Madhya Pradesh High Court
R. Shrinivasan vs The State Of Madhya Pradesh on 15 November, 2016
MCRC-5555-2013
(R. SHRINIVASAN Vs THE STATE OF MADHYA PRADESH)
15-11-2016
R.Shrinivasan and
othersâ¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦..............Petitioners
Versus
The State of Madhya Pradesh and another..â¦.........Respondent
For the Petitioners : Mr.R.N. Singh, Senior Advocate with
Mr.Akshay Pawar and Mr.Ranjeet Dwivedi,
Advocate.
For the respondent : Mrs.Manjeet P.Chuckal, Panel Lawyer.
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Present: HONOURABLE SHRI JUSTICE ATUL SREEDHARAN
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ORDER
(15.11.2016) The instant is a petition under section 482 of the Code of Criminal procedure filed by the Petitioners for quashing the proceedings arising from the registration of the First Information Report being Crime no.19/2013 for offences punishable under sections 420, 468 IPC and section 66-D of the Information Technology Act.
2. The Petitioners No.1 and 2 are the Managing Directors of Redington India Limited, based at Chennai. The Petitioner No.3 is the General Manager (Corporate) (who has been made Petitioner by post and not by name) and is based at Chennai. The Petitioner No.4 is the Regional Manager of Redington India Ltd., at its branch office in Lucknow and Petitioner No.5 is again the General Manager (Corporate) (by post and not by name) at New Delhi. By order of this Court dated 22.1.2015, the complainant Amit Gupta was made Respondent No. 2. Vide order dated 8.7.2015, this petition was admitted for final hearing and it has been recorded that no one appears for Respondent No. 2 despite service of notice. The factual premises of the case which is sought to be quashed is as follows â
3. On 24.10.2011 the Respondent No. 2 purchased an Apple i-phone bearing IMEI no. â 012743002674647 from Gopal Stationery Book House at Bhopal. In February 2012 when the Respondent No. 2 was at Lucknow, the phone stopped working and so he approached M/s. Freedom World at Lucknow for repairs of the said i-phone. On 7.2.2012, the i-phone was returned to Respondent No. 2 after repairs by M/s. Freedom World. Thereafter in October 2012 when the Respondent No. 2 was in Gurgaon, some problem occurred once again in the said i-phone and the Respondent No. 2 visited the authorized show room of i- phone in Gurgaon being Tresor Systems. The said service centre/show room inspected the phone and thereafter informed the complainant/Respondent No. 2 that the phone has been replaced as many as 7 times. The Respondent No. 2 issued a notice to Redington India Limited upon which the company came to know about the cheating committed on the Respondent No. 2. The Petitioners verified the records and found that the replacement of the complainantâs phone had been carried out by M/s Freedom World at Lucknow. Further, it also came to their notice that on four occasions the replacement had been availed by the reseller in its own name. Redington also came to know that one hundred and twenty similar replacements had been done in good faith to M/s Freedom World against dead phones.
4. As the issue relating to the dead i-phone was not resolved the Respondent No. 2 registered the aforementioned FIR against the Petitioners and the same was taken into investigation by the Police. At the very outset, the Petitioners clarified that they are merely the employees of M/s Redington India Limited and it is the company M/s Redington India Limited that is the authorized service provider for Apple i-phones and also provides the warranty support system on behalf of M/s Apple India Private Limited. The service centre of Redington India Limited (hereinafter referred to as âRedingtonâ) is allowed by Apple India Limited to perform screening/preliminary checks on the handsets to ascertain the nature of the problems. However, Redington is not permitted to dis-mantle the same, which means that Redington can only deal with the software related issues whereas the case against the Petitioners involves modification/tampering with the hardware of the phone. If the problem relating to the malfunctioning i-phone is on account of a software related issue, then the service centre of Redington carries out an upgradation of the software. However, if the problem is identified as one pertaining to the hardware the phone is packed and sent back to the company i.e. Apple India Limited.
