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2015 DIGILAW 329 (JHR)

State of Jharkhand v. Ramnand Prasad

2015-02-27

AMITAV K.GUPTA

body2015
JUDGMENT :- This revision is directed against the order dated 01.02.2011 passed by the learned Judicial Magistrate, Ist Class, Pakur in Pakur Nagar P.S.Case NO.02/2004 whereby petition for discharge from the charges for the offence under Sections 406,408,420 and 120B IPC has been rejected. 2. Learned counsel for the petitioner has submitted that the informant had earlier lodged a complaint case under Sections 138 of Negotiable Instruments Act in the year 2002 alleging therein that Somnath Chatterjee, brother of the petitioner had received the money and issued the receipt. That subsequently, in 2004 on the same facts the informant has lodged the present case under Sections 406,408,420 and 120B IPC alleging that this petitioner along with Somnath Chandra had assured the informant that they would deliver the second hand truck and had taken Rs.2,40,000/-. It is alleged that when the petitioner asked for delivery of the truck then on one pretext or other they kept delaying the delivery of the truck and finally refused to deliver the truck. That after investigation police submitted the charge-sheet. 3. It is argued that there is no material in the case diary to show that any money or the draft was handed over or entrusted to this petitioner. Thus in the absence of any entrustment of property there can be no breach of trust to make out a case under Section 406 IPC or of cheating under Section 420 IPC against the petitioner. In support of the contention reliance has been placed on the decision in the case of G.Sagar Suri vs. State of U.P., reported in (2000)2 SCC 636 . It is urged that in similar facts and circumstances, the aforesaid case was filed under Section 138 of the Negotiable Instrument Act and the Supreme Court had held that since no averment was made regarding the offence under Sections 406 and 420 in the case filed under Section 138 of the N.I.Act then lodging of a subsequent case, on the same set of facts, is an abuse of process of court and law ,accordingly discharged the accused and quashed the proceeding. It is submitted that the facts of this case is in parimateria with G.Sagar Suri's case(Supra) and as per the ratio laid down by the Apex Court the impugned order is fit to be set aside. 4. It is submitted that the facts of this case is in parimateria with G.Sagar Suri's case(Supra) and as per the ratio laid down by the Apex Court the impugned order is fit to be set aside. 4. It is submitted that the petitioner is the Director and there is no provision in the Indian Penal Code fastening vicarious liability on a Director of a Company. To substantiate the argument reference has been made to the decision in the case of S.K.Alagh vs. State of U.P., reported in 2008(4) East. Cr.C.11(SC) wherein it has been held that Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself. Learned counsel has also placed reliance on the decision in the case of Sanjiv Paul vs. Central Bureau of Investigation, repoted in 2013(3) JCR 469 (Jhr.) wherein it has been held that in Indian Penal Code, save and except some provisions specially providing thereof, does not contemplate vicarious liability on the part of the party, if the person is not charged directly for commission of an offence. 5. It is contended that the draft, if any, was deposited in the name of the Company and not in the personal account of the petitioner. That the material on record categorically shows that receipt for Rs.2500/-and the draft of Rs.2,40,000/-was issued by Somnath Chandra, the alleged proprietor of the firm, namely, Mayur Credit Corporation and not this petitioner. 6. It is argued that in view of the settled proposition of law and in the absence of any material evidence on record the petitioner deserves to be discharged of the charges under Sections 406,408,420 and 120B IPC. 7. Per contra, learned A.P.P. assisted by learned counsel appearing on behalf of O.P., has contended that the case under Section 138 of the N.I. Act, was filed against Somnath Chandra as he had issued the cheques which were dishonoured due to insufficient funds. It is submitted that in the FIR of this case it has been alleged that this petitioner was present when the draft was handed over to Somnath Chandras, brother of the petitioner. That the informant has stated that he had called on the mobile of this petitioner demanding the return of the money or delivery of the vehicle upon which petitioner had refused and threatened him. That the informant has stated that he had called