Punjab-Haryana High Court
Rasikbhai G. Patel And Others vs State Of Haryana And Another on 9 May, 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM M-6654 of 2009
Date of Decision:9.5.2012
Rasikbhai G. Patel and others .... Petitioners
Versus
State of Haryana and another .... Respondents
CORAM: Hon'ble Ms. Justice Nirmaljit Kaur
Present: Mr. Akshay Bhan, Advocate with
Mr. Animesh Sharma, Advocate for the petitioner.
Mr. J.S. Rattu, D.A.G. Haryana.
Mr. A.P.S. Deol, Sr. Advocate with
Mr. Gurveer Sidhu, Advocate for respondent No.2.
****
1.Whether Reporters of Local Newspapers may be
allowed to see the judgment?
2.To be referred to the Reporters or not?
3.Whether the judgment should be reported in the
Digest?
NIRMALJIT KAUR, J.
The present petition has been filed under Section 482 Cr.P.C. for quashing of FIR No.367 dated 18.8.2008 under Sections 406/420/506/120-B IPC Police Station Civil Lines, Gurgaon, District Gurgaon.
While praying for quashing of FIR, learned counsel for the petitioners raised the following argument:
Firstly, the dispute is merely about a transaction which is civil in nature and no ingredients of any section under the Indian Penal Code is made out. The present case at the best is of breach of contract and is therefore civil in nature and the same does not amount to cheating. Moreover, respondent No.2-complainant had already invoked the winding up proceedings before the High Court of CRM M-6654 of 2009 -2- Gujarat prior to the registration of the present FIR which shows that the same is an after thought and has been made to give a colour of criminality. It was further stated that the petitioner's company has paid more than Rs.4.70 crores to the complainant company over a period of a little more than one year for the work done by it under the contract between the parties and the same fact has been admitted by the complainant company in its pleadings before the Gujarat High Court, Ahmedabad in the Winding up Petition bearing case No.193/2007. The subsequent dispute between the parties and alleged breach of contract by the petitioner's company will not make the transaction a criminal offence as alleged in the FIR in the absence of lack of dishonest and fraudulent intention since very inception on the part of the petitioner's company.
The second argument raised by the learned counsel for the petitioner was that the FIR in question which was registered at Gurgaon has no territorial jurisdiction. As per the allegations, the alleged forged documents have been filed in the Winding up petition before Gujrat High Court. Thus, no FIR could have been registered at Gurgaon where no cause of action had arisen.
Thirdly, in the absence of any allegation against the company, a Director or Principal Officer of the company cannot be made vicariously liable under the Indian Penal Code and the reliance in this regard has been placed on the judgment of the Apex Court rendered in the case of S.K. Alagh v. State of Uttar Pradesh and others 2008(2) Recent Criminal Reports 79 (SC).
Reply has been filed by the State. As per the reply filed CRM M-6654 of 2009 -3- by the State, the communication between the petitioner and Complainant Company took place from the Head Office of the complainant company situated at Gurgaon. As per Section 182 Cr.P.C. the jurisdiction lies at Gurgaon for the purpose of registration of FIR.
Learned counsel for respondent No.2 on the other hand while opposing the present petition submitted that the petitioners had concealed certain facts and therefore, he should be thrown out summarily. It is submitted that notice dated 18.6.2007 sent by the company to the petitioners under Section 433(E) and 434 of the Companies Act wherein it was categorically submitted that the outstanding towards transportation and other charges was Rs.93,25,890/-. However, no reply to the said notice was given by the company of the petitioners within the stipulated time. Therefore, company of respondent No.2 filed a petition for winding up before the High Court Gujarat at Ahmedabad and that it was only after the High Court Gujarat at Ahmedabad issued notice in the winding up petition, the company of the petitioners sent reply to the above said legal notice vide letter dated 18.8.2007. It was further stated that it is for the first time that the company or answering respondent came to know about the forged letters prepared by the petitioners showing that it was the answering respondent who had to make a payment of over Rs.4 lacs to the company of the petitioners on the basis of an alleged forged debit note dated 13.6.2007 and that all the letters placed alongwith affidavit of petitioner No.5 in the said winding up petitioner were forged and ante-dated letters prepared by the CRM M-6654 of 2009 -4- petitioners on their own letter heads so as to counter the claim of the company of respondent No.2 for payment of outstanding amount of over Rs.84 lacs. A copy of the reply filed by petitioner No.5 in the said winding up petition dated 16.2.2008 alongwith forged letters dated 20.7.2006, 19.1.2007, 24.2.2007, 26.3.2007, 13.6.2007 and the alleged Debit Note dated 13.6.2007 are collectively placed on record as Annexure R-9.
