Karnataka High Court
M/S Sabre Travel Technologies ... vs State Of Karnataka on 19 February, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2021 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION No.154/2021
BETWEEN:
1. M/S. SABRE TRAVEL TECHNOLOGIES PRIVATE LIMITED
HAVING ITS REGISTERED ADDRESS AT:
UNIT NO.1 AND 2, LEVEL NO.2
NAVIGATOR BUILDING
INTERNATIAONAL TECH PARK
SADARMANGALA PATTANDUR AG
BENGALURU-560066
REPRESENTED BY ITS MANAGING DIRECTOR
KULAKADA JAYAKUMAR
2. MR. VIKRAM KOLAR
AGED ABOUT 48 YEARS
VICE PRESIDENT
SABRE TRAVEL TECHNOLOGIES PRIVATE LIMITED
S/O KOLAR JAGANNATHA RAO
CURRENTLY RESIDING AT 141
SOBHA LAVENDER, GREEN GLEN LAYOUT
BELLANDUR, BENGALURU-560103.
3. MR. KULAKADA JAYAKUMAR
AGED ABOUT 56 YEARS
VICE PRESIDENT AND MANAGING DIRECTOR
SABRE TRAVEL TECHNOLOGIES PRIVATE LIMITED
S/O K BALAKRISHNAN
CURRENTLY RESIDING AT 11 C D EAST TOWER
KLASSIK BENCHMARK APARTMENT
KAMANAHALLI MAIN ROAD
BENGALURU-560076.
4. MR. ARUN REVI
AGED ABOUT 37 YEARS
PRINCIPAL COMPLIANCE COUNSEL
2
SABRE TRAVEL TECHNOLOGIES PRIVATE LIMITED
S/O REVI EASHWARAN
RESIDING AT SOORYA
PANICHAL LANE
KARIYAM, SREEKARYAM
POWDIKONAM, PO: 695587.
... PETITIONERS
(BY SRI C.V.NAGESH, SENIOR COUNSEL FOR
SMT.ANURADHA AGNIHOTRI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH MARATHAHALLI POLICE STATION
REPRESENTED BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGLAURU-560001.
2. MR. SHAIL DINESH MANIAR
AGED ABOUT 51 YEARS
SON OF DINESH HARIDAS MANIAR
VILLA 319, PHASE II
DEVARABEESANAHALLI
ADARSH PALM RETREAT
OUTER RING ROAD
BENGALURU-560 103.
... RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R1;
SMT.JYANA KOTHARI, SENIOR COUNSEL FOR
SRI ROHAN KOTHARI, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN CR.NO.417/2020
REGISTERED BY THE MARATHHALLI POLICE STATION, BENGALURU
AND ITS CONSEQUENT INVESTIGATION AGAINST THE PETITIONERS
PENDING ON THE FILE OF THE LEARNED 4TH ACMM, MAYO HALL AT
BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.02.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
ORDER
This petition is filed under Section 482 of Cr.P.C. praying
this Court to quash the FIR in Crime No.417/2020 registered by
the Marathahalli Police and pass such other orders as deem fit in
the circumstances of the case.
2. The factual matrix of the case is that respondent
No.2 herein has filed the complaint with the police vide his
complaint dated 3.11.2020 that in the year 1992, he had joined
Sabre at its head quarters in South Lake, Texas, USA and he was
transferred in various capacity to serve the Sabre office
locations. He was also offered a position as a Director on
12.01.2005 and he accepted the offer and moved to Bengaluru.
He had already completed 13 years of service with Sabre. In May
2017, all of a sudden the decision was made to terminate his
employment. By that time, he had nearly completed 25 years of
service in Sabre. The decision of terminating was without any
cause and hence, he would be entitled to a minimum severance
pay equal to 12 months of their last drawn salary. His annual
fixed salary was Rs.1,42,32,107/- and in addition, he was also
entitled to his full tenure gratuity for 25 years of service
amounting to Rs.96,36,325/-. Besides the above, he was
terminated without cause. He would have been entitled to the
payment of the above mentioned amount. Apart from that he
had a total of Rs.8,837/- RSU of Sabre, which was valued at
Rs.1,24,60,170/-. Hence, he was entitled to a minimum payment
of cash of Rs.3,49,15,782/-. He entered into the negotiations in
good faith with Sabre India for his voluntarily separation and in
the pursuance of the same, the mutual separation agreement
was entered into on 31.05.2017. By virtue of the MSA, he was
made to forego and forfeit all his claims against Sabre and
agreed to pay the amount by way of part-I payment of
Rs.52,89,399/- and part-II payment of Rs.2,06,69,245/- on or
before 10.12.2017.
