SHARON MICHAEL AND ORS. v. STATE OF TAMIL NADU AND ANR

Citation: [2008] 17 S.C.R. 1412

Court: Supreme Court of India

Bench: S.B. SINHA, CYRIAC JOSEPH

Case summary

SHARON MICHAEL AND ORS. v. STATE OF TAMIL NADU AND ANR.pdf

Judgment text

[2008] 17 S. C. R. 1412 SHARON MICHAEL AND ORS. v. STATE OF TAMIL NADU AND ANR. (Criminal Appeal No. 2089 of 2008) DECEMBER 19, 2008 [S. B. SINHA AND CYRIAC JOSEPH, JJ. ] Code of Criminal Procedure, 1973 - s. 482 - Quashing of summons - Scope - Contract for manufacture and supply . c· 'Jf garments for export - Accused were employees of the company acting as certifying agent in the transaction - Complaint by supplier that accused did not pay amount representing value of the garments exported - Summons issued under ss. 1208, 409 and 420 /PC - Application under s. 482 CrPC. for quashing - Dismissed by High Court - Held: Dispute between parties was civil in nature - Allegations made in FIR did not reveal any misrepresentation or criminal misconduct on part of accused - Accused did not make any representation in their p[3rsonal capacity and, thus, could not be held vicariously liable - Summons issued to accusedappellants accordingly quashed - Penal Code, 1860 ss. 409, 420 and 1208.

Pursuant to a contract between the parties, garments were manufactured and supplied by Respondent No. 2 for export. The foreign (German) buyer, however, did not accept the garments on the premise that the same were defective and sub-standard. Respondent No. 2 filed complaint alleging that appellants, employees of the company acting as certifying agent in the transaction, did not pay amount representing value of the garments exported. Summons were issued to the appellants under ss. 1208, 409 and 420 IPC. Appellants filed application under s. 482 CrPC. for quashing of the summons, which was dismissed by the High Court. Hence the present appeal. NADU AND ANR. Allowing the appeal, the Court HELD:1. 1. Rightly or wrongly, the buyer refused to accept the goods, inter alia, on the premise that the same were defective and sub-standard. Even if it is assumed that the appellant company was assured payment for such supplies, it would be a def credere agent.

Its liability is, therefore, a civil liability. The allegations contained in the First Information Report did not reveal that any - misrepresentation was made at the time of formation of the contract. The goods were presumably required to meet the requirements of the buyer. Even if the certificate granted by the a·ppellant company was incorrect, an appropriate action against them could have been taken for breach of contract. [Para 9] [1421-0-F] 1. 2. Allegations have been made against the appellants in relation to execution of the contract. No 0 case of criminal misconduct on their part has been made out before the formation of the contract. There is nothing to show that the appellants who hold different positions in the appellant-company made any representation in their personal capacities and, thus, they cannot be made vicariously liable only because they are employees of the company. [Para 11] [1422-E-G] 1. 3. The dispute between the parties is civil in nature.

It is also not a case where although a prima facie case had been made out disclosing commission of an offence, the court is called upon to consider the defence of the accused. The First Information Report itself refers to the documents. They can, therefore, be taken into consideration for the purpose of ascertaining as to whether the allegations made in the complaint petition read as a whole, even if taken to be correct in its entirety, discloses commission of any cognizable offence or not. The impugned summons issued to. the appellants are accordingly quashed. [Paras 12 and13] [1423-G-C] ( R. Kalyani v. Janak C. Mehta & Ors. (2008) 14 SCALE ' 85, referred to. Case Law Reference: & (2008) 14 SCALE 85 referred to Para 12 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 2089 of 2008. From the final Order dated 2. 3. 2006 of the High Court of Judicature at Madras in Cirminal O. P. No. 26498 of 2005. ... G. V. Rao, P. N. Jha and Devendra Singh for the Appellants. " V. Kanagaraj, M. A.

Chinnasamy, S. Thananjayan, R. Nedumaran and V. G. Pragasam for the Respondents. The Judgment of the Court was delivered by « S. B. SINHA, J. 1. Leave granted. 2. Appellants are before us being aggrieved by and dissatisfied with the judgment and order dated 2. 3. 2006 passed by a learned Single of the High Court of Judicature at Madras in Criminal Appeal No. 26498 of 2005 dismissing their applications for quashing the summons issued to them in Crime No. 32 of 2005 on a complaint filed by one of the partners of Mis.. Aarbee Apparels lmpex, Tiruppur under Sections 120- B, 409 and 420 of the Indian Penal Code (for short, "IPC"). 3. M/s. T. M. S. Fashion Private Limited, Chennai (for short, "the Company") is a certifying agent. Appellant No. 1 is the Assistant General Manager of the company engaged in export of garments. Appellant No. 2 is the Accounts Manager, Appellant No. 3 is the Shipping Manager, Appellant No. 4 is one of its Directors and Appellant No.