It was further submitted that the complete correspondences between the company of the petitioners and the answering respondent has been between them at Gurgaon. As such, the FIR in question had been rightly registered at Gurgaon. It was also contended that the civil and criminal dispute can proceed simultaneously. Moreover, an amount of ` 84,29,363/- was fraudulently grabbed by the petitioners for their wrongful gain and the wrongful loss has been caused to respondent No.2 by creating forged and ante dated documents.
Learned counsel for respondent No.2 has also placed on record order dated 20.4.2012 passed by the Appellate Authority for Industrial and Financial Reconstruction, New Delhi vide which the appeals filed by the petitioners' company against the BIFR's order dated 9.6.2010 vide which the references of the companies as non maintainable has been rejected and liberty to the creditors to initiate legal action against the companies for recovery of their dues, was granted. A copy of the order dated 20.4.2012 passed by the Appellate Authority for Industrial and Financial Reconstruction, New Delhi and the BIFR's order dated 9.6.2010 are also handed over to CRM M-6654 of 2009 -5- the counsel for the petitioners.
The said orders were placed on record to show that in view of the orders passed by the Appellate Authority for Industrial and Financial Reconstruction, New Delhi, the winding up petition filed by respondent No.2 before the High Court Gujarat at Ahmedabad has been rendered infructuous and as such the argument that criminal proceedings cannot continue on account of the fact that the alleged forged documents in the FIR are subject matter of the FIR and the winding up petition is therefore not sustainable.
Heard.
The relevant part of the FIR with respect to the allegation against the petitioners reads as under:
"A cheque No.0327138 dated 23.5.07 and Cheque No.0322149 dated 25.5.07 due to this our payment has become 893050/- TDS 3015 + 442 and after deduction vide Ch. No.0322161 dated 2.6.07 and Cheque No.0322161 dated 7.6.2007 has dishonoured but our company has not taken any action against them and their request we again deposited the said cheque in the Bank, but apart from this there was a due of Rs.84,29,383 left againt them. New Tech Company has not made the payment. On 18.6.07 I have issued a legal notice to the company and after expiry of the notice period we had filed a Winding up petition in the High Court of Allahabad. In the said petition New Tech Company and its members in CRM M-6654 of 2009 -6- connivance with each other prepared forged documents played fraud and prepared documents NFFLINJI, Sec.-1, 06-07/33 dated 20.7.2006, NFFL/Sec/3021/2007 dated 19.1.2007, NFFL/Sec/3463-A, 2007 dated 24.2.2007, NFFL/Sec./4063-A/2007 dated 26.3.2007, NFFL/Corres/508-A/2007 dated 13.6.2007 out debit note NFFL/10/DN/1 for Rs.88,30,575/- dated 13.6.2007 to give loss to out company have sent the said documents to High Court of Ahmedabad. In which as per debit note dt. 13.6.2007 shown there was an outstanding of Rs.8830575/- against out company by New Tech Limited. Thereafter in March, 2008 I went to Samakhali, New Tech Company and met with Sh. Hitesh Ji Patel Director and demanded our company, on which he said that if you come for payment you have to face dire consequences. You go from here or we will kill you. I have narrated all the things to our MD after hearing the same he said talk again to solve your problem and don't linger the talk. On asking by MD I again talked to Rasik Bhai on telephone from Gurgaon in the first week of July 2008, he told don't telephone repeatedly for asking money we can kill you in Gurgaon itself. We have enough approach in Gurgaon. Thereafter I obtained enquiries from the office of Registrar of Companies who CRM M-6654 of 2009 -7- informed Rasik Bhai is not the CMD of the company he is only chairman and non Executive Director he is not full director in the same manner Hitesh is not the Director of the Company they have given their false introduction they have instigated me to work made false documents and want to grab of Rs.8429383/- of our company and have made a false debit against our company for Rs.8830575/- and in connivance with each other want to grab our money and to give us loss. They have concealed material facts and gave threat to kill."
