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Gujarat High Court · body

2021 DIGILAW 680 (GUJ)

Umesh Babubhai Bodiwala v. State Of Gujarat

2021-08-11

B.N.KARIA

body2021
JUDGMENT : 1. In these group of petitions, two different complaints are lodged against the petitioners and identical question of law and facts are involved in all these four petitions. Joint request was made by learned advocates appearing for the respective parties to decide all these four matters by passing common judgment and order. It is requested to consider Criminal Misc. Application No. 10581/2009 as a lead matter. 2. Factual matrix of the petition may be summarized as under: 2.1 One FIR was filed and registered vide C.R. No.I-64 of 2009 with Kamalabaug Police Station, Porbandar under Sections 420, 406, 506(2) and 114 of the Indian Penal Code (hereinafter referred to as “the IPC” for short) against 9 accused as shown in the FIR. As per this FIR given by the respondent No.2 on 31.05.2009, he has alleged that the offence was taken place from 11.03.2008 till the date of registering the FIR. Another FIR was filed i.e. Criminal Complaint No.I–116/2009 with the City Police Station, Surendranagar for the offence punishable under Section 406, 420, 114 and 120(B) of the IPC against three accused persons. That the allegations made by the respondent No.2 viz. Parth Prakashbhai Joshi, original complainant in his complaint filed before the Kamlabaug Police Station, Porbandar, that all the accused used to give lucrative advertisement in the newspaper for giving agencies and accused No.1 i.e. Jayanta Kalol Roy having his office at Satellite and one Manojitkumar, another accused had come to him informing that they want to start an office at Porbandar and had made lucrative offers of giving confidence and trust. It was alleged that Rs.11,000/- cash were given to said Jayanta Kalol Roy by him. It is further alleged in the complaint that after getting agency of the company, informant purchased the premises in Kuber Vintage building and for the purpose of establishing a modern training center, skilled persons of the company came and as per the norms of the company and advertisement, company was giving 100% job guarantee, and therefore, to get franchisee of the said company, the complainant, on 11.03.2008, issued a draft of Rs.5,00,000/- and thereafter, on 16.04.2008, issued three different cheques of total amount of Rs.10,00,000/-, and thereafter, on 09.06.2008 gave another cheque of Rs.2,00,000/-. When accused No.1 viz. When accused No.1 viz. Jayanta Kalol Roy had come to Porbandar, another cheque of Rs.3,00,000/- was given to him and in all, the complainant paid Rs.20,00,000/- to accused No.1. As per the agreement agreed between them, complainant started admission of students and received fees from them. As alleged, complainant was sending 70% fees to the company and 30% fees was retained by him. After imparting the training to the students, no job was offered to any of the students and when the accused was questioned, complainant received bad replies. As alleged in the complaint, the students were not getting their job as promised by the accused No.1, they demanded their fees back, and therefore, the complainant repaid Rs.6,30,000/- and when he asked for his money from the company, no reply was received nor any money. He was threatened by the accused persons that if he would demand any money, he would be killed, and therefore, he filed a complaint against the accused persons. 3. As per the facts of the second complaint lodged with the City Police Station, Surendranagar being FIR No.I-116 of 2009, in the year 2007, the complainant came across an advertisement in the newspaper about an Advantage Global India Ltd. pursuant to which, he contacted the Director of the Company namely Jayanta Kalol Roy (accused No.1) and after discussing with him, he was awarded the franchisee for Surendranagar in the name of his wife Ms. Pritiben Popat. The respondent No.2 started functioning and only a few of his students were provided jobs, and thereafter, trainers appointed by the company stopped coming to the premises of the franchisee at Surendranagar. It was further alleged in the complaint that he and other franchisees owners met the petitioners in April-2009. Petitioner No.1 viz. Manojitkumar Ranjitkumar Pathak, in April-2009, inquired about the situation arose, wherein he informed that he had resigned from the company and he was no more as a Director of the Company. As a sole Director of the Company, Jayanta Roy had run away, and therefore, it was no use to continue running the center, and therefore, the complaint was filed against Jayanta Roy and accused No.2 and 3, who are the petitioners in Criminal Misc. Application No.10318/2009. As a sole Director of the Company, Jayanta Roy had run away, and therefore, it was no use to continue running the center, and therefore, the complaint was filed against Jayanta Roy and accused No.2 and 3, who are the petitioners in Criminal Misc. Application No.10318/2009. It appears that initially, the complainant had filed written application to the office of the DSP, Porbandar, and thereafter, filed a complaint before the learned Chief Judicial Magistrate Porbandar on 05.05.2009 wherein order under Section 201 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.” for short) was passed. Hence, FIR was registered on 31.05.2009. 