AI Drafter 
TaxTMI 
TaxTMI 
2022 (3) TMI 1578
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....e of Newton Engineering & Chemicals Ltd., the amounts are transferred to the account of the company i.e. Newton Engineering & Chemicals limited that the defacto complainant made a complaint against the petitioners without making the company as a party which is contrary to the ratio decided by the Hon'ble Apex Court in catena of judgments. 4. The second ground raised by the petitioners is that the defacto complainant has already invoked civil jurisdiction and filed a civil suit on the file of XII Additional District Judge's court at Visakhapatnam and the same was numbered as O.S. No. 41/2020 against the petitioners for recovery of amounts to a tune of Rs. 1,76,05,352/-. While pending the said suit, making present complaint is nothing but abuse of process of law. Further the complaint does not disclose or attract the ingredients of section 415 of IPC. The complaint is vague and baseless. They themselves further stated in the complaint that they learnt that the petitioners have connived with each other and deliberately making false representation to the defacto complainant that they need money to settle the company's claims of sub-contractor. That itself discloses that ....
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....yderabad etc. as and when Mr. Gopinath returns to India. All through this troubled times both of them requested my intervention to secure his safe release. In view of our past association, I was motivated to get him released from Kuwait. I took money from my two brothers, friends and sent an amount of Rs. 42,10,000/- (Rupees forty two lakhs ten thousand only) on dates as shown separately. I also took over draft by pledging my wife's house and sent an amount of Rs. 90,50,000/- (Rupees ninety lakhs and fifty thousand only) on dates as shown separately. I started sending amounts from 13.02.2017. I sent the amount based on their representation that the money was needed to pay to third party claimants who were behind the case and responsible to detain Mr. Gopinath in Kuwait by getting the Travel Ban imposed against him. Mr. Gopinath and his wife have been informing that the amounts sent by me were being utilized to pay the claims of the sub-contractor who complained against Mr. Gopinath's default. At the end of 2017, Mr. Gopinath returned to India. As promised Mr. Gopinath, his wife and their company did not repay the amount taken from me by selling th....
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.... 17-06-2017 2.10 Online remittance 5 10-05-2017 5 Online remittance 2.S.Ratnamala Online remittance 1 25-04-2017 10 Online remittance 2 11-05-2017 55 Online remittance 3 30-05-2017 10 Online remittance 4 03-06-2017 3 Online remittance 5 15-06-2017 2 Online remittance 6 27-07-2017 2 Online remittance 7 14-09-2017 5 Online remittance 8 10-10-2017 3.50 Online remittance 3. A.Ratnamala 1 18-09-2017 5 Online remittance 6. The allegations made in the F.I.R. is that the petitioners had borrowed amounts from the defacto complainant to settle the financial discrepancies with sub-contractors at Kuwait. They made them believe that they would repay the same after they return from Kuwait to India by disposing of the assets at Hyderabad and Mumbai. On perusal of the allegations made in the complaint is mainly on the basis of non-payment of the amounts which were paid to the petitioner for the same already the defacto complain....
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....herein the Hon'ble Apex Court held that: In the case at hand as the complainant's initial statement would reflect, the allegations are against the company, but the company has not been made arrayed as a party. Therefore, the allegations have to be restricted to the Managing Director. As we have noted earlier, allegations are vague and in fact, principally the allegations are against the company. There is no specific allegation against the Managing Director. When a company has not been arrayed as a party, no proceeding can be initiated against it even where vicarious liability is fastened on certain statutes. It has been so held by a three-Judge Bench in Aneeta Hada v. Godfather Travels and Tours Private Limited (2012) 5 SCC 661 in the context of Negotiable Instruments Act, 1881. At this juncture, it is interesting to note, as we have stated earlier, that the learned Magistrate while passing the order dated 22.10.2001, had opined, thus:- "It appears prima-facie from the complaint filed by the complainant, documents, evidence and arguments that accused company has committed cheating with the complaint by delivering old and accidented vehicle to her ....
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....ounts to the petitioners to pay the debts to the sub-contractors. After receipt of the amounts instead of repaying the same to the sub-contractors, he used the said amount for their business purpose and he has not repaid the amount despite repeated requests. They came to know that only to deceive the defacto complainant, the petitioners have stated that they need money to repay the debts to the sub-contractors and hence believing their words, huge amounts were transferred which is nothing but cheating. Hence the said action of the petitioners would squarely attracts the definition under section 415 of IPC. In view of the same, though they have filed a civil suit for recovery of the amount but the intention of the petitioners to cheat the defacto complainant is criminal motive. Hence they have made a complaint to the police and basing on the contents in the complaint, the authorities have rightly registered a crime under section 420 IPC. 10. To support the contentions, the petitioners have relied on the judgment of the Hon'ble Supreme Court reported in between Priti Saraf and another vs. State of NCT of Delhi and another , Criminal Appeal No(s) 296 of 2021 where in it is reci....