3. It is alleged that however, soon after the first
tranche of payments was completed. They began behaving in a
suspicious and odd manner. He was alerted to this behaviour
when he began seeking one set of originals of the executed MSA.
The MSA was executed in two originals and both of the originals
were retained by Sabre India. When he insisted one copy, they
did not furnish in its entirety. By surprise on 13.12.2017, he
received an email that they have conducted an internal inquiry
after his departure from the Company and came to the
purported conclusion that he breached Sabre's Code of Business
Ethics. In the complaint, specific allegation is made that with
dishonest intention in order to cheat and defraud him, the MSA
was entered and the same was with criminal and mala fide intent
and deceived him in forgoing his valuable statutory and
contractual claims against them.
4. It is also urged in the complaint that the petitioners
herein never intended on performing the MSA and fraudulently
and dishonestly induced him in executing the said agreement,
for which he was deceived to forego his valuable post-
employment claims and he was cheated by executing the MSA.
Hence, it attracts the ingredients of the offence alleged in the
complaint. Based on the complaint, the police have registered
the case against these petitioners for the offence punishable
under Sections 120B, 406, 415, 418 and 420 read with Section
34 of IPC. Hence, the present petition is before this Court.
5. Learned counsel appearing for the petitioners would
vehemently contend that the averments made in the complaint
does not constitute an offence of cheating and breach of trust.
The learned counsel referring clause No.8 of the MSA, made a
specific allegation with regard to withholding the same and the
right was given to the petitioners herein. Learned counsel also
would vehemently contend that an application was filed before
the National Company Law Tribunal (NCLT) and the same was
dismissed. Thereafter, a civil suit was also filed for recovery of
amount, the specific defence was taken in the written statement
and the Trial Court also while rejecting the IA No.1 filed by the
complainant, held that the defendants have made out the
grounds to contest the summary suit. Learned counsel also
vehemently contend that complaint was given afterthought that
is after the complainant has exhausted the remedy before the
NCLT and also while the suit is pending before the Court, which
is nothing but an abuse of process.
6. In support of the said contention, learned counsel
appearing for the petitioners relied upon the judgment of the
Apex Court in the case of Sushil Sethi and Another v. State
of Arunachal Pradesh and Others reported in (2020)3 SCC
240. Referring to this judgment, learned counsel brought to the
notice of this Court para No.8 of the judgment, wherein the Apex
Court has held that there are no specific allegations against the
Managing Director or even the Director. The Apex Court also in
Maksud Saiyed v. State of Gujarat and Others reported in
(2008) 5 SCC 668 held that the penal code does not state any
provisions for attracting the vicarious liability on the part of the
Managing Director or the Director of the Company when the
accused is a Company.
7. Learned counsel also brought to the notice of this
Court para No.8.3, wherein the Apex Court has held that though
the FIR was filed in the year 2000 and the charge sheet was
submitted as far back as on 28.05.2004, the appellants were
served with the summons only in the year 2017 i.e., after a
period of approximately 13 years from the date of filing the
charge sheet. Under the circumstances, the High Court has
committed a grave error in not quashing and setting aside the
impugned criminal proceedings and has erred in not exercising
the jurisdiction vested in it under Section 482 of Cr.P.C.
8. Learned counsel referring to this judgment would
submit that the complainant/respondent has exhausted the
remedy before the NCLT and also filed a civil suit when the right
is given to withhold the claims of the respondent as per the
agreement, the same is in civil in nature and there cannot be
any criminal proceedings.
9. Learned counsel further relied upon the judgment of
the Apex Court in the case of Prof. R.K. Vjayasarathy and
Another v. Sudha Seetharam and Another reported in
(2019) 16 SCC 739 wherein the Apex Court has held that
prima facie absence of ingredients of offence would leads to
abuse of process of Court. Attempt to cloak a civil dispute with a
criminal nature despite absence of ingredients necessary to
constitute the criminal offence, the criminal proceedings has to
be quashed.
10. The learned counsel also relied upon the judgment in
the case of Binod Kumar and Others v. State of Bihar and
Another reported in (2014) 10 SCC 663, wherein the Apex
Court has held that the Civil liability cannot be converted to
criminal liability and it would amounts to abuse of process of
court. Learned counsel also referring to this judgment would
contend that the Apex Court has reiterated the principles with
regard to exercising the inherent powers to quash the
proceedings only in case where the complaint does not disclose
any offence.
