(1.) This is an application under section 561 of the Criminal Procedure Code. The applicant is a public limited company by name, Esso Standard Inc., registered in the State of Delaware, U.S.A., and having its branch office at 17, Jamshedji Tata Road, Bombay-20. On February 23, 1972, respondent No. 1, Udharam Bhagwanda Japanwalla, as a constituted Attorney of Venus Polish, filed a complaint in the court of the Presidency Magistrate, 28th Court, Esplanade, Bombay, alleging that, (1) the applicant, Esso Standard company which was described in the complaint as accused No. 1, (2) one Z. A. Merchant, an officer of the company who was described as accused No. 2, (3) one R. K. Gupta, a sales officer of the company, described as accused No. 3, (4) and R. D. Vyas, sales manager of the company, described as accused No. 4, and (5) C.B. Thomas, general manager of the company, described as accused No. 5, committed offences under sections 420, 417 read with sections 34, 109 and 114 of the Indian Penal Code. The learned Magistrate issued summonses on a perusal of the complaint and hearing the complainant. The complaint is numbered as Case No. 18/S of 1972. It is common ground that accused Nos. 1 to 3 were served with summonses but accused Nos. 4 and 5 who are residing in the United States are not yet served. On July 3, 1972, respondent No. 1 moved the Magistrate for extradition proceedings being taken against accused Nos. 4 and 5.
(2.) The above application is filed by Esso company contending that the continuation of the proceedings before the Magistrate is a gross abuse of the court's process and praying that in exercise of the powers of this court under section 561-A of the criminal procedure code the proceedings in Case No. 18/S of 1972, pending in the court of the Presidency Magistrate, 28th court, Esplanade, Bombay, should be quashed and the complaint dismissed, or, in the alternative, the process issued by the learned Magistrate be set aside and the complaint required to the disposed of the after holding an inquiry under section 202 of the Criminal Procedure Code. The application of the Company is opposed by respondent No. 1 Mr. M. B. Kadam, learned Assistant Government Pleader, appearing for the State of Maharashtra, supports the application.
(3.) Mr. Jethmalani, the learned counsel appearing for the applicant company, submitted that having regard to the categories of cases settled, though not exhaustive of all other cases as mentioned in R. P. Kapur v. State of Punjab, the complaint filed by respondent No. 1 squarely falls within the second category, i.e., the category of cases where the allegations in the first information report or the complaint even if they are taken on their face value and accepted in their entirety do not constitute an offence alleged and, apart from that, the ends on justice require that the proceedings pending before the Presidency Magistrate should be quashed against the applicant-company and its officers who are mentioned as accused Nos. 2 to 5. He submitted that on the face of it the complaint disclosed no criminal offence under any section of the Indian Penal Code under which process has been issued by the learned Magistrate, viz., sections 420, 417 read with sections 34, 109 and 114 of the Indian Penal code because the allegations made in the complaint were wholly false and even assuming them to the true they did not establish the ingredients of the said offence. He argued that the dispute between the parties was at the worst a civil dispute and even according to the complaint the claim of the complaint was time barred. He pointed out that in the year 1963, with respect to the same dispute, respondent No. 1 made claim of Rs. 85,000; in May 1969, he made a claim of Rs. 7,56,840 and in February, 1971, he inflated in to Rs. 22,56,840 with the ulterior motive of blackmailing the officers of the applicant-company and to force a settlement of a frivolous and time-barred claim. He argued further that although the complaint repeatedly refers to assurance and representations which were false, it is not stated as to which of the representations was false and in view of this was clear that the complaint was abusing the process of the court by king the court to issue process particularly when the complaint filed earlier on the same facts in the same court before another Presidency Magistrate was withdrawn after issuing process of December 8, 1971 and was, therefore, dismissed by the learned Magistrate. He submitted that even on the allegations of the complaint it was obvious that the alleged offences took place in the year 1963, and it was discovered by the complainant of February 8, 1968 and the learned Presidency Magistrate had not exercised his discretion properly in issuing process without even making an enquiry under section 202 on a stale complaint filed in 1972. Mr. Jethmalani argued that a although there is reference in the complaint to both section 417 and section 420, section 420 is the more serious section which will be attracted if the complaint wants to suggest cheating as the offence by the allegations made in the case; and the complaint would be barred against the applicant-company in view of the decision of this court in State of Maharashtra v. Syndicate Transport Co. Ltd. Further relying on the principles enunciated regarding the liability by a corporation or company in Tesco Supermarkets Ltd. v. Nattrass, he submitted that the complaint was liable to be dismissed against the applicant-company on the ground that there was no allegation in the complaint that accused Nos. 2 to 5 were acting under authority to the company and further the no act was attributed to them which could be the act of the company. He further submitted that having regard to the allegations made in the complaint that the offences were committed by all the accused with a common intention the complaint was liable to be dismissed against all the accused as the company could not be indicted on charge under section 420 or section 417 of the Indian Penal Code in the facts and circumstances of the case. Mr. Jethmalani further submitted that, although the applications is filed only by Esso standard Incorporated Co., the ends of justice require that the proceedings should be quashed against all the accused and this court has power to quash the proceedings even against persons who had not moved this court under section 439 of the Criminal Procedure code as held in Parbati Devi v. State.