JUDGMENT : 1. Heard Mr. M. A. Niyazi, learned counsel appearing on behalf of the petitioners alongwith Mr. Shailesh Kr Singh and Mr. Kumar Basant, Advocates. 2. Heard Mr. Rohit Sinha, learned counsel appearing on behalf of the opposite party- Central Bureau of Investigation. 3. All the three cases arise out of the common order whereby the petition for discharge filed by the petitioners under Section 239 Cr.P.C. has been rejected and consequently, charge has been framed against them vide order dated 20.11.2018 under Section 120B of the Indian Penal Code read with Sections 420, 409, 468 and 471 of Indian Penal Code. 4. So far as the Cr. Revision No. 23 of 2019 is concerned, the same has been filed by the company namely M/s Auroma Coke Limited and one of its directors namely Prashant Tulsyan. Cr. Revision No. 1717 of 2018 has been filed by another director of the company namely Vimal Kumar Tulsyan and Cr. Revision No. 1709 of 2018 has been filed by the other two directors namely Rajiv Tulsyan and Sanjeev Kumar Tulsyan. 5. In the present case, charge-sheet dated 31.10.2012 was filed under Section 120B read with Sections 420, 409, 468 and 471 of the Indian Penal Code against the company, namely, Auroma Coke Limited ( hereinafter referred to as the company ) and its four directors. Vide order dated 09.01.2014 cognizance of the offence was taken by the learned court below under the aforesaid sections. 6. The F.I.R. was filed on the basis of some so-called reliable source information that the unknown officials of B.C.C.L and the petitioners entered into a criminal conspiracy amongst themselves during the period 2008 to 2011 and in furtherance thereof, the said company through its directors was allotted linkage quota of coal under fuel supply agreement (hereinafter referred to as FSA) from B.C.C.L. for compulsory utilization in its plant. It was also alleged that the company lifted coal from different collieries of B.C.C.L., Dhanbad and sold the same in black market at premium causing loss to B.C.C.L. The F.I.R. also referred to a joint surprise check which was carried in the plant premises of the company on 18.03.2011. 7. It was also alleged that the company lifted coal from different collieries of B.C.C.L., Dhanbad and sold the same in black market at premium causing loss to B.C.C.L. The F.I.R. also referred to a joint surprise check which was carried in the plant premises of the company on 18.03.2011. 7. The crux of the allegation made in the F.I.R is that total 2,32,834.92 MT of coal was lifted by the company during the period 2008-2011 under Fuel Supply Agreement dated 31.07.2008 executed between the company and the Bharat Coking Coal Limited, out of which, 41,000 MT of coal was found to have been sold in black market. It was alleged in the First Information Report that the coal was supplied at notified price @ Rs. 2,000/- per MT under Fuel Supply Agreement which was much less than the price of coal through e-auction which was Rs. 2,800/- per MT. On this basis, an allegation of criminal conspiracy and cheating on the part of the suspects was made causing wrongful loss to the tune of Rs. 3.28 crores to the B.C.C.L. 8. It also transpires that as per the allegation in the F.I.R., out of 2,32,834.92 MT of FSA coal, as per joint surprise check, 41,000 MT of FSA coal was found to have been sold in the black market, causing loss to the tune of Rs. 3.28 crores (41,000 MT x Rs. 800 per MT). The basis of the calculation was that the F.S.A. coal was made available @ Rs. 2,000/- per MT i.e. at the notified rate, whereas, the non-FSA coal through e-auction was made available @ Rs. 2800/- per MT. But at the stage of filing of charge-sheet, the allegation in connection with the diversion of coal supplied through FSA was decreased to 16,933 MT from 41,000 MT and correspondingly, the alleged loss was also reduced to 1.35 crores (16,933 MT x Rs. 800 per MT). 9. As per the F.I.R, allegations of conspiracy were made against the petitioner – company, its directors as well as the unknown officials of Bharat Coking Coal Limited (hereinafter referred to as B.C.C.L.), but ultimately no charge-sheet was submitted against any of the officials of B.C.C.L and the charge-sheet was filed alleging criminal conspiracy amongst the company and its four directors only. 10. 10. In the charge sheet broadly, following allegations have been made: - a. As per the Memorandum of Joint Surprise Check and documents gathered during investigation, it was revealed that on the day of inspection the hard coke stock of the petitioner company was short by 9.25 % against the Books of Stock maintained by the accused company. b. Petitioner company had lifted 2,29,457 MT coal under FSA and had purchased 1,79,388.561 MT of coal from non-FSA source during October 2008 to March 2011 and thus they have had total 4,08,846 MT of coal for production of hard coke in the said period. The petitioner company claimed production and sale of only 1,23,789 MT hard coke during relevant period. c. Petitioner company lifted total 17,695.5 MT of coal in 1386 number of trucks from different collieries of BCCL but it is established that those trucks have not been reflected in their Coal Receipt Register maintained at their unit and hence it clearly establishes that the said FSA Coal quantity was diverted in open market/black market. The above non-receipt of raw FSA coal in the plant premises is further corroborated from the Receipt Register of the accused company in which 16,933 MT coal has been found short. Both the said figures are very close and thus indicate the diversion by the accused company. d. Some of the purchasers, to whom the petitioner company claimed to have sold hard coke during the check period in their records, have denied to have purchased from the petitioner company and thus company has shown false/fake sale of 2226.02 MT of hard coke to them for Rs. 1,04,20,804/- during the period Oct, 2008 to March 2011. e. A number of vehicles, which are claimed to have been used for transportation of hard coke are found non coal transporting vehicles such as Motor Cycle, Scooter, Auto Rickshaw, Bolero, etc. and the company has created false/forged/bogus documents and the quantity of hard coke/finished product, shown to be transported by such vehicles, have been diverted in open market/black market. e. A number of vehicles, which are claimed to have been used for transportation of hard coke are found non coal transporting vehicles such as Motor Cycle, Scooter, Auto Rickshaw, Bolero, etc. and the company has created false/forged/bogus documents and the quantity of hard coke/finished product, shown to be transported by such vehicles, have been diverted in open market/black market. f. On the basis of consumption of fuel it has been alleged that less quantity of Hard Coke was produced by the petitioner company during the said period and their production figures were inflated by making false entries in the concerned records as less than required quantity of fuel i.e. diesel/electricity were consumed and this clearly established that raw coal has been diverted in open market/black market by the company. 11. On the basis of aforesaid, it has been alleged that the petitioner company and its directors namely Shri Vimal Kumar Tulsyan, Sanjeev Kumar Tulsyan @ Saneev Tulsyan, Rajiv Tulsyan and Prashant Tulsyan entered into criminal conspiracy amongst themselves during the August, 2008 to March 2011 and in furtherance thereof, they cheated BCCL by diverting/selling FSA Coal received from BCCL at notified price (which was lower than e-auction or market prices), prepared forged/bogus documents & used as genuine and thereby they caused wrongful loss to the tune of Rs. 1.35 Crore (approx.) to the BCCL and corresponding wrongful gain to themselves. Arguments of the petitioners 12. The learned counsel submits as under:- a. It has been alleged in the FIR that the petitioners had connived with the officers of the B.C.C.L. and sold the coal under FSA in black market and at the time of FIR it had not come in light that huge quantities of coal were also purchased by the petitioner- company through e-auction. b. During the course of investigation, no material has been collected to show any sale of coal in the black market. c. The charge-sheet was submitted only against the petitioners and no officer of the B.C.C.L. was made an accused. d. Although an allegation was made in the F.I.R that a criminal conspiracy was hatched during 2008-11 and in furtherance thereof, the company was allocated linkage quota of coal, the same is not established as the charge-sheet did not reflect any illegality in entering into the FSA. d. Although an allegation was made in the F.I.R that a criminal conspiracy was hatched during 2008-11 and in furtherance thereof, the company was allocated linkage quota of coal, the same is not established as the charge-sheet did not reflect any illegality in entering into the FSA. e. Upon investigation it has come to light that the petitioner-company had lifted 2,29,457 MT of coal under FSA and had purchased 1,79,388.561 MT of coal from non-FSA sources during the period from October, 2008 to March, 2011 and thus, they had a total procurement of 4,08,846 MT of coal for production of hard-coke in the said period. It has also been found during investigation that the petitioner company claimed production and sale of 1,23,789 MT of hard-coke during the relevant period. The learned counsel further submits that it has also been mentioned in the charge-sheet that the accused company lifted 17695.5 MT of coal in 1386 number of trucks from different collieries of B.C.C.L but those trucks have not been reflected in their coal receipt register maintained at their unit and on the basis of this, an inference has been drawn that the FSA coal which was lifted from B.C.C.L., was diverted in open market /black market. The learned counsel for the petitioners, by referring to the allegation, submits that it has been alleged that non-receipt of raw FSA coal in the plant premises was corroborated from the