5. Investigation by the Police had revealed that the sim tray of the phone of the complainant was tampered with and changed with that of another i-phone which was no longer covered by warranty. It is alleged by the Petitioners that the complainant/Respondent No. 2 has embarked on a vengeful journey in order to falsely implicate the Petitioners herein only on account of them being associated at various levels and capacities with Redington. The learned Counsel for the Petitioners has drawn my attention to the FIR which is at page 4 of the additional documents which is filed along with I.A.No.11252/2013, which for the reasons stated therein, is allowed and the said documents are taken on record and considered. The learned Senior Counsel for the Petitioners has stated that all those persons who are at the top level, involved with the management of the company have been named as accused persons. With specific reference, he has drawn my attention to those at senior nos. 4 and 5 who are merely mentioned as General Manager of the Corporate Office at Chennai and the General Manager at the Corporate Officer at New Delhi. The learned counsel for the Petitioners has submitted that the very fact that two of the persons said to be arrayed as accuseds are incorporeal, being a post or a position in the company and not as specific individuals, only goes to reveal that the complainant/Respondent No. 2 has taken the names of the Petitioners herein from internet and thereafter inserted their names as accused persons knowing fully well that there existed no specific allegation that could be levelled against them. The only aspersion that the Respondent No.2 has levelled is that the principal accused could not have committed this offence sitting in Lucknow without the connivance and collaboration of the Petitioners herein sitting in Chennai, Lucknow and Delhi.
6. The learned counsel for the Petitioners has also stated that the FIR could not have been registered against the Petitioners in Bhopal as no part of the offence is stated to have taken place in the State of Madhya Pradesh. He has contended that the offence, if at all had taken place, had taken place at the outlet of M/s. Freedom World at Lucknow where the i-phone was given for the first time to be repaired in February 2012. He has further stated that the alleged offence relating to the change in sim tray has taken place in Lucknow. The Respondent No. 2 came to know about the said offence when he gave the same for repairs again in the month of October to Tresors Systems at Gurgaon where he was informed that the mobile has already been replaced 7 times.
7. The learned counsel for the State on the other hand submits that the Petitioners are all named in the FIR and the contents of the FIR prima facie make out a case of the aforementioned offences. She has most forcefully argued that the Respondent No. 2 was cheated by the Petitioners as they are the authorized company to deal with complaints relating to i-phones. She has further stated that the process by which the offence has taken place clearly goes to show the connivance of Redington and without its active participation the same was not possible.
8. Heard the learned counsel for the Petitioners and the State and perused the documents along with the charge sheet. In the FIR, the complainant has reiterated as aforementioned that he had given his i-phone for repairs firstly to M/s. Freedom World at Lucknow, as he was in Lucknow during the material point of time when the i-phone went dead. It was returned to Respondent No. 2 on 07/02/12 in a working condition. Thereafter, in the month of October 2012, upon the same problem recurring, the Respondent No. 2 approached Tresor Systems at Gurgaon which informed the Respondent No. 2 that the mobile has been replaced at least seven times. He further states in the complaint that upon his return to Bhopal, he checked the status of his phone over the internet and was aghast to learn that the record also revealed that the IMIE number was replaced 7 times. The mobile was allegedly in a non-functional condition on the day he had registered the FIR against the Petitioners. The Petitioners, upon coming to know about the case filed against them, approached this Court in the year 2013 which vide order dated 13/05/13 stayed the further proceedings/investigation in the FIR registered against the Petitioners. The said order was made absolute vide order of this Court dated 08/07/15, by which this petition was admitted for final hearing. However, as the stay operated only against the Petitioners herein, the Police investigated the case as against other persons and in the course of the said investigation arrested several other co-accused persons and recorded their disclosure statements under section 27 of the Evidence Act.
9. The first statement is that of accused Rahul Shrivastava, S/o Narendra Shrivastava, which was also recorded on 28.2.2013. This accused person has stated to the cyber-crime cell of the Madhya Pradesh Police that he is acquainted with the technique of changing the IMEI number and serial number of i-phone and that he is willing to show the Police the technique and the equipment he uses to do the same.
