Ramesh Rajagopal vs Devi Polymers Pvt. Ltd.

G.M. Akbar Ali, J.—The petition is filed seeking a direction to call for the records in C.C. No. 5353 of 2009 on the file of the learned XIII Metropolitan Magistrate, Egmore, Chennai and quash the same.

The Respondent filed a private complaint u/s 200 CR.P.C against the Petitioner and one another for the alleged offence punishable under Sections 409, 468, 471 IPC and 65 and 66 of the Information Technology Act 2000.

The allegations by the complainant in a nutshell giving rise to a private complaint is as follows:

The complainant is a private limited company and they are the manufacturers of Polyester moulding compound, sheet moulding compound and dough moulding compound and they are the manufacturer and supplier of various compounds and components for electrical and automobile industries.

The Petitioner is one of the executive directors of the Company. He was in charge of unit C of the complainant''s company.

The Petitioner started a company named "Devi Consultancy Services". The Petitioner has given the address of Unit C of the complainant company as that of the said Devi Consultancy. He has also created a website (www.devidcs.com) and has shown the said consultancy as a division of the complainant''s company and went to an extent of stating that it is a division of the complainant''s company and has appointed one Michael D. Jackson as in charge for Devi consultancy for North America. He had also transferred a sum of Rs. 5,57,207/- from the accounts of the complainant''s company to the above Michael D. Jackson and acted against the interest of the Company. The main contention of the complainant is that he had projected the Devi Consultancy Services as if it is a division of complainant''s company doing the same business and tried to mislead the customers of the complainant''s company in order to affect the business of the company.

According to the complainant, the Petitioner has also created and transmitted false electronic records with dishonest and fraudulent intention and thereby committed forgery, creation of false documents, showing false information and electronic data as genuine and also for dishonestly transferring the funds of the complainant''s company to third party.

The complaint was taken on file by the learned XIII Metropolitan Magistrate, Egmore, Chennai in C.C. No. 5353 of 2009. The accused is before this Court filing the present application to quash the above said proceedings on various grounds.

According to the Petitioner, Devi Consultancy Services was mooted to be formed as a Division of Devi Polymers (complainant''s company), especially as a marketing strategy. At no point of time, Devi Consultancy services was treated as a separate entity. Even in the Board Meeting held in the month of March 2009, the Petitioner had informed the Board of Directors about Devi Consultancy services and its activities. In the initial stage, one M/s Easy Link who were in management of web page of Devi Polymers was requested to design a web page for Devi Consultancy services and the professional services charges were also given to them by the Directors of Devi Polymers. Due to the efforts of the Petitioner, the complainant''s company was able to secure foreign businesses which runs to crores of rupees and therefore, Devi Consultancy Services was approved by the Directors of the complainant''s company. There was a difference of opinion among the directors of the complainant''s company and a false complaint is given. Devi Consultancy is not a separate division and there is no forgery or creation of false documents and no one was cheated and therefore, prima-facie there is no evidence to take cognizance of any offence against the Petitioner.

Mr. V. Karthik, for M/s T.S. Gopalan and Co., elaborated on the above grounds and would state that the complaint is misconceived. The learned Counsel pointed out that it has been accepted that Devii Consultancy Service is a division of Devi Ploymers. The learned Counsel relied on various letters and other documents to show that the Directors of the complainant''s company has signed in the cheque issued to a Webpage Management Company for designing a web page for Devi Consultancy Services. The learned Counsel pointed out that the Petitioner has filed a company petition before the Company Law Board and only as a counter blast, the present complaint has been given against the Petitioner.

