M.R.SHAH,J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 08.09.2017 passed by the High Court of Judicature at Allahabad in Criminal Miscellaneous Writ Petition No. 18308 of 2017, by which the High Court has dismissed the said writ petition preferred by the appellants herein, filed under Article 226 of the Constitution of India, for quashing the first information report registered as Case Crime No. 790 of 2017, under Sections 420/406 IPC, Police Station Loni Border, District Ghaziabad, the original writ petitioners/accused have preferred the present appeal.
(2.) The relevant facts necessary for deciding the present appeal are as under: That one M/s Varun Beverages Ltd. (for short, 'VBL') is a licensed franchisee of PepsiCo India Pvt. Ltd. and engaged in the manufacture and sale of carbonated sweetened water, fruit juice, packaged drinking water under the PepsiCo brand. That in the year 2013, the VBL appointed the firm of the complainant - Sanjay Sharma as a Distributor in the area of Loni, District Ghaziabad to sell and distribute the products manufactured by the company. That in the year 2014, the company terminated the contract of distributorship, which according to the appellants was due to non-payment of dues by respondent no.1 herein - original complainant. According to the appellants, thereafter on reconciliation of accounts and as per the statement of accounts maintained by the company, after adjusting of all claims and security deposit, a sum of Rs.9,46,280/- was found to be outstanding upon the complainant, towards the material supplied to him. The complainant issued a cheque dated 15.09.2014 in favour of the company - VBL. The said cheque was presented for encashment on 22.09.2014. The same was dishonoured and returned unpaid by the banker of the complainant due to "insufficient funds". That thereafter, due to non-payment after the issuance of the statutory legal notices, appellants herein filed a criminal complaint under Section 138 of the Negotiable Instruments Act on 07.11.2014 against R1 and his company Thakur Trading, in the Court of Chief Judicial Magistrate, Ghaziabad being Complaint Case No. 7652/2014. R1 has been summoned to face the trial. The said complaint is presently pending for disposal. R1 filed a complaint against one of the officers of the company-VBL being FIR No. 1565/2014 dated 15.09.2014 alleging misappropriation of Rs.6,00,000/- by one of the officers of the company, namely, Vipul Verma. That after investigation by the police, the investigating officer submitted a negative final report No. 47/2015 dated 20.01.2015. 2.1 R1 also filed one another case on 09.02.2015 for misappropriation of Rs.31,12,375/- by the appellants. That thereafter R1 filed a complaint/application under Section 156(3) Cr. P.C. in the Court of learned Additional Chief Judicial Magistrate-I, Ghaziabad for issuance of direction to the Police Station Loni to register FIR against the appellants herein and two other officers of the company alleging misappropriation of an amount of Rs.31,12,375/-. The learned Magistrate, instead of directing the police to register FIR, decided to enquire into the matter by treating the same as a complaint case. That vide order dated 23.03.2015, the learned Magistrate treated the application of R1 under Section 156(3) Cr.P.C. as a complaint case and an opportunity was granted to R1 to record his statement under Section 200 Cr.P.C. 2.2 Feeling aggrieved by order dated 23.03.2015 treating the application under Section 156(3) Cr.P.C. as a complaint case, R1 filed a criminal revision application No. 70/2015 before the learned Sessions Court, Ghaziabad. That the learned Sessions Judge, Ghaziabad allowed the said revision application and quashed and set aside order dated 23.03.2015 passed by the learned Magistrate and remanded the matter back to the learned Magistrate to consider the material on record and pass speaking order afresh for assigning reasons for considering application under Section 156(3) Cr.P.C. as a complaint case. That thereafter the learned Magistrate sought an action report from the concerned police station. That the concerned police officer submitted the report before the learned Magistrate on 09.08.2015. That the said proceedings are pending before the learned Magistrate. 2.3 That after a period of approximately two years, R1 lodged the impugned FIR against the appellants for the offences under Sections 406/420 IPC at Police Station Loni, District Ghaziabad, dated 4.8.2017. The allegations in the said FIR are same/similar to the allegations levelled in the application under Section 156(3) Cr.P.C, which is pending consideration before the learned Magistrate since 2015. At this stage, it is required to be noted that the said FIR is filed against Kapil Agarwal, appellant No.1 - Director, Sharad Garg, appellant No.2 - Multi Unit Manager and Deepak Sharma, appellant No.3 - Sales Head. That thereafter the appellants approached the High Court under Article 226 of the Constitution of India being Criminal Miscellaneous Writ Petition No. 18308 of 2017 for quashing the aforesaid FIR being Case Crime No. 790 of 2017, under Sections 420/406 IPC, Police Station Loni Border, District Ghaziabad. By the impugned judgment and order, the High Court has refused to quash the FIR observing that the impugned FIR, prima facie, discloses commission of cognizable offence. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court refusing to quash the FIR being Case Crime No. 790 of 2017, under Sections 420/406 IPC, Police Station Loni Border, District Ghaziabad, the original accused have preferred the present appeal.