10. The second statement is of accused Faiz Khan, S/o Nisar Ahmad, who was arrested and whose statement was also recorded on 28/02/13. Like the previous accused person, he has also stated that he has technical expertise and equipment to change the IMEI number and serial numbers of Apple i-phones. The next accused, whose statement has been recorded by the cyber cell of the MP Police is accused Zishan Ali S/o Late Zabbar. This witness in his disclosure statement has elaborately explained the modus operandi of the crime. He informs the police that he knows how to log into Apple and Blackberry phones. He further states that he has the knowledge of how to unlock an Apple i-phone from its serial and IMEI number. He says that the IMEI number of an apple phone is not seen externally on the hand set and that the serial number and IMEI number are located in the sim plate of an Apple i-phone. He further says that whenever they get an Apple i-phone in a dysfunctional states which they want to change, they keep the hand set with them and wait till an Apple i-phone is received which is within warranty and upon receiving the said phone they remove the sim tray from the Apple i-phone, which is within warranty period and remove the sim tray of the dysfunctional i- phone which is beyond the warranty period and exchange them whereby, the sim tray of the Apple i-phone which is within the warranty is fixed inserted in the dysfunctional Apple i-phone which is past its warranty period and the same is logged for replacement. After changing the sim plate, this accused states that he used to send the phone to co-accused Rahul at Redington, Lucknow, which used to forward the said i-phone to Apple India Limited, which would detect the old phone as one under Redington warranty on account of IMEI number, which is present on the sim tray and replace the same, which would come back to the Redingtonâs Lucknow Office.
11. Learned counsel for the State has submitted that Respondent No. 2, who did not suspect of what was happening behind his back, whose phone may have had no problem beyond a minor software glitch and which was apparently fixed and returned to him by M/s Freedom World in February 2012. However, when the mobile malfunctioned a second time in October 2012, the Respondent No. 2 went to Tresors Systems in Gurgaon for its rectification and it is at this point of time that he came to know about the cheating that was committed upon him. Learned counsel for the respondent State has submitted that the accused persons named herein before, used the sim tray bearing the original IMEI number and serial number of Respondent No. 2âs phone and got 7 such replacements from the company i.e., Apple India Limited. She states that the Respondent No. 2 has been cheated by the co-accused persons and the Petitioners herein on account of which Respondent No. 2 after having spent so much money has been saddled with a non-functional i-phone, which till the date of registration of the FIR had not been repaired or replaced.
12. The undisputed facts that flow from the narrative given by both the learned counsel for the Petitioners and the learned counsel for respondent State is that; A) that the i-phone was purchased by the Respondent No. 2 at Bhopal from Gopal Stationary Book House on 24.12.2011. B) in February 2012 the said mobile phone was given for repairs at M/s Freedom World Lucknow which after repairs and the alleged crime committed in relation to the said phone, was returned to Respondent No. 2 on 7.2.2012, C) in October 2012 when the problem reoccurred, the Respondent No. 2 visited the authorized show room/service centre M/s Tresor Systems at Gurgaon in Haryana and came to know that the mobile has been replaced as many as 7 times and D) in the year 2012 when he came back to Bhopal he checked over the internet and came to realize that what was informed to him by Tresor Systems at Gurgaon was correct as the official site of Apple India Limited itself showed that his phone has been replaced 7 times.
13. The learned counsel for the Petitioners has forwarded three arguments in support of his petition. Firstly, that there was no offence committed within the jurisdiction of Madhya Pradesh in order for the Madhya Pradesh Police to register an FIR and carry out an investigation as the offence was committed at Lucknow in February 2012 by M/s Freedom World Lucknow. The second argument placed before the Court by the Ld. Counsel for the Petitioners is that even, if the sum totality of all the allegations levelled in the Fir and the material that has been collected in the course of the investigation against the co-accused persons is taken to be the absolute truth, even then a prima facie offence is not made out against his clients and on that ground alone, the FIR and all proceedings arising therefrom deserve to be quashed. Lastly, he has argued that the principal accused here is Redington India Ltd., a company incorporated under the relevant provisions of the Companies Act and that the company has not been made an accused by the Police and the company not having been made an accused, vicarious liability for offences under the IPC or under the provisions of the information Technology Act cannot be pinned on the Petitioners.