4. Heard learned advocate Ms. Roma Fidelis appearing for the petitioner in Criminal Misc. Application No.10581 of 2009 and Criminal Misc. Application No.7483 of 2009. Learned advocate Mr. Suraj A. Shukla appearing for the petitioner in Criminal Misc. Application No. 8856 of 2009 as well as in Criminal Misc. Application No.10318 of 2009. Learned advocate Mr. Keval Brahmbhatt appearing for the original complainant – respondent No. 1 in Criminal Misc. Application No.10581/2009, Criminal Misc. Application No.8856 of 2009 as well as in Criminal Misc. Application No. 7483 of 2009. Learned advocate Mr. Pratik Jasani appearing for the respondent No.2 in Criminal Misc. Application No.10318 of 2009. Learned APP Mr. H. K. Patel for the respondent – State in all the matters. 5. Learned advocate appearing for the petitioners have submitted that no ingredients of the offence under Section 406 or 420 of the Indian Penal Code are made out against the petitioners. It is further submitted that no role is attributed to the petitioners so as to invoke the ingredients of the offence as alleged in the FIR. It is further submitted that the petitioners are neither Director or the Managers of the Company but they were investors, who had invested their money in the said company. That none of the petitioners have received any return towards their investment till date. That the petitioners have played no role in making representation or have conducted in any manner that would reflect that they have posed themselves as office bearers or Director of the Company. They have not refused respondent No.2 to make any payment to the accused company if they are not engaged in day to day management or the administration of the company. That accused No.1 Mr. They have not refused respondent No.2 to make any payment to the accused company if they are not engaged in day to day management or the administration of the company. That accused No.1 Mr. Jayanta Kalol Roy was the Managing Director and main person in their Company. That he was the only person who was running the operation in the form of proprietary concern in the name and style of An Advantage, and therefore, it was his concept from the beginning and petitioners had merely made an investment in expectation of good returns which they were assured by the accused No.1. 6. That in a similar facts, another complaint was filed against Manojitkumar Ranjitkumar Pathak and anothers i.e. Special Criminal Application (Quashing) No.1881/2009 with Special Criminal Application No.1235/2009 wherein settlement was arrived by the complaint and affidavit was filed by the present respondent No.2. That this Court was pleased to accept the prayer of both the petitioners and quash the impugned FIR vide order dated 07.07.2017 qua 2 accused persons. The name of the present petitioners were included to pressurize them so that they will cuff out money and make the payment to the respondent No.2. That they are falsely roped in the FIR by the respondent No.2, and therefore, it is requested by the learned advocate Ms. Roma Fidelis appearing for the petitioners to quash and set aside the impugned FIR. Learned advocate Mr. Suraj A. Shukla appearing for the respective petitioners has submitted in his arguments while referring the documents at Annexure ‘C’ that the petitioner Manojit Pathak and Chirag Thakker have forwarded their resignations from the post of Director effective from 31.12.2008 by their letter to accused No.1 on 27.12.2008. It is further submitted that the dispute was settled between the accused No.1 Shri Jayanta Kalol Roy and the respondent No.2 – original complaint by an agreement for refund of security deposit (Page No.121) on 07.03.2010. Referring the contents of this document, it is submitted that the dispute was settled between the complainant and the accused No.1, the complaint itself would not be maintainable as they have resigned from the post of the Director of the Company by their letter dated 27.12.2008. It is further submitted that petitioners were never in control of the Company and were not involved in day to day affairs of the company. It is further submitted that petitioners were never in control of the Company and were not involved in day to day affairs of the company. It is further submitted that there is no allegation about any role played by the petitioners so as to make out the ingredients of Section 406 and 420 of the Indian Penal Code. That none of the petitioners have made any misrepresentation or given money to the respondent No.2 in handling over any property or the domination over the property to the petitioners by the respondent No.2. It is further submitted that in absence of the inducement by the petitioners and having no domination of the entrustment of the respondent No.2, requirement of offence under Section 406 and 420 as defined under Section 405 and 415 are not fulfilled. 