JUDGMENT (Common Prayer: Criminal Original Petitions are filed under Section 482 of the Code of Criminal Procedure, to call for all the records and to quash all proceedings as against the petitioners herein in C.C.No.81 of 2017 pending on the file of the District Munsif-cum-Judicial Magistrate, Sriperumbudur.) Common Order 1 .Criminal Original Petitions have been filed to quash the proceedings in C.C.No.81 of 2017, on the file of the District Munsif-cum- Judicial Magistrate Court, Sriperumbudur. 2. The gist of the case is that the defacto complainant Surendar, Planning Manager of M/s.EAP Infrastructure Private Limited, Chrompet, Chennai lodged a complaint against the petitioners on 11.04.2015 to the respondent Police. On receipt of the complaint, the respondent Police registered an FIR in Crime No.527 of 2015, for offence under Sections 406 and 420 IPC against the petitioners/A1 to A4 on 28.04.2015. The complaint is that M/s.Rays Concrete Private Limited, Seneerkuppam Village, Chennai was entrusted with the work for supply of readymade concrete mix by using river sand for construction of building at Thirumudivakkam. The petitioners, who are Managing Director, Assistant Manager, General Manager and Sales Executive of M/s.Rays Concrete Private Limited approached the defacto complainant seeking contract for supply of readymade concrete mix by using river sand, after negotiation, a purchase order, dated 18.03.2015 was issued for supply of readymade mix concrete by using river sand. In the purchase order, it is specifically mentioned that the readymade concrete mix is by using river sand, based on which, the contract was entrusted with the petitioners and and purchase order was issued by the defacto complainant. Thereafter, the readymade concrete mix was supplied by the petitioners to the defacto complainant. In order to verify the quality of the supplied concrete mix, a test was conducted. It was found that the readymade concrete mix contained no river sand, instead it was prepared by using M-Sand. The quality of the readymade concrete mix was not as per specification, which was not accepted by the defacto complainant. 3. On receipt of the complaint from the defacto complainant, the respondent Police registered a case in Crime No.527 of 2015, visited the scene of occurrence, prepared mahazars, collected materials and examined the witnesses. LW9 took up further investigation, completed the same and filed the charge sheet before the trial Court listing LW1 to LW9 as witnesses and annexing documents. 3. On receipt of the complaint from the defacto complainant, the respondent Police registered a case in Crime No.527 of 2015, visited the scene of occurrence, prepared mahazars, collected materials and examined the witnesses. LW9 took up further investigation, completed the same and filed the charge sheet before the trial Court listing LW1 to LW9 as witnesses and annexing documents. On perusal of the same, the trial Court took the case on file finding prima facie case against the petitioners in C.C.No.81 of 2017, against which, the present Criminal Original Petitions filed. 4. The learned counsel for the petitioners submitted that A1 is the Managing Director, A2 is the Assistant Manager, A3 is the General Manager and A4 is the Sales Executive of M/s.Rays Concrete Private Limited, Seneerkuppam Village, Chennai. The defacto complainant Surendar, Planning Manager of M/s.EAP Infrastructure Private Limited, Chrompet, Chennai placed order for supply of readymade concrete mix by purchase order, dated 18.03.2015. The terms and conditions are specified at the reverse of the purchase order. In pursuant to the purchase order, the petitioners placed its materials and machineries at the construction site of the defacto complainant. There was some dispute in payment to be made by the defacto complainant to the petitioners for the readymade concrete mix supplied. Hence, a complaint was also lodged by the 4th petitioner against M/s.Amar Prakash Developers Private Limited, which is the parent company of M/s.EAP Infrastructure Private Limited and the same was registered Crime No.528 of 2015 by the respondent Police on 11.04.2015. 5. The learned counsel for the petitioners referring to the terms and conditions of the purchase order submitted that as per condition No.2, the supply of readymade concrete mix to be effected only in the presence of store keeper/RMC Co-ordinator/Site Engineer of the defacto complainant. The site Engineer and the Store Keeper were available whenever the readymade concrete mix was supplied. As per condition No.8, if there is any defect in the materials supplied, the defacto complainant to make objection within four days and the supplier to replace the material. In condition No.9, the quality and technical specification clearly stated. Likewise, in condition No.10, it is mentioned that the concrete materials supplied is to confirm to the standard specification and test certificate to be submitted by the supplier. The purchase manager was nominated for coordination and sorting out the difference if any between the purchaser and vendor. In condition No.9, the quality and technical specification clearly stated. Likewise, in condition No.10, it is mentioned that the concrete materials supplied is to confirm to the standard specification and test certificate to be submitted by the supplier. The purchase manager was nominated for coordination and sorting out the difference if any between the purchaser and vendor. In condition No.15, if any dispute arose, it is to be referred to the Court in the city of Chennai Arbitration/Jurisdiction. In this case, the defacto complainant before lodging the complaint to the respondent Police, not raised any objection or sent any communication about supply of sub standard material. It is a known fact that during the relevant period, there was restriction in availability of river sand, due to which MSand was alternatively used, which was approved by authorities. 