Judgment

D.K. JAIN, J.

1. Leave granted.

2. This appeal, by special leave, arises out of the judgment and order dated 9th October 2007, delivered by the High Court of Bombay in Criminal Application No. 2854 of 2004 in a petition filed by the appellant and one Mr. Krishna Rao, proforma respondent No.5 herein, under Section 482 of the Code of Criminal Procedure, 1973 (in short "the Code"). The High Court has, by the impugned judgment, declined to quash a criminal complaint filed by respondents No.2 to 4 in this appeal against the appellant and others for offences under Sections 405 and 409 read with Section 34 of the Indian Penal Code, 1860 (for short "the IPC").

3. Briefly stated, the facts, necessary for disposal of the present appeal, may be stated thus:

The appellant was the Chairman of the Maharashtra State Electricity Board (for short "MSEB"). Respondent No.2 - M/s Datar Switchgear Ltd. is a company which had entered into various contracts with MSEB for installation of Low Tension Load Management System. Respondents No.3 and 4 are the senior officials of respondent No.2; respondent No.1 is the State of Maharashtra and the aforestated respondent No.5 is one of the co-accused.

4. On 2nd March, 2001 respondent No.2 deposited an amount of `5 lakhs with MSEB as security deposit in lieu of bank guarantee to be used for tenders to be filed by respondent No.2 from time to time in the future. The conditions of tender and supply provided that:

"This security deposit in cash or in the form of bank guarantee or otherwise is for the due performance of the material/contract and the same shall be liable to apportion towards amount due or becoming due by the supplier on his failure to execute this order or any other contract and in the event of non fulfilment of the terms and conditions of the contract."

Certain disputes arose between MSEB and respondent No. 2. On 16th September 2003, respondent No. 2 informed MSEB that they were no longer interested in participating in any tenders which may be floated by MSEB and sought immediate refund of the said amount of `5 lakhs.

5. The Chief Engineer (Distribution), MSEB vide his letter dated 6th March 2004, informed respondent No.2 that the deposit of `5 lakhs had been adjusted by MSEB against the dues payable by respondent No.2 to MSEB.

6. On receipt of the said communication, on 29th June 2004, respondents No.2 to 4 filed Complaint No.1881 of 2004 before the Court of the Judicial Magistrate, First Class, Pune against the appellant and other senior officials of the MSEB under Sections 405 and 409 read with Section 34 of the IPC. The Judicial Magistrate, First Class, Pune took cognizance and issued summons against all the accused named in the complaint.

7. Being aggrieved by the order of the Magistrate taking cognizance of the complaint, appellant preferred the afore-stated petition under Section 482 of the Code before the High Court of Bombay for quashing of the complaint.

8. As stated above, the High Court, by the impugned judgment has dismissed the said petition. The High Court has inter alia8 observed that a prima facie case has been made out against the accused; the defence of the accused would be examined on merits at the time of trial; the availability of a civil remedy does not preclude a criminal law remedy and this alone cannot be a ground for quashing the complaint and it was not incumbent on the complainant to plead the role of each and every accused as due to the principle of vicarious liability under Section 34 of the IPC, if two or more than two persons intentionally do a thing jointly, it's the same if each of them had done it individually, since common intention presupposes prior concert. Hence, the present appeal.

9. Mr. Nagendra Rai, learned senior counsel appearing for the appellant assailed the decision of the High Court in not exercising its jurisdiction under Section 482 of the Code as fallacious on the ground that the complaint, assuming to be correct in its entirety, does not disclose