14. Per contra, the learned counsel for the State has argued that the Madhya Pradesh Police has jurisdiction to register the first information report and investigate the same as the offence was committed in various places and is a continuing offence. Secondly, she has stated that the investigation reveals that the offence committed by the co-accused persons could not have succeeded without the active connivance and participation of the Petitioners herein. As regards the third argument forwarded by the learned counsel for the Petitioners, the learned counsel for the State has fairly conceded that the company Redington has not been made as an accused in this case. However, she states that the involvement of the Petitioners herein, whether vicariously or directly can only be revealed after an investigation into their actions which has been stayed by this Court vide its interim order dated 13.5.2013. She also stated that the question relating to the nature of the liability of the Petitioners herein can only be seen by the Trial Court in the course of the trial.
15. As regards the jurisdiction of criminal courts to conduct an enquiry and trial, the same is dealt in Chapter XIII of the Cr.P.C. Sections 177 to 189 cover the varied circumstances and situations which vests a criminal court to try an offence. Section 177 provides that the ordinary place of enquiry and trial of an offence shall be the Court within whose local jurisdiction the said offence was committed. Section 178 is applicable in a situation where it is uncertain as to which of the several local areas an offence was committed and provides for three situations. (a) where an offence is partly committed in one local area and partly in another local area, (b) where the nature of the offence committed is a continuing one being committed in more local areas than one and (c) where it consists of several acts done in different local areas. In such a situation, the accused could be tried by any of the courts within whose jurisdiction the said offence or a part thereof was committed.
16. Section 179 relates to the jurisdiction of a Court to try an offence on account of an act done or where its consequence ensues. This section relates to any act which is an offence on account of the consequences which ensues out of such an act. In such cases, the Court within whose jurisdiction such an act was done or the Court within whose jurisdiction the consequence of such an act ensues, are legally vested with the authority to try the offence. The other sections in this chapter not being directly relevant for a decision in this case, are not being adverted to. The Ld. Counsel for the State has largely tried to bring in the jurisdiction of the criminal Court in Madhya Pradesh with the aid of section 178 and 179 Cr.P.C. She has argued that (a) the offence was spread of three states, being Madhya Pradesh, Uttar Pradesh and Haryana and (b) that though the offence may have been committed in Uttar Pradesh, the effect of the said offence ensued in Madhya Pradesh and so the Court at Bhopal has the territorial jurisdiction to try the offence. This Court is unable to agree with the said contention. As regards the offence itself, the same involved the act of changing the sim tray of the Respondent No.2âs IPhone, and that took place in Lucknow in the State of Uttar Pradesh. No part of the offence took place in the State of Haryana as the only event that took place there was that the phone stopped working for a second time when the Respondent No.2 was in Gurgaon and he was later informed by Tresor Systems at Gurgaon where he was informed about the phone being changed seven times under warranty. As regards Madhya Pradesh, the only instance on account of which the Ld. Counsel for the State submitted that the courts here have jurisdiction to try the offence is based on the statement of the Complainant that after returning to Bhopal, he checked over the internet from the official site of Apple and came to know that the information given by Tresor Systems at Gurgaon was true. As regards the jurisdiction of the Courts at Lucknow and Gurgaon are concerned, the same are made out as in Lucknow, the offence was committed by replacing the sim tray of defective IPhone with that of the Respondent No.2âs. The jurisdiction of Gurgaon is also made out as the effect of changing the sim tray at Lucknow ensued at Gurgaon when the Respondent No.2âs IPhone stopped working again. However, the stand of the Ld. Counsel for the State that the jurisdiction of Bhopal is also carved out as the Complainant came to know about the commission of the offence after returning to Bhopal and checking up on the internet is misplaced. Merely coming to know about the offence does not give the court where the knowledge about the said offence was gathered, the jurisdiction to try the offence. When asked specifically by the Court as to what part of the transaction relating to the offence took place in Madhya Pradesh, the Ld. Counsel for the State could not give a satisfactory reply and was unable to spell out as to which part of the transaction relating to the offence was committed in Bhopal.