11. Learned counsel also relied upon the judgment of the
Apex Court in the case of Commissioner of Police and Others
v. Devender Anand and Others reported in 2019 SCConline
SC 996, wherein the Apex Court has held that when the dispute
between the parties is of civil in nature, the initiation of the
criminal proceedings by the original complainant is nothing but
an abuse of process of law. It is further observed that even
considering the nature of allegations in the complaint, no case is
made out for taking cognizance of the offence and when the case
involves the civil dispute and for settling the civil dispute, the
criminal complaint has been filed, which is nothing but an abuse
of process.
12. Learned counsel also relied upon the judgment in the
case of Satishchandra Ratanlal Shah v. State of Gujarat
and Another reported in (2019) 9 SCC 148. Referring to this
judgment, learned counsel brought to the notice of this Court the
principles laid down in the judgment while quashing of FIR
making an allegation of breach of contractual obligation
criminalization of civil disputes is impermissible.
13. Learned counsel also relied upon the judgment in the
case of Medmeme, LLC and Others v. Ihorse BPO Solutions
Private Limited reported in (2018) 13 SCC 374 and brought
to the notice of this Court para No.11 of the judgment, wherein
the Apex Court has observed with regard to whether dispute
between the parties is essentially of a civil nature or any case is
made out against the appellants for launching the criminal
prosecution has to be looked into.
14. Learned counsel also relied upon the judgment of the
Apex Court in the case of Joseph Salvaraj A. v. State of
Gujarat and Others reported in (2011) 7 SCC 59. Referring to
this judgment, learned counsel would submit that the Apex Court
has summarized the principles with regard to quashing of FIR
invoking Section 482 of Cr.P.C. When the FIR clearly discloses
that civil dispute between the parties are summary civil suit and
also related to the matter filed by the person with proper locus
standi, still pending and unconditional leave to defend was
granted to the complainant, absence of locus standi of the
complainant to file either civil or criminal proceedings would
effect in exercising the powers under Section 482 of Cr.P.C.
15. Per contra, learned counsel appearing for the
respondent No.2 would vehemently contend that the complaint
averments is very specific that with the dishonest intention, the
petitioners have entered into the MSA and also in terms of MSA
made part-I payment and failed to make part-II payment as
mentioned in the complaint. After the expiry of the period within
10 days, utter surprise, an email was sent complaining the
misleads of the respondent.
16. Learned counsel would vehemently contend that first
of all entire MSA is not supplied even though request was made.
Learned counsel also would vehemently contend that the
statement was filed before the Company Board for the year
2016-17 an 2017-18 and they themselves have declared that
the employees have not indulged in any fraud and also they
have not declared the same as envisaged under Section 134 of
Companies Act. The report of the auditor is also clear that no
fraud was played. When such being the case, the allegation
made in the email, subsequent to the expiry of the period, it
clearly discloses that with dishonest intention, the petitioners
have entered into MSA. The complainant averments is specific
with regard to fraud and cheating done by the petitioners instead
of making the payment in terms of MSA. Hence, the matter has
to be probed.
17. Learned counsel for the respondent No.2, in support
of her contention, relied upon the judgment of the Apex Court in
the case of K.Jagadish v. Udaya Kumar G.S. reported in 2020
SCC Online SC 318 and brought to the notice of this Court para
Nos.9 to 14, wherein the Apex Court has held that it is thus well
settled in certain cases the very same set of facts may give rise
to civil as well as in criminal proceedings and even if a civil
remedy is availed by a party, he has not precluded from setting
in motion the proceedings in criminal law.
18. Learned counsel also relied upon the judgment of the
Apex Court in the case of Kamal Shivaji Pokarnekar v. State
of Maharashtra and Others reported in (2019) 14 SCC 350.
Learned counsel referring to this judgment brought to the notice
of this Court para Nos.5 and 9 with regard to quashing of
criminal proceedings and wherein, the Apex Court has held that
the same is called for only in a case where the complaint does
not discloses any offence, or is frivolous, vexatious, or
oppressive. If the allegations set out in the complaint do not
constitute the offence of which cognizance has been taken by the
Magistrate, it is open to the High Court to quash the same.
19. Learned counsel referring this judgment would
vehemently contend that the contents of the complaint is very
specific and it is stated that with the dishonest intention, the
petitioners have entered into MSA and only after the period of
payment, they have indulged in making the allegation against
respondent No.2.
20. Learned counsel also relied upon the judgment in the
case of Mohd. Allauddin Khan v. State of Bihar and Others
reported in (2019) 6 SCC 107 and brought to the notice of this
Court para Nos.8 to 14, wherein the Apex Court has held that
High Court did not examine the case with a view to find out as to
whether the allegations made in the complaint prima facie make
out the offences. Instead, the importance was given to the fact
that the dispute was pending between the parties in the civil
Court in relation to a shop as being landlord and tenant, it is
essentially a civil dispute between the parties. Further, it is held
that High Court had no jurisdiction to appreciate the evidence of
the proceedings under Section 482 of Cr..P.C.
