal complaint, the Learned Chief Judicial Magistrate ought not to have issued the warrant of arrest. 25. As stated supra, since it is a simple case of failure to deliver certain machines for which the company had been paid, there is no question of criminal intent. As rightly argued by the learned counsel for the petitioner, a civil dispute was given a colour of criminal case by the complainant. 26. On a perusal of the purchase order dated 12.12.2012, which forms part of the agreement dated 20.11.2013, it is clear that any dispute pertaining to this subject would lie within Hyderabad jurisdiction only. As rightly argued by the learned counsel for the petitioner, a civil dispute was given a colour of criminal case by the complainant. 26. On a perusal of the purchase order dated 12.12.2012, which forms part of the agreement dated 20.11.2013, it is clear that any dispute pertaining to this subject would lie within Hyderabad jurisdiction only. As rightly argued by the learned counsel for the petitioner, since no criminal ingredient has been shown to exist in the complaint or in the statements made before the Learned Chief Judicial Magistrate, Imphal East ought not to have taken cognizance of the complaint and issued warrant of arrest on 6.5.2014. Admittedly, the said warrant of arrest was not executed by the interim order of this Court dated 2.6.2014. 27. The learned counsel for the petitioner lastly submitted that the Criminal Complaint Case No.55 of 2014 filed by the complainant become infructuous as the complainant company M/s.Coastal Projects Limited has gone under Liquidation and in terms of the order passed in Petition No.CP(IB) 593/KB/2017 in the case of State Bank of India v. Coastal Project Limited dated 05.1.2018, Corporate Insolvency Resolution against the complainant company was commenced and completed on 2.10.2018 before the National Company Law Tribunal, Kolkata Bench. He would submit that e-auction process for sale of the complainant company in liquidation had been fixed for 13.4.2021 and one Mr.Ravi Sankar Devarakonda has been appointed as the Liquidator. Accordingly, the learned counsel contended that since the complainant company is in liquidation, all powers of the Directors and the Authorities of its employees also come to an end and that the representatives appearing and representing the complainant company before this Court or any other Court, ceased to have any power and/or authority to appear on behalf of the complainant company and to continue with the proceedings. In support, the learned counsel also produced the order of the National Company Law Tribunal, Kolkata Bench. 28. On a perusal of the order of the National Company Tribunal, Kolkata Bench, it is seen that Mr.Ravi Sankar Devarakonda is appointed as the Liquidator and he has been directed to announce in one of the English leading newspaper as well as in one vernacular newspaper and the Liquidator was directed to proceed with the process of liquidation in a manner laid down in Chapter III of the Insolvency and Bankruptcy Code, 2016. 29. 29. To controvert the above said order of the National Company Tribunal Kolkata Bench, the second respondent complainant has not produced any materials. 30. It is apposite to mention that while contesting the present petition, it is the bounden duty of the second respondent/complainant to show the correct factual aspects of the matter before this court. Failure on the part of the complainant in not showing the liquidation proceedings even during the course of arguments or inform this Court about the liquidation of the complainant company would amount that the petitioner has approached this Court with unclean hands. Though the liquidation was taken place pending Criminal Complaint Case, it is duty of the second respondent to inform the liquidation proceedings to this Court. Nothing has been produced by the complainant whether any authority was taken by them from the Liquidator appointed to continue to pursue the cases in the Court. Thus, as rightly argued by the learned counsel for the petitioner the Criminal Complaint Case instituted by the second respondent/complainant company against the petitioner has become infructuous and continuation of the same would be an abuse of process of law. 31. In Bhajan Lal (supra) relied upon by the second respondent laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decision: “109. …. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest rate cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. …” 32. In the decision in Rajesh Bajaj (supra), the Hon’ble Supreme Court observed that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. 33. …” 32. In the decision in Rajesh Bajaj (supra), the Hon’ble Supreme Court observed that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. 33. In Rajesh Agrawal (supra), the Hon’ble Supreme Court held that it is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well and the jurisdictional aspect becomes relevant only when question of enquiry on trial arises. 34. In Mohit @ Sonu (supra), the Hon’ble Supreme Court held: “27. In our considered opinion, the complainant ought to have challenged the order before the High Court in revision under Section 397 CrPC and not by invoking inherent jurisdiction of the High Court under Section 482 CrPC. … 28. …. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that the inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged.” 35. Since there is no merit in taking cognizance of the offence against the petitioner by the Learned Chief Judicial Magistrate and in view of the liquidation complaint case of the second respondent having become infructuous, the decisions relied upon by the second respondent/complainant are not applicable to its case. In any event, the allegations levelled by the second respondent in its complaint case can only be ascertained on the basis of the evidence and documents by a Civil Court of the competent jurisdiction and not by way of criminal complaint. 36. Even if all the allegations made in the complaint are taken to be correct, the case for prosecution under Sections 417, 419, 420 and 34 IPC is not made out against the petitioner herein. To prevent abuse of the process of the Court and to secure the ends of justice, it becomes imperative to quash the Criminal Complaint Case No.55 of 2014 pending on the file of the Chief Judicial Magistrate, Imphal East and any further proceedings emanating therefrom in respect of the petitioner. 37. In the result, (a) this Cril. To prevent abuse of the process of the Court and to secure the ends of justice, it becomes imperative to quash the Criminal Complaint Case No.55 of 2014 pending on the file of the Chief Judicial Magistrate, Imphal East and any further proceedings emanating therefrom in respect of the petitioner. 37. In the result, (a) this Cril. Petition No.17 of 2014 is allowed; (b) the Criminal Complaint Case No.55 of 2014 pending on the file of the Learned Chief Judicial Magistrate, Imphal East and any further proceedings emanating therefrom in respect of the petitioner is quashed. No costs. 38. Registry is directed to issue copy of this order to both the parties through their whatsapp/e-mail.