Holding

The Supreme Court held that the allegations do not disclose a cognizable offence and the dispute is civil; therefore, the summons were quashed.

Summary

The case arose from a contract for the export of garments from India to Germany. The German buyer rejected the goods as defective, and the supplier (Respondent No.2) alleged that employees of the certifying agent company (the appellants) failed to pay the value of the exported garments. A complaint was lodged under IPC sections 1208, 409 and 420 and summons were issued against the appellants. The appellants sought quashing of the summons under CrPC s.482, which the High Court rejected. The Supreme Court held that the FIR did not disclose any misrepresentation or criminal misconduct at the contract formation stage, that the appellants made no personal representations and could not be vicariously liable merely as employees, and that the dispute was essentially civil. Consequently, the summons were quashed and the appeal was allowed.

Issues considered

Whether the allegations in the FIR disclose a cognizable offence warranting criminal prosecution.
Whether employees of a certifying agent can be held criminally liable vicariously for the company's contractual breach.
Whether Section 482 of the CrPC can be invoked to quash the summons in the present circumstances.
Whether the matter is a civil dispute rather than a criminal offence.

Legislation cited

Code of Criminal Procedure, 1973s. 482
Indian Penal Code, 1860s. 1208, s. 405, s. 409, s. 415, s. 420

Subjects

Section 482 CrPCquashing of criminal proceedingsvicarious liabilitycivil disputecontract breachexport garmentscheatingcriminal breach of trust

Judgment

[2008] 17 S.C.R. 1412

A SHARON MICHAEL AND ORS.
v.
STATE OF TAMIL NADU AND ANR.
(Criminal Appeal No. 2089 of 2008)

DECEMBER 19, 2008
B
[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:
D 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 accused-
E appellants 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
F 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
G 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.
H 1412
SHARON MICHAEL AND ORS. v. STATE OF TAMIL 1413
NADU AND ANR.

Allowing the appeal, the Court A
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 B
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 C
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 E
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 F
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, G
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
H

'
1414 SUPREME COURT REPORTS [2008] 17 S.C.R. #

A 85, referred to.
Case Law Reference:
&
(2008) 14 SCALE 85 referred to Para 12
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2089 of 2008.
B
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.
c 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
D 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-
E 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,
F 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 that-
G the 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 ~

H furtherance of the said contract entered into by and between
SHARON MICH~EL AND ORS. v. STATE OF TAMIL 1415
NADU AND ANR. [S.B. SINHA, J.]

the parties, export of the said garments were made by A
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 B
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 : c
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 re-
export 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 E
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 F
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 : G
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) H
1416 SUPREME COURT REPORTS ,,. [2008] 117 S.C.R.

6
A 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.
B
Our clients state that within a few days, it was found that
your factory was having only around 15 machines and
.
worse, the factory itself as not ,running for a few months and
I
<
you had given the entire order on job work basis to various '
'
~
smaller units in Tirupur. At that stage, our client had ,.
c committed _the delivery schedule to the buyer in Germany
and also acceptea heavy penalties in case of delayed
delivery of short supply. Thus, there was no choice for our
clients to cancel the order with you and find another f
manufacturer. Further, rejection would be automatic and
D you were directed to ensure very strict qu.ality checks and
delivery- schedules. You have assured TMS that despite the
out sourcing of the work, quality and delivery schedule
would not be an issue since you would personally see the ,..
order is carried out categorically.
E Our clients state that despite these assurance, you could
I
not stick to the schedule delivery date and lllltimately, even
the letter of credit opened on you by Manhattan expired.
To our clients short and dismay, it was found that practically
none out of the garment were defective. A Complete quality
F check was proving difficult because of your non-
cooperation and finally TMS had to send. its staff from ~- /

Chennai to supervise the quality check by end January
2005. The order was coming into your factory from various
jobbers in bits and much time the garment was checked,
it could not be the checked garment factory since you did ,_
G
not even have an repeating apparently, many of the pieces
rejected to TMS quality control staff were repeated and
brought by you as if it had passed scrutiny. Ultimately by
middle of February 2005, our client already threatened with
.
huge penalties by the buyer due to delay, decided that
H
SHARON MICHAEL AND ORS. v. STATE OF TAMIL 1417
__,1 NADU AND ANR. [S.B. SINHA, J.]

