The court confirmed that a fiduciary relationship can give rise to criminal liability under IPC sections for failure to remit entrusted funds, emphasizing that both civil and criminal remedies may be pursued concurrently.

JUDGMENT :

J.C. DOSHI, J.

1. By way of this petition under section 482 of Cr.P.C., the petitioner has prayed for following reliefs :-

“(a) To quash and set aside the FIR being I- C.R.No.11191042200095 of 2020 registered with Satellite Police Station, Ahmedabad for the offences punishable under section 406, 409, 420 and 114 of the Indian Penal Code, 1860.

(b) pending admission, final hearing and disposal of this petition, to stay further proceedings of FIR being I-C.R.No.11191042200095 of 2020 registered with Satellite Police Station, Ahmedabad.

(c) To pass any other and further orders as may be deemed fit and proper.”

2. Facts leading to filing of this petition reads as under :-

21. That complaint is filed on behalf of company Shriram Transport Finance Ltd. by one Devangbhai Kumudchand Kapadia. It is asserted in the FIR that the complainant entered into an agreement with one Anupam Finlease India Limited on 01/03/2010 regarding doing the business of vehicle finance on a franchisee basis. Pursuant to the said agreement, the company Anupam Finlease was required to forward files to the complainant company based on which finance was to be given to various persons. As per the agreement, Anupam Finlease India Limited was required to collect the EMI's from the customers and deposit it with the complainant company within 72 hours, failing which the complainant was liable to charge interest @ 36% p.a on the amount. There are various other clauses in the agreement along-with the clause for arbitration. It is thereafter alleged in the FIR that between the period 2010 and 2018, the accused herein collected a total amount of Rs.18,78,578/-from a total of 19 customers but did not deposit the amount with the complainant. For the said alleged non deposit of money, the present FIR came to be registered on 11/03/2020.

3. Accused no.1 – Narendrakumar Champalal Chhajer is before this Court seeking quashment of FIR inter-alia on the ground mentioned in the petition memo.

3.1. Learned advocate Mr.Jain for the petitioner mainly submitted that plain reading of FIR indicates that commercial transaction has been given color of criminality. It is submitted that it is transaction between two companies viz. Shriram Transport Finance Company Ltd. and M/s. Anupam Finlease (India) Ltd. It is further submitted that the petitioner being Director of M/s. Anupam Finlease (India) Ltd. cannot be held liable in absence of company as accused. It is further submitted that concept of vicarious liability is unknown to the criminal jurisprudence. It is further argued that issue is in regard to the settlement of account between two companies but complainant instead of settling account on civil side, by filing FIR attempted to settle the account which is impermissible. It is submitted that agreement between the parties contains arbitration clause. According to arbitration clause, any dispute differences, claims and questions between two companies has to be firstly have arbitration, but in the present case ignoring arbitration clause with a view to pressurize the petitioner, present FIR under section 406, 409, 420, 114 of IPC is filed.

3.2. Learned advocate further submitted that FIR in question is absurd and abuse of process of law. Argument is also canvassed to the extent that commencement of time of alleged offence is 01.03.2010 is ending on 25.07.2018 and yet FIR is filed on 11.03.2020. There is gross delay in registering FIR which indicates and demonstrate that FIR is used as weapon to pressurize the petition