7. It is further submitted that plain reading of the FIR indicates that the petitioners were made accused by virtue of the facts that they had been introduced as Directors of the Company. That they are not liable for any wrongful act of the company or its Director. That they have not committed any overt act against the complainant. That allegations are made against the accused No.1 only and not accused No.2 and 3 i.e. present petitioners. That no specific allegations are made against the present petitioners. That FIR was lodged in relation to monetary transaction between the complainant and the company and with regard to deposit given to the company. The petitioner are unnecessary dragged by the respondent No.2, to recover the money allegedly paid to the company under the pressure of criminal prosecution and have abused the process of law and therefore, it is requested by learned advocate appearing for the respective petitioners to quash the impugned FIR No.I-267 of 2009 registered with the Gandhigram Police Station at Rajkot as well as FIR IC. R.No.116 of 2009 registered with the Surendranagar City Police Station. 8. Learned advocates Mr.Pratik Jasani and Mr.Keval Brahambhatt for the original complainant in respective Criminal Misc. Application have strongly opposed the submissions made by learned advocates for the petitioners and argued that petitioners are the Directors of the Company and involved in day-to-day affairs of the company. That petitioners and another person namely Jayanta Kalol Roy were the Directors of the Company. Application have strongly opposed the submissions made by learned advocates for the petitioners and argued that petitioners are the Directors of the Company and involved in day-to-day affairs of the company. That petitioners and another person namely Jayanta Kalol Roy were the Directors of the Company. That they are involved in the day to day affairs of the company and even after so called resignation, they have acted as Directors of the Company. It is further submitted that the averments and the arguments advanced by the petitioners are their defence and same can be required after detailed investigation and requires to led evidence at the time of trial. It is further submitted that defence cannot be considered at this juncture without recording evidence of the prosecution. It is further submitted that accused persons have with the similar modus operandi collected huge amount from the students of Rajkot, Surendranagar, Vadodara and Ahmedabad and identical complaints were filed against the accused persons. That they are involved in number of offences. That in connivance of each other, they have hatched a conspiracy by collecting huge amounts as deposits of franchisees and thereafter pulled down the shutters of the company and closed the business. That petitioners have fraudulently and with dishonest intention induced the person by dissecting them to deliver the property. That ingredients of Section 415 of IPC are clearly established by the prosecution. This Court may not exercise its inherent jurisdiction without examining the investigating papers. That averments made in the complaint constitute the ingredients of Section 415 and 420 as well as 114 of the IPC and therefore, it was requested by learned advocate Mr. Pratik Jasani and learned advocate Mr.Keval Brahambhatt, appearing for the original complainant to dismiss all the Criminal Misc. Applications preferred by the petitioners. 9. Learned APP appearing for the respondent – State has supported the arguments advanced by learned advocate for the respondent No.2 Mr. Pratik Jasani and learned advocate Mr.Keval Brahambhatt, appearing for the original complainant to dismiss all the Criminal Misc. Applications preferred by the petitioners. 9. Learned APP appearing for the respondent – State has supported the arguments advanced by learned advocate for the respondent No.2 Mr. Pratik Jasani contending that from the facts and the allegations made in the complaint, at this juncture, it is clearly proved by the prosecution that averments in the complaint on the face value constitute the ingredients necessary for the offence and disclose the commission of an offence under the IPC and therefore, criminal proceedings at this stage may not be quashed under Section 482 of Cr.P.C. It is further submitted by learned APP that complaint must be examined as a whole, without evaluating the merits of the applications, criminal proceedings may not be quashed by this Court. It is further submitted that law does not require that the complaint reported physical ingredients of the offence verbatim. It is further submitted that the FIR is not encyclopedia as the allegations made in the complaint clearly establish the offence committed by the present petitioners. That inherent powers of the High Court under Section 482 of the Cr.P.C. under such circumstances may not be exercised by this Court at this juncture. There is material in the FIR itself to involve the present petitioners, at this stage. That without investigation, the FIR registered against the petitioner