Point of Law: Once a transaction is made with the company, the company being a legal entity, unless and until the company is made as co-accused, the complaint is not maintainable. On this ground alone, the complaint required to be quashed.

ORDER :

This criminal petition is filed under Section 482 Cr.P.C. seeking to quash the F.I.R.No.374/2020 dated 12.8.2020 registered on the file of the Dwaraka police station, Visakhapatnam District under section 420 of IPC.

2. The petitioners are accused in Crime No.374/2020 of Dwaraka police station, Visakhapatnam city. The defacto complainant/R2 made a complaint to the Inspector of police, Dwaraka police station, Visakhapatnam city on 12.8.2020 and the respondent-police have registered a case under section 420 IPC. Assailing the said F.I.R, the present petition is filed under section 482 Cr.P.C to quash the same.

3. The main grounds raised in assailing the F.I.R.No.374/2020 is that the petitioners are the Managing Director and Director Finance of Newton Engineering & Chemicals Ltd, the amounts are transferred to the account of the company i.e. Newton Engineering & Chemicals limited that the defacto complainant made a complaint against the petitioners without making the company as a party which is contrary to the ratio decided by the Hon’ble Apex Court in catena of judgments.

4. The second ground raised by the petitioners is that the defacto complainant has already invoked civil jurisdiction and filed a civil suit on the file of XII Additional District Judge’s court at Visakhapatnam and the same was numbered as O.S.No.41/2020 against the petitioners for recovery of amounts to a tune of Rs.1,76,05,352/-. While pending the said suit, making present complaint is nothing but abuse of process of law. Further the complaint does not disclose or attract the ingredients of section 415 of IPC. The complaint is vague and baseless. They themselves further stated in the complaint that they learnt that the petitioners have connived with each other and deliberately making false representation to the defacto complainant that they need money to settle the company’s claims of sub-contractor. That itself discloses that they do not have first hand information. Further the allegation made in the complaint is that the petitioners never intend to pay to the subcontractor but by using the clout and network came out of Kuwait without making any payment to sub-contractor. The said allegations are nothing to do with the defacto complainant. Even according to the averments made in the suit, they have paid amounts to the company and the said amounts were not repaid to the defacto complainant despite their request. Hence they filed present complaint for repayment of amounts.

5. Learned counsel appearing on behalf of the petitioner to substantiate her contentions has relied on the contents of the F.I.R which reads as follows:

…I S.Divakar, am a resident of Door No.43-23-4, Dondaparthy, Visakhapatnam, I and my wife Smt. S.Ratnamala have accounts in Andhra Bank, Dwarakanagar, Visakhapatnam.

N.Gopinath, Managing Director, Newton Engineering & Chemicals Ltd., was my classmate in Pre-University Course (now equal to final year Intermediate Course) in Mrs. A.V.N.College, Visakhapatnam during 1964-65. Later he studied B.E. (Mech.) Course in A.U.Engineering College. Thereafter he went to Baroda (Vadodara), Gujarat and has been doing Mechanical Contracts. He established a Company NEWTON ENGINEERING & CHEMICALS LTD. His wife Smt. N.Vijayalaxmi is Director (Finance) of the said company. His two sons N.Vikram and N.Vishal are Vice Presidents of the company.

While so, during the year 2014-15 he secured a contract of laying pipeline etc., as a sub-contractor for “FINESCO” Company. FINESCO Company is the main Contractor for Kuwait Oil Company (KOC), Kuwait.

While executing the work, one Sub Contractor filed a case against Newton Engineering & Chemicals Ltd., for certain payments allegedly due to them from Newton Engineering & Chemicals Ltd. Thereupon the Government of Kuwait ordered Mr. Gopinath not to leave Kuwait till the case is disposed off. (Travel Ban). When Mr. Gopinath