PAWAN KUMAR JALAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(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:-

(2.) (Kingshuk Neogi Vs. The State of West Bengal & Ors., (2008) 1 CalCriLR 789)

(3.) (Krishna Kumar Bangur Vs. The State of West Bengal & Anr., (2008) 1 CalCriLR 508)