AJAY RAMCHANDRA PIMPARKAR Vs. SARASWATI AUTO COMPONENTS, THROUGH ITS MANAGING DIRECTOR, DILIP N DHARURKAR
LAWS(BOM)-2017-12-183
HIGH COURT OF BOMBAY
Decided on December 15,2017

Ajay Ramchandra Pimparkar Appellant
VERSUS
Saraswati Auto Components, Through Its Managing Director, Dilip N Dharurkar Respondents




JUDGEMENT

Prakash D. Naik, J. - (1.)Heard both parties for final disposal of the of the application.
(2.)The applicants are arrayed as accused in the complaint filed by the respondent in the Court of Judicial Magistrate,First Class, at Aurangabad, which is numbered as Regular Criminal Case No. 1551 of 2014. The applicants have invoked the inherent powers of this Court under Section 482 of the Code of Criminal Procedure to challenge the criminal proceedings arising out of the said complaint.
(3.)Brief facts, as alleged in the complaint, are as follows :
(a) The complainant is Private Limited Company registered under the provisions Companies Act. The complainant company is also known as ''NAC Group'' being a group of four companies. These companies are in the business of manufacturing Auto Components and supplies the products to Large Scale Automobile Industries, as well as health related services through '' The Apollo Clinic''.

(b) The accused No.1 is a subsidiary of Godrej & Boyce Mfg.Co. Ltd. The accused No.1 is engaged in rendering software services and consulting to various companies. The accused No.2 is the Chairman and Managing Director of Accused No.1. The accused No.3 is the Chief Executive Officer of the accused No.1 Company. Accused No.4 is Head of business activities. The accused No.5 is the project consultant and accused No.6 was Assistant Manager of the accusedCompany. The accused No.2 to 6 are looking after the affairs of conducting the business of accused No.1 Company. Therefore, they are responsible for liabilities, if any, incurred on behalf of accused No.1 Company.

(c) In the year 2006, the complainantcompany decided to have upgradation in the modes of operations and functioning of the company.

The whole intent behind it was to have easy control over the managing operations, transactions and reporting amongst the group of companies. For this,it was essential to connect the database of all group companies by implementing common software such as SAP.

Therefore, the complainant was in need of a professional software services company to design and implement the '' SAP system'' as per the requirement and function of the complainant's company.

(d) Coincidentally, A Marketing Officer of the AccusedCompany had visited MIDC area, Waluj, Aurangabad, for business purpose. He learnt that the complainant was interested to upgrade its office administration by implementing SAP system. Hence, he approached the complainant and represented about the competency and capabilities of the accused No.1Company in rendering services for implementation of SAP system.

(e) A meeting was organized at the office of accused No.2 as Mumbai, for discussion about implementation and working of the said project. The accused Nos.2 to 5 persuaded the complainant to place order with the accused Company to purchase and implementation of ERP, SAP B1 at complainant Company. It was also represented that the accused is a SAP Certified Partner and that they have all inhouse facility to develop system as per the requirement of the complainant and that they have expertise in SAP implementation methodology. It was also represented that such services were to facilitate rapid work successfully and they would implement SAP B1 as per the requirement of the complainant. The accused No. 2 to 5 gave a rosy picture about credentials of the Company.

(f) Considering the potential ability represented by the accused, the complainant placed work order dated 4th December, 2007. On 30th July, 2008, the accused No.6 visited the Complainant Company and submitted their work plan for implementation of the said project. It was agreed that the accused to receive rupees one lakhs on the date of the purchase order from the complainant and balance of Rs. 21 lakhs will be parted with during the course of the implementation of the project. The accused assured the complainant that the final system test of implementation as well as the working of the system will be completed by the end of October, 2008, and the project would ' GO LIVE ' by the end of 2nd week of November, 2008.

(g) After commencement of actual work for implementation of the project, the accused Nos. 2 to 6 made the complainant to disburse the amount of Rs. 21 Lakhs, time and again under the pretext of showing progress of implementation of the project. The complainant was induced to purchase/invest about Rs. 70 lakhs for hardware and raising infrastructure essential for the project.

(h) Despite the payment of the entire cost of the project by the complainant, accused were found reluctant to complete the project within stipulated period. The complainant also informed accused Nos.5 and 6 about incomplete work and problems in implementation of the SAP system. The complainant accepted that accused No.5 in his capacity as project cocoordinator shall endure to resolve the subsisting problem and complete the remaining work till mid March, 2009. The accused No.5 however, expressed inability and disclosed that his Company is unable to develop requisite addons as per the requirement of the complainant. It was represented that the accused would hire the services from outside consultant for completion of remaining work. The accused hatched the criminal conspiracy and deceived the complainant with malafide intention by giving hopes of completing the project. (i) The complainant approached the accused time and again to pursue them to complete the project. Despite sufficient opportunities, the accused failed and neglected to comply with the assurance for completion of the project up till September, 2011. The complainant realized that the accused have deceived the complainant. It was revealed that the accused were not capable of completing the project and implementation of the SAP B1 system, in spite of having knowledge that Company was unable to implement the project, the complainant was induced to obtain the purchase order. After about two years and realizing that the implementation of the project has failed, the complainant decided to revoke the purchase order vide letter dated 23rd October, 2011. The accused were informed about revocation of purchase order and requested to release the Debit note for refund of the amount paid by the complainant company.

(j) The accused thereafter, conveyed the meeting with the complainant to discuss the issue. The accused retreated and conceded that SAP B1 system does not support requisite Modules/components as per the requirement of the Complainant.

The accused also accepted liability to refund the cost of the implementation. The minutes of the meeting were prepared accordingly and the same were acknowledged by the accused Nos. 3, 4 and 5.

(k) The complainant kept reliance on the assurance given by the accused. The accused then started avoiding the refund of amount to the complainant. However, vide email dated 18th October, 2012, forwarded by the accused No.4, it was informed that, the complainant was itself responsible for the failure of the SAP B1 project. The complainant in its Email dated 18th December, 2012, forwarded detailed information about the fraudulent activities of the accused. However, as a last hope, accused No.2 was requested for amicable settlement of the issue. Initially, accused No.2 gave assurance about completing entire project successfully within time frame. However, subsequently, the said accused also lost interest. The complainant forwarded several reminders to accused.

(l) Accused Nos. 2 to 5, with dishonest intention have willfully induced the complainant to place the purchase order under the pretext that the accused Company is competent and would complete the project. They suppressed the fact that they have no expertise in that regard. The same has resulted into the huge loss to the complainant. They had invested about Rs. 78 lakhs in the said project and the entire amount was disbursed in favour of the accused. The accused thereby committed an offence of cheating and breach of trust. The accused Nos. 2 to 6 hatched criminal conspiracy to cause loss and damage to the complainant. The accused Nos. 2 to 6 had intentionally given false assurance with fraudulent intention to cause loss to the complainant. The complaint was filed on 30th August, 2014 alleging offences punishable under Sections 406, 418, 420 read with 120 B of the Indian penal Code.



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