receipt register of the accused company by which 16,933 MT coal was found short. f. The learned counsel submits that so far as the receipt register for the period involved in this case is concerned, the investigating officer had only collected loose sheets from the premises of the petitioner and such allegation have been made on the basis of the loose sheets. The learned counsel submits that even the number of pages collected for coming to the inference that 16,933 MT of coal has been found short, is not mentioned in the charge-sheet. The learned counsel submits that even the number of pages collected for coming to the inference that 16,933 MT of coal has been found short, is not mentioned in the charge-sheet. g. By referring to the further allegation made in the charge-sheet, it is submitted that out of numerous purchasers of coal, the prosecution has selected eight number of persons who have denied to have purchased hard-coke from the petitioner- company which were sold to them in cash or credit and on the basis of such eight persons, the prosecution has come to a conclusion that the petitioner has shown false/fake sale of 2226.02 MT of hard-coke to them whose money value would be Rs.1,04,20,804/- during the period from October, 2008 to March, 2011. h. It is submitted that considering the volume of hard coke produced by the petitioner-company i.e., 1,23,789 MT, the shortfall, if any, in connection with the aforesaid persons who have denied to have purchased coal from the petitioner-company amounts to only 2226.02 MT, i.e. 2% of the entire production and sale of hard coke. Considering the volume of production activity which was involved at the petitioner’s unit, the difference of 2% cannot be utilized for the purposes of showing any criminal intent on the part of the petitioners. He submits that any person purchasing hard coke through cash may at any point of time deny it outright in order to protect himself from many legal consequences. Learned counsel submits that during the course of investigation, the officers of the sales tax authorities were also examined and they have also supported the sale figures which have been shown in the returns. i. It has been further alleged in the charge sheet that the company had claimed to have transported raw coal/hard coke through various vehicles and a number of such vehicles are non-coal transporting vehicles, such as motorcycle, scooter, auto rickshaw, Bolero etc. and it has been alleged that the accused company had created false, forged and bogus documents and quantity of hard coke/finished product shown to be transported by such vehicles has been diverted in open market/black market. j. The charge sheet refers to transportation of hard coke, which is the finished product of the company and submits that once the finished goods are produced, the BCCL or the prosecution have no control over the sale being made by the company. j. The charge sheet refers to transportation of hard coke, which is the finished product of the company and submits that once the finished goods are produced, the BCCL or the prosecution have no control over the sale being made by the company. The prosecution, as per the case, was only concerned with the use of FSA coal and accordingly alleged illegal sale of hard coke has no bearing in the matter. Learned counsel further submits that otherwise also, as per the allegations only nine non-transporting vehicles were utilized. k. While trying to explain the discrepancy learned counsel submits that it could be verified that out of alleged nine non- transporting vehicles, only three vehicles/trucks had transported hard coke in three trips during the period from 01.11.2008 to 17.03.2011. He has also submitted that out of remaining three vehicles, one was the private van which was carrying only three tons and it is possible to carry three tons of hard coke in a van. So far as other two vehicles are concerned, as per the case of the prosecution, one was tractor and the other was motorcycle and he submits that there was only some mismatch in referring to the registration number of the motor cycle and tractor. Otherwise also, out of huge transaction relating to the production and sale of hard coke, just two vehicles out of 10,000 to 11,000 vehicles are not enough to indicate any criminal intention or even suspicion against the petitioners. l. Learned counsel submits that aforesaid aspects of the matter, though raised by the petitioners before the learned court below, the same has not at all been considered. He submits that at the stage of discharge, the petitioners have a right of consideration of the police papers and as to whether on the face of police papers, any case is made out against them or not. m. Learned counsel for the petitioners while explaining the conclusions drawn in the charge-sheet by referring to the consumption of electricity, diesel expenses, quantity of raw coal purchased /sold based on the records of the company referred to the expert’s opinion regarding the required units for the production of hard coke. He submits that the prosecution has relied upon one project report for the purposes of drawing adverse conclusion without taking into consideration the physical facts, figures, time of consumption, number of machineries etc. available on the spot. He submits that the prosecution has relied upon one project report for the purposes of drawing adverse conclusion without taking into consideration the physical facts, figures, time of consumption, number of machineries etc. available on the spot. The learned counsel further submits that the conclusions which have been drawn from the consumption of the electricity relate to the total production of the hard coke and it is not relatable exclusively to the coal supplied to the petitioner under FSA. Learned counsel has submitted that the calculation which has been done in the charge sheet is based on certain project report which was prepared long back by one M/s Stride Financial Services Pvt. Ltd., New Delhi and actual figures which were available, have not been taken into consideration. Learned counsel submits that such report was prepared around 25 years ago, and the prosecution has relied upon the same without realizing whether the entire machineries which are mentioned in the said report were actually available in the plant of the accused company and the corresponding capacities thereof. n. Learned counsel for the petitioners also submits that even if the consumption of electricity as has been projected in the charge sheet, is assumed to be correct, then also the quantity of FSA coal which was supplied by BCCL to the petitioner-company could have been easily manufactured by using such quantity of energy. The specific case of the petitioners is that the prosecution and the B.C.C.L. are only concerned with the FSA coal and the coke produced from such coal and so far as production of hard coke from the e-auction coal is concerned, the prosecution as well as the B.C.C.L. have nothing to do. He submits that there is no such impediment on the part of the petitioners to sell, divert or use the e-auction coal and the coal procured under e-auction is free from all restrictions. Learned counsel further submits that the hard coke being produced by the petitioner-company could admittedly be produced from the e-auction coal as well as FSA coal and they form a part of the same pool and after production, there cannot be any segregation as to whether the hard coke has been produced from the raw coal obtained under FSA or raw coal obtained under e-auction. o. The learned counsel submits that in short, the specific case of the petitioners is that if compared with the total supply of coal from BCCL, the production of hard coke in the unit of the petitioner company was much more. Therefore, there is no criminality involved in the present case and therefore there was no occasion for the petitioners to create or forge any document to indicate wrongful consumption at the unit or to show any wrongful sale of hard coke by the petitioner-company. This is over and above the fact that it has already come in evidence that the petitioners had much more requirement of coal as the petitioners had themselves purchased coal from open market for the purposes of production of hard coke. p. Regarding shortfall of coal and hard coke on the date of inspection, the learned counsel submits that if the average of shortfall of coal and hard-coke is taken, the same comes to 3.49%. The learned counsel has referred to the document received by the petitioner dated 11.02.2014 under Right to Information from B.C.C.L. to submits that the maximum percentage of accuracy in measurement of any coal stock as per the guidelines is within + 5% which is due to several reasons like human error, instrumental error, undulating ground profile etc. The learned counsel submits that considering the discrepancy in the physical stock and stock shown in the book, the same was within the permissible limit and accordingly, no criminal case could have been instituted when the mismatch in book stock and physical stock is within permissible limits. He submits that considering the total coal purchase of 4,08,845.561 MT, as per the charge-sheet during the check period, there is only a shortage of 2416 MT of coal which comes to 0.59%, which is negligible. q. The learned counsel for the petitioners submits that as per expert opinion obtained by CBI the yield or production of washed coal after processing the raw coal was expected to be 40-50% out of which hard coke is to be produced. The production of hard coke out of washed coal was expected to be 68-70%. This means that out of every 100 MT coal, 50 MT of Washed coal should be produced and out of those 50 MT of washed coal 35 MT of hard coke should be produced, even if petitioners take the maximum yield expected. The production of hard coke out of washed coal was expected to be 68-70%. This means that out of every 100 MT coal, 50 MT of Washed coal should be produced and out of those 50 MT of washed coal 35 MT