IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.3352 OF 1997. APPLICATION NO.3352 OF 1997. APPLICATION NO.3352 OF 1997. M/s.Lyka Labs Ltd. & Ors. .. Applicants Vs. The State of Maharashtra & Anr. .. Respondents Mr.Subodh Desai for the Applicants. Mr.J.P.Yagnik, A.P.P for the State. None for the Respondent No.2. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 06th August 2008. : 06th August 2008. : 06th August 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the applicants were heard on 04th August 2008. As none appeared for the 2nd respondent, the judgment was not delivered on that day. Today when the application is called out none appears for the 2nd respondent. 2. The challenge in this application under section 482 of the Code of Criminal Procedure, 1973 is to an order passed issuing process on a private complaint filed by the 2nd respondent. 3. In normal course in view of the decision of this Court in the case of V.K.Jain & Ors Vs. Pratap Padode & Anr. (2005(3) Maharashtra Law Journal 778) I would have : 2 : 2 : 2 : relegated the applicants to the remedy under section 397 of the Code of Criminal Procedure, 1973. However, I find that in this application filed in the year 1997, notice was issued in November 1997 and rule as issued on 22nd June 1998. Therefore, it will be unjust to relegate the parties to other remedy after lapse of 10 years and more. 4. The 2nd respondent filed a private complaint alleging commission of offences under section 420, 406 read with section 34 of the Indian Penal Code against the 1st petitioner company and 2nd to 4th petitioners. The 2nd to 4th petitioners have been arraigned as accused in their capacity as the Managing Director, General Manager (Projects) and General Manager (Exp.) respectively of the 1st petitioner company. 5. It is averred in the complaint that in September 1994 petitioners approached the company of the 2nd respondent and represented that the 1st petitioner was getting orders from abroad for certain tablets. It is stated that company of the 2nd respondent agreed to manufacture certain tablets by the name ‘Lyka-Zer’ and accordingly an agreement was entered into on 08th September 1994. It is alleged that the company of the 2nd respondent started supplying the said tablets to the petitioners from October-November 1995 and infact : 3 : 3 : 3 : tablets worth Rs.06,57,685.50/- were supplied by the said company to the petitioners. It is alleged that though delivery was made of the tablets, the petitioners did not release payment in favour of the company of the 2nd respondent. It is alleged that though a letter of credit was opened, necessary documents were not supplied by the petitioners. The allegation is that the petitioners have fraudulently and dishonestly induced the company of the 2nd respondent to deliver the tablets. After recording verification, the learned Magistrate issued process for offences under section 406 and 420 read with section 34 of the Indian Penal Code. 6. The learned counsel appearing for the petitioner submitted that none of the ingredients of the offences under section 420 and 406 were made out in the complaint. He pointed out that even according to the 2nd respondent, the contract was between the 1st petitioner company and the company of the 2nd respondent. He submitted that in absence of any statutory provision, there cannot be any vicarious liability fastened against the petitioner Nos.2 to 4. He submitted that on plain reading of the complaint and verification statement, the dispute between the parties was purely a civil dispute. 7. I have considered the submissions. I have : 4 : 4 : 4 : perused the complaint and verification statement. In the first part of the complaint there is a reference to agreement dated 08th September 1994 executed by and between 1st petitioner and the company of the 2nd respondent. In paragraph 6 of the complaint it is stated that though the tablets were supplied to the 1st petitioner, payments were not released. It is alleged in paragraph 9 that wrongful misrepresentations were made to the company of the 2nd respondent. The relevant averments made in the complaint are in paragraph 7 which read thus: "7. I say that the accused in order to cause wrongful loss to our company and gain our confidence gave a letter of credit to Dena Bank in favour of our company. But all the necessary documents and papers were not cleared by the accused, therefore, our company could not receive any payment. This act on the part of the accused clearly shows that they had no intention to make payment to our company. Thus they fraudulently, dishonestly induce us to deliver the tablets and had deceive us." In paragraph 8 of the complaint it is stated as under: : 5 : 5 : 5 : "8. ...... They have thus wrongfully gained and caused wrongful loss to our company by creating confidence by their sweet talks and boasting of getting orders from a foreign country for the export of these tablets. In fact the accused did not have any firm orders from abroad. But there lies were spoken to us just to gain our confidence and to induce us to part with such bulk quantity to the accused. Had we known about the dishonest intention of the accused, our company would never have parted with so much tablets." In the verification statement of the 2nd respondent he has stated thus: " ...... This act on the part of the accused clearly shows that they had no intention to make payment to our company and had fraudulently dishonestly induced us to deliver the tablets and had deceived us. They have wrongfully gained and caused wrongful loss to our company by creating confidence by their sweet talks and boasting of getting orders from a foreign country for the export of these tablets. In fact the accused did not have any firm orders : 6 : 6 : 6 : from abroad but these lies were spoken to us just to gain our confidence and to induce us to part with such bulk quantity to the accused." 8. In so far as the averments against the 2nd to 4th petitioners are concerned, the 2nd respondent has alleged that the 2nd petitioner is the Managing Director and 3rd and 4th petitioner are General Managers. It is alleged that the petitioner Nos.2 to 4 are the responsible officers of the 1st petitioner and they are managing and conducting day to day affairs of the said company. It must be stated here that there is no specific assertion either in the complaint or in the verification statement that any representation was made by any of the petitioner Nos.2 to 4 to the 2nd respondent or to the company of the 2nd respondent. There are no material assertions in the complaint as regards the role played by the 2nd to 4th petitioners. 9. Reliance has been placed by the counsel for the petitioners on the decision of the Apex Court in the case of Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr. [(2000) 4 Supreme Court Cases 168]. Paragraph 15 of the said decision read thus: : 7 : 7 : 7 : "15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that the had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed." 10. In the present complaint, the only allegation is that after delivery of the tablets, payments were not released by the petitioners. There are no assertions made in the complaint or in the verification statement that there was any intention to deceive or there was any : 8 : 8 : 8 : dishonest intention to induce at the inception of the transaction. All that is alleged is that payment of the price was not released. On plain reading of the complaint and verification statement, it is apparent that none of the ingredients of offence under section 406 were made out. The case of the 2nd respondent is that the transaction between the parties was reduced into writing in the form of an agreement and as per the agreement supply of tablets was made by the company of the 2nd respondent. As far as cheating is concerned, in absence of any specific averment regarding the existence of the intention to deceive at the inception, process could not have been issued. What is pleaded by the 2nd respondent is in essence a case of a breach of contract. 11. Therefore, the petition must succeed and accordingly rule is made absolute in terms of prayer clause (b). (A.S.Oka, (A.S.Oka, (A.S.Oka, J) J) J)