In short, the allegations fall in following categories:- (1) First the cheques submitted by the petitioners were dishonoured. (2) The amount outstanding towards those cheques were not paid. (3) The forged documents were prepared which were filed in the winding up petition before the High Court Gujarat at Ahmedabad in order to create defence. (4) The complainant was threatened when he was asked for the payment. (5) Rasik Bhai misrepresented himself as the CMD of the Company.
A perusal of the FIR leaves no doubt with respect to allegation inviting the offences under Sections 406/420/506/120-B IPC.
As state above, the allegation is that the petitioners have forged certain documents and filed the same before the High Court of Gujarat at Ahmedabad where winding up petition filed by respondent No.2 is pending in order to cause loss to the company CRM M-6654 of 2009 -8- and built their defence.
Thus, the main question that requires to be determined is as to whether criminal proceedings can be allowed to proceed in view of the pendency of the winding up petition before the High Court Gujarat at Ahmedabad in which the alleged forged documents are the subject matters or not and whether criminal proceedings and civil proceedings can be allowed to proceed simultaneously.
Learned counsel for the petitioner has relied on the judgment of Apex Court rendered in the case of G. Sagar Suri and another v. State of U.T. and others AIR 2000 SC 754 to contend that there is no occasion to prosecute under Section 406/420 in view of the pendency of civil dispute. In the said case proceedings were initiated under Section 138 of the Negotiable Instruments Act and therefore, it was held that there was no occasion for the complainant to prosecute the appellants under Section 406,420 IPC, whereas, in the present case admittedly no proceedings had been initiated under Sections 138 of the Negotiable Instruments Act. As such, the question of double jeopardy does not arise in the facts of the present case.
Even otherwise, the judgment rendered in the case of G. Sagar Suri has been distinguished by the Apex Court in the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat and another 2012 (2) RCR (Criminal). Paras 26 to 28 of the said judgment reads as under:
"26. Learned counsel for the appellant has further placed reliance on the judgment in G. Sagar Suri and CRM M-6654 of 2009 -9- another v. State of U.P. And others, 2000(1) R.C.R. (Criminal) 707 (SC): (2000) 2 SCC 636 wherein during the pendency of the proceedings under Section 138 N.I. Act, prosecution under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/420 IPC, observing that it would amount to abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had neither been raised nor decided
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27. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is subjudice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. Fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the CRM M-6654 of 2009 -10- antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforcoeable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.
28. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. The appeal is devoid of any merit and accordingly dismissed."
As stated above, the present case is on an even better footing. No proceedings under Section 138 of the Negotiable Instruments Act have been initiated. Hence, there is no question of either of overlapping or double jeopardy.
Reliance was also placed on the judgment of Apex Court rendered in the case of Alpic Finance Ltd. v. P. Sadasivan and another AIR 2001 SC 1226 to state that criminal proceedings cannot be initiated only to harass when the dispute between the parties related to payment of installments in respect of hire purchase agreement entered between them and was of civil nature as arising out of transaction of passing of valuable properties. The said CRM M-6654 of 2009 -11- judgment does not help the petitioners as in that case there was no allegation of willful misrepresentation.
In the present case, specific allegation of cheating has been levelled.