on the mobile of this petitioner demanding the return of the money or delivery of the vehicle upon which petitioner had refused and threatened him. That the witnesses in the case diary have stated that Mayur Credit Corporation had taken money from other purchasers and had cheated them. That the witnesses in paras 9 and 10 of the case diary have supported the fact that two drafts of Rs.1,20,000/-each amounting to Rs.2,40,000/-were purchased by the informant in favour of Mayur Credit Corporation and this petitioner alongwith his brother Somnath Chandra had come to the house of the informant and received the two drafts, each of Rs.1,20,000/-and cash of Rs.7,500/-. This petitioner was present along with his brother, Somnath Chandra when assurance was given by Somnath Chandra that the truck would be delivered within a week. That the informant had gone with the witnesses to Calcutta and this petitioner alongwith co-accused had given assurance that the truck which was shown to them earlier had been sold and they had assured that they would get th papers ready for another truck. That the informant kept meeting them for two years but they neither delivered the truck nor returned the money. That the trial court has considered the material evidence on record and rightly rejected the petition for discharge. 8. Heard. On perusal of the decisions rendered in the case of G.Sagar Suri(Supra), it is apparent the petitioners in the said case had no role in running the affairs of the Company and there was no averment as to what role they had played in misrepresentation or duping the informant. In the decisions rendered in the case of S.K.Alagh(Supra) and Sanjiv Paul(Supra) there was no specific allegation of any overt act or role played by the Director or Directors of the said Company. However, in the instant case it is not disputed that the petitioner is the Director of Mayur Credit Corporation, of which his brother Somnath Chandra is the proprietor. They had appointed a commission agent, Jamil in a remote area like Pakur for bringing customers to purchase second hand truck to the office situated at Kolkata. Admittedly, the informant had purchased two drafts of Rs.1,20,000/- each, from a Bank at Pakur, drawn in favour of Mayur Credit Corporation, Kolkata. They had appointed a commission agent, Jamil in a remote area like Pakur for bringing customers to purchase second hand truck to the office situated at Kolkata. Admittedly, the informant had purchased two drafts of Rs.1,20,000/- each, from a Bank at Pakur, drawn in favour of Mayur Credit Corporation, Kolkata. The trial court has considered and discussed the material evidence collected during investigation and statement of witnesses, namely, Raj Kumar Sah, Bimal Raut, Triveni Bhagat and Kamal Seikh, recorded under Section 161 Cr.P.C. They have supported the informant's allegation that this petitioner alongwith his brother had come from Calcutta to Pakur, at the house of the informant and received the two drafts of Rs. 1,20,000/-each and cash of Rs.7,500/-for which receipts were granted with assurance that they would deliver the second hand truck within a week. The photo copy of the demand drafts and the receipts have been collected by the police during the investigation. One of the witnesses has stated that he had also deposited money through the drafts drawn in favour of Mayur Credit Corporation of which the petitioner is the Director. The witnesses have stated that the drafts were handed over in their presence. 9. It is well settled that at the stage of framing of charge a roving enquiry is not be made but the evidence can be sifted and weighed for the limited purpose to appreciate whether the complicity or involvement of a person is made out in the offence or a prima facie case is made out to proceed in the case. It is well settled that even in case of a strong or grave suspicion charge can be framed. The trial court has discussed the material evidence on record and recorded its satisfaction that prima facie case is made out for framing charge under Sections 406,408,420 and 120B IPC against the accused persons including this petitioner. It is a speaking order after application of judicial mind. 10. The plea of the petitioner that he is merely a Director and he did not issue the receipts can not be looked into at this stage. The liberty is reserved with the petitioner to raise his defence when the evidence is laid during the trial. 11. In the attending facts and circumstances of the case there is no illegality or impropriety in the order warranting interference by this Court. Accordingly the revision is hereby dismissed.