Patna High Court - Orders
Mr. B.D. Topiwala & Ors. vs The State Of Bihar & Anr. on 14 August, 2014
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.17321 of 2011
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1. Mr. B.D. Topiwala, Chairman / Chairperson of Paramount Cosmetics
(India) Ltd.
2. Mr. Shishir B. Desai, Director of Paramount Cosmetics (India) Ltd.
3. Mr. R. H. Bhatia, Company Secretary of Paramount Cosmetics (India)
Ltd.
Working/previously working for Paramount Cosmetics (India) Limited,
having its registered office at 71, Kalpataru, Nutan Laxmi Society, N.S.
Road No.-9, JVPD Scheme, Vile Parle (W), Mumbai-400049.
.... .... Petitioners
Versus
1. The State of Bihar
2. Manoranjan Kumar son of late L.D. Sinha, Authorized Representative
of M.S. Enterprises (Partnership Firm), Resident of C-17, S.K. Puri,
P.S.-S.K. Puri, Patna-800001.
.... .... Opposite Parties
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Appearance :
For the Petitioners : Mr. Rana Pratap Singh, Sr. Advocate
Ms. Aaruni Singh, Advocate
For the Opposite Parties: Mr. Yogendra Kumar, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL ORDER
6 14-08-2014Heard counsel for the petitioners and the State. The petitioners are aggrieved by the order dated 05.11.2009 passed by the learned Judicial Magistrate 1st Class, Patna in Complaint Case No 2458C of 2008 whereby cognizance has been taken under Sections 406 and 420 of the Indian Penal Code.
The petitioner no. 1 is the Chairman/Chairperson of Paramount Cosmetics (India) Limited, a Company incorporated, whereas petitioner nos. 2 is the Director and petitioner no.3 is the Company Secretary of the said company. Opposite Party No. 2 is the complainant of this case who was appointed as C&F Patna High Court Cr.Misc. No.17321 of 2011 (6) dt.14-08-2014 2/4 Agent of the products of the Company. It has been alleged by the complainant-Opposite Party No. 2 that Rs. 5 lacs was deposited as security money with the company for his becoming a C&F Agent. In the year 2006, he was asked to return the stock to the Company, which he had kept in the godown, and was assured that thereafter he would be given back his money by way of refund. It is the case of complainant that the accused persons were required to pay him an amount of Rs. 6,89,164/- but when the accounts were furnished, he came to learn that Rs. 7, 73,445/- is due as against the company.
The counsel for the petitioners submits that the present complaint has been lodged in order to twist the arm of the company in settling business dispute between the parties. He has further raised a grievance that the petitioners, who are the Chairman, Director and Company Secretary of the Company, have no role to play in selection of the complainant as their C&F Agent or are in know of the day to day affairs of the Company. The petitioners could not have been prosecuted in this case on the grounds of vicarious liability. It has been submitted on behalf of the petitioners that from the letter written by complainant- Opposite Party No. 2 (contained in Annexure 8), it would appear that the complainant-Opposite Party No. 2, finally was of the Patna High Court Cr.Misc. No.17321 of 2011 (6) dt.14-08-2014 3/4 view that after the goods kept in his godown are lifted, the company would be required to pay Rs. 74,910/- only. This clearly gives insight into the mindset of the complainant, who is trying to settle a civil dispute by using criminal Court forum in his aid.
From perusal of the complaint and other material, it appears that no offence under Section 406 or for that matter Section 420 of the IPC can be said to have been made out against the petitioners. The fact that complainant-Opposite Party No. 2 chose to become clearing and forwarding agent of the Company is itself an indication that there has been no cheating by the petitioners. So far as offence under Section 406 is concerned, there is no entrustment of any kind, to bring home such charges. Such issues could have been sorted out across the table.
Allowing this proceeding to continue, therefore, would only amount to encouraging such litigation where issues, primarily civil in nature, viz., settling of accounts, are given the colour of criminality, to silence the other side or to arm twist them into accepting any unreasonable demand. Such a tendency needs to be deprecated. If this proceeding is permitted to be continued, it would amount to allowing the criminal Court Forum to be denigrated to a position of a tool of harassment and prosecution. Since no offence, for which the petitioners are being Patna High Court Cr.Misc. No.17321 of 2011 (6) dt.14-08-2014 4/4 charged, can at all be said to have been made out against them, they cannot be asked to go to the trial Court for redressal of their grievances.
This application merits consideration at this stage when only cognizance has been taken.
For the reasons aforesaid, this application is allowed. The order taking cognizance is set aside.
(Ashutosh Kumar, J) N.A.F.R. Pawan/-
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