On the other hand, learned counsel for respondent No.2 referred to the judgment rendered by the Apex Court in the case of Indian Oil Corporation v. NEPC India Ltd. and others (2006) 3 SCC (Crl.) 188 wherein the Apex Court was pleased to hold as under:
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few-Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agrawalla, Rajesh Bajaj v. State NCT of Delhi, Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd., Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works ltd. v. Mohd. Sharaful Haque. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their CRM M-6654 of 2009 -12- face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint in warranted only where the complaint is so bereft of CRM M-6654 of 2009 -13- even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."
The Apex Court in the case of Ravindra Kumar Madhanlal Goenka and another v. M/s Rugmini Ram Raghav Spinners P. Ltd. 2009(3) RCR (Criminal) 338 while relying on the judgment rendered in the case of Indian Oil Corporation (Supra) almost in similar set of circumstances held that as the nature of scope of civil proceedings were different from criminal proceedings, the mere fact that the complaint relates commercial transaction or breach of contract for which a civil remedy is available or has been availed is not by itself a ground to quash the criminal proceedings. Para 14 of the said judgment reads as under:
CRM M-6654 of 2009 -14-
"14. In the above-mentioned case, this Court has taken the view that when the complaint does not disclose any criminal offence, the proceeding is liable to be quashed under Section 482 Cr.P.C. However, the same is not the situation in the present case. There is no denial of the fact that though 900 bales of cotton was already dispatched, but 100 bales of cotton are yet to be dispatched. The defence raised by the appellant hereinabove can be urged and proved only during the course of trial. While entertaining a petition under Section 482 Cr.P.C., the materials furnished by the defence cannot be looked into and the defence materials can be entertained only at the time of trial. It is well settled position of law that when there are prima facie materials available, a petition for quashing the criminal proceedings cannot be entertained. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre- emption of such investigation would be justified only in very extreme cases."
The Apex Court in the case of M.S. Sheriff v. State of Madras 1954 SCR 1144 in fact stayed the civil proceedings and directed the Criminal proceedings to proceed by holding in para-16 as under:
"Another factor which weighs with us is that a civil CRM M-6654 of 2009 -15- suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."
Learned counsel for respondent No.2 has also placed reliance on the judgment of the Apex Court rendered in the case of P. Swaroopa Rani v. M. Hari Narayana alias Hari Babu (2008) 5 SCC 765 to state that on the basis of the observation made by the trial Court regarding the forgery of documents, First Information Report was lodged by the appellant-defendant and the respondent-plaintiff preferred an appeal against the said judgment and decree passed by CRM M-6654 of 2009 -16- the trial Court. In the said appeal, the High Court granted interim relief to the plaintiff-respondent and also stayed the proceedings of the criminal case. The Apex Court allowed the appeal filed against the staying the investigation in the criminal case and held as under:
"13. Filing of an independent criminal proceeding, although initiated in terms of some observations made by the Civil Court, is not barred under any statute.
14. The High Court, therefore, in our opinion, was not correct in staying the investigation in the said matter."
The Apex Court in the case of Lee Kun Hee (Supra) went on to hold that the Civil suit has no bar to initiate criminal proceedings on the same facts. Para 73 of the said judgment reads as under.
"We have given our thoughtful consideration to the last contention advanced at the hands of the learned counsel for the appellants. We are of the considered view that in offences of the nature contemplated under the summoning order there can be civil liability coupled with criminal culpability. What a party has been deprived of by an act of cheating can be claimed through a civil action. The same deprivation based on denial by way of deception, emerging from an act of cheating, would also attract criminal liability. In the course of criminal prosecution, a complainant cannot seek a reciprocal relief for the actions of the accused. As in the instant case, the monetary consideration under the bill of exchange dated 1.2.2001 cannot be claimed in the criminal proceedings for that relief the remedy would be only through a civil suit. It is, therefore, not possible for us to accept that since a CRM M-6654 of 2009 -17- civil claim has been raised by the complainant JCE Consultancy, based on the alleged breach of theagreement dated 1.12.2001, it can be prevented from initiating proceedings for penal consequences for the alleged offences committed by the accused under the Penal Code."