of hard coke should be produced, even if petitioners take the maximum yield expected. Accordingly, out of the total 1,62,046 MT of FSA coal available with the company, about 1,62,046 MT x 35 % = 56,716 MT of hard coke should have been produced at the maximum. He submits that instead of 56,716 MT, petitioners have produced about 1,23,789 MT of hard coke (i.e. more than twice that of expected production from the FSA coal) during the check period. r. The learned counsel submits that so far as the allegation regarding accused - company having lifted 17,695.5 MT of coal in 1386 number of trucks from different collieries of B.C.C.L. and those not reflected in the coal receipt register maintained at the unit of the petitioners is concerned, no such register was seized from the plant and in fact, only some loose sheets called daily reports were seized. Many a times multiple daily reports for a particular date were prepared and some of these loose sheets do not even carry any serial number nor were maintained in any organized manner. These loose sheets/daily reports are not a part of any statutory books of accounts/records of the company. There is an extremely high possibility that the Daily Reports/loose sheets containing entry of those 1386 trucks were seized by CBI during the Joint Surprise Check on 18.03.2011 and the said loose sheets have been either lost by CBI or they have deliberately removed those sheets from the enclosed documents. He submits that entire allegation is based on mere presumption only. He submits that all the relevant papers/documents issued by the BCCL collieries, to each truck/lorry carrying FSA coal to plant of the petitioners are lying with the company. These documents include challans, weighment slips of BCCL weigh- bridges, road permits etc. accompanying the trucks. If the material was sold, petitioners should not have had these papers/documents. s. He further submits that it is not the case of the prosecution that on the date of inspection, the unit of the petitioners was found non-functional or the Fuel Supply Agreement was entered into fraudulently or dishonestly. accompanying the trucks. If the material was sold, petitioners should not have had these papers/documents. s. He further submits that it is not the case of the prosecution that on the date of inspection, the unit of the petitioners was found non-functional or the Fuel Supply Agreement was entered into fraudulently or dishonestly. t. The learned counsel has also relied upon the judgement passed by the Hon’ble Supreme Court in the case of “Sajjan Kumar Vs. CBI” reported in (2010) 9 SCC 368 in order to explain the scope of appreciation of the materials by the learned court below while exercising jurisdiction under Sections 227 & 228 of Cr.P.C. and he submits that the learned court below has failed to properly exercise its jurisdiction and accordingly the impugned order refusing to discharge the petitioners as well as the order framing charge calls for interference by this court. 13. The learned counsel for the petitioners has also advanced his arguments by referring to sections of IPC under which offence has been alleged and also to vicarious liability under IPC as follows:- i. VICARIOUS LIABILITY: There is no occasion/foundation/basis for fastening vicarious liability on the directors of a company when company itself is a party. Even if it is assumed for a moment (without admission) that the company would be criminally liable, the directors’ criminal liability would arise only in the form of vicarious liability. In the present case, the statute is Indian Penal Code (IPC) wherein concept of vicarious liability is absent. None of the allegations even if believed to be totally correct (for the sake of argument), assign any personal role to the directors accused. In fact, in this case, even no criminality is assigned to them even in their roles as directors. So therefore, even if the statute would have provided the concept of vicarious liability, the present accused directors would not have been prosecuted for vicarious liability. Therefore, when the offences alleged are the offences under IPC, there is no occasion for their implication as they are not being implicated in their personal capacities. He relies upon the judgement of the Hon’ble Supreme Court in “Maksud Saiyed versus State of Gujrat” reported in (2008) 5 SCC 668 . Learned counsel for the petitioners has also referred to the judgment of Sunil Bharti Mittal Vs. He relies upon the judgement of the Hon’ble Supreme Court in “Maksud Saiyed versus State of Gujrat” reported in (2008) 5 SCC 668 . Learned counsel for the petitioners has also referred to the judgment of Sunil Bharti Mittal Vs. Central Bureau of Investigation (supra) reported in (2015) 4 SCC 609 to submit that the concept of Alter ego is not a substitute to a concept of vicarious liability and the Hon’ble Supreme Court has taken note of certain enactments where the directors have been made vicariously liable for the acts and omissions of the company by way of specific provisions made to that effect, but in the absence of any such corresponding provision under Indian Penal Code, it is not in dispute that the concept of vicarious liability is alien to Indian Penal Code. He has also submitted that anything which is attributable to the company cannot go to the director by referring to the concept of alter ego, but the vice versa is permissible under law meaning thereby, if there is a criminal act or omission on the part of any director of the company then the same would be attributable to the company, but not vice versa. He has also submitted that for a director to be criminally held liable, the intent and involvement of the director has to be there and being the director of the company is not sufficient to book a director for criminal offence under Indian Penal Code. ii. On the Point of conspiracy (Section 120-B IPC) In the present case, the offence of conspiracy is the only substantial offence and other alleged offences under sections 420/409/468 and 471 IPC have been invoked as “read with” the offence of conspiracy. The basic ingredient of conspiracy i.e. meeting of mind has not been shown or even alleged in the present case. Just by virtue of being directors, ipso facto, do not make them criminally liable under the provisions of Indian Penal Code. iii. On the ingredients of Cheating (Section 420 IPC) It is a case relating to an agreement between two parties, entered into in good faith. There is no allegation at all that the petitioner’s company ever induced BCCL to enter into such agreement. iii. On the ingredients of Cheating (Section 420 IPC) It is a case relating to an agreement between two parties, entered into in good faith. There is no allegation at all that the petitioner’s company ever induced BCCL to enter into such agreement. Rather the FSA was a result of policy decision of Coal India (new coal distribution policy in the light of orders of Hon’ble Supreme court) and it was made incumbent upon the persons like the petitioner company to enter into an agreement. It means that there is nothing in the entire FIR to suggest that the BCCL was fraudulently and dishonestly induced to enter into an agreement by the petitioner’s company. It is well settled law that in order to attract an offence u/s 420 IPC, the fraudulent / dishonest/ intention to induce, should be shown to be existing right in the beginning of transaction. Even if prosecution case is taken to be true, there is nothing on record to suggest that there was fraudulent intention right since the beginning of transaction on the part of the petitioners if at all there has been any violation of FSA , the same could not be said to be constituting an offence u/s 420 IPC. At best it could be a case of civil dispute, the remedy for which is already enshrined in the FSA. He relies upon judgement passed in the case of “Hridaya Ranjan Prasad Verma vs. State of Bihar and another” reported in (2000) 4 SCC 168 and judgement in the case of “Thermax Limited and Others versus K.M. Johny and others” reported in (2011) 13 SCC 412 . iv. On the ingredients of breach of trust by agent/employer (Section 409 IPC) There is no allegation that the petitioners were ever entrusted with any property in capacity of public servant, merchant, broker, agent, attorney and they have ever misappropriated the same, and as such no case under section 409 IPC is made out. On perusal of the fuel supply agreement which defines annual contract meaning thereby that there was a legal contract in between the BCCL and the company and clause 4.2 of FSA also speaks about the contract in respect of supply/sale of 160650 MT of coal to be sold annually to the company. On perusal of the fuel supply agreement which defines annual contract meaning thereby that there was a legal contract in between the BCCL and the company and clause 4.2 of FSA also speaks about the contract in respect of supply/sale of 160650 MT of coal to be sold annually to the company. The ownership of the coal after the sale and delivery by BCCL to the company, was totally of the company and was not entrustment of property. It was purely a sale transaction which the company purchased by paying 100% consideration. Clause 9 of the FSA deals with the transfer of title of goods i.e. coal. v. On the ingredients of forgery for the purpose of cheating (Section 468 IPC) and of using as genuine a forged document (Section 471 IPC) In the event of prosecution failing, even prima-facie to establish charges under Section 420 IPC, there could be no case made out under section 468 IPC (forgery for the purpose of cheating) because in absence of cheating there cannot be an offence of forgery for the purpose of cheating. Cheating is inherent in section 468 IPC. Further none of the allegations are covered under sections related to forgery in general as defined under sections 463 and 464 of IPC and as such no case under section 471 IPC is attracted in view of allegations leveled. That a person cannot be said to have made a document unless he has