The learned Counsel relied on the following decisions to set out the inherent powers of the High Court to quash the proceedings u/s 482 Code of Criminal Procedure

"1. (1976 L.W 67 sum (SC)) (Smt. Nagamma v. Veeranna Shivalingappa Konjalgi and Ors. 1976 L.W .67 sum SC

Padma Charana Behera Vs. State of Orissa and Others, , (2008) 3 MLJ 1589 (SC) (Lakhwant Singh v. Jasbir Singh and Ors. (2008) 3 MLJ 1589 SC) 4.(2010) 1 MLJ 163 (SC) (K. Ashoka v. N.L. Chandrashekar and Ors. 4.(2010) 1 MLJ 163 SC) 5. (1192) 3 SCC 317 (Chand Dhawan (Smt. v. Jawahar Lal and Ors. 5.(1192) 3 SCC 317) 6.2003 SCC 869 (Ram Narayan Popli v. CBI .2003 6 SCC 869) 7. Shivnarayan Laxminarayan Joshi and Others Vs. State of Maharashtra,

On the contrary, Mr. Nirmal Kumar, the learned Counsel for the Respondent submitted that the Petitioner has acted fraudulently and has created a separate entity using the name of the complainant''s company. The learned Counsel relied on various publications and the printed form of website and the brochures issued by Devi Consultancy Services providing design and engineering programmes and thereby promoting its own business and at the same time, declaring that the said consultancy is a division of complainant''s company. The learned Counsel pointed out that the Petitioner has committed various offences as stated in the complaint which would show prima facie cognizable offences which have been deliberately committed.

The learned Counsel submitted that at this stage the court cannot go into the details of the evidence and cannot look into the documents relied on by the accused.

Heard and perused the materials available on record.

It is well settled that the power of quashing the criminal proceedings has to be exercised very sparingly and that too in the rarest of rare cases and the court cannot be justified in embarking upon an enquiry as to the reliability or the genuineness or otherwise of allegations made in the first information report or in the complaint and the extraordinary and the inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprices.

In the State of Haryana and others Vs. Ch. Bhajan Lal and others, , The Apex Court has laid down the guidelines for exercising the inherent power as under:

"1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any ofence or make out a case against the accused.

Where the allegations in the first information Report and other materials, if any, accompanying the FIR do not disclose a cognizance offence justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.

Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a ust conclusion that there is sufficient ground for proceeding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala-fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

The Supreme Court has repeatedly held that criminal proceedings, FIR, or complaint is liable to be quashed only if the court comes to the conclusion that the FIR or complaint does not disclose any offence or it is frivolous, vexatious or oppressive. Power of quashing can be exercised by the Court only in exceptional circumstances wherein the Court is satisfied that if the complaint is allowed to be proceeded with it would amount to abuse of process of court or that the interest of justice otherwise calls for quashing of the FIR or complaint.

Only on the above well settled legal position, the present petition has to be looked into. As stated earlier, a private complaint has been filed by the Respondent Company stating that the Petitioner has committed various offences of creating false documents, showing false information, and misappropriation, cheating and criminal breach of trust. The main contention is that one Devi Consultancy Services launched and run by the Petitioner is not a part of the complainant''s company but the Petitioner has been utilising the goodwill, fund, and the customers of the Company to show as if Devi Consultancy services is a division of the complainant''s company which had long reputation and infrastructure and rendering services, supply and manufacturer of various components to electrical and automobile industries.

A transfer of certain funds has also been shown by the complainant company. The contention of the Petitioner is that the said Devi Consultancy services was mooted, accepted and admitted by the Directors of the complainant''s company and it is not a separate entity.

The Petitioner has not denied transfer of funds, launching of web site and showing the said Devi Consultancy is a division of the complainant''s company.

Whether the complainant''s company or its directors had approved the launching of the Devi Consultancy services is a matter for evidence at the time of trial. At this stage, this Court cannot conduct a rowing enquiry on the legal evidence.

As rightly guided by the principles laid down by this Court and the Apex Court, the defence material need not be considered at this stage. If it is evident that in a case there is sufficient evidence against the accused persons which may establish the charge against him, the proceedings cannot be quashed. The Petitioner was the Executive Director of the Complainant''s company and was in charge of a separate unit. He admits launching of the consultancy service and that to providing similar designing services. There was also transfer of funds from the Complainant''s company. The web site declares it is a division of the Complainant''s company. Whether it is approved is a matter of evidence. The allegations is that it is not. The Magistrate was satisfied in taking cognizance. I do not see any illegality.

Therefore, the Petitioner has not made out a case for a quashing of the criminal proceedings pending against him.

In the result, the criminal original petition is dismissed.