hvn Cri.appln.3997-4193-3248.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 3997 OF 2009 WITH CRIMINAL APPLICATION NO. 4193 OF 2009 WITH CRIMINAL WRIT PETITION NO. 3248 OF 2009 Satish Sheth and Ors. ... Applicants/Petitioners Versus Rajendra P. Bansal and Ors. ... Respondents Mr. A.P. Mundergi, Sr. Advocate i/by M/s. Dave & Co. for applicants in Cri. Application No. 3997 of 2009. Mr. Shirish Gupte, Sr. Advocate i/by M/s. Dave & Co. for applicants in Cri. Application NO. 4193 of 2009. Mr. Prakash Naik alongwith Mr. Pawan Mali and Ms. M. D'souza for petitioenr in Cri. W.P. No. 3248 of 2009. Mr. Rajendra P. Bansal respondent no. 1 in person present. Mr. S.S. Pednekar, A.P.P. for State. CORAM : K.U. CHANDIWAL,J. DATED : OCTOBER 20, 2011 P.C. Heard finally the leaned senior Counsel Mr. Mundergi and Mr. Gupte and Mr. Prakash Naik in respective matters and Mr. Rajendra 1 hvn Cri.appln.3997-4193-3248.09 Bansal, party in person. 2. The applications/petitions are disposed of by common order as they raise challenge to issuance of process against applicants by the learned Metropolitan Magistrate, Vashi at Belapur (Navi Mumbai), Dist. Thane in R.C.C. No. 840 of 2009. 3. Respondent Rajendra Bansal was appointed in Reliance Communication on 29.11.2001 in the position of Senior Management Cadre in Reliance Infocomm Ltd. It was revealed by Reliance company that the services of Rajendra Bansal are not satisfactory and consequently by letter dated 31.10.2006 he was terminated. He was paid amount equivalent to his three months salary as and by way of full and final settlement. This letter was under the signature of K.S. Kumar (accused no. 2). 4. Respondent (complainant) in his complaint referred that he rendered his services to the best of his abilities using of his expertise and knowledge. After thoroughly utilizing his knowledge and expertise, accused/applicants have terminated his services with ulterior motive without giving any valid reason. The said termination was in colourable 2 hvn Cri.appln.3997-4193-3248.09 exercise of power. He asserted that the accused/applicant have even violated condition of clause 8 of appointment letter as well as paragraph 6 of termination letter. An amount of Rs.34,52,359/- was due and payable by Reliance Communication through accused applicants to the complainant and out of the said sum, the company has paid total amount of Rs.4,72,840/-, leaving sum of Rs.29,79,519/- due along with interest @ 18% p.a. as on 12.2.2007. The accused/applicant have shown deduction of income tax for Rs.66,651/- from the payment of Rs.4,72,840/-. Even the said payment of Rs.66,651/- is not paid with the Government and consequently the accused/applicants have violated the provisions of Income Tax Act, 1961. 5. The accused/applicants however, refused to acknowledge their liability to pay the aforesaid dues with interest. According to complaint, all the accused have jointly cheated him by not complying the terms of appointment letter or termination letter and thereby not paying his legitimate dues which has caused wrongful loss hence committed offence punishable under section 418 of I.P.C. The complainant also claims that the actual TDS for financial year 2005-2006 from his monthly payment was Rs.4,53,120/-. While in form 26AS TDS 3 hvn Cri.appln.3997-4193-3248.09 deposited by the company was Rs.7,82,037/- which is indicative that the company has paid to the complaint sum of Rs.10,40,882.60 which company has shown having paid to the complainant on 31.12.2006. The act of the company/accused applicant has caused harassment/agony to the complainant for which the accused/applicants were also prosecuted in Consumer Protection Forum and by order dated 28.8.2008 were saddled penalty. 6. The learned Magistrate sent complaint to Koparkhairane Police station for enquiry under section 156(3) Cr.P.C. by order dated 17.1.2009 and the learned Judge has on 3.8.2009 issued process against the accused/applicant for the offences punishable under section 420, 415, 418, 405 read with 34 IPC. 7. The applicants assert that the reading of the above factual details in the complaint, taken together on its face, do not constitute any offence. The learned Magistrate completely ignored that the police had after due investigation issued report wherein they had reached at conclusion that the dispute between the parties was of civil nature. The learned Magistrate has ignored the fact that the subject matter of the 4 hvn Cri.appln.3997-4193-3248.09 dispute is purely of civil nature, more specifically relating to dispute about wages which would not constitute criminal offence. The entire complaint if looked, does not disclose as to how the applicants who are arraigned have even dealt with or any connection with the complainant, constituting criminal action. The entire top executives/officials of the company has been arraigned with sinister motives as respondent/complainant was removed from the employment due to latter's poor performance. 