signed and sealed the same and there is nothing in the FIR as well as in the charge sheet that the directors named above made the documents in respect of coal supplied/sold to petitioner company and signed over or sealed them. No document is seized or is in possession of prosecution which can be said to have been forged. The allegations are too general, bald, presumptive and vague to be fastened on the petitioner company or the other directors of the company. Arguments of the opposite party 14. No document is seized or is in possession of prosecution which can be said to have been forged. The allegations are too general, bald, presumptive and vague to be fastened on the petitioner company or the other directors of the company. Arguments of the opposite party 14. In response, the learned counsel appearing on behalf of the opposite party submits as under: (i) By referring to the case diary it has been pointed out that on the basis of materials collected during investigation , a chart was prepared for the period from 01.11.2008 to 17.02.2011 and while examining the details of FSA coal provided by the B.C.C.L., Dhanbad to the petitioner- company, it has been found that altogether 1245 trips of trucks/vehicles during the period from 01.11.2008 to 31.03.2009 did not enter the premises of the petitioner-company. For the period 2009-2010, total 89 number of trips of vehicle did not enter the premises of the petitioner-company and in 2010-11, the said number of trips in which vehicles did not enter the premises of the petitioner-company was 52. The total quantity of coal which did not reach the premises of the petitioner-company during the aforesaid period as per the above chart was 15859.63 MT + 1181.55 MT + 654.32 MT = 17695.5 MT. He submits that Fuel Supply Agreement is dated 31.07.2008 for a quantity of 1,60,650 tonnes per year for a period of five years. (ii) The learned counsel for the opposite party refers to Clause 4.2 of the Fuel Supply Agreement to submit that the name and address of the company has been categorically mentioned and it has also been mentioned that the coal to be supplied is to be used only at the premises of the company, whose address is also mentioned in Schedule-I of the agreement. The learned counsel submits that the coal could not have been used at any other place. (iii) The learned counsel for the opposite party refers to the statement of Sri Devendra Kumar Agarwalla S/o Late Banwari Lal Agarwalla who was chairman-cum-Managing Director of M/s Foundry Fuel Products Private Limited and submits that it has come in his evidence that M/s Foundry Fuels Products Private Limited and the petitioner- company had entered into an agreement on twenty first day of September, 2007 for a period from 01.10.2007 to 30.09.2012. According to this agreement, the petitioner was entitled to utilize the premises of M/s Foundry Fuel Products Private Limited for the purposes of manufacture of hard-coke on certain agreed price per metric tonne and the petitioner could use the raw coal being obtained from various sources. (iv) Learned counsel for the opposite party refers to the affidavit filed by Shri Sanjeev Kumar Tulsyan S/o Shri Vimal Kumar Tulsyan dated 12.01.2005 wherein Shri Sanjeev Kumar Tulsyan had given an undertaking that his unit is in working condition and entire quantity of suitable coal to be supplied by B.C.C.L. will be consumed and/or utilized by the said factory/workshop and shall not be misused in any manner or used for any other illegal purpose and such coal will not be illegally sold, transferred or disposed off to any other person/persons for any reason whatsoever. (v) Learned counsel refers to the statement of Shri Subhash Srivastava (P.W.-48) who was an employee of the petitioner-company. He submits that P.W.-48 had stated that the daily report was being maintained in the factory which was for the purposes of recording any amount of coal which was given entry in the factory which had the details of the date, truck-number, weight, Challan number, etc. and he has supported that upon comparison of the record, total 1386 trucks and 17695.5 MT Fuel Supply Agreement coal was not shown in the daily report. The learned counsel submits that similar statement has been made by other employees of the petitioner-company. (vi) Learned counsel for the opposite party- C.B.I. has referred to the statement of Shri Nawal Kishore Singh, who is claimed to be a non-executive independent director of the company since 30.09.2003 and he submits that a specific question was put to him as to who was responsible for day-to-day operations. In response to the said question, he stated that Mr. Rajiv Tulsyan, Mr. Sanjeev Tulsyan and Mr. Prashant Tulsyan were responsible for day-to-day operations and were also the authorized signatory for banking operations. So far as Mr. Vimal Kumar Tulsyan and other directors are concerned, they were not involved in day-to-day activities of the company. In response to the said question, he stated that Mr. Rajiv Tulsyan, Mr. Sanjeev Tulsyan and Mr. Prashant Tulsyan were responsible for day-to-day operations and were also the authorized signatory for banking operations. So far as Mr. Vimal Kumar Tulsyan and other directors are concerned, they were not involved in day-to-day activities of the company. (vii) The learned counsel for the C.B.I. further refers to the statement of Shri Binod Kumar Singh, who is claimed to be a non-executive independent director of the company and he submits that he has also made identical statement with regard to the persons responsible for day-to-day operations of the company. The learned counsel also refers to the statement of Shri Alok Sawa, who also claimed to be a non-executive independent director of the company and he has also made similar statement before the C.B.I. (viii) Learned counsel for the C.B.I. also refers to statement of Shri A. Rahman, District Transport Officer, Darbhanga, Bihar, to give the registration number of vehicles i.e. total 12 in number, to submit that motorcycle and rickshaw were used for the purposes of transportation of material as recorded in the challan. He also submits that the list of vehicles used for transportation of raw coal from B.C.C.L. to the premises of the company repeatedly used a number of vehicles. (ix) The learned counsel for the opposite party has also referred to statements of some of the witnesses including statement of Shri Sanjay Kumar, Commercial Taxes Officer and Shri Saurendra Dey, Chief Manager of Finance, Bharat Coking Coal Limited, Dhanbad and submits that there is enough evidence on record to indicate that there was serious mismatch with regard to supply of FSA coal and actual production in the unit of the petitioner company which prima facie established the case of diversion of FSA coal against the petitioners . (x) The learned counsel for the opposite party submits that there is enough materials on record to proceed against the petitioners and the learned court below has rightly refused to discharge the petitioners. Findings of this court 15. (x) The learned counsel for the opposite party submits that there is enough materials on record to proceed against the petitioners and the learned court below has rightly refused to discharge the petitioners. Findings of this court 15. F.I.R. dated 22.06.2011 was instituted against the petitioner-company and unknown officials of the Bharat Coking Coal Limited, Dhanbad which was numbered as R.C.-08(A)/2011-D. At the stage of filing of F.I.R., an inspection was carried out and certain mismatch was recorded in connection with the book stock of coal/hard coke and stock as per physical verification of coal/hard coke. It is also not in dispute that the petitioner company was supplied FSA coal and had also purchased coal through e-auction. The entire allegation in the present case is relating to FSA coal. Shri Prashant Tulsyan is the signatory to the agreement and is also one of the directors of the petitioner company. The Fuel Supply Agreement entered into between the petitioner company and B.C.C.L. is dated 31.07.2008. The period involved in the present case is from 31.07.2008 to 18.03.2011, when the joint surprise check was carried in the plant premises of the company. 16. After investigation the charge-sheet under Section 120B read with Sections 420, 409, 468 and 471 of Indian Penal Code was filed against the petitioner-company and four of its directors vide charge-sheet dated 31.10.2012 although, admittedly the F.I.R. had named all the eight directors of the company as well as the officials of B.C.C.L. Thus, offence under the provisions of Prevention of Corruption Act did not find its place in the charge-sheet. The petitioners ( the company and its four directors ) had filed the petition under Section 239 Cr.P.C. for discharge and the same was rejected vide common impugned order dated 06.08.2018 and thereafter, the charge was also framed vide common order 20.11.2018 under Section 120B read with Sections 420, 409, 468 and 471 of Indian Penal Code. 17. The petitioner company purchased coal under FSA as well as through e-auction. It lifted 2,29,457 MT of coal under FSA and purchased 1,79,388.561 MT of coal from non-FSA sources during October 2008 to March 2011 and had total production of hard coke to the tune of 4,08,846 MT. 17. The petitioner company purchased coal under FSA as well as through e-auction. It lifted 2,29,457 MT of coal under FSA and purchased 1,79,388.561 MT of coal from non-FSA sources during October 2008 to March 2011 and had total production of hard coke to the tune of 4,08,846 MT. It is alleged that the petitioner company lifted total 17,695.5 MT of coal in 1386 number of trucks from different collieries of BCCL but those trucks were not reflected in the coal receipt register maintained at the unit of the petitioner company and the daily reports did not show receipt of such trucks physically in the unit of the petitioner company. Accordingly, it is alleged that the said FSA coal was diverted in open market/black market. The shortage of