17. The learned counsel for the Petitioner has vehemently argued that the place where the offence has been committed was Lucknow. It is his contention that the offence was committed on February 2012 when the Petitioner gave his i-phone for repairs to M/s Freedom World, Lucknow, when the sim tray of the phone was changed. The learned counsel for the Petitioners states that the period of the offence could be deemed to have been between February 2012 when the offence had been committed and 7.12.2012 when the Complainantâs phone stopped working a second time on account of the replacement of the sim tray of the phone in February 2012 at Lucknow, which was the ensuing effect of the offending act committed in February 2012. He has argued that the date on which the discovery of the offence was effected cannot be taken to be date when the offence was committed. Learned counsel for the respondent/State has argued that if one looks at chain of events, then the Apple i-phone was purchased at Bhopal which is undisputed and that the same was first given for repairs in Lucknow where the alleged offence is stated to have taken place, which again is undisputed and thereafter she says that the discovery of the offence was almost 8 months after in October 2012 when the phone went dead again and the Respondent No. 2 took to same for repairs to Treasors Systems at Gurgaon where it came to his knowledge that the phone has been replaced at least 7 times and that was the place where he came to know about the offence. Learned counsel for the respondent State has further stated that after coming to Bhopal, the Respondent No. 2, through the internet checked out the status of his i-phone which once again revealed that the same had been replaced 7 times. Therefore, on the basis of the chain and sequence of events, the learned counsel for the State has indicated that the Madhya Pradesh Police gets jurisdiction to register the said offence and that the Court at Bhopal gets the jurisdiction to try the offence as; A) the mobile was purchased in Bhopal and thereafter over the internet the Respondent No. 2 came to know again that the mobile has been replaced 7 times. Another argument that has been put forward by the learned counsel for the State in order to show that the court at Bhopal has the jurisdiction to try the said offence is the inclusion of an offence under the Information Technology Act. She has argued that an offence under the Information Technology Act is an offence without borders and territories and by way of computers can be committed from anywhere. In order to buttress her claim she has stated that the Respondent No. 2 finally came to know about the cheating committed on him when he accessed the site of the company through the internet and received the information about the replacement relating the i-phone, which was done from Bhopal.
18. I am afraid that I am unable to agree with the submissions of the learned counsel for the State. As regards her contention that the Court at Bhopal would get the jurisdiction to try the said offence as the mobile was purchased at Bhopal, is legally untenable. Chapter XIII of the Cr.P.C. vests a criminal court with jurisdiction only in those cases as provided under the various provisions of that chapter. Ordinarily, that Court would get the jurisdiction to try the offence within whose jurisdiction the offence was committed. The purchase of the mobile was not an offence and, therefore, the same cannot vests the court at Bhopal with jurisdiction to try the offence. The second argument relating to jurisdiction, which relates to the aspect of the Respondent No. 2/complainant accessing the internet at Bhopal and thereafter coming to know that his mobile was replaced 7 times also, does not vest the Court at Bhopal with jurisdiction as receiving information regarding the commission of an offence, does not vest the Court within whose jurisdiction such an information was received, with the jurisdiction to try the offence. Even otherwise, the Respondent No. 2 had received information relating to the replacement of the said phone 7 times earlier at Gurgaon in the month of October 2012 from Tresors Systems when he had taken the i-phone for repairs, the second time when it went dead. The last argument taken by the learned counsel for the State with relation to the offence under section 66-D of the Information Technology Act on the grounds that the offences under the Information Technology Act being continuing offences, can be tried by the Courts where the act is done or the consequences ensues. If one looks into the sequence of events, the offence was complete when the sim trays were changed and the phone was put for replacement by the co-accused persons, who have been named hereinabove. The said act took place in Lucknow. Thereafter, the mobile was handed over in the month of February 2012 to the respondent after having been repaired. Thereafter, the consequence of the act ensued when the i-phone went dead the second time and the Respondent No. 2 took the i-phone for repairs to Tresors Systems at Gurgaon. Thus, if one where to apply the provisions of section 179 Cr.P.C, the Courts that would have the jurisdiction to try the said offence would either be the Court at Lucknow where the act was done or the Court at Gurgaon where the effect ensued.