8. It was pointed that the accused no. 4 Shri. Niranjan is not before the court as he has left the company. Mr. Mundergi submits, no specific allegation against the petitioners except pointing vicarious liability which in itself would not constitute an offence. Clause 8 of the termination letter has been ignored by the complainant. He was paid three months salary at the time of termination. The learned senior counsel submits, there could be discrepancies in the account. However, it would not attract section 420 of I.P.C. 9. The complainant asserted that the amount is retained fraudulently. The provident fund amount is not paid. He has argued about the scope 5 hvn Cri.appln.3997-4193-3248.09 of section 156(3) Cr.P.C. and how the learned Magistrate was justified in issuing process, even if there was negative report of the police. The complainant has placed reliance to the orders in Criminal Application No. 3025 of 2010 in Haresh Idandas Chugani and Ors. Vs. Sureshkumar N. Pai and Anr., This judgment relates to issuance of process concerning dispute of Cooperative Housing Society and MHADA in respect of allotment of plot of lands. The applicant therein were office bearers of the society. The lease deed was signed and the conditions imposed by MHADA were accepted. Thereafter building was constructed and respondent no. 1 therein purchased a flat in 1996 from one outgoing member and consequently it was transfered in his name. The said respondent filed complaint against those of the builders for offence under section 406, 420 read with 34 I.P.C. However, the facts of said case do not in any way match to attract factual details in the present case. 10. The learned counsel also placed reliance in the judgment of Hon'ble Supreme Court in Tula Ram and Ors. Vs. Kishore Singh, 1977 AIR 2401. 6 hvn Cri.appln.3997-4193-3248.09 11. The learned senior Counsel has placed reliance to the judgment in the matter of Maksud Saiyed Vs. State of Gujarat and Ors. (2008) 5 Supreme Court Cases 668 in respect of vicarious liability of directors for the charges levelled against the company. The Hon'ble Supreme Court has held the Penal Code does not contain any provision for attracting vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the company. It was expected of the Magistrate to have examined whether the complaints made directors personally liable. 12. The recitals in the complaint are reproduced hereinbefore. Reading of recitals it does not constitute the ingredients to attract infraction of section 418, 420, 415, 405 IPC. Overall submissions in the complaint lean to indicate deficiencies in maintaining the account or not adhering to the contentions of the complainant to his dues. The matter basically would be revolving to the interpretation of letter of appointment and letter of termination. However, it would not bring the case of either preparing false documents or forgery or cheating. For bringing the case within the bracket of cheating one has to establish : 7 hvn Cri.appln.3997-4193-3248.09 (a) deception of the person either by making false or misleading representation or by dishonest concealment or by any other act or omission. (b) Fraudulent or dishonest inducement of that person by either to deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived (c) such act or commission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 13. To constitute offence under section 420 there should not only be cheating but as consequence of such cheating the accused should have dishonestly deceived to deliver any property to any person or to make, alter or destroy only or any part of valuable security. Section 415 and 420 consequently would not be said to have attracted even remotely to the contemplated act of any of the accused applicants. 8 hvn Cri.appln.3997-4193-3248.09 14. Section 405 I.P.C. conceive as under : "405. Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". It was imperative for the complainant to establish that the accused applicants were entrusted with the property or with any dominion over the property or that they have dishonestly misappropriated or converted for their own use such property. Non payment of dues, if any, even otherwise would seldom attract penal consequences. 15. The liability sought to be fastened against the directors would not be vicariously available for penal provisions. Such liabilities indeed figure in other special statute namely Essential Commodities Act 9 hvn Cri.appln.3997-4193-3248.09 or Negotiable Instruments Act or Employees' Provident Fund and Misc. Provisions Act, 1952. In this case there is nothing to suggest that any amount was deducted from the salary of the complainant and not deposited with any fund as contribution of the employer. 16. The nature of entire complaint illustrates that the respondent/complainant was also allowed cost of dearness allowance which he claim Rs.3,67,843/-. Clause 9(b)of the letter dated 29.11.2001 issued to the complainant reads : "You will be covered by service rules and regulations including conduct, discipline and administrative orders and any such other rules or orders of the Company that may come in force from time to time." Clause 9(F) provides compensation structure can be restructured at any time protecting the gross salary. 17. It is pertinent this letter has been acknowledged and signed by the complainant certifying his acceptance. of the terms and conditions of his appointment. It is explicit, the complainant had accepted that the revision 10 hvn Cri.appln.3997-4193-3248.09 or change of salary structure during the tenure of service was permissible. To repeat, complaint proceeds to magnify the liability or otherwise of certain amounts receivable by the complainant. He has, indeed resorted civil remedies for recovery of dues. It will not attract any criminal angle or colourable exercise of powers by accused applicants. There is no trench in the action of accused/applicants to keep the legitimate amount of the complainant for their personal use or to deceive the complainant. There is no marginal gain to any of the accused/applicants nor there is any element of dishonest misappropriation of property or criminal breach of trust. 18. Revisiting the facts and considering the legal position enumerated above, issuance of process certainly calls for invoking exercise of section 482 Cr.P.C. to interfere as it is certainly abuse of process of court. The proceedings being R.C.C. No. 840 of 2009 Old OMA N. 673 of 2008 are quashed and set aside. Rule made absolute. (K.U. CHANDIWAL,J.) 11