coal to the tune of 16,933 MT was detected. It is also alleged that the transportation of hard coke was shown through vehicles like Motor Cycle, Scooter, Auto-rickshaw, Bolero etc. and the petitioner company had created false/forged/bogus documents and the production figures were inflated by making false entries in the concerned record. This was alleged to be supported by consumption of less quantity of fuel i.e. diesel/electricity. Some of the sales transactions of hard coke have been alleged to be forged, false and fabricated for which some verification has also been made from some of the purchasers who have denied purchase from the petitioner company. The FIR was itself instituted on the basis of certain mismatch in the physical stock when compared with the stock in the books of the petitioner company. The gist of allegations at the time of FIR and at the time of filing of charge-sheet after investigation of the case have already been mentioned above. The diversion of FSA coal and consequent wrongful loss of Rs. 1.35 crores to BCCL was calculated on the basis of difference in the rate of FSA coal and e-auction coal and it was alleged that the petitioners committed an offence punishable u/s 120-B r/w 420, 409, 468 & 471 IPC. 18. This Court is conscious of the fact that the matter is to be examined only at the stage of discharge and the learned counsel for the petitioners has rightly relied upon the judgment passed by the Hon’ble Supreme Court in the case of “Sajjan Kumar Vs. CBI” reported in (2010) 9 SCC 368 to bring home the scope of consideration. This Court is conscious of the fact that the matter is to be examined only at the stage of discharge and the learned counsel for the petitioners has rightly relied upon the judgment passed by the Hon’ble Supreme Court in the case of “Sajjan Kumar Vs. CBI” reported in (2010) 9 SCC 368 to bring home the scope of consideration. It has been held in the said judgement as under: “Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Whether the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge; though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” Point that the entire dispute is civil dispute as it arises out of violation of fuel supply agreement ( FSA) 19. In the judgment passed by Hon’ble Supreme Court reported in (2007) 2 SCC 640 (Ashoka Smokeless Coal India (P) Ltd. and Others vs. Union of India and Others), the Hon’ble Supreme Court in Para 188 to 193 has dealt with the problem of black marketing of coal and the manner it has to be dealt with by the authorities. Para 188 to 193 of the said judgment are as follows: - “188. Coal being a scarce commodity, its utility for the purpose for which it is needed is essential. Although, technically, in view of the fact that no price is fixed for coal, there may not be any black marketing in the technical sense of the terms; but this Court cannot also encourage black marketing in general sense. Nobody should be allowed to take undue advantage while dealing with a scarce commodity. Although, technically, in view of the fact that no price is fixed for coal, there may not be any black marketing in the technical sense of the terms; but this Court cannot also encourage black marketing in general sense. Nobody should be allowed to take undue advantage while dealing with a scarce commodity. The very fact that despite best efforts of the Central Government, the coal companies failed to curb the menace of a section of people and to deal in coal excluding other general people therefrom or the linked consumers misusing their position of obtaining allotment of coal either wholly or in part, it is absolutely necessary that some mechanism should be found out for plugging the loopholes. The Union of India or the coal companies appear to have lost confidence in the State Governments. They had carried out joint inspection and in that process they must have arrived at a satisfaction about the genuineness of the claims of industrial units for which the linkage system was meant for. 189. Before us most of the consumers, with a view to obtain supply of coal had filed documents to prove their genuineness. The said documents must be scrutinised by the authorities of the coal companies. In the event, they have any suspicion, inspection should be carried out by officers appointed by the Chairman-cum-Managing Director of the company concerned within whose jurisdiction the unit is situated. 190. With a view to evolve a viable policy, a committee should be constituted by the Union of India with the Secretary of Coal being the Chairman. In such a committee, a technical expert in coal should also be associated as most of the projects involve consumers of coal, particularly manufacturers of hard coke and smokeless fuel. In our opinion, it may not be difficult to find out, having regard to the technologies used therein as regards the ratio of the input vis-à-vis the output, with a balance and 10% margin. On the basis of such finding alone, apart from the requirements of five years, supply should form the basis of MPQ. We may, however, hasten to add that the Central Government in collaboration with the coal companies would be at liberty to evolve a policy which would meet the requirements of public interest vis-à-vis the interest of consumers of coal. On the basis of such finding alone, apart from the requirements of five years, supply should form the basis of MPQ. We may, however, hasten to add that the Central Government in collaboration with the coal companies would be at liberty to evolve a policy which would meet the requirements of public interest vis-à-vis the interest of consumers of coal. They would be entitled to lay down such norms as may be found fit and proper. They would be entitled to fix appropriate norms therefor. In the event, any industrial unit is found to violate the norms, it should be stringently dealt with. 191. Hard coke plants are also coal mines within the meaning of the Colliery Control Order, 2000. Hard coke is coal within the meaning of the provisions thereof. The Central Government, therefore, may think it fit to widen the definition of coal so as to include the smokeless coal in exercise of its power under the Essential Commodities Act. We may notice in ONGC6 that this Court has held that slurries are a part of coal and is governed by the provisions of the Mines and Minerals (Regulation and Development) Act. Such being the wider definition of coal, we fail to see any reason as to why proper measure cannot be taken by the Union of India to have a complete control thereover. Any strict mechanism to find out the genuine consumers would go a long way in taking preventive measures and dealing with coal by unscrupulous persons for unauthorised purposes. Those who do so, should be dealt with stringently but the same would not mean that the genuine consumers should suffer for want of coal. 192. We, in the peculiar facts and circumstances of this case, are of the opinion that it may not be difficult to find out as to who the genuine consumers are. So far as owners of the hard coke ovens are concerned, they are members of the association and their identity can easily be verified. 193. However, discussions made hereinbefore should not be taken to lay down a law that the Central Government and for that matter the coal companies cannot change their policy decision. They evidently can; but therefor there should be a public interest as contradistinguished from a mere profit motive. 193. However, discussions made hereinbefore should not be taken to lay down a law that the Central Government and for that matter the coal companies cannot change their policy decision. They evidently can; but therefor there should be a public interest as contradistinguished from a mere profit motive. Any change in the policy decision for cogent and valid reasons is acceptable in law; but such a change must take place only when it is necessary, and upon undertaking of an exercise of separating the genuine consumers of coal from the rest. If the coal companies intend to take any measure they may be free to do so. But the same must satisfy the requirements of constitutional as also the statutory schemes; even in relation to an existing scheme e.g. Open Sales Schemes, indisputably the coal companies would be at liberty to formulate the new policy which would meet the changed situation. E-advertisement or e-tender would be welcome but then therefor a greater transparency should be maintained.” 20. Upon perusal of Para 192 of the aforesaid judgment, it is apparent that the Hon’ble Supreme Court found it difficult to give a finding as to who are the genuine consumers. Accordingly, a scheme was to be framed by the coal companies for the purposes of separating the genuine consumers of coal from the rest. Pursuant to the judgment passed by the Hon’ble Supreme Court reported in (2007) 2 SCC 640 (supra), New Coal Distribution Policy was framed. 21. Under the new coal distribution policy, the Fuel Supply Agreement dated 31.07.2008 was entered into between the petitioner company and B.C.C.L. After assessing the requirement of the petitioner- company to the extent of 75% of coal as required by the unit, the contracted quantity of coal was fixed at 1,60,650 tonnes per year i.e. 13387.5 tonnes per month and it is not in dispute that the petitioner – company was to be supplied coal on monthly basis ( clause 4.3 and 4.4). The agreement was for a period of five years. 22. So far as the argument in connection with Clause 4.2 of the agreement is concerned, this Court finds that it was contemplated in the agreement that the purchaser shall not sell/divert and/or transfer the Coal for any purpose whatsoever and the same shall be treated as material breach of Agreement. The agreement was for a period of five years. 