Madhya Pradesh High Court
Shailabh Jain vs The State Of Madhya Pradesh Judgement ... on 1 November, 2013
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
A.F.R.
JUDGE
M.Cr.C.No.7894/2013
Shailabh Jain and another
VERSUS
The State of Madhya Pradesh
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Shri V.K.Jain, counsel for the applicants.
Shri S.D.Khan, G.A. for the State/respondent.
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O R D E R
(Passed on the 1st day of November, 2013) The applicants have challenged the order dated 12.6.2013 passed by the learned 16th Additional Sessions Judge, Bhopal in S.T.No.575/2012, whereby an application under section 227 of the Cr.P.C. filed by the applicants was dismissed.
2. The prosecution's case, in short, is that, some of the complainants have lodged an FIR to IG, Bhopal Range, Bhopal that the applicants had committed cheating with them. The applicants with help of one Mahaveer Jain got their website uploaded with the scheme that if a consumer deposits a sum of Rs.7,500/- as a charge of membership fee
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M.Cr.C.No.7894 of 2013 then, through the business website of the applicants, he would get a sum of Rs.1,000/- per month for 11 months. However, 10% for banking and service charge shall be deducted from the amount given to the consumers. The complainants had deposited a huge amount with the applicants. The complainants intimated that a sum of Rs.45 Lacs was deposited by them by contacting the various consumers and creating their different IDs on the website but, nothing was received in by any of the consumers as promised by the applicants. Initially some SMSs were sent to the consumers that the amount is deposited in a particular bank but, no amount was found deposited in accordance with that SMS. In the month of June, 2011, the applicants shifted their branch office to another place and thereafter, no contact took place between the applicants and the consumers. Therefore, a case of fraud, cheating, forgery and various offences of Information Technology Act, 2000 (In short "IT Act") was registered by the State Cyber Police, Bhopal. After due investigation, the charge-sheet was filed before the concerned Magistrate, who committed the case to the Courts of Sessions and ultimately it was transferred to the learned 16th Additional Sessions Judge, Bhopal.
3. The applicants have moved an application under section 227 of the Cr.P.C. with the request that they may be
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M.Cr.C.No.7894 of 2013 discharged from the charges appended against them in the charge-sheet.
4. The learned Additional Sessions Judge after considering the submissions made by the applicants and prosecution, passed a detailed order whereby the application under section 227 of the Cr.P.C. filed by the applicants was dismissed.
5. I have heard the learned counsel for the parties at length.
6. The learned counsel for the applicants has raised three main objections in the case. Firstly, it was submitted that according to section 46 of the IT Act, the matter was to be adjudicated according to the provisions of Chapter IX of IT Act and by bypassing the adjudicating officer, no such complaint could be filed before the Magisterial Court. The learned counsel for the applicants has submitted in detail through the reading of various provisions of Chapter IX of the IT Act and rules made under the Act in the year 2003. He explained about the scope and manner of holding the enquiry and the entire procedure by which the matter could be adjudicated. In this regard, the attention of this Court is invited to the judgment passed by Hon'ble the Apex Court in case of "The Rajashthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Co-
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M.Cr.C.No.7894 of 2013 operative Housing Society Jaipur and Ors.", [AIR 2013 SC 1226]. It is further submitted that the jurisdiction of civil Court is barred according to the provisions of section 61 of the IT Act and therefore, such provisions should be followed strictly. The learned counsel for the applicants has placed his reliance upon the order passed by the Division Bench of this Court in case of "Ravindra Nath Tripathi Vs. Union of India and others", [(2013) 2 M.P.L.J. 212]. Secondly, it was submitted by the learned counsel for the applicants that it is alleged in the FIR that the applicants on behalf of a company made the deals with the consumers and therefore, prosecution could not be initiated without making that company to be a party in the case. In this regard, the learned counsel for the applicants has placed his reliance upon the judgment passed by Hon'ble the Apex Court in case of "Aneeta Hada Vs. M/s Godfather Travels and Tours Pvt. Ltd.", [AIR 2012 SC 2795]. Thirdly, it was submitted that the complainants made a direct complaint to IG Police, which is not according to the procedure of the Cr.P.C. The applicants could not be connected with the crime in the present matter and therefore, it is submitted that the impugned order may be set aside and the applicants may be discharged from each and every offence shown in the charge- sheet.
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M.Cr.C.No.7894 of 2013
7. The learned G.A. for the State has submitted that the applicants uploaded a website with help of Mahaveer Jain and not only committed various offences under the IT Act but, also committed an offence of cheating and forgery as mentioned in sections 420 and 468 of IPC. Therefore, they could not be discharged. He opposed the objections taken by the learned counsel for the applicants and prayed that the order passed by the learned Additional Sessions Judge may be confirmed.
