ORDER : Initially this application was filed for quashing of the order dated 06.11.2012 passed in G.R. No. 392 of 2012 (Dhanbad (Bank More P.S. Case No.104 of 2012), whereby and whereunder the court took cognizance of the offences punishable under Sections 406, 420 and 506/34 of Indian Penal Code. In course of time, when an application for discharge, filed before the court below, was rejected, said order dated 27.07.2015 was challenged by way of interlocutory application. 2. Heard Mr. Gautam Kumar, learned counsel appearing for the petitioners, Mr. Vijai Kumar Gupta, learned counsel appearing for the State and Mr. Delip Jerath, learned counsel, assisted by Mr. Ashutosh Anand, learned counsel appearing for the opposite party no. 2. 3. Before adverting to the submissions advanced on behalf of the parties, the case of the prosecution needs to be taken notice of which is as follows : 4. A piece of land measuring an area of 73 decimals, situated at Bank More, Dhanbad, belonging to M/s B.N. Hotels Pvt. Ltd. was mortgaged with the United Bank of India by the petitioners' company known as M/s World Metal Movers which subsequently is being known as M/s B. N. Hotels Pvt. Ltd. Due to non-payment of the loan advanced in favour of the said company, the Bank moved to the Debt Recovery Tribunal for recovery of the outstanding amount due to be paid by the Company. The property was to be auctioned sold. At that point of time, Rajendra Kumar Gupta, the Managing Director of the Company, who was under financial constraint, approached to the complainant-Opp. Party No.2 and offered the said piece of land for its development on a condition of payment of Rs.55 Lacs to Rajendra Kumar Gupta so that payment be made to the Bank and the property be made free from all incumbrances. The complainant-O.P. No.2 accepted the said offer and paid the said amount. Thereupon Rajendra Kumar Gupta, the Managing Director of the Company, on behalf of the company M/s B.N. Hotels Pvt. Ltd. entered into a development agreement on 08.08.2007. After execution of the development agreement, possession of the land was handed-over to the complainant on 03.04.2008 whereupon construction got started. By the passage of time, when the complainant did invest a sum of Rs.5,21,59,889/-, dispute arose in between the parties. After execution of the development agreement, possession of the land was handed-over to the complainant on 03.04.2008 whereupon construction got started. By the passage of time, when the complainant did invest a sum of Rs.5,21,59,889/-, dispute arose in between the parties. According to the development agreement, original deed pertaining to the land was required to be handed-over to the O. P. No.2 for the purpose of putting the property under mortgage so that the O. P. No.2 may get loan from the financial institution for completion of the project, but said Rajendra Kumar Gupta in spite of repeated requests, did not hand-over the documents which hampered the progress of the construction work. The dispute resulted into an appointment of the Arbitrator. While the matter was pending before the Arbitrator, said Rajendra Kumar Gupta on behalf of the Company, did revoke the power of attorney and also cancelled the development agreement and the complainant was asked to hand-over the possession of the said land. After receiving a letter to that effect, when the complainant did approach to said Rajendra Kumar Gupta and raised grievances that he has been cheated, he was threatened with dire consequences. 5. Thereupon a complaint bearing C.P. Case No.154 of 2012 was filed which was sent before the concerned police station for its institution and investigation. Accordingly, Dhanbad (Bank More) P.S. Case No.104 of 2012 was registered under Sections 406, 420, 506/34 of the Indian Penal Code. 6. After the case was instituted, the Company, namely, M/s B. N. Hotels Pvt. Limited, and Rajendra Kumar Gupta moved to the Court vide Writ Petition (Cr.) No. 49 of 2012 for quashing of the first information report. That writ application was dismissed by the Court after holding that a prima facie case, under which first information report has been registered, is made out. 7. Being aggrieved with that order, the company as well as Rajendra Kumar Gupta moved before the Hon'ble Supreme Court vide Special Leave to Appeal No.(Cr.) 8563 of 2012 which also got dismissed. 8. Subsequent to that, Champa Devi and Rajendra Kumar Gupta moved this Court by filing an application bearing Cr. M. P. No. 277 of 2013 under Section 482 Cr.P.C. for quashing of the order taking cognizance. That application also got dismissed. 9. 8. Subsequent to that, Champa Devi and Rajendra Kumar Gupta moved this Court by filing an application bearing Cr. M. P. No. 277 of 2013 under Section 482 Cr.P.C. for quashing of the order taking cognizance. That application also got dismissed. 