6. The learned counsel further submitted that the M-sand is a substitute for river sand, which is accepted by all and it has been certified by the concerned authorities. It is seen from the FIR and charge sheet that the company viz., M/s.Rays Concrete Private Limited not arrayed as accused. In the absence of arraying the company as accused, its Director, Manager or others cannot be held vicariously. From the statement of LW1 recorded on 28.04.2015, there is no mention about the petitioners, thereafter, further statement recorded on 30.04.2015, in which he made allegations against the petitioners. LW1, the Planning Manager, LW2, the Coordinator, LW3 and LW4, the Quality Control Foreman, stated about supply of readymade concrete mix is not as per the purchase order. In what manner, it is not as per specification of the purchase order is not mentioned in the FIR or charge sheet, except for general statement making sweeping allegations. LW5 and LW6 are weigh bridge operator and security guard, in whose persence, the Observation Mahazar and Rough Sketch prepared. LW7 is the Scientific Officer, Forensic Department, Mylapore, Chennai, who gave opinion that the concrete mix produced for inspection contains M-Sand (manufactured sand) and not N-sand (Natural-River sand). The defacto complainant was in the habit of making such false complaints against the suppliers. 7. He further submitted that in fact, on the complaint of the 4th petitioner, a case in Crime No.528 of 2015 was registered against M/s.Amar Prakash Developers Private Limited, its Managing Director and others. The defacto complainant was in the habit of making such false complaints against the suppliers. 7. He further submitted that in fact, on the complaint of the 4th petitioner, a case in Crime No.528 of 2015 was registered against M/s.Amar Prakash Developers Private Limited, its Managing Director and others. This Court, while disposing Crl.O.P.No.21965 of 2016 on 04.10.2016 recorded that M/s.Amar Prakash Developers Private Limited is the parent company of M/s.EAP Infrastructure Private Limited and there was dispute with regard to payment of Rs.13,00,000/-, which was not paid by M/s.Amar Prakash Developers Private Limited after the goods was supplied by M/s.Rays Concrete Private Limited and further, M/s.Rays Concrete Private Limited was not allowed to take back equipments placed in the project site and, directed the Deputy Commissioner of Police, Ambattur to monitor the investigation in Crime Nos.527 & 528 of 2015. The respondent Police after completion of investigation in Crime No.528 of 2015, the FIR was closed as Mistake of Fact. Thereafter, the 4th petitioner filed a private complaint before the learned Judicial Magistrate, Sriperumbudur and the same was taken on file as C.C.No.208 of 2017 against Aashish Surana and Surender/defacto complainant herein. As against C.C.No.208 of 2017, the said two persons filed a quash petition in Crl.O.P.No.16800 of 2017 and the same was dismissed on 30.11.2021. Hence, the learned counsel for the petitioners prayed for quashing of the proceedings against them. 8. In support of his submissions, the learned counsel for the petitioners relied on the cases of “Sushil Sethi and another reported in State of Arunachal Pradesh and others in Criminal Appeal No.125 of 2020 and Sharad Kumar Sanghi Versus Sangita Rane in Criminal Appeal No.1584 of 2007 and Anand Kumar Mohatta and anr., Versus State (Govt. of NCT of Delhi) Department of Home and Anr., in Criminal Appeal No.1395 of 2018” for the preposition that without arraying the company as accused, the Managing Director or Director of the company cannot be proceeded on vicarious liability. 9. The learned Additional Public Prosecutor appearing for the State submitted that on the complaint of the defacto complainant, a case in Crime No.527 of 2015 was registered against the petitioners. Thereafter, the Investigating Officer conducted investigation, visited the scene of occurrence, recorded the statements of witnesses, collected readymade concrete mix and sent the same to forensic study. 9. The learned Additional Public Prosecutor appearing for the State submitted that on the complaint of the defacto complainant, a case in Crime No.527 of 2015 was registered against the petitioners. Thereafter, the Investigating Officer conducted investigation, visited the scene of occurrence, recorded the statements of witnesses, collected readymade concrete mix and sent the same to forensic study. The forensic report confirmed that M-Sand has been used in preparation of concrete, instead of river sand. As per purchase order, readymade concrete mix to be prepared using river sand. On the contray, the petitioners supplied the readymade concrete mix of M-Sand. He further submitted that though there is a condition for physical examination of readymade concrete mix then and there, it was seldom followed, that does not give license for the petitioners to use M-Sand without prior approval against the purchase order. On completion of investigation, charge sheet was filed against the petitioners and the same was taken on file in C.C.No.81 of 2017. The points raised by the petitioners are factual in nature, which are to be decided only during trial and not in these Quash Applications. 