5 is a Consultant for the Company. Appellant No. 6 is an employee of Bax Global Private Ltd. who has nothing to do with the appellant company. 4. In the complaint petition, the complainant alleged thatthe appellantNos. 1 to 4 had approached the Aarbee Apparels lmpex which is engaged in the manufacture of Hosiery Garments in the month of December 2004 for supply of men's ( cardigan and sweat shirts for the total value of 76, 197. 60 Euros ~ to Ultimate Buyers at Germany. Pursuant thereto or in furtherance of the said contract entered into by and between SHARON MICH~EL AND ORS. v. STATE OF TAMIL 1415 the parties, export of the said garments were made by Respondent No. 2. The Company is said to have issued various inspection certificates in the following terms : "This is to certify that the goods of above Order have been inspected prior to shipment and found in order and good conditions.

This certificate shall be entirely without prejudice and shall not absolve the seller from liability in respect of any actions, claims, demand of proceedings subsequently taken or made by TMS (Fashion) Pvt. Ltd. , and/or their customer. " The supplier company Aarbee apparel, however, stood : guarantor for 'skip stitches after checking'. 5. The buyer company by an email refused to accept the shipment on the,premise that on a random checking too many defects disqualifying the goods to be shipped were found and, thus, the goods being sub-standard, were not acceptable. They o asked the company to pick up the goods from their warehouse. Respondent No. 2, however, did not make any attempt to reexport the said goods from Germany to India. On or about 18. 3. 2005, it filed a complaint petition with the Superintendent of Police, Coimbatore to help it to recover dues from the appellant company. Appellant company, thereafter sent a legal notice to Respondent No. 2 on or about 25. 3.

2005, inter alia, stating : "Our clients state that you were clearly informed that quality control checks would be very stringent and unless quality norms are met, the buyer would not accept the consignment leading to large losses all around. You accepted the terms and promise to deliver the finished goods in time. Accordingly, three purchase orders were placed on you by TMS, details as follows : SPO No. Style No. Rate? PC 1. 051949 P30837 Euro. 6. 80 (C&F) 2. 7051961 P30857 Euro. 9. 45 (C&F) 3. 7051964 P30858 Euro10. 26 (C&F) The delivery date was stipulated as 15. 01. 2005,' payment on UC basis at sight:- The letter of credit was ac;cordingly established by Manhattan on you expiring on 2! 5. 01. 2005 ~ for the sum of 84. 486. 00 Euro you have aceiepted the purchase order and· claimed to have commenced ·~ r manufacture. Our clients state that within a few days, it was found that your factory was having only around 15 machines and .

I worse, the factory itself as not ,running for a few months and of the Code of Criminal Procedure. • By reason of the impugned judgment, while dismissing the said application, the High Court held: "9. The facts and circumstances of this case would reveal that M/s. ESPRIT EUROPE TRADING AND PRODUCT DEVELOPMENT had approached the Manhattan Limited in Hong Kong to supply "men's cardigan and sweat shirts". Manhattan Limited had contacted TMS fashions Pvt. Ltd. to procure those goods and supply them to Esprit Europe . r Trading and Product Development, based on the Letter of Credit opened by Manhattan Limited, TMS Fashions Pvt. Ltd. , approached M/s. Aarbee Exports lmpex to produce "men's cardigan and sweat shirts" for export. 10. As far as the De facto complainant is concerned, the de fado complainant was not approached by M/s. Espirit Europe Trading and Product Development or Manhattan Ltd. TMS Fashions Pvt. Ltd.

alone contacted the de facto complainant and persuaded them to manufacture the specified goods for export to Germany. The documents would show that quality check had been done by the TMS Fashions Pvt. Ltd. The whole production done by the d facto complainant was completely controlled by TMS """'"\ Fashions Pvt. Ltd. ----\ 11. There is a specific allegation in the complaint that the de facto complaint refused to go in for shipment of the -~ goods as they understood that the Letter of Credit opened by Mis. Manhattan Ltd. with State Bank of India, Tirupur Branch was not renewed on 25. 1. 2005. It has also been stated in the complaint that TMS Fashions Pvt. Ltd. informed the de facto complainant that the Letter of Credit -opened by Hong Kong Company was revalidated upto 28. 2.

2005, having consigned the goods, the de facto complainant approached the State Bank of India, Tirupur Branch but was unfortunately informed by the State Bank of India, Tirupur Branch that the Letter of Credit was never revalidated, it is further contended in the complaint. The ;.. allegations of criminal conspiracy and cheating have been made in the complaint. " • ... It was furthermore opined : "16. In the instant case, it has been specifically contended in the complaint that the petitioners herein enticed the de facto complainant to part with the goods having made misrepresentation that the Letter of Credit opened. by the Hong Kong Company was extended for a further period and thereby the accused de facto complainant was duped by the petitioners herein. Therefore, the above authority will not apply to the facts and circumstances of this case. " '- The High Court concluded: "20.