21. Learned counsel also relied upon the judgment of the
Apex Court in the case of Syed Askari Hadi Ali Augustine
Imam and Another v. State (Delhi Administration) and
Another reported in (2009) 5 SCC 528 and brought to the
notice of this Court para Nos.21 to 25 and 29, wherein, the Apex
Court has observed that a civil proceedings as also a criminal
proceedings may proceed simultaneously. Cognizance in a
criminal proceeding can be taken by the criminal Court upon
arriving at the satisfaction that there exists a prima facie case. It
is also held that where a question as to whether a civil suit or a
criminal case should be stayed, it mainly depends upon the
factual circumstances of the each case.
22. Learned counsel also relied upon the judgment in the
case of Som Mittal v. Government of Karnataka reported in
(2008) 3 SCC 753. Referring to this judgment, learned counsel
brought to the notice of this Court para No.17, wherein the Apex
Court has observed that 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 offence or make out a case, under such
circumstance, the Court can exercise the powers under Section
482 of Cr.P.C. If the complaint do constitute a cognizable
offence, the Court can proceed with the case. The Apex Court
has laid down 7 steps with regard to exercising the powers under
Section 482 of Cr.P.C. and none of the steps as enumerate
therein attracts the present case on hand.
23. Learned counsel also relied upon the judgment in the
case of Indian Oil Corporation v. NEPC India Limited and
Others reported in (2006) 6 SCC 736 and brought to the
notice of this Court para Nos.12, 15 to 18, 34 to 36 and 38,
wherein the Apex Court has held that if allegations in the
complaint, taken at their face value, disclose a criminal offence,
complaint cannot be quashed merely because it relates to a
commercial transaction or breach of contract for which civil
remedy is available or has been availed.
24. Learned counsel relied upon the judgment in the
case of Devender Kumar Singla v. Baldev Krishan Singla
reported in (2005) 9 SCC 15 and brought to the notice of this
Court para Nos.7 and 8, wherein the Apex Court held that
cheating and dishonest inducement, and making of a false
representation which are the essential ingredients of Section 420
of IPC may be inferred from all the circumstances including the
conduct of the accused in obtaining the property. In the true
nature of things, if it is not always possible to prove dishonest
intention by any direct evidence. It can be proved by a number
of circumstances from which a reasonable inference can be
drawn showing the mens rea.
25. Learned counsel also relied upon the judgment in the
case of Lalita Kumari v. Government of Uttar Pradesh and
Others reported in (2014) 2 SCC 1, wherein the Apex Court
has held that when the complaint discloses the cognizable
offence, it is mandatory on the part of the Station House Officer
to register the FIR. Learned counsel referring to this judgment
would contend that the complaint given by respondent No.2
discloses the commission of a cognizable offence and when such
being the case, the Station House officer has to register the case
as mandated under Section 154 of Cr.P.C. In the case on hand,
taking the contents of the complaint, the case has been
registered.
26. In reply to the arguments of the learned counsel
appearing for respondent No.2, learned counsel for the
petitioners would vehemently contend the complainant had
approached the NCLT and exhausted the alternative remedy
which was available to him. The petitioners have come to know
the omissions and commissions only after the internal enquiry.
Hence, they withheld the amount. Learned counsel also would
submit that Section 134 of the Companies Act cannot be relied
upon and the fact of commissions and omissions has come to the
light of the petitioners only after holding the internal enquiry.
The civil suit has also been filed by the complainant by availing
the remedy available to him. When such being the case, there
cannot be any criminal proceedings.
27. Having heard the learned counsel for the petitioners
and learned counsel appearing for respondent No.2, this Court
has to examine as to whether it is a fit case to exercise the
powers under Section 482 of Cr.P.C. for quashing the FIR.
Having perused the principles laid down in the judgments
referred supra, no doubt, it is settled law that when the civil
remedy is available and the contractual liability is violated, the
party can opt the remedy of civil remedy. It is also settled law
that if the criminal culpability is found in the allegations made in
the complaint, there is no bar to prosecute the same and
simultaneously, the same can be proceeded as held by the Apex
Court. This Court has to examine whether the criminal culpability
is found in the case on hand or not. Before analyzing the same
this Court would like to refer to the judgment of the Apex Court
in the case of Dineshbhai Chandubhai Patel v. The State of
Gujarat reported in 2018 (3) SCC 104, wherein the Apex
Court has summarized the principles as to how to deal with
regard to the context of challenge to FIR. In this judgment the
Apex Court has held that in order to examine as to whether
factual contents of FIR disclose any prima facie cognizable
offence or not, High Court cannot act like an investigating
agency and nor can exercise powers like an Appellate Court. The
question is required to be examined, keeping in view, contents
of FIR and prima facie material, if any, requiring no proof. At
such stage, High Court cannot appreciate evidence nor can it
draw its own inferences from contents of FIR and material relied
on. It is more so, when the material relied on is disputed. In
such a situation, it becomes the job of investigating authority, at
such stage, to probe and then of the Court to examine questions
once the charge-sheet is filed along with such material as to how
far and to what extent reliance can be placed on such material.