Applying the test in the present case, the FIR in question cannot be quashed merely because it relates to commercial transaction or breach of contract especially when the cheques issued towards the same have been dishonoured showing intention to cheat from the very beginning with a further allegation that the petitioner had prepared forged documents in order to play fraud on the respondent company and the same were prepared only to build defence in the winding up petition.
Thus, the argument of the learned counsel for the petitioners that the said documents are subject matter in the winding up petition filed by the respondent pending before Gujarat High Court, Ahmedabad and though criminal proceedings should take a back stage to await the decision of the winding up petition cannot be sustained. Moreover, it is not disputed by the learned counsel for the petitioner that vide order dated 20.4.2012 passed by the Appellate Authority for Industrial and Financial Reconstruction, New Delhi, the appeals filed by the petitioners' company against the BIFR's order dated 9.6.2010 rejecting the references of the companies as non maintainable has been dismissed and rather liberty has also been granted to the creditors to initiate legal action against the companies for recovery of their dues, as also the learned counsel for respondent CRM M-6654 of 2009 -18- No.2 stated at the bar that in view of the orders passed by the Appellate Authority for Industrial and Financial Reconstruction, New Delhi, the winding up petition filed by respondent No.2 before the High Court Gujarat at Ahmedabad has been rendered infructuous. In fact, learned counsel for respondent No.2 also stated at the bar that the company shall withdraw the said winding up petition.
In view of the above discussion, the objection raised by the learned counsel for the petitioners that said documents are subject matter in the winding up petition filed by the respondent pending before Gujarat High Court, Ahmedabad and therefore the criminal proceedings should be set aside to await the decision of the winding up petition, cannot be sustained.
Learned counsel for the petitioner raised yet another argument with respect to the jurisdiction that since it was stated that the documents referred in the complaint stated to have been produced in the winding up petition filed by the respondent pending before Gujarat High Court, Ahmedabad, the Court at Gurgaon do not have the jurisdiction and the FIR could not have been registered at Gurgaon.
The said argument has no merit in as much as the communications are stated to be addressed to the Head Office at Gurgaon and the correspondences between the company of the petitioners and the answering respondent has been between them at Gurgaon. Some of the letters admitted by the petitioners were sent to the respondent-company at Gurgaon. The threat so given is also stated to have been given at Gurgaon.
CRM M-6654 of 2009 -19-
Moreover, as per Section 182 of the Code of Criminal Procedure, any offence which includes cheating may, if the deception is practised by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducting delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.
Even otherwise, as per Section 184 of the Code of Criminal procedure, different offences can be tried together at one place. Section 184 (a) Cr.P.C reads as under:
"184. Place of trial for offences triable together.- Where-
(a) the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of Section 219, Section 220 or Section 221"
A joint reading of Sections 220 and 221 of the Cr.P.C. leaves no doubt that different offence committed at different places by the different accused to form the part of the same transaction can be tried together at one place.
In the facts of the present case, the head office of the respondent-company is situated at Gurgaon. The company of the petitioner through petitioner No.1 had issued letter dated 29.8.2006 (Annexure R-3). The said letter was addressed to their head office at CRM M-6654 of 2009 -20- Civil Lines Gurgaon. Vide letter dated 1.9.2006, the petitioner company had thanked the company of respondent No.2 and requested for extending 30 days credit from the receipt of the bill. The said letter is placed on record as Annexure R-4 which also shows having been addressed to their head office at Gurgaon and received at Gurgaon. Letter dated 13.11.2006 placed on record as Annexure R-6 is also addressed to their head office at Gurgaon. Vide letter dated 28.4.2007, the petitioners wrote a letter to respondent No.2 company at Gurgaon confirming that the outstanding balance as per their accounting record after deduction of T.D.S. is Rs.99,74,520/- and it was in pursuance to the said amount that the petitioners had issued cheque to the respondent-company which was subsequently dishonoured. Some other communications as placed on record by the petitioners company addressed to the head office of the respondent-company at Gurgaon is dated 19.1.2007, 24.2.2007 and 26.3.2007. All these letters are addressed to the head office at Gurgaon.