22. So far as the argument in connection with Clause 4.2 of the agreement is concerned, this Court finds that it was contemplated in the agreement that the purchaser shall not sell/divert and/or transfer the Coal for any purpose whatsoever and the same shall be treated as material breach of Agreement. It was contemplated in the agreement itself that the coal was for the purposes of its use by the unit which was mentioned in Schedule-I of the agreement. The Schedule-I of the agreement clearly indicates the name of the unit as well as the location of the unit. Clause 4.2 of the agreement empowers the seller of coal (BCCL) to inspect, call for any document, and physically verify the end use of the FSA coal and the total quantity of FSA coal was meant for use in the unit of the petitioner company. As per Clause 9 of the agreement, it is contemplated that once the delivery of coal have been effected at the delivery point by the seller, the property/title and risk of coal so delivered stands transferred to the purchaser in terms of the agreement. This Court finds that this particular clause of the agreement i.e. Clause 9 cannot be read in isolation because this itself is subject to the terms of the agreement and the terms of the agreement clearly contemplated that the goods supplied to the petitioner would be utilized only and only in the unit of the petitioner company. At this stage , this court is of the considered view that it is not open to the petitioners to contend that once they take delivery of coal under FSA it is open to them to use the same in any manner as the title of goods passes to them in view of clear stipulation in the contract that the goods are to be utilized by the petitioner company in its unit only. 23. 23. This Court also finds that although the contract between the parties indicates that in case of violation of terms and conditions of the agreement, the same would be treated as material breach of agreement, but merely because of such a clause, it cannot be said that no criminal case can ever emerge out of such an agreement, if otherwise, the basic ingredients of offence under the provisions of Indian Penal Code are available. 24. In the judgement of Hridaya Ranjan Prasad Verma vs. State of Bihar and another” reported in (2000) 4 SCC 168 it has been held while dealing with definition of cheating as defined under section 415 of IPC it has been held that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed. 25. It has been held in the judgement of Thermax Ltd. v. K.M. Johny, reported in (2011) 13 SCC 412 that it is settled law that the essential ingredient for an offence under Section 420, is that there has to be dishonest intention to deceive another person. In the said judgement the Hon’ble Supreme court found that there were number of documents to show that the Company had acted in terms of the agreement and in a bona fide manner and therefore it could not be said that the act of the Company amounted to a breach of contract. 26. In the said judgement the Hon’ble Supreme court found that there were number of documents to show that the Company had acted in terms of the agreement and in a bona fide manner and therefore it could not be said that the act of the Company amounted to a breach of contract. 26. In the aforesaid judgement it was also found that the complaint had roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with the Company by initiating the criminal prosecution, which included the ex-Chairperson, ex-Directors and senior managerial personnel of the Company, who do not have any personal role in the allegations and there was no specific allegation with regard to their role. The Hon’ble Supreme court also observed that the complaint in the said case lacked the necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC, and that the concept of “vicarious liability” is unknown to criminal law and also observed that there was no specific allegation made against any person but the members of the Board and senior executives were joined as the persons looking after the management and business of the Company. The Hon’ble supreme court ultimately quashed the entire criminal proceedings in the facts of the said case. 27. In the present case, this court finds that prima facie case under section 420 is made out against the petitioner company as well as the aforesaid director who was the signatory to the agreement (FSA). As per the statement of Shri Udayan Bhattacharya under Section 161 Cr.P.C., who was a signatory to the agreement from the side of BCCL and appears in the list of witnesses, utilization report regarding the FSA coal was to be furnished by the petitioner company. This is coupled with the fact that as per the agreement, the coal was to be supplied on monthly basis. This Court finds that though the agreement was for the entire period of five years, but the coal was to be supplied as per allocation of monthly quota and it is alleged that upon lifting the coal from the loading point of B.C.C.L., a portion of the coal did not reach the unit of the petitioner company and therefore its use in the unit of the petitioner company has been denied by the prosecution. 28. 28. Considering the aforesaid facts and circumstances, it cannot be said that prima facie there is no criminal intent while lifting the monthly quota of coal under FSA as utilization regarding the FSA coal was to be furnished by the petitioner company and when there are allegation of diversion of coal, the utilization statements of FSA coal are certainly under cloud. Thus prima-facie, at this stage it can be said that when the lifted coal did not reach the unit of the petitioner company this itself indicates that at the time of lifting of coal the petitioner company had the intention to divert the same. Thus, this court at this stage finds that the basic ingredients for commission of offence under Section 420 of Indian Penal Code are made out in spite of the fact that the case arises out of violation of the terms of the agreement. It has been alleged that during the year 2008 to 2011 the petitioners with each other, dishonestly and fraudulently induced BCCL to deliver FSA coal to the petitioner company and thereby cheated Rs. 1.35 crores and also inflated the production figures of the petitioner company by making false/bogus entries in concerned records of the company although the trucks have not been reflected in their coal receipt register maintained at the unit of the petitioner company. On the face of the aforesaid allegations, this court is of the considered view that prima facie case u/s 420 of IPC is made out in the present case. Accordingly, the contention of the petitioners that the cases arises out of pure civil dispute and no offence under section 420 IPC is made out, is hereby rejected at this stage. Arguments and explanation regarding mismatch in the physical stock and book stock on the date of inspection; less consumption of fuel/electricity; use of some of the transportation vehicles which could not have transported the hard coke as claimed by the petitioner company; denial of some of the purchasers of hard coke about purchase from the petitioner company etc. 29. So far as the arguments of the petitioners on the point of mismatch in the physical stock and book stock are concerned, the same are based on certain guidelines regarding permissible variations in measurement of coal. 29. So far as the arguments of the petitioners on the point of mismatch in the physical stock and book stock are concerned, the same are based on certain guidelines regarding permissible variations in measurement of coal. Further, the learned counsel has also tried to give some calculation in terms of percentage on the point of conversion of raw coal into washed coal and then to hard coke in order to establish that all the FSA coal reached the unit of the petitioner company and was utilized for the production and sale of hard coke. While explaining the pattern of electricity consumption for production of hard coke, the learned counsel has argued that the conclusions drawn by the prosecution are based on an old report and the situation on the spot was not taken care of by the prosecution. The learned counsel has also argued that the petitioner company is in possession of all the documents to show receipt of FSA coal and production of hard coke but the investigating officer has not investigated the case properly. 30. At this stage, this Court is of the considered view that the documents showing dispatch of coal from B.C.C.L. and its receipt and consumption in the unit of the petitioner company for production and sale of hard coke and explanation regarding mismatch of physical stock and book stock, production and sale of hard coke from time to time as argued by the petitioners are matters of evidence during trial . The case of the petitioners that all the relevant papers/ documents issued by B.C.C.L. collieries to each truck/lorry carrying FSA coal to the plant of the petitioners are lying with the petitioner company apparently shows that such evidences have not been produced by the petitioners during the course of investigation before the investigating officer and the same are claimed to be lying with the petitioner company. Accordingly, they are at best the defence of the petitioners which cannot be appreciated at this stage of the case. Similarly, the information received by the petitioners under Right to Information and the guidelines regarding permissible variations in measurement, etc. are also part of defence which cannot be appreciated at this stage. Moreover, correctness of the statement of some of the purchasers from the petitioner company are also essentially matters of trial. 31. Similarly, the information received by the petitioners under Right to Information and the guidelines regarding permissible variations in measurement, etc. are also part of defence which cannot be appreciated at this stage. Moreover, correctness of the statement of some of the purchasers from the petitioner company are also essentially matters of trial. 