1. Through this writ application, extraordinary jurisdiction of this Court as enshrined under Article 226 of the Constitution of India, has been invoked on behalf of the petitioners to quash the criminal proceedings of a complaint bearing C/1 Case No. 1011 of 2009. including the order dated 11-5-2009. passed by Shri Uttam Anand, learned Judicial Magistrate, Jamshedpur whereby and whereunder learned Magistrate having found the prima facie case to be true under Sections 406, 420, 426, 501, 506/34 of the Indian Penal Code has summoned the petitioners.
2. Before adverting to the submissions made on behalf of the parties, the facts giving rise this application need to be taken notice of. It appears that the complainant-respondent No. 2 filed a complaint against the petitioners stating, therein that while the complainant was working as Deputy Manager in Tinplate Company of India Limited. Jamshedpur he gave his Bio-data on the web site of www.naukri.com. Being satisfied with the qualification of the complainant, the accused persons by calling him on his mobile offered a job in Global Steel, Philippines (SPV-AMC) Inc. Philippines with lucrative salary and made request to send a formal application, which was accordingly sent. Thereupon, E-mail was sent to the complainant, whereby he was asked to come to Bombay for further negotiation. When the complainant approached one Manish Chandra, a senior officer of the Company, convinced him of a better prospect. On being induced, the complainant left the job of Tinplate Company of India Limited. Jamshedpur and joined the Company of the accused persons at Navi Mumbai from where he was sent to Philippines where he worked to the full satisfaction of the accused persons for four years but suddenly, he was asked vide letter dated 6-1-2009 to proceed on forced leave and in fact, he was compelled to leave the job though as per the contract three months' notice prior to termination was required to be given by the Company, but neither three months' prior notice was given nor the salary for three months was paid and as such, the accused persons did commit offence under Sections 406 and 420/34 of the Indian Penal Code.
3. Learned Magistrate after taking statement of the complainant on solemn affirmation and after holding enquiry did find prima facie case under Sections 406, 420, 426. 504, 506/34 of the Indian Penal Code and summoned the petitioners to face the charges.
4. Being aggrieved with the said order, this writ application has been filed for quashing the entire criminal proceedings of the afore said complaint case.
5. Mr. Indrajit Sinha learned counsel appearing for the petitioner submits that the complainant when was offered a job in a Company known as Global Steel, Philippines (SPV-AMC) Inc., Philippines, he accepted the offer and thereby appointment letter dated 20-1-2004 was issued incorporating the terms and conditions of the contract of service, wherein it was stipulated that his work place would be at Philippines and his employment would be strictly governed by the Foreigner's Rules of Philippines. The complainant having accepted the terms and conditions joined the Company at Philippines and worked for about four years, but unfortunately, the Company fell in financial crisis on account of recession all over the world. The Company in order to meet such situation was constrained to put some of the employees on forced leave. When the Company took such decision to enforce forced leave upon its employees, the said decision was communicated to the competent Department of Republic of Philippines and accordingly, an Advisory was issued on 3-12-2008, where - under it was stipulated that principle of ‘no work no pay’ shall apply during the period of forced leave and that such measure would be temporary and as soon as things get improved, normal operation would be resumed. Accordingly, a letter was issued to the complainant on 6-1-2009 directing him to proceed on forced leave. On getting said letter, the complainant instead of waiting for things to improve decided to come back home, whereas his services had never been terminated and in this view of the matter, the complainant is never entitled to have three months' salary. Under these backgrounds, it was submitted that no offence, as alleged, is made out even if the entire allegations made in the complaint petition are taken to be true, much less against the petitioner Nos. 2 and 3, who are the Managing Director and Advisor of the aforesaid Company respectively, as they as well as petitioner No. 1 who is not even the Managing Director of the aforesaid Company, cannot be held liable vicariously for any offence committed by the Company.
6. Learned counsel further submits that the order, under which the petitioners have been summoned to face charges, has been passed without application of mind, which would be evident from the fact that learned Magistrate has taken cognizance of the offence under Sections 426, 504, 506/34 apart from Sections 406 and 420 of the Indian Penal Code, but there has been absolutely no allegation either under Sections 426. 504, 506/34 or even under Sections 406. 420 of the Indian Penal Code. In this view of the matter, entire criminal proceeding is fit to be set aside.
7. Learned counsel in support of submission of non-applicability of the offences under Sections 406 and 420 of the Indian Penal Code has referred to the decisions in the cases of Harmanpreet Singh Ahluwalia v. State of Punjab ((2009) 7 SCC 712 : (2009 AIR SCW 3976) and S.K Alagh v. State of Uttar Pradesh, ((2008) 5 SCC 662 : (AIR 2008 SC 1731).
8. As against this, Mr. Pandey Neeraj Rai, learned counsel appearing on behalf of the complainant-respondent No. 2, submits that the petitioners under the cloak of forced leave has in fact terminated the services of the complainant against the terms of the contract, whereby three months' prior notice before termination was required to be given and in lieu of that, three months' salary was supposed to be paid to the complainant, but the accused persons, who are in league with each other, did not pay three months' salary, whereby the complainant was put to wrongful loss and under these backgrounds, learned Magistrate is absolutely justified in taking cognizance under Sections 406 and 420 of the Indian Penal Code. Learned counsel further submits that taking the case to be worst if no case is made out under Sections 406 and 420 of the Indian Penal Code, the offence under Section 403 of the Indian Penal Code is certainly made out and in that view of the matter, the entire criminal proceeding never warrants to be quashed by this Court.