19. The jurisdiction under the Cr.P.C. has been created for the criminal courts in a well thought out manner applying the yardsticks of reasonableness and practicality, both in the investigation and trial of the offences. The reason why the criminal courts have been vested with the jurisdiction to try cases within whose jurisdiction the actual offence was committed is bearing in mind the fact that evidence relating to commission of an offence is most preponderant at the place where the offence was committed and where the witnesses reside. If too vide an interpretation is accorded to the said sections dealing with investiture of jurisdiction to criminal courts, a trial can be rendered oppressive if an offence which has taken place in one state can be tried and conducted without demur in another state far away, where no act relating to the said offence was committed or any consequence connected with the said act constituting that offence ensued.
20. The jurisdiction of the Criminal Court to try an offence is different from the duty imposed upon the Police to register a first information report even in those cases where the offence has not taken place within the confines of its territorial jurisdiction. In this regard the Supreme Court in the case of State of Andhra Pradesh Vs. Punati Ramulu and others, 1994 Supp. (1) SCC 590, had held that the refusal by the Police to record information relating to the commission of a cognizable offence on the ground of lack of territorial jurisdiction over the place where the crime was committed amounts to a dereliction of duty. In such a case, the Supreme Court held that the Police should record the information and forward the same to the Police Station having jurisdiction over the area where the offence was committed.
21. Though the Police would have the jurisdiction to register and investigate an offence which had not occurred within the territorial jurisdiction of such Police Station, by either investigating the offence themselves or by forwarding the first information report after registering the same as âzeroâ, to such Police Station within whose jurisdiction the offence was committed. However, for a criminal court to be vested with jurisdiction, the alleged act constituting the offence must have been committed within the jurisdiction of the court trying the same in consonance with the provisions of Chapter XIII of the Cr.P.C. The material on record goes to show that no part of the offence has been committed in the State of Madhya Pradesh. Under the circumstances, this Court has no hesitation at arriving at the finding that the investigation against the Petitioner and the resultant proceedings before the trial court at Bhopal have no legal basis on the ground of jurisdiction and ought to be quashed on this ground alone. In this regard, it is important to State here that upon the offence coming to the notice of Redington, Redington itself has registered a complaint case in the Court of the learned Chief Judicial Magistrate, Lucknow against four persons including M/s Freedom World. A copy of which is Annexure P2 of the petition. Learned counsel for the Petitioners has stated that the said complaint is pending.
22. The argument of the learned counsel for the Petitioners is that the sum totality of the facts, taken as a whole does not prima facie disclose the commission of any offence by the Petitioners herein. It has strongly been contended by the learned senior counsel for the Petitioners that the Petitioners have been made accused persons only to arm twist the company as they are senior officials of the company who are in no way involved in the functioning of the M/s Freedom World at Lucknow. The learned senior counsel has referred to the disclosure statements of the co-accused persons given to the State in which far from being mentioned by the said accused persons, whose details are given herein above in paragraph No. 10, there is no material collected by the prosecution to connect the Petitioners to the alleged offence. As stated herein before, the Petitioner Nos. 1 and 2 are Managing Directors who are based at Chennai and Petitioner no.4 is the Regional Manager of the company based at Lucknow and Petitioner nos. 3 and 5 are not even persons but posts of the General Manager (Corporate) at Chennai and Delhi.
23. It is contented by the learned counsel for the Petitioners that where the material does not even disclose any offence committed by the Petitioners, ratio of the Supreme Court in the case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp. (1) SCC 335, would be squarely applicable. In opposition, the learned counsel for the respondent State has submitted that investigation could not proceed against the Petitioners herein and material could not be unearthed as there was a stay of the investigation and further proceedings against the Petitioners by this Court. She further stated that had investigation proceeded, it may have resulted in unearthing material /evidence against the Petitioners herein also. I am afraid I cannot agree by the said contention put forward by the learned counsel for the State.