Once the Court finds that FIR does disclose prima facie
commission of any cognizable offence, it should stay its hand
and allow the investigating machinery to step in to initiate the
probe to unearth the crime in accordance with the procedure
prescribed in the Cr.P.C.
28. Keeping in view of the principles laid down in the
judgments referred above, and also the judgments referred by
the respective counsel, the Court has to examine whether the
contents of the complaint makes out a case to initiate the
criminal proceedings against the petitioners. It is not in dispute
that civil suit is filed and that there was an agreement between
the parties to MSA and so also part-I payment was made but the
dispute is in respect of part-II payment as contemplated under
the MSA.
29. The main contention of the learned counsel for the
petitioners is that the dispute is civil in nature. It is also
important to note that the payment was ought to have been
made within the stipulated time as per the agreement. It is also
noticed by this Court that the said amount was not paid within
the stipulated time except the part-I payment. The main
contention of the learned counsel for the petitioners that there
was some omissions and commissions on the part of the
complainant and as a result, the Company has suffered loss. It is
further important to note that this defence is forthcoming only
during the course of the arguments and no material is on record
with regard to such omissions and commissions on the part of
the complainant.
30. Learned counsel appearing for respondent No.2
brought to the notice of this Court with regard to fraud is
concerned, there is no such report in respect of the same. It is
also important to note that the allegations with regard to
omissions and commissions are raised after the expiry of the
period of part-II payment as agreed upon. The complainant in
the complaint made the specific allegations that with dishonest
intention, the MSA was executed and such dishonest intention
was at the inception. When it is brought to the notice of the
Court that when the dishonest intention is forthcoming at the
inception of entering into the contract, then the criminal
culpability is found to proceed against the petitioners.
31. On perusal of the entire complaint, the dishonest
intention and fraudulent act was narrated in para No.8 and so
also in para No.12 with respect to presence of mens rea to cheat
and defraud the complainant. The said aspect has to be probed
by conducting the investigation. The complainant also specifically
urged in the complaint in para No.13 that the petitioners herein
never intended of performing the MSA and fraudulently and
dishonestly induced the complainant in executing the said
agreement. When such criminal culpability is alleged at the
inception of entering into the contract, there was a dishonest
intention and the same has to be considered while invoking
Section 482 of Cr.P.C.
32. This Court also in the judgment in Criminal Petition
No.3197/2020 between Yogesh Agarwal and Ors. v. State
of Karnataka and Ors vide order dated 24.9.2020 referred
several judgments of the Apex Court and held that when both
the remedies are available, one under the civil and another
under the criminal law and allegations constitute an offence,
then under such circumstances, it is not a case to quash the
proceedings. It is trite law that on plain reading of the contents
of the complaint, if no case is made out and the investigation
and trial are not going to serve any purpose, then under such
circumstances, the Court can quash the proceedings.
33. In the case on hand, the complaint is specific that
with dishonest intention, the MSA was entered into between the
parties. This Court would also like to refer to the principles laid
down in Criminal Appeal No.255/2019 between Sau. Kamal
Shivaji Pokarnekar v. The State of Maharashtra and Ors. at
para No.9, the Apex Court has held that criminal complaints
cannot be quashed only on the ground that the allegations made
therein appear to be of civil nature. If the ingredients of the
offence alleged against the accused are prima facie made out in
the complaint, the criminal proceeding shall not be interdicted.
34. Having perused the material on record, this Court
already pointed out that there was MSA between the parties and
also an agreement between the parties. No doubt, there is a
clause to withhold the amount. The question before the Court is
that whether there was dishonest intention at the inception of
the entering into contract and if so, the said question has to be
probed by the Investigating Officer if the complaint prima facie
discloses the cognizable offence and hence, once the cognizable
offence is found in the allegations made in the complaint, the
Investigating Officer has to be probe the matter as established
under law.
35. In view of the discussion made above, I proceed to
pass the following:-
ORDER
The petition is hereby dismissed.
Sd/-
JUDGE
PYR