may not be quashed by this Court. Hence, it was requested by learned APP to dismiss all the petitions. It is further submitted that students are the victim as they are duped because huge amount was received by way of fees from the students and they are not offered for their job as guaranteed to them. 10. Having heard learned advocates for the respective parties as well as learned APP for the respondent-State and going through the two complaints registered against the respective petitioners before two different Police Stations, as per the contents, systematically offence was committed and the present petitioners duped number of persons under the name and style by creating a private limited company i.e. An Advantage Global (I) Ltd. and collected huge amount from the various parts and Districts of the State. It appears from the contents of the complaints that the present petitioners and the accused no.3 Manojit Kumar Pathak were working as Directors in the business at Baroda which was named and styled as Chorus Pharma Chemical Pvt. Ltd. They were knowing each other and were the part of the above said company. Majority shares of the company were owned by the petitioners and they were looking after day to day affairs of the company. They participated in formations of the company and in affairs of the company. It appears that by way of similar modus operandi under the guise of franchisee collected the huge amount as deposit from various parts of the State i.e. Rajkot, Surendranagar, Baroda, Ahmedabad etc. A similar complaint was filed before Gandhigram Police Station, Rajkot being CR.No.I-267 of 2009 as well as at Surendranagar also. With an intention to collect money as deposit on allotment of franchisee, and thereafter, closing the business as well as the company, intention of the accused no.1 can be found malafide. It cannot be said that conspiracy was hatched by the present petitioners in committing the offence. It would be proper to say that petitioners are neither the Directors nor the Managers of the company and they are investors who had invested their money in the said company. It is admitted fact from the documentary evidence that Jayanta Kalol Roy was the managing Director and main person in the company and entire company was his concept. He was running the same operation in the form of proprietary concerned in the name and style of An-Advantage. It also appears that another complaint of similar nature with identical allegations was filed at Rajkot vide CR.No.I-267 of 2009 with Gandhigram Police Station, Rajkot. Another similar complaint was also filed at Surendranagar vide CR.No.I-116 of 2009 making identical allegations. From the record, it can be believed that only Jayanta Kalol Roy has played fraud on mass scuffle with several persons in various parts of the State and the petitioners are also the victims of the said fraudulent operations of Jayanta Kalol Roy, and therefore, prosecution against the petitioners as accused person would be an abuse of process of criminal proceedings. It appears that big advertisement was given in news paper by the accused and by global canvassing of franchisee at villages, respondent no.2 contacted the accused nos.2 and 3 on phone and shown their readiness for franchisee for the district of Porbandar and therefore, on that basis, accused no.1 came at Porbandar. Other employees of accused no.1 were accompanied him and all talks were made with the respondent no.2. False and vague information was given to the respondent no.2 in respect of the company with an intention of fraud by providing false literature to him as alleged. As respondent no.2 was ready to have franchisee of the company, he had paid Rs.20 lakhs by different draft of the HDFC Bank on different dates. Franchisee agreement was executed and the student joined with franchisee of the respondent no.2 and 70% fees was sent to the company and on completion of course as per education qualification, job was to be offered to such student, but after sometime, the respondent no.2 came to know the reality of the accused persons that by giving such franchisee at villages big amount was collected by accused and job was not given to the student. The respondent no.2 frequently inquired in company on phone and at that time employee of the company informed accused nos.2 to 10 who were Directors of the company. Threat was given to the respondent no.2 by accused nos.2 and 3. The complainant frequently talked to the petitioners on phone and also visited personally but false assurance was given that all will be done better. An intention of the petitioners from beginning cannot be said to misappropriation and fraud. It appears that after taking huge amount of Rs.20 lakhs from the respondent no.2 and though giving guarantee of 100% job by accused no.1, franchisee as well as centre were closed and accused no.1 committed fraud and breach of trust. 