31. In order to further examine the prima facie case this Court finds that statement of Shri Sanjay Kumar, Commercial Taxes Officer was recorded under section 161 of Cr.P.C, who is a witness as per the charge-sheet. He has stated that the petitioner –company had filed monthly returns, quarterly returns and annual returns for the period from 01.04.2008 to 31.07.2012 and the firm had also filed VAT Audit Report for the year 2008-09, 2009-10 and 2010-11. The firm was also assessed upto the year 2008-09. The assessment for the year 2009-10 and 2010-11 was yet to be done. The said witness has referred to the gist of report submitted in Form 409 (VAT Audit), which gives the details in connection with the particulars regarding coal, hard-coke, clean coal, middling and slurs as well as dust. These figures were brought to the notice of another witness, Shri Saurendra Dey, Chief Manager of Finance, Bharat Coking Coal Limited, Dhanbad. The statement of said Chief Manager of Finance Bharat Coking Coal Limited, Dhanbad has also been recorded by CBI under section 161 of Cr.P.C, who is also a witness as per the charge-sheet. He has analyzed the data and was interalia of the view that there was substantial mismatch in the production of hard-coke considering the normative production as per the Fuel Supply Agreement (FSA), with particular reference to the period 2010-11. 32. In view of the aforesaid statements of witnesses recorded under section 161 of Cr.P.C., over and above the other materials on record, this court is of the considered view that there is enough material for proceeding against the petitioner company in connection with the alleged offence. The involvement of the directors in the commission of offence has been considered at later portion of this judgement. 33. Learned counsel for the petitioners has also made arguments in connection with the offences relating to Section 120B read with Sections 420, 409, 468 and 471 of Indian Penal Code as well as on the point of vicarious liability. On 409, 468 and 471 of Indian Penal Code. 34. 33. Learned counsel for the petitioners has also made arguments in connection with the offences relating to Section 120B read with Sections 420, 409, 468 and 471 of Indian Penal Code as well as on the point of vicarious liability. On 409, 468 and 471 of Indian Penal Code. 34. Considering the allegation of diversion of FSA coal which was meant for exclusive use in the unit of the petitioner company as per FSA as a part of business transaction between the petitioner company and B.C.C.L. , this court is of the considered view that prima facie case u/s 409 of IPC is made out in the present case. 35. The learned counsel, while referring to the allegation in connection with criminal breach of trust, has also submitted that in the present case the petitioners have been charged not only under Section 420 of Indian Penal Code but also criminal breach of trust under section 409 of Indian Penal Code. He submits that it has been held by the Hon’ble Delhi High Court in the case of “Wolfganj Reim Vs. State” reported in 2012 (6) AD (DELHI) 568 that a person cannot be charged for the offence of cheating and criminal breach of trust simultaneously for the same transaction and accordingly, he submits that even if the entire prosecution against the petitioners is not quashed, by any stretch of imagination, the charge framed under Section 409 as well as under Section 420 cannot co-exist in the facts and circumstances of this case. 36. So far as the allegation regarding Section 409 IPC is concerned, this Court finds that the B.C.C.L. did not fully lose its dominion over the FSA coal, in as much as, the agreement still controlled the end use of the coal supplied under the FSA and the same was to be fully used only in the unit of the petitioner company. As per the definition of criminal breach of trust, it has been provided that 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, is said to commit criminal breach of trust. In the present case, the allegation against the petitioners is that the petitioner-company has utilized the FSA coal in violation of the legal contract ( FSA) entered into with B.C.C.L. Considering this aspect of the matter, at this stage, it cannot be said that the basic element for constituting an offence of criminal breach of trust is prima facie absent. 37. So far as reliance on the judgement passed by the Hon’ble Delhi High Court in the case of “Wolfganj Reim Vs. State” reported in 2012 (6) AD (DELHI) 568 to submit that a person cannot be charged for the offence of cheating and criminal breach of trust simultaneously for the same transaction is concerned, this court is of the considered view that the said judgement does not apply to the facts and circumstances of this case in view of the peculiar agreement (FSA) entered into between the parties in the present case. This court finds that prima-facie criminal intent at the stage of lifting of FSA coal is reflecting to divert the same for other purpose and the same is alleged to have been misappropriated as a substantial portion of FSA coal never reached the unit of the petitioner company. 38. Considering the allegation that the production figures of the petitioner company were inflated by making false/bogus entries in concerned records of the company and further allegation that the sale of hard coke was shown through some of such vehicles which could not have been used for transportation of hard coke to the extent claimed by the petitioner company , and these documents were used to claim that the entire FSA coal was used in production and sale of hard coke , this court is of the considered view that a prima facie case of commission of an offence punishable u/s 468 and 471 of IPC has also been made out in the present case. On the point of conspiracy and vicarious liability 39. On the point of conspiracy and vicarious liability, the learned counsel for the petitioners has submitted that in the present case, the offence of conspiracy is the only substantive offence and the other alleged offence under sections 420/409/468/471 have been invoked and read with the offence of conspiracy. On the point of conspiracy and vicarious liability 39. On the point of conspiracy and vicarious liability, the learned counsel for the petitioners has submitted that in the present case, the offence of conspiracy is the only substantive offence and the other alleged offence under sections 420/409/468/471 have been invoked and read with the offence of conspiracy. He has submitted that basic ingredient of conspiracy is meeting of mind and a person cannot be made accused merely because a person is a director of a company. The learned counsel has submitted that some material must be available on record to connect the accused so far as the conspiracy is concerned and mere allegation on the part of the prosecution is not sufficient to frame charge of conspiracy against the accused directors along with the petitioner company. 40. There is no doubt that the concept of Alter ego is not a substitute to the concept of vicarious liability and in certain enactments the directors have been made vicariously liable for the acts and omissions of the company by way of specific provisions made to that effect and in absence of any such corresponding provision under Indian Penal Code, the concept of vicarious liability is alien to Indian Penal Code. Further it is not in dispute that anything which is attributable to the company cannot go to the director by referring to the concept of alter ego, but the vice versa is permissible under law, meaning thereby, if there is a criminal act or omission on the part of any director of the company then the same would be attributable to the company, but not vice versa. For a director to be criminally held liable, the intent and involvement of the director has to be there and being the director of the company is not sufficient to book a director for criminal offence under Indian Penal Code. 41. In the judgement passed by the Hon’ble Supreme Court in the case of Sunil Bharti Mittal v. CBI, reported in (2015) 4 SCC 609 , the Hon’ble Supreme Court has elaborately dealt with the concept of vicarious liability of the directors of a company and under what circumstances the company as well as its director /person in-charge can be made accused in a criminal case under Indian Penal Code . The paragraphs 40 to 44 of the aforesaid judgement are quoted hereinbelow for ready reference: - “40. It is abundantly clear from the above that the principle which is laid down is to the effect that the criminal intent of the “alter ego” of the company, that is the personal group of persons that guide the business of the company, would be imputed to the company/corporation. The legal proposition that is laid down in the aforesaid judgment in Iridium India case is that if the person or group of persons who control the affairs of the company commit an offence with a criminal intent, their criminality can be imputed to the company as well as they are “alter ego” of the company. 41. In the present case, however, this principle is applied in an exactly reverse scenario. Here, company is the accused person and the learned Special Magistrate has observed in the impugned order that since the appellants represent the directing mind and will of each company, their state of mind is the state of mind of the company and, therefore, on this premise, acts of the company are attributed and imputed to the appellants. It is difficult to accept it as the correct principle of law. As demonstrated hereinafter, this proposition would run contrary to the principle of vicarious liability detailing the circumstances under which a Director of a company can be held liable. (iii) Circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person 42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so. 43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. 43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision. 44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada, the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of “alter ego”, was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company.” 