9. Being aggrieved with that order, one Champa Devi moved before the Hon'ble Supreme Court vide Special Leave to Appeal (Cr.) No. 460 of 2014 which was dismissed giving liberty to her to raise all the issues before the trial court at the time of discharge. 10. According to the learned counsel appearing for the petitioners, these two petitioners-Ashok Kumar Gupta and Kanhailal Gupta (Directors of the Company) were never the parties in any of the applications either moved to this Court or before the Hon'ble Supreme Court and that admittedly they had never approached to the complainant for entering into a development agreement and that these petitioners are not the persons who had received a sum of Rs.55 Lacs from the complainant and that to this effect, no allegation whatsoever is there in the complaint petition and, therefore, the charge-sheet had initially been submitted only against Rajendra Kumar Gupta but subsequently supplementary charge-sheet was submitted against the company-M/s B.N. Hotels Pvt. Ltd. and all its Directors, including these petitioners, though nothing had come during investigation even about the role being played in the matter of commission of the offences either under Section 406 or 420 or 506 of the Indian Penal Code and in that situation, an application for discharge was filed but that was rejected without appreciating the fact that no overt act is there on the part of these petitioners for constituting any of the offences under which cognizance was taken. However, the trial court did hold that prima facie case is made out against these petitioners under which cognizance of the offences has been taken and as such, the order impugned is fit to be quashed. 11. As against this, Mr. Delip Jerath, learned counsel appearing for the O. P. No.2, by referring to two documents; one is the list of the directors of the company-M/s B. N. Hotels Pvt. Ltd.; and the other is the resolution taken in the meeting of the Board of the Directors of M/s B. N. Hotels Pvt. Ltd., which documents are not the part of the case diary. By referring to those documents, it was placed that these petitioners are the directors of the company and all the directors on behalf of the company had authorized Rajendra Kumar Gupta to negotiate with Shri Ram Multicom Pvt. Ltd., to which the complainant is the Managing Director, in respect of development of the company's land at Dahia for having multi-storied commercial complex and to enter into an agreement with Shri Ram Multicom Pvt. Ltd. and to execute such agreement as well as registered power of attorney in favour of Shri Ram Multicom Pvt. Ltd. and to hand-over the land to the developers. 12. In this regard, it was further submitted that all the directors, including these two petitioners, are the family members of Rajendra Kumar Gupta who had been authorized by these petitioners and other directors to enter into an agreement with the complainant, who in fact, in terms of the resolution executed the power of attorney as well as the development agreement and whatever act has been done by Rajendra Kumar Gupta constituting offences either under Section 406 or 420 of Indian Penal Code, it would be deemed that the other directors of the company have done so and thereby these petitioners being the directors of the company cannot escape the liability of the offences committed by Rajendra Kumar Gupta. 13. Thus, the submission, which has been advanced on behalf of the opposite party-complainant, is that these petitioners, who along with other directors of the company, are responsible for the commission of the offences vicariously though committed by Rajendra Kumar Gupta which is foreign to the prosecution under the Indian Penal Code subject to some exception. 14. It be stated that whatever allegation of approaching before the complainant and taking money from the complainant and then refusing to hand over the deed is there, that is upon Rajendra Kumar Gupta and not against these petitioners. The complainant in his complaint petition is absolutely silent on the role being played by these petitioners in the matter relating to agreement entered into in between M/s B.N. Hotels Pvt. Ltd. and the complainant. 15. During investigation, also nothing has come that these petitioners did commit any act constituting the aforesaid offences but these petitioners are being prosecuted simply for the reasons that they happened to be the directors of the company. 16. 15. During investigation, also nothing has come that these petitioners did commit any act constituting the aforesaid offences but these petitioners are being prosecuted simply for the reasons that they happened to be the directors of the company. 16. Thus, the question does arise as to whether under the circumstances, these petitioners can be prosecuted on the principle of vicarious liability for the commission of offences committed by one of the directors or by the Company. To answer to this question, I need not to go far, as the issue has already been decided by the Hon’ble Supreme Court. 