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2022 (3) TMI 1578 - HC - Indian LawsRecovery of dues - civil dispute - Cheating - Non-payment of amount borrowed from the defacto complainant to settle the financial discrepancies with sub-contractors at Kuwait - the defacto complainant has approached the concerned civil court and filed a suit for recovery of the amount and the said suit is pending for consideration - HELD THAT:- In an identical matter fell for consideration before the Apex Court reported in between Prof. R.K. Vijayasarathy and another vs. Sudha Seetharam and another [2019 (2) TMI 2064 - SUPREME COURT] where in also the defacto complainant has also instituted a civil suit for recovery of amounts. Thereafter they have filed complaint against the accused under section 405, 415 and 420 IPC alleging that the accused colluded to siphon away said money from the defacto complainant and the complaint was filed after long lapse of time. In the said matter, the court has observed An attempt has been made by the first respondent to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence. Thecomplaint filed by the first respondent against the appellants constitutes an abuse of process of court and is liable to be quashed. A perusal of the record and on hearing the parties, no doubt the petitioners have filed a suit and complaint made by the defacto complainant no specific averments with regard to cheating. There are no specific proof to support the said allegations made in the complaint. The respondents in its complaint itself clearly states that basing onsome information, the petitioners have not paid the amounts to the sub-contractors and utilized for the benefit of the business. That itself shows that the allegations are made bold and baseless. As per the ratio decided by the Hon'ble Apex Court reported in Sharad Kumar Sanghi vs. Sangita Rane [2015 (2) TMI 1117 - SUPREME COURT] it is clear that once a transaction is made with the company, the company being a legal entity, unless and until the company is made as co-accused, the complaint is not maintainable. On this ground alone, the complaint required to be quashed. On perusal of the record and considering the facts of the case, it is purely a civil dispute and there are no allegations or supporting material to substantiate that the petitioners have cheated the defacto complainant. The criminal petition is allowed.
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