Thus, Sections 181,182, 184, 220 and 221 of the Cr.P.C., reveal that where the communication, message, letters as also the place at which they received would determined the Court of competent jurisdiction.
Hon'ble the Apex Court in the case of Lee Kun Hee, President, Samsung Corporation, South Korea and others v. State of Uttar Pradesh and others (2012) 2 SCC (Crl.) 72 while considering the territorial jurisdiction laid down certain factors determining jurisdiction in terms of Sections 178, 179, 181 and 182 of CRM M-6654 of 2009 -21- the Cr.P.C. In the said case, as per the allegations revealed in the complaint a legal notice was addressed to Samsung D to honour its reciprocal commitment of the monetary payback contemplated under the agreement. In its response, Samsung D denied liability. The said denial according to the complainant constituted the basis of the criminal complaint filed against the accused. It was held that the ploace at which the said response on behalf of Samsung D was received would, therefore, be relevant to determine the Court of Competent Jurisdiction under Section 182 of the Cr.P.C., accordingly, held in para 40 as under:
"40. Lastly, reference may be made to Section 182 of the Criminal Procedure Code which is being reproduced hereunder:
182. Offences committed by letters, etc.-(1) Any offence which includes cheating may, if the deception is practised by means of letters of telecommunication messages, be inquired into or tried by any court within whose local jurisdiction such letters or messages were sent or were received; and any offence of chearing and dishonestly inducing delivery of property may be inquired into or tried by a court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.
(2) Any offence punishable under Section 494 or Section 495 of the Penal Code (45 of 1860) may be CRM M-6654 of 2009 -22- inquired into or tried by a court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage, or the wife by first marriage has taken up permanent residence after the commission of offence."
A perusal of Section 182 (extracted above) reveals that the said provision can be invoked to determine jurisdiction in respect of a number of offences which include cheating as a component. When acts of fraud/dishonesty/deception, relatable to the offence(s) contemplated under Section 182 aforementioned emerge from communications/messages/letters, etc. the place(s) from where the communications/messages/letters, etc, were sent, as also, the places at which the same were received, would be relevaznt to determine the court of competent jurisdiction. Finally on the facts of that case, it was held by the Apex Court that competent court at Ghaziabad would have jurisdiction to hold the trial."
Thus, the objection that the Court at Gurgaon has no jurisdiction is not justified.
Learned counsel for the petitioners had raised yet another argument that in the absence of any allegation against the company, a Director or Principal Officer of the company cannot be made vicariously liable under the Indian Penal Code and the reliance in this CRM M-6654 of 2009 -23- regard has been placed on the judgment of the Apex Court rendered in the case of S.K. Alagh (Supra).
There is no dispute with respect to the judgment rendered in the case of S.K. Alagh (Supra). However, the present case relates to an FIR. It is not a complaint case. In view of the provision of Section 319 of the Cr.P.C., the objection that the company is not made a party or made an accused does not come in the way of initiating criminal proceedings against the company in case there is evidence against the company. The additional accused can always be summoned under Section 319 of the Cr.P.C. on the basis of evidence brought before the Court. Thus, this arguments too has no merit in the facts of the case.
It is settled proposition of law that the inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with great caution. In the present case, the petitioners have prepared forged and ante-dated letters so as to stifle the legitimate claim of the company. After investigation, the challan as well as supplementary challan has been filed.
In view of the above discussion, there is no merit in the petition and the same is accordingly dismissed. However, nothing said hereinabove shall have any bearing on the merits of the case which shall be adjudicated by the trial Court on the basis of the evidence produced before it.
9.5.2012 ( NIRMALJIT KAUR ) rajeev JUDGE