42. This court is of the considered view that even under Indian Penal Code, there can be an element of conspiracy between a company and its director to commit an offence. No doubt that the acts and omissions of a company constituting an offence under section 120B read with sections 409/420/468/471 Indian Penal Code cannot be attributed to its directors by resorting to the concept of vicarious liability, but certainly the acts and omissions of a director of a company constituting an offence under section 120B read with sections 409/420/468/471 Indian Penal Code can be attributed to the company being his “alter ego”. This is as per the judgment passed by the Hon’ble Supreme Court in the case of Sunil Bharti Mittal (Supra). This is as per the judgment passed by the Hon’ble Supreme Court in the case of Sunil Bharti Mittal (Supra). There is no dispute that there can be direct or indirect evidence in connection with conspiracy, there can also be circumstantial evidence in connection with conspiracy, which are essentially subject matter of scrutiny of evidence at the stage of trial and what is required to be seen at this stage is whether there is any material to prima-facie hold that any of the directors acted in conspiracy with the company. 43. The learned counsel for the petitioners has argued that so far as the directors are concerned, there is no overt act alleged against the directors of the company and accordingly, in such circumstances, no vicarious liability can be imputed against them. Shri Prashant Tulsyan was the signatory to the Fuel Supply Agreement dated 31.07.2008 (Annexure-8). As per the agreement itself, Clause 19.8 clearly indicates that Shri Prashant Tulsyan plant in-charge or his representative(s) nominated for the purpose, shall be authorized to act for and on behalf of the purchaser. Admittedly, Shri Prashant Tulsyan is one of the directors of the petitioner company. From the perusal of the Fuel Supply Agreement, this Court finds that Shri Prashant Tulsyan was apparently the face of the petitioner company made responsible to interact and deal with the B.C.C.L. for the transactions in question or through his representative nominated for the purpose. Under the FSA there is an obligation cast upon the petitioner company represented through Shri Prashant Tulsyan and an obligation was also casted upon Shri Prashant Tulsyan who was made responsible to interact and deal with the B.C.C.L. for the transactions in question and there is a clear obligation to use the FSA coal in the unit of the petitioner company. It was this obligation of the petitioner company as well as Shri Prashant Tulsyan which has been alleged to have been violated and there is an allegation of diversion of FSA coal and its sale in black market. There is also allegation of falsification of records to show production and sale of FSA coal and mismatch in physical stock and stock in books has been alleged. There is also allegation of falsification of records to show production and sale of FSA coal and mismatch in physical stock and stock in books has been alleged. Thus this court is of the considered view at this stage that there is enough material to prima facie allege commission of offence by Shri Prashant Tulsyan, one of the directors, in conspiracy with the petitioner company and the criminal intent of Shri Prashant Tulsyan for commission of alleged offence would also be attributable to the petitioner company by applying the principles of “alter ego”. 44. This Court finds that in the case of “Sunil Bharti Mittal Vs. Central Bureau of Investigation” (supra) it has been held that no doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. and if such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. It has also been held that at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides for that. It has also been held that an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. It has been also held that the Managing Director or Directors of the company cannot be said to have committed an offence only because they are holders of offices. 45. During the course of argument, the learned counsel for the opposite party has pointed out certain materials against the remaining three directors. Firstly, they were operating the bank account of the company along with Prashant Tulsyan and secondly, some of the witnesses have stated in their statement under Section 161 Cr.P.C. that all the four directors, were responsible for day-to-day business of the company. Firstly, they were operating the bank account of the company along with Prashant Tulsyan and secondly, some of the witnesses have stated in their statement under Section 161 Cr.P.C. that all the four directors, were responsible for day-to-day business of the company. It has also been pointed out that one M/s Foundry Fuels Products Private Limited and the petitioner- company had entered into an agreement on twenty first day of September, 2007 for a period from 01.10.2007 to 30.09.2012 in connection with use of coal to be procured by the petitioner company from any source and there is also an affidavit filed by Shri Sanjeev Kumar Tulsyan dated 12.01.2005 wherein he had given an undertaking that his unit is in working condition and entire quantity of suitable coal to be supplied by B.C.C.L. will be consumed and/or utilized by the said factory/workshop and shall not be misused in any manner or used for any other illegal purpose and such coal will not be illegally sold, transferred or disposed off to any other person/persons for any reason whatsoever. Apart from the aforesaid, no material either from the charge-sheet or from the case-diary, has been pointed out by the learned counsel appearing on behalf of the opposite party against the remaining three directors. 46. This court finds that prima facie, Prashant Tulsyan, the plant in-charge and also one of the directors of the company was specifically authorized to act on behalf of the petitioner company as per the FSA and he was not only the face of the company before the B.C.C.L but was also the signatory to the FSA and was responsible for the compliances under the agreement . This court further finds that there is no allegation in the charge-sheet that the agreement itself was fraudulently entered into between the parties. This court is of the considered view that merely because the remaining three directors were operating the bank account and as per mere statement under section 161 of Cr.P.C that they were responsible for day-to-day business of the company, the remaining three directors cannot be made accused in absence of any material disclosing their role in commission of the alleged offence. So far as the aforesaid agreement with M/s Foundry Fuels Products Private Limited of the year 2007 and affidavit of the year 2005 are concerned, the same have no bearing in the present case as the same relate to the period prior to the Fuel Supply Agreement as the entire allegation in the present case relates to diversion of coal issued to the petitioner company under FSA dated 31.07.2008 and there is no allegation relating to any incident prior to the agreement (FSA). Therefore, in absence of any further material against the other three directors of the company, the opposite party could not have roped in the remaining three directors merely because they are also the directors of the company and were operating the bank account of the company. This Court finds that the basic element to rope in the remaining three directors in the commission of offence coupled with an element of criminal intent is totally missing in the present case. 47. The learned court below has erred in law by refusing to discharge the remaining three directors of the company namely Vimal Kumar Tulsyan, Rajiv Tulsyan and Sanjeev Kumar Tulsyan @ Sanjeev Tulsyan. The learned trial court while considering the petition for discharge has not considered the prima-facie role of each of the accused directors in the alleged commission of offence and therefore, the impugned order refusing to discharge the aforesaid three directors calls for interference and they are required to be discharged under the facts and circumstances of the present case . In the aforesaid facts and circumstances, this Court is of the considered view that prima-facie no criminal case is made out against the aforesaid three directors of the company and accordingly, the impugned order refusing to discharge them is hereby set-aside. Cr. Rev. No. 1717 of 2018 and 1709 of 2018 are hereby allowed and consequently, the order framing charge against the petitioners in Cr. Rev. No. 1717 of 2018 and 1709 of 2018 is also set-aside. 48. Cr. Rev. No. 1717 of 2018 and 1709 of 2018 are hereby allowed and consequently, the order framing charge against the petitioners in Cr. Rev. No. 1717 of 2018 and 1709 of 2018 is also set-aside. 48. In view of the aforesaid findings at this stage, this court is of the considered view that prima facie case to constitute an offence under Section 120B read with Sections 420, 409, 468 and 471 of IPC is made out against the petitioner company and the director namely, Prashant Tulsyan and accordingly, the impugned order of the learned court below refusing to discharge them does not call for any interference. Cr. Rev. No. 23 of 2019 is hereby dismissed. 49. The above findings/observations have been made only for the purposes of considering the point of discharge of the petitioners which was rejected by the learned court below by the impugned order in the light of the arguments advanced by the learned counsel for the parties. It is made clear that any observation made by this Court will not prejudice the case of either parties before the learned court below at the stage of trial. 50. The learned counsel for the parties, at this stage, submit that considering the fact that it is an old matter, the trial may be expedited. They also submit that both the sides would fully co-operate with the trial. 51. Considering the submissions made, the learned court below is directed to make all endeavor for expeditious disposal of the case. 52. Let a copy of this order be communicated to the learned court below through “FAX”.