It is not as if that the complaint lacks ingredients of the offence of cheating and criminal breach of trust. The petitioners cannot wriggle out of the investigation process embarked upon by the second resp. ondent-police on the ground that they acted as an agent of their principal M/s. Manhattan Ltd. The allegation in the complaint would reveal -~ that the whole transaction was clinched by the de facto complainant only with the petitioner herein. But for the representation made and the assurance given by the petitioners, the goods would not have been shipped by the de facto complainant, it has been contended in the complaint. The whole gamut of the allegation will have to be probed into by the investigation agency. When the ~ complaint reflects commission of cognizable offence and the same will have to be thmoughly investigated by the second respondent-police, the question of quashing the case registered against the petitioners does not arise for consideration. " +> 7. Mr. G. V.

Rao, learned counsel appearing on behalf of the appellant would contend that the dispute between the parties having arisen out of a contract qua contract, the complaint petition was not maintainable. 8. Mr. V. Kanagaraj, learned senior counsel appearing on behalf of Respondent No. 2, on the other hand, submitted that the complaint petition had to be filed only because the appellant ,. , did not pay the entire amount representing the value of the ,. garments exported. It was contended that the appellants having made part payment of the entire dues cannot be permitted now to turn round and contend that they have no liability in the matter at all. 9. Indisputably Respondent No. 2 is the producer of the garments. The buyer is a German Company. Rightly or wrongly, o' the buyer refused to accept the goods, inter alia, on the premise that the same were defective and sub-standard. We will assume that the appellant company was assured payment for such ~ -; supplies.

Even if that be so, it would be a del credere agent. Its liability is, therefore, a civil liability. The allegations contained E: in the First Information Report did not reveal that any misrepresentation was made at the time of formation of the contract. The goods were to be supplied by Respondent No. 2. They were presumably required to meet the requirements of the buyer. Even if the certificate granted by the appellant company F1 was incorrect, an appropriate action against them could have '1' been taken for breach of contract. 10. The ingredients of an offence as contained in Section 420 of IP9 are as under: "(i) Deception of any persons; (ii) Fraudulently or dishonestly inducing any person to deliver any property; or . ,... J (iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit. " I . Criminal breach of trust is defined in Section 405 of IPC.

The ingredients of an offence of the criminal breach of trust are: "1. Entrusting any person with property or with any dominion over property. 2. That person entrusted (a) dishonestly misappropriating or converting to his own u·se that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation- (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust. " Ingredients of Section 409 of IPC read as under: "(i) The accused must be a public servant; (ii) He must have been entrusted, in ·such capacity, with property. / (iii) He must have committed breach of trust in respect of such property. " 11. The First Information Report contains details of the terms of contract entered into by and between the parties as also the mode and manner in which they were implemented.

Allegations have been made against the appellants in relation to execution of the contract. No case of criminal misconduct on their part has been made out before the formation of the contract. There is nothing to show that the appellants herein who hold different positions in the appellant-company made any representatio_n in their personal capacities and, thus, they cannot be made vicariously liable only because they are employees of the company. 12. In R. Kalyani v. Janak C. Mehta & Ors. [2008 (14) SCALE 85], this Court held : "24. As there had never been any interaction between the appellant and them, the question of any representation which is one of the main ingredients for constituting an offence of cheating, as contained in Section 415 of the _,,_,. Indian Penal Code, did not and could not arise. 25. Similarly, it has not been alleged that they were entrusted with or otherwise had dominion over the property of the appellant or they have committed any criminal breach of trust.

So far as allegations in regard t6 commission of the offence of forgery are concerned, the same had been ..... made only against the respondent No. 3 and riot against ... the respondent No. 2. Sending a copy thereof to the National Stock Exchange without there being anything further to show that the respondent No. 2 had any knowledge of the fact that the same was a forged and fabricated document cannot constitute offence. Allegations contained in the FIR are for commission of offences under a general statute. A vicarious liability can be fastened only by reason of a provision of a statute and not otherwise. For the said purpose, a legal fiction has to II ... be created. Even under a special statute when the vicarious criminal liability is fastened on a person on the premise that he was in- charge of the affairs of the company and responsible to it, all the ingredients laid down under the statute must be fulfilled.

A legal fiction must be confined to the object and purport for which it has been created. " It was furthermore observed:- "27. If a person, thus, has to be proceeded with as being variously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company. " The liability of the company is, therefore, a civil liability. It is also not a case where although a prima facie case had been made out disclosing commission of an offence, the court is A called upon to consider the defence of the accused. The First Information Report itself refers to the documents. They can, therefore, be taken into consideration for the purpose of ". of ascertaining as to whether the allegations made in the complaint petition read as a whole, even if taken to be correct in its entirety, discloses commission of any cognizable offence 8 or not.

As admittedly Respondent No. 2 was the supplier of garments which were found out to be defective in nature, we are of the opinion that the dispute between the parties is civil in nature. C 13. ·For the reasons aforementioned, the impugned ~ judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. The impugned summons issued· to the appellants are quashed. B. B. B. Appeal allowed. /