Criminal Miscellanious No.56542 OF 2007 (in the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ********* DEBANSHU DUTTA , S/o Shri Probhat Kumar Dutta, C/o Rasna Pvt. Ltd., 34, C.R. Avenue, P.S. Bow Bazar, District- Kolkata. -------------Petitioner Versus 1. THE STATE OF BIHAR 2. Kamal Chamaria S/o Kishunlal Chamaria, Proprietor, M/s Rajesh Agencies, Resident of Mo: Bara Bazar, P.O. & P.S.- Katihar, District-Katihar. ---------------Opposite Parties. With Cr.Misc. No.56979 oF 2007 ABHIMANYU TEKRIWAL, S/o Shri Dilip Kumar Tekriwal, Resident of C/o Campus of Bihar Cold Storage Pvt. Ltd. Sudarshan Path, P.S. Chowk, Town Patna City, District- Patna. ----------------Petitioner Versus 1. THE STATE OF BIHAR 2. Kamal Chamaria, S/o Kishunlal Chamaria, Proprietor M/s Rajesh Agencies, Residence of Mohalla Bara Bazar, P.O. & P.S. Katihar, District-Katihar --------------Opposite Parties. ************************** For the Petitioners: - Mr. S.D. Sanjay, Advocate. Mr. Suraj Samdarshi, Advocate. Mr. Gautam Kejriwal, Advocate. Mr. Gopal Prasad Gupta, Advocate. For the Opposite Parties: - Mr. Ratna Das, Advocate. Mr. Ashish Kumar, Advocate. Mr. S. K. Das, Advocate. For the State:- Mr. Jharkhandi Upadhayay, Adv. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN *********** Sheema Ali Khan, J. Heard the parties. 2. These two applications have been filed by 2 the petitioners namely, Debanshu Dutta who is the Regional Manager of Rasna private limited posted at Calcutta whereas Abhimanyu Tekriwal who is the C.N.F. agent of that product in Bihar. The complainant was the dealer of Rasna Company at Katihar. The Rasna Company supplied its goods to the C.N.F. agent Abhimanyu Tekriwal, who would supply the goods to the complainant. It is alleged in the complaint petition that Rasna Company had agreed to adjust the damaged material supplied to the complainant by sending fresh stocks, after getting the damaged stocks refunded, in the course of the business transaction. It is alleged that the authorized agent Samarjit visited Katihar on 2.4.2005 and found that there was damage of goods worth of Rs. 64,420/- . Accordingly, he asked the complainant to place his claims before the company. On 19.3.2006 again Mr. Samarjit visited Katihar and at that stage, the complainant informed him that he has already made his claim in writing vide letter Reference No. RA/47/06 dated 19.3.2006 to the company for refund of the goods. In the said letter it is said that the complainant made a claim of Rs. 1,96,186.82 paise for the period 2.4.2005 to 7.3.2006. Eventually, the complainant claims that the accused persons ought to pay him a sum of Rs. 5, 50,997.48/- paise for the 3 damaged goods. 3. It may be noted at the out set that the company has not been made a party in the complaint petition. The claim is against the company not the individual managers. The Court has taken cognizance on the basis of the complaint petition under Sections 406, 420 and 120B of the Indian Penal Code. 4. Learned counsel for the petitioners submits that the complainant had entered into a business transaction with the complainant. The company has refunded the damage food to him by supplying fresh material. It is submitted that from the plain reading of the complaint petition no offence is made out under Sections 406, 420 and 120B of the Indian Penal Code. The falsity of the claim raised by the petitioners would be apparent from his own statement made in paragraph 5, and Paragraph 7. At paragraph 5 it is stated that he made a claim of Rs. 1,96,186.82/- at paragraph 7 it has been enhanced to Rs. 5, 50,997.48/-,without giving any reason for enhancement the said claim. The letter Ref. No. 47 of 2006 dated 19.3.2006 is Annexure-2 to the quashing application is admitted by both the parties. In that letter the claim is only of Rs. 1,95,654.82/-. It is also admitted fact that out of the claim raised in the said letter contained in 4 Annexure-2 a sum of Rs. 91,805/- was paid immediately and subsequently a sum of Rs. 1,30,000/- odd was also paid to the complainant. 5. The main grievance of the opposite party no. 2 is that the parties ought to have settled this matter and paid the difference which is due to the complainant. 6. Coming to the issue, as to whether an offence alleged is made in complaint petition, it would be apparent from reading Section 405 which defines criminal breach of trust. It envisages that there should be a dishonest intention to misappropriate the property and convert it into once own use. The definition of cheating on the other hand envisages that the intention to cheat should be present at the very out set or from the very beginning of a particular transaction or Act, which would induce the person so deceived to do or omit to do anything, which he would not do if he were not so deceived and which act is likely to cause damage or harm to that persons mind, reputation or property. In this case, it is obvious that the transaction was a pure business transaction and there were nothing to show that there was any element of deception involved which would lead to the conclusion that the petitioners had an intention to cheat the complainant. There is a 5 dispute regarding the claim of money, in a business transaction, it would not come within the four corners of criminal offence; settlement of account due to a dispute regarding admissibility of the claim can hardly come within the frame work of Sections 406 and 420 of the Indian Penal Code. The remedy of the Opposite Party No. 2 would be to file a money suit in order to recover the claim that has been put forth by the Opposite Party No. 2. 7. As far as petitioner Abhimanyu Tekriwal is concerned, in fact it cannot be said that he represents the company and his role is confined to supplying the goods as provided by the company and as such no claim can be made against Abhimanyu Tekriwal in this case. Similarly, Regional Director is not the authority who can decide the claim of the petitioner even if it is accepted that the claim is of genuine one. It is only the company which could have rejected or accepted the claim made by the petitioners. Vacarious liability cannot be imposed on the Managers, Directors or other employees of the company, without making the company a party is decided in the case of Keki Hormusji Gharda & Ors. Vs. Mehervan Rustom Rani & Ors. (2009) 6 SCC 475 and S.K. Alagh Vs. State of U.P. & Ors. (2008) 5 SCC 662. 6 8. In the circumstances, I do not find that the complaint petition discloses the offence under Sections 406 and 120B of the Indian Penal Code. 9. Considering the aforesaid facts these two applications are allowed. The order dated 25.1.2007 passed by the Chief Judicial Magistrate, Katihar in Complaint Case No. 2420 of 2006 is hereby quashed. 10. These two applications are allowed. Patna High Court Dated 13th of May, 2011 Anand Kr./NAFR ( Sheema Ali Khan, J.)