TMI Blog2022 (3) TMI 1578X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they do not have first hand information. Further the allegation made in the complaint is that the petitioners never intend to pay to the sub-contractor but by using the clout and network came out of Kuwait without making any payment to sub-contractor. The said allegations are nothing to do with the defacto complainant. Even according to the averments made in the suit, they have paid amounts to the company and the said amounts were not repaid to the defacto complainant despite their request. Hence they filed present complaint for repayment of amounts. 5. Learned counsel appearing on behalf of the petitioner to substantiate her contentions has relied on the contents of the F.I.R. which reads as follows: ...I S. Divakar, am a resident of Door No. 43-23-4, Dondaparthy, Visakhapatnam, I and my wife Smt. S. Ratnamala have accounts in Andhra Bank, Dwarakanagar, Visakhapatnam. N. Gopinath, Managing Director, Newton Engineering Chemicals Ltd., was my classmate in Pre-University Course (now equal to final year Intermediate Course) in Mrs. A.V.N. College, Visakhapatnam during 1964-65. Later he studied B.E. (Mech.) Course in A.U. Engineering College. Thereafter he went to Baroda (Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they did not use the amounts to clear the dues of sub-contractor in Kuwait; on the contrary they utilized the money sent by me for improving their own business in India. Now that I learnt that Mr. Gopinath and his wife have connived with each other and duped me by deliberately making false representations to me that they needed money to settle company's claims of sub-contractor to get Mr. Gopinath out of Kuwait, although they did not intend to make any payment to the said third party contractor. They received the money for a specific purpose i.e. to pay to sub-contractor who complained against him. Subsequent events revealed that Mr. Gopinath and his wife never intended to pay to the claimant sub-contractor but they used the issue to evoke sympathy gullible friends and relations like me to make a wind fall gain. Ultimately Mr. Gopinath by using his clout and network came out of Kuwait without making any payment to claimant sub-contractor. In spite of the requests to return my money, he is not properly responding and more over avoiding to return the money with a malafide intention to cheat me. Thus it is evident from the conduct of Mr. Gopinath and his wife Smt. Vij ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 14-09-2017 5 Online remittance 8 10-10-2017 3.50 Online remittance 3. A.Ratnamala 1 18-09-2017 5 Online remittance 6. The allegations made in the F.I.R. is that the petitioners had borrowed amounts from the defacto complainant to settle the financial discrepancies with sub-contractors at Kuwait. They made them believe that they would repay the same after they return from Kuwait to India by disposing of the assets at Hyderabad and Mumbai. On perusal of the allegations made in the complaint is mainly on the basis of non-payment of the amounts which were paid to the petitioner for the same already 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. 7. In an identical matter fell for consideration before the Apex Court reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegations have to be 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 on certain statutes. It has been so held by a three-Judge Bench in Aneeta Hada v. Godfather Travels and Tours Private Limited (2012) 5 SCC 661 in the context of Negotiable Instruments Act, 1881. At this juncture, it is interesting to note, as we have stated earlier, that the learned Magistrate while passing the order dated 22.10.2001, had opined, thus:- It appears prima-facie from the complaint filed by the complainant, documents, evidence and arguments that accused company has committed cheating with the complaint by delivering old and accidented vehicle to her at the cost of a new truck. Accordingly, prima-facie sufficient grounds exist for registration of a complaint against the accused U/s. 420 of I.P.C. and is accordingly registered. When the company has not been arraigned as an accused, such an order c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to deceive the defacto complainant, the petitioners have stated that they need money to repay the debts to the sub-contractors and hence believing their words, huge amounts were transferred which is nothing but cheating. Hence the said action of the petitioners would squarely attracts the definition under section 415 of IPC. In view of the same, though they have filed a civil suit for recovery of the amount but the intention of the petitioners to cheat the defacto complainant is criminal motive. Hence they have made a complaint to the police and basing on the contents in the complaint, the authorities have rightly registered a crime under section 420 IPC. 10. To support the contentions, the petitioners have relied on the judgment of the Hon'ble Supreme Court reported in between Priti Saraf and another vs. State of NCT of Delhi and another , Criminal Appeal No(s) 296 of 2021 where in it is recited that though the civil disputes are pending between the parties, the Hon'ble High Court has quashed the criminal proceedings. As against it went up to Apex Court and the Apex Court has observed that the High Court was not justified in quashing the criminal proceedings in exerc ..... 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