7.080 pieces would be shipped out on the understanding A
that you will receive payment only for those garments
~'
accepted by the buyer. The final inspection reports from
TMS passed these items only under your letter of
guarantee for the various defects pointed out in the reports.
It is relevant that Order No.7051949 Styles P30837 totally B
rejected by TMS, Tirµpur, since the fabric did not meet the
specifications given in the purchase order.
Accordingly, the other shipments pertaining to Order
~1 No.7051961 & 7051964 left Chennai under Airway Bill
. Nos.020-34456435 dated 18.02.2005 and No.020-
34456413 dated 19.02.2005 destination DOsseldorf,
c
Germany. By e-mail dated 1.3.2005, the buyer Exprit,
Germany have informed TMS, Channai that the entire
co~signment was rejected by them. Our client's enquiries
with the buyer revealed that on random checking, it was
found that practically every piece checked had some D I

defect or the other and their stores could not retail such
poor quality stock. Our clients have pleaded with the buyer
,l to salvage at least those few pieces which they would feel
acceptable qualitywise and that process is still underway.
However, our clients have been informed clearly that there E
is no obligation on the part of the buyer to accept even a
single garment since it is not their job to check each and
every garment before accepting the goods. Such random
checks are the accepted trade practice and failure to
adhere to such strict quality norms has resulted in huge F
losses to our clients. Our clients state that in particular, TMS
has lost commission amounting to 1882-90 Euros (Rs.
One lac three thousand five hundred and sixty only) and
Manhattan have been threatened by the buyer with a claim
equal to five time the FOB value (Rs.2,58,90,000). In fact
Manhattan have already received a debit note from the G
buyer for style P30857 for 52020.54 Euro. Further claims
are expected any m~ment. Our clients state that you are
directly responsible for these losses. You have deliberately
i
made our clients risk their reputation in the international
market and you have exposed our clients to severe losses H
1418 SUPREME COURT REPORTS [2008) 17 S.C.R.

A by your irresponsible and dishonest acts. You have
deceived our cli~nts into placing the order with you by
falsely representing that you have the experience,
infrastructurE{and means to carryout the order on top of all
' /
these you appear to have given some false complaint to
the Crime Branch, Tirupur as ifTMS has cheated you. You
B
are hereby called upon to immediately withdraw this
complaint which clearly amounts to malicious prosecution
meant to harass our clients failing which our clients would
take severe action against you. Our clients also hereby put
you on no.tice that the consignment is lying at Germany and
c despite our clients repeated mails to you, you have neither
bothered to respond and explain and rejection of the goods
nor have you agreed to m~ke arrangements to take back
the consignment. Our clients have been informed by the
buyer that they will not be responsible for the consignment
D after 10.4.2005. The warehousing and handling charges
would have to be borne by you. Having guaranteed the
quality of the consignment to the standards set by the
buyer, you cannot today claim the value ofthe order from
~
our clients and instead you are due to. our clients the I

E damage suffered by them by your non-performance. On
behalf of our clients, we hereby call upon you to pay our
clients a ·sum of Rs.28,61, 130/- being the rupee equivalent
of 52,020.54 Euro within 15 days of receipt of this notice,
failing which our clients will institute appropriate legal
action for the recovery thereof, needless to add at your
F costs and consequences. Further, be forewarned that
further claims from the buyer to our client's account will be
in turn claimed by our' clients from you. This notice is
· issued without prejudice to our clients rights to you for
malicious prosecution and damages on account of your
G complaint to the Police against our clients, if the need
arises."
6. A first information report was lodged by respondent No.2
before the Coimbatore Pol'ice Station on or about 4.6.2005,
inter alia, requesting the officer in charge of the Police Station
H
SHARON MICHAEL AND ORS. v. STATE OF TAMIL 1419
NADU AND ANR. [S.B. SINHA, J.]
to take legal action for the alleged offences committed by the A
appellants and help it to recover the amount from them .
..,;.;
Thereupon Crime No. 32 of 2005 was registered.
It is not in dispute that after two employees of the appellant
company were arrested, a sum of Rs.30,00,000/- (Rupees thirty
lacs only) was paid by the appellant company to the respondent B.
No.2. It is further stated that another sum of Rs.18,00,000/-
(Rupees eighteen lacs only) is owing and due to them. It is at .
that stage, the appellants filed an application under Section 482
•>
of the Code of Criminal Procedure .
• By reason of the impugned judgment, while dismissing the c
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". D
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
E
"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
F
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. G
----\
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
H
1420 SUPREME COURT REPORTS [2008] 17 S.C.R.

A 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
B 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."
c 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
D 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:
E
"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
F 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
G 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
H second respondent-police, the question of quashing the
SHARON MICHAEL AND ORS. v. STATE OF TAMIL 1421
NADU AND ANR. [S.B. SINHA, J.]

case registered against the petitioners does not arise for A
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. B
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 c
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
was incorrect, an appropriate action against them could have F1
'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; G
(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." H
I .
1422 SUPREME COURT REPORTS [2008] 17 S.C.R.

A 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
B 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
c 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:
D "(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."
E
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.
F
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
G 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
H
SHARON MICHAEL AND ORS. v. STATE OF TAMIL 1423
NADU AND ANR. [S.B. SINHA, J.]

which is one of the main ingredients for constituting an A
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 B
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 c
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 D
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
E
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."
F
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
G
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
H
1424 SUPREME COURT REPORTS [2008) 17 S.C.R.

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.

/