Madras High Court
Ranjith R.Pillai vs High Range Foods Private Ltd on 11 December, 2018
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.[MD] No.12852 of 2018
and
Crl.M.P[MD]Nos.5845 and 5846 of 2018
Ranjith R.Pillai
Son of Ragunathapillai
“Srivihar”
Cochin Palace (Post)
Thripunithura,
Ernakulam,
Kerala – 682 301. : Petitioner
vs.
High Range Foods Private Ltd.,
rep. by Thiru Vibin,
S/o Rajan
Assistant Factory Manager,
2/185, Madurai – Dindigul Road,
Nagari,
Madurai – 625 221. : Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the entire records of C.C.No.16
of 2018 on the file of the learned Judicial Magistrate, Vadipatti and
quash the same.
For Petitioner : Mr.N.Murugesan
For Respondent : Mr.S.Ravi
****
http://www.judis.nic.in
2
ORDER
This petition has been filed to quash the private complaint in C.C.No.16 of 2018 pending on the file of the Judicial Magistrate, Vadipatti pending against the petitioner for the offence under Section 420 IPC.
2.The brief facts of the case is that the complainant is a private limited incorporated under Companies Act, 1956 engaged the business of manufacturing ice creams in the following brands, namely, Lazza, Skei and Uncle John. The company is having business all over India and concentrated in the Southern States. The further averment is that during the year 2014, the petitioner/accused applied for the post of Assistant Factory Manager and he was selected and he joined initially as Assistant Factory Manager. At the time of joining, the petitioner/accused entered and executed an agreement with the respondent company on 26.02.2014. One of the clauses in the said agreement is as follows:-
“That the under signed shall not while in the service of the said employer or his successors or assignees in business whether in the capacity in which he has been employed or in any other capacity in which he may be entrusted or during the period of his service and for two http://www.judis.nic.in 3 years next after his resignation, dismissal, retirement or termination of service for whatever reason, the under signed shall not directly and indirectly and whether as principal or agent or travelling agent or otherwise carry on or be engaged or concerned or take part in any business of the nature identical to the business of the said employer within the operational area of the employer (Kerala, Tamil Nadu, Karnataka and the Union Territories of Pondicheerry and Goa) or take up employment either directly or indirectly with any competitor in any capacity except with the consent in writing of the said employer or his successor in business obtained beforehand”.
3.Subsequently, on 01.07.2015, the petitioner/accused was promoted as Manager Factory and he had worked for nearly about two years and submitted his resignation on 06.04.2017. The respondent company after carefully considering the reasons cited by the accused, relieved him from the post on 08.05.2017. The further allegation is that at the time of resigning the job from the complainant's company, the petitioner/accused promised that he would keep up the terms of the agreement executed by him on 25.02.2014 and that he will not join in any competitor's company. Whereas, to shock and surprise of the complainant, the accused joined in the competitive company dealing with the same business of the complainant and thereby, the http://www.judis.nic.in 4 accused had committed breach of contract, stipulations or provisions or covenants of agreement executed on 26.02.2014. Further, when the complainant's employees went to supply the products produced by them, it had come to their knowledge that the accused was working against the interest of the complainant company and was recommending the products of the competitive company.
4.The further allegation is that as per the agreement executed by the accused, the accused has to pay a sum equivalent to the salary for twelve months computed based on the last drawn salary and that last drawn salary of the petitioner/accused was Rs.52,072/- with the respondent company and when the petitioner/accused was contacted over phone and informed about the breach committed by him, he was very adamant and abused the respondent/complainant and its directors in filthy language and that he had no intention to pay a sum equivalent to the salary for twelve months computed based on the last drawn salary. It is further averred that since the act of the petitioner/accused clearly established that right from the date of execution of agreement the petitioner/accused had no intention to honour his commitment and had an intention to cheat the respondent/complainant company, which amounts to cheating as defined under Section 415 IPC and thereby the complaint. http://www.judis.nic.in 5
5.The learned counsel for the petitioner would submit that the private complaint pending on the file of the learned Judicial Magistrate, Vadipatti is nothing but an abuse of process of law. He would submit that the entire reading of the complaint does not disclose any ingredients of cheating and when such being so, the learned Judicial Magistrate ought not to have taken cognizance and issued summons to the petitioner. He would submit that the complaint alleged discloses dispute between the employer and employee where as it had been projected as a case of cheating. He would submit that assuming for a moment without admitting the case, at the maximum the allegation would only disclose case of breach of contract and that no case of cheating has been made out. He would submit that the terms found in the agreement cannot be enforced after the termination of service and therefore, it cannot be enforced being illegal under Section 27 of the Contract Act. He would further submit that the essential ingredients of cheating are not averred to sustain the complaint against the petitioner. He would submit that mere failure to perform the promise by itself is not enough to hold the person guilty of cheating. The learned counsel would submit that it is necessary to show that at the time of make promise, the petitioner had no intention to honour his commitment. He would http://www.judis.nic.in 6 further submit that in the absence of such culpable intention at the time of entering into an agreement, no offence is made out under Section 420 IPC.
6.He would submit that it is an admitted fact that the petitioner had joined the respondent company and worked for the period from 26.02.2014 to 08.05.2017 and thereafter, he has left with the company. Only in order victimize and harass the petitioner, due to business rival, the case has been filed against him. He would submit that no case is made out against the petitioner for the offences alleged against him, further proceedings is abuse of process of law.
7.The learned counsel for the respondent/complainant would submit that the petitioner with an intention to cheat the company, joined the company agreeing to abide by the terms of the employment, wherein he had undertaken not to join in a competitive company, whereas the petitioner had joined in competitive company and had worked against the interest of the company, thereby, putting the complainant company to distress and monetary loss.
8.Heard both sides and perused the materials available on records.
http://www.judis.nic.in 7
9.I have gone through the complaint carefully. It is the case where the petitioner is stated to have breached the terms of contract entered into at the time of employment and the further allegation is that he failed to keep up the undertaking given in the contract. There is absolutely no material to satisfy the ingredients of the offence of cheating.
10.In Vesa Holdings Private Limited and another vs. State of Kerala and others reported in (2015)8 SCC 293, the Hon'ble Supreme Court held as follows:-
“Every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 IPC can be said to have been made out.” http://www.judis.nic.in 8
11. As stated above, an attempt had been made by the respondent/complainant to project the case of breach of contract as a case of cheating.
12.In view of the above, this Court finds that in this case, the further proceedings is an abuse of process of law. Therefore, the private complaint in C.C.No.16 of 2018 on the file of the learned Judicial Magistrate, Vadipatti is hereby quashed and the criminal original petition is allowed. Consequently, connected miscellaneous petition is closed.
Index : Yes/No 11.12.2018
Internet : Yes/No
skn
To
1.The Judicial Magistrate Court No.1, Dindigul. http://www.judis.nic.in 9 A.D.JAGADISH CHANDIRA, J.
skn Crl.O.P.[MD] No.12852 of 2018 11.12.2018 http://www.judis.nic.in