17. In this regard I may refer to a decision rendered in a case of S.K. Alagh vs. State of U.P and others [ (2008) 5 SCC 662 ] wherein it has been held as under: “As, admittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.” 18. Further, one may take notice of a decision rendered in a case of Maksud Saiyed vs. State of Gujarat and others [ (2008) 5 SCC 668 ], wherein it has been observed as follows: “Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and the Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. The Bank is a body corporate. Vicarious liability of the Managing Director and the Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.” 19. Thus, it has categorically been held that the Managing Director or the Director can be held vicariously liable for commission of the offence by the Company under any statute if that statute provides for that. Even in that case where statute contemplates prosecution of the Managing Director or the Director on account of principle of vicarious liability, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. 20. In this case as I have already stated that not a single word is there against these petitioners in the complaint petition regarding any overt act being committed by these petitioners attracting offences either under Sections 406 or 420 or even 506 of Indian Penal Code. The document under which resolution has been taken by all the directors authorizing one of the directors namely, Rajendra Kumar Gupta, to act on behalf of the company cannot be a basis for prosecuting these petitioners particularly when no such allegation constituting offences is there in the complaint petition nor any material has been collected by the Investigating Officer during investigation of the case so as to come to the conclusion that prima facie case is there against these petitioners constituting offences either under Sections 406 or 420 of Indian Penal Code. 21. It be stated that the offence of cheating has been defined in Section 415 of the Indian Penal Code, which reads as follows: “Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any persons shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to 'cheat”. 22. 22. From its reading, it appears that following ingredients should necessarily be there for constituting offence of cheating. (1) there should be fraudulent or dishonest inducement of a person by deceiving him (2) (a) the person so deceived should be induced to deliver any property to any persons, or to consent that any person shall retain any property or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived. (3) in cases covered by 2(b) the Act or omission should be one which causes or is likely to cause damage or harm to the person induced in bodily or reputation or property.” Thus, the first element necessary for constituting the offence of cheating is deception of the complainant by the accused. Unless there is deception, the offence of cheating never gets attracted. As I have already stated that these petitioners have never been alleged even to have approached the complainant for having development agreement, the question of inducing the complainant by these petitioners fraudulently or dishonestly does never arise. In that event, offence under Section 420 of Indian Penal Code never gets attracted against these petitioners. So far as the offence under Section 406 of Indian Penal Code is concerned, that also does not appear to have been made out against these petitioners. Criminal breach of trust has been defined in Section 405 of the Indian Penal Code which reads as under: “405.Criminal breach of trust-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or will fully suffers any other person so to do, commits “criminal breach of trust”. 26. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. 26. On reading of the said provision, the following ingredients should be there for constituting the offence under Section 405 of the Indian Penal Code. (a) a person should have been entrusted with property or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of laws prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.” 27. In the backdrop of absence of such allegation, offence under Section 406 of the Indian Penal Code never gets attracted against these petitioners. Similar is the situation with the offence under Section 506 of the Indian Penal Code, as the petitioners have never been alleged to have committed any overt act attracting such offence. 28. The trial court did not consider all these aspects of the matter in right perspective and without considering all these aspects it did hold that prima facie case is made out against these petitioners and hence committed illegality in rejecting the application for discharge against these petitioners. 29. Accordingly, that order is hereby set aside. 30. In the result, the petitioners are discharged from the case. 31. Consequently, this application stands allowed. Application allowed.