HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CRIMINAL PETITION Nos. 6154, 6155 AND 6156 OF 2009 DATED 2nd December, 2011. BETWEEN Mr. Sridhar Dasari …Petitioner in Crl.Ps. And The State, rep. by PS, Marredpally, Hyderabad, rep. by Public Prosecutor, High Court of AP, Hyderabad and anr ….Respondents in all Crl.Ps. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CRIMINAL PETITION Nos. 6154, 6155 AND 6156 OF 2009 COMMON ORDER: In as much as the parties to the petitions are one and the same and the nature of complaints filed in the Court of the learned X Additional Chief Metropolitan Magistrate, Secunderabad are interconnected with each other, they are heard together and being disposed of by this common order. The petitioner, who is accused No.1 invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the crimes in FIR Nos. 111, 112 and 109 of 2008 respectively registered against him for the offences punishable under Sections 120 (B), 403, 406 and 420 of IPC on the file of the Station House Officer, Police Station Maredpally, Hyderabad. The second respondent-complainant filed three private complaints against the petitioner (A.1) and another, who is A.2, for the offences punishable under Sections 120(B), 403, 406 and 420 IPC, which took place on 6.11.2007, 12.11.2007 and 16.09.2007 and the learned Magistrate while taking cognizance of the same referred to the first respondent-police for investigation, who registered the same under FIR Nos. 111, 112 and 109 of 2008 respectively. Briefly stated, the facts of the case are that: the complainant appointed the petitioner (A.1) herein as a General Manager (Operation) in its company on 1.4.2004 and A.2 was appointed as a Junior Technical Consultant on 1.12.2005. The complainant alleged that the nature of work of the petitioner (A.1) was to co- ordinate on behalf of the company with its clients and instruct the employees to perform the assignments as per the agreement entered into between the complainant company and its clients. Accused No. 2 was trained with the expenses of the complainant company to acquire necessary knowledge to perform the work of transfer of its assignments. It is alleged that nature of the complainant company’s assignment with its clients is sensitive, confidential and competitive in nature. As such, the complainant company had obtained an undertaking from the accused that they would not transfer or work for any of the Complainant Company’s clients either directly or indirectly at least for a period of six months from the date of their official relieving by the complainant company in pursuance of their resignation. In FIR No.111 of 2008, which is subject matter of Criminal Petition No. 6154 of 2008, the complainant alleged that the petitioner/A.1 having signed the employment agreement contract with it, stolen its entire employment contracts along with its clients contracts and deputed A.2 to the M/s. Infosys Technologies, Chennai, at the expenses of the complainant company and thereby committed the alleged offences. In FIR No. 112 of 2008, which is subject matter of Criminal Petition No. 6155 of 2008, the complainant alleged that the petitioner having stolen the complainant company’s entire employment contracts and its clients particulars, conspired against the business interest of the complainant company and lured its clients whose contracts have been entrusted to him (accused) and that Accused No. 2 was assigned to Offshore development project of Bank Albilad, Riyad to work with the complainant’s clients against the interest of complainant company. In FIR No. 109 of 2009, which is subject matter of Criminal Petition No. 6156 of 2008, the complainant alleged that the petitioner and other accused have conspired and used the knowledge imparted by the company and rendered the same to its clients with lower price which caused huge monitory loss to the complainant company. It is further alleged that the second accused therein was deputed to Bank Albilad, Riyad on behalf of the complainant’s company on 20.6.2007 and returned to India on 16.9.2007, but he did not report to the complainant company. The grievance of the complainant is therefore that A.1 and other accused have committed the alleged offences. It is the case of the petitioner that after he had taken charge of the operations of the complainant company, its turn over was increased from Rs.55.00 lacks to Rs.6.00 crores and on the basis of his performance, the complainant company gave him incentive package of Rs.64.00 lakhs. However, when the issue of payment of said incentive came up, the complainant started disputes and compelled him to resign from the post so as to avoid the payment of agreed incentive to him. Heard. Perused the case file. The learned Counsel for the petitioner vehemently argued that the de facto complainant earlier filed a private complaint against the petitioner, which was registered under FIR No. 181 of 2007 on the file of the Station House Officer, Maredpally, Hyderabad, for the offences punishable under Sections 417, 420, 452, 387, 120-B IPC and 156 (3) Cr.P.C. In the said complaint the final report as required under Section 173 Cr.P.C. was filed observing that the dispute is a civil in nature. He submitted that with the same set of allegations, the complainant filed the present private complainants, which are nothing but abuse of process of the Court and also offending the Article 20(2) of the Constitution. Per contra, the learned Counsel for the second respondent-complainant submitted that since the complainant has made out a prima facie case against the petitioner-accused, there are no grounds to quash the crimes registered against him. He submitted that the truth or otherwise of the allegations levelled in the complaints will come out only after a full fledged trial by the Court below once the police files a charge sheet under Section 173 Cr.P.C., and therefore prayed not to scuttle the investigation at the threshold. Section 120-A of IPC defines ‘conspiracy’ whereas to mean that when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated as ‘criminal conspiracy’. No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof. Section 120- B of IPC prescribes punishment for criminal conspiracy. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. Section 403 uses the words “dishonestly” and “misappropriate”. These are necessary ingredients of an offence under Section 403 IPC. The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 IPC with sentence for a period up to three years or with fine or with both, are (i) entrusting any person with property or with any dominion over property; and (ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust. The ingredients of Section 420 of the Penal Code are (i) Deception of any persons; (ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. While dealing with a petition filed under Section 482 Cr.P.C. seeking to quash a complaint or an FIR, as the case may be, this Court is only to read the contents of the complaint or the FIR including the documents annexed therewith as a whole and if they are taken at their face value and accepted in their entirety, without examining the merits of the same, prima facie constitute any offence or make out the case as alleged against the accused, then interference by this Court under Section 482 Cr.P.C. is not warranted. The principles relating to exercise of jurisdiction under Section 482 Cr.P.C. has been succinctly laid down duly considering the law on the point by the Supreme Court in RAVINDRA KUMAR MADHANLAL GOENKA v. RUGMINI RAM RAGHAV SPINNERS (P) LTD.[(2009) 11 SCC 529]. Therein, it was held in para 16 thus: “16. This Court in Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 scc 736] at pp. 747-48 has observed as under: (SCC para 12) “12. ……… The principles, relevant to our purpose are: (i) 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. 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 mala fides/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. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” [Emphasis is added] A perusal of the earlier private complaint made on behalf of the second respondent-complainant company against the petitioner and others, which was referred to the first respondent-Police and registered as FIR No. 181 of 2007, would disclose that the accused have threatened and demanded General Manager of the second respondent-Complainant for payment of Rs.65,00,000/- payable towards incentive packages. On behing referred to the first respondent-Police, it investigated the crime and filed final report stating that neither the witnesses nor the circumstances did support the statement of the complainant and the alleged offences against the accused were not made out and that the disputes between the complainant and accused are purely a civil in nature. The very demand of the alleged amount in the aforesaid complaint is also a part and parcel of the present complaints in these cases. In the present cases also, the complainant alleged that the accused conspired with its clients and lured the complainant and thereby caused huge monitory loss, but nowhere in the complaints the complainant has mentioned the names of its clients with whom the accused conspired and how he caused heavy loss to it. In the absence of mentioning names of the clients with whom the accused conspired, it is difficult for the investigating agency to probe into the matter. The allegations made in the complaints are nothing but general in nature and vague. The alleged allegation that the accused conspired with the clients and lured complainant company and thereby caused huge monitory loss is considered in the light of the ingredients of Section 120-B IPC, it cannot be said that the alleged offence punishable under Section 120-B IPC is committed. The complainant failed to mention the names of its clients with whom the accused conspired, and also failed to allege clearly as to how the accused dishonestly misappropriated its funds and thereby the alleged offence punishable under Section 403 IPC is made out. In the complaint, it is not specifically alleged as to how the property entrusted to the accused dishonestly misappropriated or converted to his own use that property; or dishonestly used or disposed of that property or wilfully suffered any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust. The alleged offence punishable under Section 406 IPC is also not made out. That being so, the allegation of the offence of cheating punishable under Section 420 IPC is also not made out as the accused had not played deception of any persons and had not fraudulently or dishonestly induced the complainant to deliver any property to anyone. Furthermore, in the earlier complaint made against the accused was under Sections 417, 420, 120B, 452 and 387 of the IPC and when the same was referred to the police, it filed a final report under Section 173 Cr.P.C inter alia stating that the disputes between the complainant and the accused are purely civil nature. Further it is to be seen, there is inordinate delay in filing the private complaint by the second respondent. The alleged incidents happened during the months of June to November, 2007 and whereas the second respondent had filed private complaints in the month of June, 2008. There is no explanation forthcoming for such inordinate delay of nearly seven months in lodging private complaints. It seems that after the police filed final report in the FIR No. 181 of 2007 and knowing the result thereof, the second respondent might have filed the private complaints with different allegations, which included the allegations made in the earlier complaint. It may be noted that the final report in Crime No. 181 of 2007 was already filed. Long thereafter, the present private complaints are filed to harass the petitioner which is nothing but abusive of the process of the Court. It is well established that in case of a complaint under Section 200, Cr. P. C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground' used under Section 202 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction. A perusal of the complaints and the circumstances that led to filing of the same do no disclose any sufficient ground within in the meaning of Section 202 Cr.P.C. In the light of the final report filed by the police under Section 173 Cr.P.C. in the earlier complaint and having due regard to the delay in filing similar complaints against the petitioner/accused, it can be said that filing of the present complaints is nothing but clear abuse of process of the Court and thereby offending Article 20(2) of the Constitution. For all the foregoing reasons, the impugned FIRs registered against the petitioner are liable to be quashed and accordingly they are quashed. The Criminal Petitions are accordingly allowed. -------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 2nd December, 2011. Msnro