(3.) Shri K.V. Vishwanathan, learned Senior Advocate appearing on behalf of the appellants has vehemently submitted that the impugned FIR is an abuse of process of law to harass the appellants by converting a purely civil dispute into a criminal case. 3.1 It is submitted that the contents of the FIR show that it has been registered for recovery of commission and discounts on sale which alleged to have taken in the regular business transactions place over a period of 15 months between the parties. Hence, it is a purely contractual dispute on the face of it. 3.2 It is submitted that no civil proceedings have been filed by the complainant for recovery of the alleged due amount. It is submitted that the impugned FIR has been lodged solely with a view to arm twist and extort money from the appellants. 3.3 It is further submitted that there is not even a whisper about the pendency of the application under Section 156(3) Cr.P.C. pending before the learned Magisterial Court, in the FIR. Nor is there any mention of the fact that there is an ongoing case under Section 138 of the NI Act. 3.4 It is submitted that the police report in respect of Section 156(3) application has gone against him, R1 has left the earlier proceedings lying pending for two years without participating in it and has filed a fresh FIR with the same allegations. It is submitted that the fresh FIR on the same allegations has been filed only with a view to get the appellants arrested and extort the money from the appellants. 3.5 Relying upon the decisions of this Court in the cases of G. Sagar Suri v. State of U.P. (2000) 2 SCC 636 and Jetking Infotrain Ltd. v. State of U.P. (2015) 11 SCC 730, it is submitted that in view of the pendency of the complaint under Section 138 of the NI Act and the subsequent FIR is a counter-blast to the same, the present prosecution would be clearly an abuse of process of law and therefore the impugned FIR deserves to be quashed and set aside. 3.6 Relying upon the decision of this Court in the case of Uma Shankar Gopalika v. State of Bihar (2005) 10 SCC 336, it is submitted that as the dispute can be said to be a purely civil dispute, which has been given a criminal colour, the same deserves to be quashed and set aside. 3.7 It is further submitted that even taking the allegations in the impugned FIR at the face value, no offence under Sections 406/420 IPC is made out against the appellants. It is submitted that at best, the impugned FIR alleges that R1 entrusted certain monies to the company which the company did not pay to him at his request. It is submitted that the company - VBL is not even made an accused and the appellants are joined as an accused in their individual capacity as Director, Multi Unit Manager and Sales Head. It is submitted that in order to make out a case under Section 406 IPC against the appellants, there must be an allegation that R1 entrusted the appellants in their personal capacities, not as VBL officers, with the relevant commissions/benefits. 3.8 It is further submitted that even from the bare perusal of the contents of the impugned FIR, the essential ingredients of offence of cheating under Section 420 IPC are completely missing. It is submitted that there is no allegation that the appellants either, (a) deceived R1 by making any false or misleading representation; or dishonestly concealed some matter from R1; or by any other act or omission; (b) fraudulently or dishonestly induced R1 to deliver the cheques allegedly handed over as security, or to agree to entrust the claimed commissions/benefits to VBL; or to do or omit to do anything which R1 would not have done or omitted to have done if he were not deceived. Reliance is placed on the decisions of this Court in the case of Mohd. Ibrahim v. State of Bihar (2009) 8 SCC 751; in the case of Vesa Holdings (P) Ltd. v. State of Kerala (2015) 8 SCC 293; in the case of Robert John D'Souza v. Stephen V. Gomes (2015) 9 SCC 96; and State of Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 33. 3.9 It is further submitted that even as per the allegations in the FIR, the amount is due from the company and not from the appellants. There is no entrustment or retention personally by any of the appellants. It is submitted that as held by this Court in the cases of S.K. Alagh v. State of U.P. (2008) 5 SCC 662, Sardar Singh v. State of Haryana (1977) 1 SCC 463 and Maksud Saiyed v. State of Gujarat (2008) 5 SCC 688, even when a case under Section 406 IPC is made out against a company, vicarious liability cannot be extended to the Directors or officers of a company. 3.10 It is submitted that as the main allegations are against the company and the company had not been made as an accused in the FIR, the same deserves to be quashed and set aside. Reliance is placed upon the decision of this Court in the case of Sushil Sethi v. State ofArunachal Pradesh (2020) 3 SCC 240. 3.11 Making the above submissions and relying upon the aforesaid decisions, it is prayed to allow the present appeal and quash and set aside the criminal proceedings and FIR being Case Crime No. 790 of 2017, under Sections 420/406 IPC, Police Station Loni Border, District Ghaziabad, as the same is nothing but an abuse of process of law.;