DEBI PROSAD DEY, J. - (1.) This is an application under Section 482 of the Code of Criminal Procedure for quashing the proceedings of GR case no. 6 of 2006 pending before the Court of learned Metropolitan Magistrate, 12th Court, Calcutta arising out of Shakespeare Sarani police station case no. 2 dated 2.1.2006 under Section 409/420/120B of the Indian Penal Code on the ground that the dispute between the parties is civil in nature and the instant proceeding is not maintainable without arraying the company under reference as the principal accused. On the basis of a petition of complaint under Section 156(3) of the Code of Criminal Procedure filed by opposite party no.2, Shakespeare Sarani police station case no. C?9168/2005 was started against four accused persons. The allegations made in the said complaint are to the effect that the complainant company being a Division of Kesoram Industries Limited has been carrying on business of manufacturing cast iron pipes from its factory at Connagar, Hooghly and has been selling the same to several purchasers throughout the country through several agents. In normal course of business the agents are entrusted to obtain the purchase orders from different purchaser either in their names or in the name of the company directly and after obtaining the same the agents are liable to place the said orders with the company along with their request for booking of commission and as per the instruction of the agents, the goods are delivered to the purchasers either directly or as is decided by time to time. The agents are also authorized to collect payments from the purchasers and deliver the said payments to the company. The present petitioners are Directors of a company under the name and style of M/s APM Mercantile Pvt. Ltd., which was engaged in carrying the business as an agent and commission agent of opposite party no.2. The petitioners also floated another company under the name and style of M/s Om Traders of which they are also the Directors responsible for the day to day functioning of the said company and the said company had been carrying the business of cast iron pipes. The said company had also delivered a huge quantity of cast iron pipe through their sister concern i.e. M/s APM Mercantile Pvt. Ltd. The complainant company in terms of the orders placed by M/s APM Mercantile Pvt. Ltd.(authorized reason of the company) had supplied spun pipes to several clients and goods were delivered to the parties. However, in spite of giving repeated reminders not a single penny was paid by the petitioners to the complainant company. On enquiry the complainant company came to know that several clients of the petitioners had already made payment to the petitioners but the petitioner did not hand over the same to the complainant company but they had misappropriated the same and had utilized the same for their own wrongful gain. It is alleged that a huge quantity of cast iron pipes had also been delivered to M/s Om Traders company, a sister concern of M/s APM Mercantile Pvt. Ltd. and the amount of consideration in total would be Rs.84,88,484/?. The case being, Shakespeare Sarani police station case no.2 dated 2.1.2006 ultimately culminated in filing of charge sheet. Learned Advocate for the petitioner contended that the present petitioners are Directors of M/s APM Mercantile Pvt. Ltd. and they used to work as authorized agent of the complainant company. Therefore, the transaction between the petitioners and the complainant company comes within the purview of commercial transaction and the petitioners were made liable for the offence under Section 420/409/120B of the Indian Penal Code. Secondly, the company of which the petitioners are the Directors ought to have been made party and that having not been done, the entire case of the prosecution ought to be thwarted / quashed since the concept of vicarious liability is alien to the criminal law. In support of his contentions learned Advocate for the petitioner has relied on the following decisions: Civil Dispute 1. 2008(2) CCR LR (Cal) 138 (Shri Ram Nath Poddar and Ors. Vs. The State of West Bengal and Ors.) 2. 2008 (1) CCR LR (Cal) 789 (Kingshuk Neogi Vs. The State of West Bengal and Ors.) 3. 2008(1) CCR LR (Cal) 508 (Krishna Kumar Bangur Vs. The State of West Bengal and Anr.) 4. 2008(1) CCR LR (Cal) 523 (Harshad Himmatlal Rupani Vs. The State of West Bengal and Anr.) 5. 2008(1) CCR LR (Cal) 297 ( Mrs. Arti Bhandari Vs. The State of West Bengal and Ors.) 6. 2007(12) JT SC?345 (All Cargo Movers (I) Pvt. Ltd. Vs. Dhanesh Badarmal Jain and Anr.). 7. 2007 (11) JT SC?499 (Inder Mohan Gaswami and Anr. Vs. State of Uttaranchal and Ors.) 8. 2007(10) JT SC 57 (Veer Prakash Sharma Vs. Anil Kumar Agarwal and Anr.) Vicarious Liability 1. 2008(2) JT SC 540 (S. K. Alogh Vs. State of West Bengal and Ors.) 2. 2007 (11) JTSC?276 (Maksud Saiyed Vs. State of Gujarat and Ors.)
(2.) Learned Advocate for the State contended that out of the four Directors two have been absconding and the remaining two Directors have filed this application for quashing the entire case only on the ground that the dispute cropped up between the parties out of commercial transaction and the present petitioners should not be implicated in a case of cheating for not having any vicarious liability.
(3.) It is well settled principle of law that no proceeding should be allowed to be continued if the dispute between the parties primarily is civil in nature. In other words, civil dispute cannot be given the colour of the criminal liability and therefore the Hon'ble Apex Court as well as Hon'ble High Court at Calcutta in the aforesaid decisions after considering the facts and circumstances of each case have come to a definite conclusion that the cases under reference being civil in nature should not be continued and continuance of such proceedings would amount to abuse of process. There is absolutely no doubt with regard to the proposition of law enunciated by our High Court as well as by the Hon'ble Supreme Court in the aforesaid decisions. However, the facts and circumstances of this case do not appear to be similar with the facts and circumstances of the cases referred to hereinabove by learned Advocate for the petitioner. It is apparent from the facts and circumstances of this case that the Directors not only used to take orders from various clients but they also used to take payments on behalf of the complainant company in order to hand over the said payment to the company. Had there been any intention on the part of the petitioners to pay such amount to the complainant company, they would have made part payment or belated payment to the company. It is apparent from the result of investigation that the petitioners not only floated another company but also used to take orders from the various clients and used to take payment of various clients without any intention of handing over the said payment to the complainant company which amounts to Rs.84,88,484/.;