8. After considering the submissions made by the learned counsel for the parties and looking at the various questions and disputes, it would be proper that each question be considered separately. The first question raised by the learned counsel for the applicants is that the prosecution was lodged by bypassing the adjudicating officer. If the provisions of section 61 of the IT Act are perused then, the jurisdiction of civil Court was barred. Hence, various provisions have been made to resolve the civil dispute between the parties under the IT Act and therefore, according to the provisions of section 46 of the IT Act, power to adjudicate was prescribed and the procedure was also given in the rules accordingly. If the provisions of section 46 (1) of the IT Act are perused, which are reproduced as under:-
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M.Cr.C.No.7894 of 2013
46. Power to adjudicate.
(1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation,direction or order made thereunder the Central Government shall, subject to the provisions of sub-section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer' for holding an inquiry in the manner prescribed by the Central Government.
[(1A) The adjudicating officer appointed under sub- section (1) shall exercise jurisdiction to adjudicate matters in which the claim for injury or damager does not exceed rupees five crore:
Provided that the jurisdiction in respect of the claim for injury or damage exceeding rupees, five crore shall vest with the competent Court.] then, it would be apparent that those provisions are applicable only for the purpose of Chapter IX of the IT Act, whereas the provisions of offence relating to IT Act are given under Chapter XI of the IT Act and therefore, it would be apparent that provisions of Chapter IX are prescribed for the civil liability and those provisions are not applicable in the criminal matter. In Chapter XI, it is not mentioned anywhere that before lodging an FIR or initiation of the investigation, the opinion of an adjudicating officer should be taken. It is not mentioned anywhere in the IT Act that civil as well as criminal proceeding cannot be initiated simultaneously. It is not prescribed in any other law that if a civil procedure is initiated then, the criminal proceeding cannot be initiated. According to the entire scope of the IT
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M.Cr.C.No.7894 of 2013 Act, it appears that there is no bar on initiating any criminal proceeding in absence of a civil proceeding or in presence of the civil proceeding. Under such circumstances, objection raised by the learned counsel for the applicants has no effect on the present criminal case pending before the learned Additional Sessions Judge.
9. In the present case, charge-sheet is also filed for offence under section 468 of IPC and according to the M.P. amendment in the Cr.P.C., the offence under section 468 of IPC is triable by the Court of Sessions. Otherwise, if a case would have been triable by the Court of JMFC, still the criminal proceeding could be initiated without following the provisions of Chapter IX of the IT Act. There is no bar on criminal proceedings directed by the party itself or by some investigating officer. According to the provisions of section 78 of the IT Act, it is mentioned that if investigation is done then, it should be done by a police officer not below the rank of Inspector and therefore, if investigation is initiated by the police then, after due investigation, a charge-sheet is required to be filed before the Court which can take cognizance in the case. Under such circumstances, filing of the charge-sheet in the present case has no illegality as shown by the learned counsel for the applicants. The judgment passed by Hon'ble the Apex Court in case of
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M.Cr.C.No.7894 of 2013 R.S.I.D.I. Corporation (supra) is relied to the adjudication of the matter and therefore, the law laid in that case is not at all applicable in the present case. The learned counsel for the applicants has also placed his reliance upon the order passed by the Division Bench of this Court in case of Ravindranath Tripathi (supra). If law laid in the case is directly applied then, certainly the jurisdiction of the criminal Court is not excluded and when investigation and prosecution is provided in the Chapter XI of the IT Act then, it cannot be said that the jurisdiction of the criminal Court was excluded.
10. The second contention raised by the learned counsel for the applicants is that the company is the necessary party in the present case. In this regard, the explanation appended in the provisions of section 85 of the IT Act may be read, which is as under:-
"85. Offences by companies.
(1) ............
(2) ............
Explanation.--For the purposes of this section,--
(i) "company" means any body corporate and includes a firm or other association of individuals; and
(ii) "director", in relation to a firm, means a partner in the firm."
By which it would be clear that a company includes any body, corporate or a firm or other association of individuals. For this purpose, the applicants were required to produce
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M.Cr.C.No.7894 of 2013 the Certificate of Registration of the company or firm before the trial Court. The learned Additional Sessions Judge has rightly held that no such certificate is produced by the applicants and therefore, prima facie, it shall be presumed that the applicants worked as an association of individuals with a particular name but, it was not a registered company. The law laid by Hon'ble the Apex Court in case of Aneeta Hada (supra) may be made applicable, if it is proved that the applicants were working for a company duly constituted under the Company Act. If no company or the partnership firm was registered then, certainly, it would be apparent that the applicants were not working for any company but, they were working as "Association of Individuals". Since an Association of Individuals is not a jurist person therefore, it could not be added as an accused in the case. The learned Additional Sessions Judge has rightly rejected the contention raised by the applicants that the company should be added as an accused in the case.