11. In case of Skoda Auto Volkswagen India Pvt. Ltd. Vs. The State of Uttar Pradesh and others reported in (2021) 5 SCC 795 = [2020] 4 Crimes(SC) 455, the Hon’ble Apex Court has observed in Paragraph Nos.40 & 41 as under: “40. It is needless to point out that ever since the decision of the Privy Council in King Emperor vs. Khwaja Nazir Ahmed, the law is well settled that Courts would not thwart any investigation. It is needless to point out that ever since the decision of the Privy Council in King Emperor vs. Khwaja Nazir Ahmed, the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. 41. As cautioned by this Court in State of Haryana vs. Bhajan Lal, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. 12. In the present case, after registering the complaint, the petitioners have immediately approached this Court and they have been protected by this Court. It appears that thereafter, no further investigation is carried out. 13. It is pertinent to note that against Manojitkumar Ranjitkumar Pathak and others with the similar facts, another complaint was filed and same complaint was questioned by the accused persons of that complaint before this Court in Special Criminal Application (Quashing) No.1881 of 2009 with Special Criminal Application No.1235 of 2009, wherein settlement was arrived by the complainant and affidavit was filed by the respondent no.2. This Court was pleased to accept the prayer of both the petitioners and quash the impugned FIR vide order dated 07.07.2017 and two accused persons. From the averments made in the complaint, it appears that accused no.1-Jayanta Kalol Roy was the Managing Director and the main person in his company. He was only the person, who was running the operation in the form of proprietary concerned in the name and style of An Advantage. It is nowhere stated in the complaint by the respondent no.2 that the present petitioners have made any representation or have conducted in any manner that would reflect that they have posed themselves as Office Bearers or Director of the Company. As per the submissions made by learned advocate for the petitioners, they are neither Directors nor the Managers of the Company, but they were investors and had invested their money in the aforesaid company. 14. In the case of Hridaya Ranjan Pd. Veram Vs. As per the submissions made by learned advocate for the petitioners, they are neither Directors nor the Managers of the Company, but they were investors and had invested their money in the aforesaid company. 14. In the case of Hridaya Ranjan Pd. Veram Vs. State of Bihar reported in 2000 (4) SCC 168 , the Hon’ble Supreme Court has observed in Paragraphs-13, 14, 15 and 16 as under: “13. Cheating is defined in Section 415 of the Code as, “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat. 14. The section requires - (1) Deception of any person. (2) (a) Fraudulently or dishonestly inducing that person (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property. 15. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. in the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 16. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest. 16. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.” 15. In the case of International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and others Vs. Nimra Cerglass Technics Private Limited and another reported in (2016) 1 SCC 348 , the Hon’ble Supreme Court has observed in Paragraphs-13 and 14 as under: “13. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is, as to whether uncontroverted allegations as made in the complaint establish the offence. The High Court being superior court of the State should refrain from analyzing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of the High Court under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution. The power under Section 482 Cr.P.C. is to be used sparingly only in rare cases. In a catena of cases, this Court reiterated that the powers of quashing criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon facts and circumstances of each case. 14. The power under Section 482 Cr.P.C. is to be used sparingly only in rare cases. In a catena of cases, this Court reiterated that the powers of quashing criminal proceedings should be exercised very sparingly and quashing a complaint in criminal proceedings would depend upon facts and circumstances of each case. 14. In the light of the well-settled principles, it is to be seen whether the allegations in the complaint filed against ARCI and its officers for the alleged failure to develop extruded ceramic honeycomb as per specifications disclose offences punishable under Sections 419 and 420 IPC. It is to be seen that whether the averments in the complaint make out a case to constitute an offence of cheating.” 