10. The learned counsel for the 2nd respondent submitted that on the complaint of the defacto complainant, a case in Crime No.527 of 2015 was registered against the petitioners. In the purchase order, it is categorically stated that the readymade concrete mix to be prepared by using 100% river sand. On this condition, the work was entrusted to the petitioners. Though there have been several conditions in the purchase order, the mistake committed by the Quality Controller Foreman would not absolve the petitioners from their misdeeds committed by them. The Forensic Report of LW7 confirmed the concrete mix was prepared with M-sand and not with N-Sand, which is against the purchase order issued by the defacto complainant. Thus, the petitioners had committed the offence of misappropriation and cheating. As an offensive, the 4th petitioner lodged a complaint against the defacto complainant and others in Crime No.528 of 2015, wherein the respondent Police on completion of investigation, finding that the complaint is without any materials, closed the same as Mistake of Fact. Hence, the petitioner filed a private complaint against the defacto complainant and another one, who are facing trial in C.C.No.208 of 2017 before the learned Judicial Magistrate, Sriperumbudur. 11. Hence, the petitioner filed a private complaint against the defacto complainant and another one, who are facing trial in C.C.No.208 of 2017 before the learned Judicial Magistrate, Sriperumbudur. 11. He further submitted that the petitioners, who are Managing Director, Assistant Manager, General Manager and Sales Executive of M/s.Rays Concrete Private Limited, are the persons incharge and responsible for the supply of readymade concrete mix containing M-Sand. Thus, the submissions of the learned counsel for the petitioners are to be decided only during the trial and not in these petitions. Hence, he opposed these petitions. 12. This Court considered the rival submissions and perused the materials available on record. 13. It is seen that the defacto complainant issued the purchase order to the petitioners, who are Managing Director, Assistant Manager, General Manager and Sales Executive of M/s.Rays Concrete Private Limited. In the purchase order, it is mentioned that the readymade concrete mix prepared with 100% river sand. The Forensic Report of LW7 confirmed that the readymade concrete mix was made with M-sand. The conditions in the purchase order is clear that the Storekeeper and the site Engineer of the defacto complainant have to physically verify the properties of the concrete mix supplied and its quality. It is a known fact that the concrete mix would get dried within few hours, hence, the test has to be made then and there. There was no objection from the site Engineer in the construction site of M/s.EAP Infrastructure Private Limited after receiving the readymade concrete mix supplied by the petitioners. 14. It is also to be seen that earlier, there was some dispute with regard to payments to be made to M/s.Rays Concrete Private Limited by M/s.Amar Prakash Developers Private Limited, which is the parent company of M/s.EAP Infrastructure Private Limited. Due to which, a complaint was lodged against the defacto complainant by the 4th petitioner herein. After the above money dispute, the dispute of supply of readymade concrete mix containing M-sand instead of N-Sand arose. In this case, the purchase order is in the name of M/s.EAP Infrastructure Private Limited. 15. In the complaint and in the statement of witnesses, there is no specific overtact against the petitioners. Without arraying the company as accused in the complaint or FIR or charge sheet, the officials of the company cannot be made as accused. In this case, the purchase order is in the name of M/s.EAP Infrastructure Private Limited. 15. In the complaint and in the statement of witnesses, there is no specific overtact against the petitioners. Without arraying the company as accused in the complaint or FIR or charge sheet, the officials of the company cannot be made as accused. The Hon'ble Apex Court time and again held that without arraying the company as accused in the complaint or FIR or charge sheet, the officials of the company, who were the incharge and responsible for the conduct of the business of the company, cannot be vicariously made as accused and proceeded with. 16. Thus, it is a settled law that the Director or Managing Director and other staffs cannot be prosecuted without arraying the company as accused. Hence, this Court is inclined to quash the proceedings against the petitioners in C.C.No.81 of 2017, on the file of the District Munsifcum- Judicial Magistrate Court, Sriperumbudur and the same is quashed. 17. Accordingly, this Criminal Original Petitions are allowed. Consequently, the connected Criminal Miscellaneous Petitions are closed.