24. The ratio in Bhajan Lal judgment protects individuals from being proceeded against maliciously in criminal cases by way of registration of a first information report by the Police or institution of a criminal complaint in the Court of the Magistrate, where the said information/ report or the complaint, taken as a whole does not disclose the commission of a cognizable offence against the accused persons. The submission put forward by the learned counsel for the State bears dangerous portents if accepted, where the first information report in which there are no allegations against the persons named in the FIR is allowed to proceed only on the grounds that investigation may result in the unearthing of evidence against such persons is fraught with danger, as anyone and everyone can be named in the first information report without any allegation against such a person and if such an FIR or complaint is sustained merely on the ground that investigation may unearth an evidence against such a person then it is exposing such a person to the dangers of an arrest and harassment even without any evidence being there against such a person to start with. Even though there are judgments of the Supreme Court where it is consistently held that an FIR is not an encyclopaedia of an offence and is merely an enabling point for the Police to commence an investigation, even in those cases, for the FIR to be sustainable, there must be some allegation/material disclosing a prima facie involvement of the persons who are named in the FIR.
25. In this case, the manner in which the names of the Petitioners have been taken, especially Petitioner nos. 3 and 5, reveals that the complainant got their names inserted in the FIR by browsing the internet and not because he had any credible prima facie evidence regarding their personal involvement in the offence. That is why Petitioners Nos. 3 and 5 are not corporeal persons but merely designations in the company which have been made accused persons in the FIR. The statements of co-accused persons are bereft of any allegation or even advertence to the Petitioners herein. The FIR is miserably deficient of any allegation against the Petitioners as to how the Petitioners, sitting in the head office at Chennai, the office at Delhi and the Regional office at Lucknow were in any way associated with the co-accused persons and M/s Freedom World without there being any allegation to that effect, it is clear that the Petitioner have been roped in as accused only on account of the post they hold in the company and not on account of any evidence against them disclosing their involvement in the offence.
26. Under the said circumstances, this case deserves to be quashed by applying the ratio in the case of Bhajan Lal (supra) as the FIR and all material gathered by the Police in the Course of investigation fail to disclose a prima facie case against the Petitioners.
27. The last argument put forward by the learned counsel for the Petitioners is that the Petitioners are employees of Redington. Redington is the company which looks after the servicing and repairs of i-phones. The complaint of the Respondent No. 2 is also basically directed at Redington, being the service provider and that the Petitioners have been included as accused in their capacity as employees of the company. In other words, the Ld. Counsel for the Petitioners has submitted that the Petitioner have been made vicariously liable for the offence committed by the company.
28. The learned counsel for the Petitioners has submitted that this being the factual aspect of the case, the Petitioners cannot be proceeded against as it is undisputed that the company Redington India Limited has not been made an accused. In order to make the Petitioners vicariously liable for the offence committed by the Company, it is imperative to make the company as the principal offender which has not been done in this case. In this regard the judgment of the Supreme Court in Sharad Kumar Sanghi Vs. Sangita Rane (2015) 12 SCC 781, assumes significance. The Supreme Court, following the judgment in Anita Hada Vs God Father Tours and Travels Private Limited (2012) 5 SCC 661, quashed the case against the Petitioner therein who was being proceeded against before the Court of the learned JMFC Betul for an offence under section 420 IPC on the ground that the Petitioner was only the Managing Director and as the company was not made an accused, the initiation and continuation of the proceeding against the Managing Director in the absence of the company as an accused, was not maintainable. Therefore, on this aspect also the case against the Petitioners deserves to be quashed.
29. Under the circumstances, the petition succeeds. The first information report against the Petitioners herein being Crime No.19/2013 of Police Station Cyber and Hitech Offences, Bhopal and all proceedings arising there from stand quashed.
(ATUL SREEDHARAN) JUDGE ss