THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL PETITION NO.4836 OF 2009 Date: 20.10.2011 Between: P.Venkateswara Rao …..Petitioner And The State of A.P., through Station House Officer, Panjagutta Police Station, rep. by its Public Prosecutor, High Court of A.P., Hyderabad and another …..Respondents THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL PETITION NO.4836 OF 2009 ORDER This petition has been filed to quash the proceedings in Crime No.650 of 2008 on the file of Station House Officer, Panjagutta Police Station, Hyderabad registered for the offences under Sections 381, 408 and 420 I.P.C. 2. Section 381 of I.P.C. is as follows: “Theft by clerk or servant of property in possession of master:- Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 3. Section 408 of I.P.C. is as follows: “Criminal breach of trust by clerk or servant:- Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 4. Section 420 of I.P.C. is as follows: “Cheating and dishonestly inducing delivery of property:- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 5. It is also necessary to refer the definition of cheating which is defined under Section 415 of I.P.C., which is as follows: “Cheating:- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property, to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.” Petitioner herein is accused No.2 in the above referred case. Second respondent herein is the private limited company. The Director of the company Smt.B.Uma Devi lodged the above case on behalf of the company. The specific case of the second respondent is that the accused No.1 was initially appointed as a Sales Manager in the second respondent-company and subsequently he was appointed as a Senior Manger – Business Development vide appointment letter dated 2.1.2007 and that he was entrusted with the duties of marketing computers to achieve monthly targets. He was in-charge and responsible for the day- to-day affairs of the company. The accused No.2 (petitioner herein) used to assist accused No.1 and according to the second respondent- company both are responsible for all the wear and tear of the company’s products and they are required to account for all the sales and supplies made by them. The accused No.1 was also taken to China for four times and accordingly entered agreement with M/s.TCL company on the inducement and misrepresentation made by the accused No.1. It is also alleged that the second respondent-company had placed lot of trust on accused No.1 and invested more than Rs.50 lakhs for purchase of computers and more than Rs.5 lakhs for promotional expenses. It is also alleged that later accused 1 and 2 sent their resignations through SMS and requested to accept their resignations. The main allegation of the second respondent-company is that both the accused being the responsible for the day-to-day affairs of the company are under an obligation to submit their resignations and that they left the services of the company without either accounting for the sales and purchases made by them and without even submitting proper resignations and that the second respondent-company immediately got inspected the office premises for which accused 1 and 2 were in-charge and found that accused No.1 in connivance with the accused No.2 had committed theft of key computer peripherals like Processors, Ram, Hard discs and other internal parts of the computers and in some computers they replaced the parts of high configuration with that of low configuration thereby rendering the computers unfit for sale and the second respondent-company could not sell the computers in the open market and had sustained loss to a tune of Rs.30 lakhs. It is also alleged that the accused 1 and 2 had left the second respondent-company without handing over the stocks, sale proceeds, balance left over stock and also the sim cards of the second respondent-company. The second respondent-company addressed a letter to the accused 1 and 2 on 23.8.2007 about the discrepancies and that accused No.1 gave reply to the said letter with all untenable pleas and failed to deliver the theft items lying with them including the sim card and Nokia hand set model cell phone of the second respondent-company and the accused No.2 also gave reply with untenable grounds. Thus, it is alleged that the accused 1 and 2 have committed theft and misappropriation of the amount and caused wrongful loss to the second respondent-company and therefore they shall be punishable under Sections 381, 408 and 420 IPC. The learned counsel for the accused No.1/petitioner submits that false allegations have been made against the petitioner and that no particulars of the alleged offences have been given to make out a case against him. It is also his submission that the petitioner raised a dispute before the Authority under Section 50/51 of the A.P. Shops and Establishment Act, 1988 and Labour Officer, Circle-III, Hyderabad, claiming wages and legal dues from the second respondent-company. The Authority sent a notice to the second respondent-company on 11.3.2008, directing the second respondent-company to appear before it on 19.3.2008. After receipt of the notice, as a counter blast, the second respondent-company lodged the above referred complaint. The only point that arises for the consideration is whether the complaint is liable to be quashed. It is not in dispute that the petitioner and accused No.1 had informed about their resignations on 3.8.2007. It seems that the second respondent-company sent a letter for the first time to the accused on 23.8.2007 alleging that they had changed the computer parts without the permission of the Managing Direction to which the petitioner has given a reply denying the same and it is not in dispute that sim cards have been returned to the second respondent-company. No doubt, a reading of the complaint gives an impression that the petitioner had left the company without submitting proper resignation and it also appears that he has not handed over the charge and clarified the accounts. Admittedly, the complaint has been lodged on 1.7.2008 i.e. after about one year from the date of submitting the resignation. In the complaint, it is alleged that the petitioner had committed the theft of key computer peripherals like Processors, Ram, Hard discs and other internal parts of the computers. It has to be seen that there is no such allegation in the letter dated 23.8.2007 except saying that he has changed the computer parts. As far as criminal cases are concerned, date, time of the offence and particulars of the property committed theft, if any, are the basic requirements for the purpose of enabling a criminal court to frame a charge. Unless these basic aspects of time, place, things stolen are given, it is clear that the ingredients of the offence cannot be said to have been made out. Of course, when a clerk or a servant commits theft of property, which he was in possession before leaving the services, some difficulty and hardship will be there for a master to verify the same, but this verification has to be done as urgently as possible and within a reasonable time. The particulars of the officer who made the verification and when such verification was made and on what aspects the verification was made should be furnished. That means the complainant must be clear on what evidence and on what basis he is making the allegations. Thus there must be prima facie case, otherwise what happen is whenever an employee demands payment of due wages, bonus and other statutory dues from the employer, the employer may falsely implicate him in a criminal case alleging commission of theft etc. without any basis. So, a reading of the complaint makes it clear that the ingredients of the alleged offences seem to have not been made out and more-over it is not in dispute that the petitioner herein had already approached the authority under the Payment of Wages Act and claimed certain amounts from the second respondent-company and a notice to the second respondent-company was sent on 11.3.2008 directing it to appear before the said authority on 19.3.2008 and admittedly the second respondent-company lodged the complaint about 3 ½ months thereafter. Therefore, I am of the view that continuing the criminal proceedings against an employee, who has left the services and who claimed wages under The Payment of Wages Act, making some bald allegations without any specifications after a period of one year cannot be allowed to continue. Accordingly, the criminal petition is allowed in respect of the petitioner herein and the F.I.R. in Crime No.650 of 2008 on the file of Station House Officer, Panjagutta Police Station, Hyderabad is hereby quashed only in respect of the petitioner/accused No.2. ______________________________ JUSTICE B.CHANDRA KUMAR 20th October, 2011 Tjmr THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL PETITION NO.4836 OF 2009 DATE: 20.10.2011