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MADHYA PRADESH HIGH COURT
J.P. Gupta, J.
Shailendra Singh and Anr. —Applicants
versus
Som Distilleries & Breweries —Respondent
M.Cr.C.No.6594 of 2007
Decided on 24.11.2017
Counsel for the Parties:
For the Applicants: Shri Naman Nagrath, learned senior counsel with Shri Anshul Agrawal, learned counsel
For the Respondent: Shri Manish Datt, learned senior counsel with Shri Rahul Sharma, learned counsel
IMPORTANT POINT
Order of Magistrate summoning accused must reflect that he had applied his mind to facts of case and law applicable thereto.
Headnote:Criminal Procedure Code, 1973—Sections 245(2) and 482—Indian Penal Code, 1860—Sections 406 and 420—Criminal breach of trust and cheating—Discharge of accused—Order of Magistrate summoning accused must reflect that he had applied his mind to facts of case and law applicable thereto—Magistrate has to record his satisfaction with regard to existence of a prima facie case on the basis of specific allegations made in complaint supported by satisfactory evidence and other material on record—In the order issuing summons, Magistrate has not recorded his satisfaction about prima facie case as against Respondents 2 to 7 and role played by them in t capacity of Managing Director, Company Secretary or Directors which is sine qua non for initiating criminal action against them—Court on basis of averments made in complaint, if it is prima facie of opinion that whole or a part of cause of action has arisen in its jurisdiction, it can certainly take cognizance of complaint—There is no need to ascertain that allegations made are true in fact—In present case, it cannot be said that there was intention of applicants or their company very from beginning was fraudulently and dishonestly induce complainant to deliver cheque—It is prima facie case of non-performance of contract later on—It is a dispute of civil nature which has been given colour of criminal liability—Applicants are entitled to get benefit of provision of Section 245(2) of Cr.P.C.—Criminal case quashed. (Paras 8, 10 to 14)
Result: Petition allowed.
ORDER
J.P. Gupta, J.—This petition under section 482 of Cr.P.C has been preferred for quashment of the order dated 27/06/2007 passed by the Special Judge and Additional Session Judge, Bhopal in Criminal Revision No. 46/2007, whereby the order dated 06/01/2007 passed by the Judicial Magistrate First Class, Bhopal in Criminal case No.1249/2006 regarding rejection of the application filed by the applicant under 245(2) of Cr.P.C was confirmed and also for quashment of the proceeding of the complaint.
2. The facts in brief giving rise to this petition are that the respondent is Company incorporated under the Companies Act, 1956 and having its registered office at Bhopal and this Company is the manufacturer of Indian Made Foreign Liquor. Petitioner No.1 and 2 are the Executive Director and the Managing Director respectively of advertising company known as M/s Percepts Advertising and having their registered office at Mumbai. On behalf of the respondent a complaint has been filed alleging that the Model Plus is a section of aforesaid M/s Percepts Advertising company and operating and looked after by the Company and on 10/02/1995 Mr. Reshma Shetty, Director of the Model Plus Addressed a letter to the General Manager of the respondent/Company at Bombay and fraudulently and dishonestly inducing to deliver a sum of Rs.7.5 lacs for the telecast of their advertisement about the product and brand on ATN Channel as sponsor of the model show in the name of Vogue Walk-95 which was accepted and also entrusted the original video cassette, posters and costly art works, dummies worth Rs.30 lacs but the advertisement was not done on ATN Channel and the aforesaid items received for organizing show were not returned back after demand on several times. Hence, the applicants/accused persons have committed offence of cheating and criminal breach of trust. Learned Magistrate after recording the statements and considering the material produced along with the complaint took cognizance against the applicants for the offences punishable under section 406, 420 of the IPC. The applicants without appearing personally before the court filed an application under section 245(2) of Cr.P.C with a prayer that no offence is made out against them and the court has no territorial jurisdiction on the matter. Learned Magistrate rejected the aforesaid prayer by the impugned order dated 06/01/2007 against which applicants had filed revision before the Additional Session Judge and the same was rejected by the impugned order dated 27/06/2007. Hence this petition is filed.
3. On behalf of the applicants, it is submitted that the allegations in the complaint are frivolous and vexatious in view of the avernments made in the complaint, learned trial court at Bhopal has no territorial jurisdiction to entertain the complaint at Bhopal. The avernments of the complainant do not disclose the ingredients of committing of criminal breach of trust against the applicants. The alleged amount was not paid to the applicants but to one M/s Model Plus and the same company is not impleaded as a party. Even if the entire complaint is read as it is then, no case of cheating or criminal breach of trust is made out, as it is only a case of non-performance of the contract and the remedy lies by way of a civil suit as there is no allegations in the complaint that the intention to deceive was in existence at the time of inception of the contract and the mere failure to perform a part of the contract cannot invoke the criminal jurisdiction. The allegation that contract was made with the company, but the same company is not arrayed as an accused. In such situation, vicarious criminal liability cannot be fastened on the applicants. Further submitted that from the documents produced by the complainant shows that the amount of Rs.7.5 lacs was not paid and only Rs.5 lacs was paid to the Model Plus and about which there is dispute between them and proceeding under section 138 of Negotiable Instruments Act is