9. Having heard learned counsel appearing for the parties and on perusal of the records, the case of the complainant appears to be that his services were terminated before expiry of the contractual period for which three months' salary was required to be paid to him but as three months' salary was not paid, the accused persons, according to the complainant, committed offence of criminal breach of trust and cheating.
10. On this foundational fact, it is to be considered whether the allegations made do constitute criminal offences, as alleged, or not?
11. The offence of cheating has been defined under Section 415 of the Indian Penal Code which reads as follows:—
“Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to ‘cheat’”.
12. From its reading it appears that the following ingredients should necessarily be there for constituting offence of cheating:—
(1) there should be fraudulent or dishonest inducement of a person by deceiving him;
(2) (a) the person so deceived should be induced to deliver any property to any persons, or to consent that any person shall retain any property or;
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived.
(3) in cases covered by 2(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property.
13. Thus, the first element necessary for constituting the offence of cheating is a deception of the complainant by the accused. Unless there is deception, the offence of cheating cannot be made out. After deception has been practised, the persons deceived should get induced to do or omit to do something. Then, the question arises as to what is the deception? In the ordinary sense deception has in it the element of misleading or making a person believe something that is false or inculcating of one so that he takes the false as true, the unreal as existent, the spurious as genuine and it is also necessary that deception should be right from the beginning of the contract. Applying the principle constituting a criminal offence of cheating in context of the allegation, it does appear that first element of deception constituting an offence of cheating is lacking, as the complainant when was offered job at Philippines, he accepted it under the terms and conditions which were there in the appointment letter and as such, the complainant cannot be said to have been deceived by the petitioners in any manner. Thus, no offence is made out under Section 420 of the Indian Penal Code even if the entire allegations are accepted to be true.
14. Next is the question to be considered as to whether any offence under Section 405 of the Indian Penal Code is made out. The provision as contained under Section 405 of the Indian Penal Code reads as follows:—
“Criminal breach of trust — Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers, any other person so to do, commits ‘criminal breach of trust’”.
15. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code:—
“(a) a person should have been entrusted with property, or entrusted with dominion over property;
(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so;
(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made touching the discharge of such trust”.
16. On going through the complaint, it never appears to be a case of the complaint of entrustment of any property to the accused persons, rather it appears to be a case of non-payment of three months' salary which, according to the complainant, is due to be paid but as per the case of the petitioners, the complainant is never entitled to salary for three months, as his services had never been terminated, rather the complainant was put on forced leave and on that account, the complainant is never entitled to salary for three months. Thus, the dispute between the parties appears to be a civil dispute and therefore, non-payment of salary by itself does not amount to commission of an offence of cheating or criminal breach of trust. In this respect, I may refer to a decision in the case of Vir Prakash Sharma v. Anil Kumar Agarwal ((2007) 7 SCC 373 : (2007 AIR SCW 4816), wherein the Hon'ble Supreme Court, in the facts and circumstances of that case, was pleased to observe as follows:—
“The dispute between the parties herein is essentially a civil dispute. Non-payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Indian Penal Code, can be said to have been made out in the instant case”.
17. Thus, I find that essential ingredients constituting offence under Section 405 of the Indian Penal Code is completely lacking and as such, no offence is made out under Section 405 of the Indian Penal Code.
18. Having come to the said conclusion, next question is to be considered as to whether any offence is attracted under Section 403 of the Indian Penal Code, though no cognizance under that provision has been taken by the court below.
19. Section 403 of the Indian Penal Code deals with the offence of dishonest misappropriation of property. The illustration to Section 403 of the Indian Penal Code clearly shows that the essence of criminal misappropriation of property is that the property comes into possession of the accused in some neutral manner. It is of the essence of misappropriation that the property itself should not be at the absolute disposal of the accused, if it is, there cannot be a case of criminal misappropriation. Coming to the fact of this case, the very essence of criminal misappropriation of property is missing, as it is the case of the complainant of non-payment of three months' salary, which is essentially a civil dispute. Moreover, as per the petitioners, the complainant-respondent No. 2 is not entitled to have even as per the terms of the contract, which stipulates about payment of three months' salary in case of services being terminated but his services had never been terminated, as admittedly, he has been put on forced leave.
20. Under the circumstances, even the offence under Section 403 of the Indian Penal Code is not made out.
21. That apart, there has been no allegation whatsoever attracting the offence under Sections 406, 420, 426, 504, 506/34 of the Indian Penal Code and as such, any cognizance taken under those offences is quite bad.
22. In the circumstances, as stated above entire criminal proceedings of a complaint bearing C/1 Case No. 1011 of 2009, including the order dated 11-5-2009, passed by Shri Uttam Anand, learned Judicial Magistrate, Jamshedpur, summoning the petitioners-accused persons to face charges is hereby quashed.
23. In the result, this writ application is allowed.
24. Petition allowed.