16. In the case of Sushil Sethi and another Vs. State of Arunachal Pradesh and others reported in 2020(3) SCC 240 , the Hon’ble Supreme Court has observed in Paraghraphs-8.2, 8.3 and 9 as under: “8.1. As observed hereinabove, the chargesheet has been filed against the appellants for the offences under Section 420 read with Section 120B of the IPC. However, it is required to be noted that there are no specific allegations and averments in the FIR and/or even in the chargesheet that fraudulent and dishonest intention of the accused was from the very beginning of the transaction. It is also required to be noted that contract between M/s SPML Infra Limited and the Government was for supply and commissioning of the Nurang Hydel Power Project including three power generating units. The appellants purchased the turbines for the project from another manufacturer. The company used the said turbines in the power project. The contract was in the year 1993. Thereafter in the year 1996 the project was commissioned. In the year 1997, the Department of Power issued a certificate certifying satisfaction over the execution of the project. Even the defect liability period ended/expired in January, 1998. In the year 2000, there was some defect found with respect to three turbines. Immediately, the turbines were replaced. The power project started functioning right from the very beginning – 1996 onwards. If the intention of the company/appellants was to cheat the Government of Arunachal Pradesh, they would not have replaced the turbines which were found to be defective. In the year 2000, there was some defect found with respect to three turbines. Immediately, the turbines were replaced. The power project started functioning right from the very beginning – 1996 onwards. If the intention of the company/appellants was to cheat the Government of Arunachal Pradesh, they would not have replaced the turbines which were found to be defective. In any case, there are no specific allegations and averments in the complaint that the accused had fraudulent or dishonest intention at the time of entering into the contract. Therefore, applying the law laid down by this Court in the aforesaid decisions, it cannot be said that even a prima facie case for the offence under Section 420 IPC has been made out. 8.2. It is also required to be noted that the main allegations can be said to be against the company. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. In the case of Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668 , it is observed and held by this Court that the penal code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. It is further observed and held that the vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further observed that statute indisputably must contain provision fixing such vicarious liabilities. It is further observed that even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside. 8.3 At this stage, it is required to be noted that though the FIR was filed in the year 2000 and the chargesheet was submitted/filed as far back as on 28.5.2004, the appellants were served with the summons only in the year 2017, i.e., after a period of approximately 13 years from the date of filing the chargesheet. Under the circumstances, the High Court has committed a grave error in not quashing and setting aside the impugned criminal proceedings and has erred in not exercising the jurisdiction vested in it under Section 482 Cr.P.C. 9. In view of the above and for the reasons stated above, we are of the firm opinion that this is a fit case to exercise the powers under Section 482 Cr.P.C. and to quash the criminal proceedings against the appellants for the offence under Section 420 read with Section 120B of the IPC. To continue the criminal proceedings against the appellants would be undue harassment to them. As observed hereinabove, no prima facie case for the offence under Section 420 of the IPC is made out.” 17. It may be stated that law as regards these scope of Section 482 of the Cr.P.C. is well settled by the Hon’ble Supreme Court in catena of judgment. In the case of Indian Oil Corporation Vs. NEPC India Limited and others reported in 2006(6) SCC 736 , the Hon’ble Supreme Court, after considering the earlier judgment, has laid down the principles governing the jurisdiction under Section 482 of the Cr.P.C. as under: “12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash the complaints and criminal proceedings have been stated and reiterated by this Court in several decisions as under: A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.” 18. Keeping in view the aforesaid principles laid down by the Hon’ble Supreme Court, if allegations made in the complaint lodged by the respondent no.2 are appreciated, it transpires that the said complaint has been filed by the respondent no.2 alleging that accused nos.2 and 3 were contacting on telephone to the complainant and requested him to have a Sub-Agency of the Porbandar District. Accused no.2 visited Porbandar along with other employees and had a meeting with the complainant, discussed with him at that time, with an intention to cheat the complainant and induced him, false material was supplied to him, and therefore, the complainant has shown his readiness to have agency of the company for Porbandar District. There was a preliminary discussion at the time of meeting arrange with accused no.2 and paid Rs.11,000/- in cash to the accuse no.2 in presence of his father and staff members. The complainant tried to find out the proper place at Porbandar after getting the agency and was in contact with the accused no.3 on telephone frequently. There was a