11. In this regard, the judgment passed by Hon'ble the Apex Court in case of Aneeta Hada (supra) makes it clear that some portion of the judgment passed by Hon'ble the Apex Court in case of "Shivratan Agrawal and another Vs. State of M.P.", [AIR 1984 SC 1824] was overruled but, law laid in Shivratan Agrawal's case (supra) was followed
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M.Cr.C.No.7894 of 2013 since the year 1984 that there is no need to make the company as an accused and if it is decided in the year 2012 that the company is a necessary party then, an opportunity may be given to the prosecution to make the company a party if it is permitted by the limitation of the time to take cognizance in the case. In the present case, offence under section 468 of IPC is also appended against the applicants for which no limitation is prescribed to take cognizance and therefore, if it is found that the applicants were working for any company then, that company or firm may be added as an accused at any stage. If prosecution applies for such an addition and initiates a case and if the company is not added as an accused then, the charge-sheet cannot be thrown in the case. The company can be added as an accused in the present case, if it is proved that the applicants were working for a particular company, which is a jurist person.
12. Under such circumstances, where the applicants could not prove that they were working for a company duly registered under the Company Act, they cannot get any advantage of the law laid in case of Aneeta Hada (supra) passed by Hon'ble the Apex Court.
13. Thirdly, it is objected that the complainants made a complaint directly to the IG, Police. I don't believe that such objection can be raised according to the provisions of
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M.Cr.C.No.7894 of 2013 the Cr.P.C. Ultimately, the case was registered by the CID Branch of the Police at Bhopal, which is dealing with cyber crime. Looking at the gravity of offence, where a huge amount was alleged to be usurped by the applicants and their associates and looking at the nature of the case, it was not possible for an SHO of a particular Police station to understand the case and therefore, if a complaint is made to the higher officer of the police and on his direction, if the case was registered then, certainly the FIR may be considered as an FIR lastly given to the SHO of concerned Police station and therefore, if a complaint is given to the higher officers of the police and on their direction it is registered then, it cannot be said that the complainants or the higher officers of the police flouted the provisions of the Cr.P.C. or that there is any illegality committed in registration of the crime. Under such circumstances, no advantage is received by the applicants if case is registered on the directions given by the IG, Police, Range Bhopal. Under such circumstances, objections raised by the learned counsel for the applicants are not sufficient to quash the proceedings of the trial Court and to discharge the applicants.
14. Before concluding the present order, it is to be mentioned that the provisions of section 227 of the Cr.P.C. is
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M.Cr.C.No.7894 of 2013 prescribed for the procedure of framing of the charges and if it is found that no charge can be framed then, the learned Additional Sessions Judge can discharge the accused for a particular charge or from all the charges. Under such circumstances, it is a due procedure which should be adopted by the learned Additional Sessions Judge in the sessions trial. No separate application under section 227 of the Cr.P.C. should be entertained at a preliminary stage. If the learned Additional Sessions Judge finds while considering the application under section 227 of the Cr.P.C. that the application is not acceptable then, can he discharge the applicants for a particular charge shown in the charge- sheet? Certainly not; because no Court below the High Court has inherent jurisdiction under section 482 of the Cr.P.C. and no power of review is given to the Sessions Court, therefore, if an application under section 227 of the Cr.P.C. is filed then, it should be considered at the time when charges are to be framed. Now if any decision in the present case on the merits of the case is taken, it would be binding to the trial Court and it would cause a prejudice to the trial Court when the procedure of framing of the charges would be initiated before the trial Court. Under such circumstances, at present, where the trial court has still to frame charges against the applicants on the basis of the
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M.Cr.C.No.7894 of 2013 factual position then, it would be improper to give a view on the merits of the case, whereas in a petition under section 482 of the Cr.P.C., if an application under section 227 of the Cr.P.C. is moved then, the entire factual position is to be considered by this Court as to whether the charge of any offence is made out against the applicants or not. Hence, it is necessary for the trial Court not to decide the application under section 227 of the Cr.P.C. separately. It should be decided when the proceedings of framing of charges are made and memo of charges is prepared.
15. Since the charges are yet to be framed, therefore, I decline to discuss the matter on merits, so that no prejudice shall be caused to the trial Court while framing of the charges. However, it is made clear that while framing of the charges, objections raised by the applicants in the application under section 227 of the Cr.P.C. shall not be considered because they are decided by the present order and the order is binding to the trial Court.
16. On the basis of the aforesaid discussion, it would be apparent that the learned Additional Sessions Judge has rightly rejected the application under section 227 of the Cr.P.C. filed by the applicants. There is no basis by which the petition under section 482 of the Cr.P.C. filed by the
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M.Cr.C.No.7894 of 2013 applicants may be accepted. Consequently, it is hereby dismissed.
17. A copy of the order be sent to the trial Court for information and compliance.
(N.K.GUPTA) JUDGE 1/11/2013 Pushpendra