preliminary discussion at the time of meeting arrange with accused no.2 and paid Rs.11,000/- in cash to the accuse no.2 in presence of his father and staff members. The complainant tried to find out the proper place at Porbandar after getting the agency and was in contact with the accused no.3 on telephone frequently. As per the instructions, they purchased the suitable place on M.G. Road, at Porbandar and thereafter, the employee of the company i.e. accused no.1 visited the place of the complainant at Porbandar to prepare the furniture as per the norms and training center was established by the complainant. The general allegations were made in the complaint that job guarantee was offered by the accused persons. Considering the prestige of the complainant, more than 100 students joined the training center started by the complainant. The complainant thereafter paid certain amount as described in Paragraph No.5 of this complaint to the company accused no.1 and same amount was paid to the accused no.2 through cheque. Thereafter, no job was offered after completing the training of the students, the complainant contacted number of times to the company, but no satisfactory reply was given to him and evasive reply was given on telephone by the accused nos.2 and 3 as well as threat to the complainant, and therefore, this complaint was filed. From the complaint, it appears that there are ten accused persons shown in the complaint. 19. In the instant case, the offences alleged against the petitioner are under Sections 406, 420, 506(2), 507 and 114 of the Indian Penal Code. Having regard to the totality of the facts and circumstances of the case and more particularly, the allegations made in the complaint, this Court is of the opinion that learned advocate for the original complainant as well as learned APP for the respondent-State have failed to make out any case of criminal breach of trust as contemplated under Section 406 or cheating, as contemplated under Section 420 or alleged threat of committing murder or hatching any conspiracy, abetting other co-accused persons under the provisions of the IPC. None of the ingredients, as contained in Sections 506(2), 114 and 507 of the IPC for the purpose of Sections 406 and 420 of the IPC, could be said to be attracted qua the present petitioners. As discussed earlier, the application filed by the accused persons viz. None of the ingredients, as contained in Sections 506(2), 114 and 507 of the IPC for the purpose of Sections 406 and 420 of the IPC, could be said to be attracted qua the present petitioners. As discussed earlier, the application filed by the accused persons viz. Manojitkumar Ranjitkumar Pathak and other accused persons i.e. Special Criminal Application (Quashing) No.1881 of 2009 with Special Criminal Application No.1235 of 2009, wherein settlement was arrived at by the complainant and the aforesaid complaint is already quashed. 20. In the instant complaint, complainant has not clearly averred specific averments that the present petitioners are incharge and responsible for at the time when the offence was committed. This Court has considered the averments made in the complaint and found that the complainant has not produced any unimpeachable evidence on record which would lead to the conclusion that the present petitioners were incharge of the Directors and responsible for the conduct of the business of the company at the relevant time. While role of the Director in Company is ultimately a question of fact and no fix formula can be fixed for the same, this Court is convinced from the material on record that allowing the proceedings to continue against the present petitioners by the respondent no.2 would be an abuse of process of the Court. 21. In the case of S.M. Datta Vs. State of Gujarat and another reported in 2001 (7) SCC 659 , it is observed that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. Considering the allegations made in the complaint against the present petitioners without recording evidence and completing the investigation by the Investigating Agency, it is a fit case to exercise the powers under Section 482 of the Cr.P.C. by this Court. 22. Hence, the Investigating Officer shall be at liberty to proceed further with the investigation qua the complaint against other accused persons and file report in accordance with law, however, the said complaint qua the present petitioners deserves to be quashed and set aside for the reasons stated above. 23. 22. Hence, the Investigating Officer shall be at liberty to proceed further with the investigation qua the complaint against other accused persons and file report in accordance with law, however, the said complaint qua the present petitioners deserves to be quashed and set aside for the reasons stated above. 23. In view of the matter, the FIRs being (i) I-C.R.No.64 of 2009 registered with Kamalabaug Police Station, Porbandar and (ii) I-C.R.No.116 of 2009 registered with City Police Station, Surendranagar qua the present petitioners are hereby quashed and set aside. All these petitions are hereby allowed. Rule is made absolute accordingly.