Jharkhand High Court
Rohit Saraogi @ Sarawgi vs The State Of Jharkhand And Others on 16 September, 2023
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1901 of 2013
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1.Rohit Saraogi @ Sarawgi
2.Punit Gupta .... Petitioners
-- Versus --
The State of Jharkhand and Others .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Nitin Kumar Pasari, Advocate
For the State :- Mr. Pankaj Kumar Mishra, Advocate
For the O.P.Nos.2(a),2(b) :- Ms. Khushboo Kumari, Advocate
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10/16.09.2023 Heard the learned counsel appearing for the petitioners, the
learned counsel for the respondent State and the learned counsel
appearing for the O.P.Nos.2(a) and 2(b).
2. This petition has been filed for quashing of the entire
criminal proceeding including the order taking cognizance dated
04.02.2013 in connection with Complaint Case being P.C.Case No.82 of
2011, pending in the court of learned Judicial Magistrate, First Class, at
Seraikella.
3. The complaint case has been filed alleging there in that:-
(a) That the complainant named above lady aged about 80 years,
resident P.S. Chowka, District Saraikella has also landed properties in
Mouza-Khunti under Khata No.343 within your honour's court's
jurisdiction.
(b) That land appertains to Khata No.343 of Mouza Khunti, stands jointly
recorded in the name of Mohan Mahto, Balram Mahato, Ramu Mahato
(Husband of the complainant), Rambilash Mahato who are all sons of
Gandharv Mahato. As Nanda Mahato died during the life his father
Gangadhar Mahato, prior to R.S. Settlement leaving behind his son
Mansa Mahato his name has also been recording having one share
alongwith Satya Mahato son of Renu Mahato having 50% share. As
Rambilash Mahato and Mansa Mahato are possessing lands of Gandharv
Mahato of another Khatian for convenience they are not possing any
lands of Khata No.343 Mouza-Khunti. Xerox copy of Khata No.343 of
Mouza Khunti has been filed which is Annexure-1.
(c) That there is no regular partition in between the recorded owner of
khata No.343 of Mouza Khunti but sake of convenience the R/o are
possessing the land separately.
(d) That Genealogy appended below in this complaint petition reveals the
relationship of the complainant named above as well as accused persons
1 to 4 named above with the above named recorded owner of Khata
No.343 Mouza-Khunti for appreciation the case of the complainant.
(e) That accused No.1 to 4 making conspiracy with accused No.5 and 6
who are the General Manager & G of M/s. Narsing Ispat Pvt. Ltd., Khunti
sold 22 dec. of land in plot No.2593/A by means of Regd. Deed of Sale
vide Deed No.1933 dt. 22.03.2011 to accused No.5 Rohit Saraogi. Again
accused No.1 Shaktipado Mahato sold 0.08 dec. of land in Plot No.2593/A
to accused No.6 Punit Gupta by means of Regd. Deed of Sale vide
No.5126 on dated 12.07.11 most illegally as they have no right, title, and
possession over land measuring 0.30 decimals.
(f) That the accused Nos.1 to 4 having full knowledge that the
complainant named above has also right over Plot No.2593 of Khata
No.343 of Mouza-Khunti as the said lands stands recorded in the name of
her husband Ramu Mahato in R.S. Operation 1966. Over in said Plots i.e.
2593 the complainant named above has right to the extent of 0.11 dec.
of land which is in her physical possession.
(g) That accused Nos.5 and 6 who being the General Manager and G.M.
(Personnel) of M/s. Narsing Ispat Pvt. Ltd. having full knowledge that the
Complainant has also got right & possession over 0.11 dec. of land in Plot
No.2593 making conspiracy with accused Nos. 1 to 4 have made
purchase finding the complainant old illiterate lady.
(h) That accused nos.1 to 4 named above has full knowledge that by
their aforesaid illegal act have caused wrongful loss to the above named
complainant who are responsible to protect the interest of the
complainant by law.
(i) That the complainant named above on 08.08.2011 went to transplant
paddy in her share and possession of land in Plot No.2593 Khata No.343
measuring area 11 dec. with her son-in-law namely Bhajohari Mahato
who was ploughing the land, accused nos.1 to 4 came and told that the
complainant named above that she henceforth should not possess the
land as they have already sold the land to accused nos.5 & 6.
(j) That on such saying accused Nos.1 to 4 the complainant became
surprise and took the Certified copy of Sale Deeds as accused Nos.1 to 4
without the consent and knowledge the complainant sold her share of
land in Plot No.2593, Khata No.343 though they have no right to do so
making conspiracy with accused nos.5 and 6.
(k) That by their aforesaid illegal act all the accused persons named
above have cheated the complainant named above knowingly in order to
put her in loss finding her to be an old illiterate lady and thereby
committed offences punishable U/s. 418/420 read with Section 120(B)
I.P.C."
4. Mr. Pasari, the learned counsel for the petitioners submits
that the land in question was purchased by the company namely M/s
Narsing Ispat Private Limited and the petitioners are General Manager
and General Manager (Personnel) of the said company. He submits that
the land in question was executed in favour of the company and these
petitioners were only present there in view of the representation of the
said company and they were representing the said company in said
purchase and the company is not made party and in view of that,
vicarious liability cannot be fastened upon the petitioners. He submits
that this aspect of the matter has already been set at rest in the case of
Ravinranatha Bajpe vs. Mangalore Special Economic Zone Ltd. &
Ors. reported in 2021 SCC OnLine SC 806, paragraph no. 24 of
which reads as under:-
24. In the case of Sunil Bharti Mittal (supra), it is observed
by this Court in paragraphs 42 to 44 as under:
"(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. 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 v.
Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661, 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." (Emphasis supplied)
5. He submits that even in the complaint petition, there is no
allegation with regard to these petitioners that they were looking into
day to day affair of the company. He submits that cognizance has been
taken under sections 418 and 120B of the IPC, however, no case so far
as these petitioners are concerned is made out and the case of the
petitioners is further covered in view of the judgment of the Hon'ble
Supreme Court in the case of Mohd. Ibrahim v. State of Bihar,
(2009) 8 SCC 751 wherein at paragraph nos. 19 to 22 it has been held
as under :
19. To constitute an offence under Section 420, there should
not only be cheating, but as a consequence of such cheating, the
accused should have dishonestly induced the person deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable
security (or anything signed or sealed and which is capable of
being converted into a valuable security).
20. When a sale deed is executed conveying a property
claiming ownership thereto, it may be possible for the purchaser
under such sale deed to allege that the vendor has cheated him by
making a false representation of ownership and fraudulently
induced him to part with the sale consideration. But in this case
the complaint is not by the purchaser. On the other hand, the
purchaser is made a co-accused.
21. It is not the case of the complainant that any of the
accused tried to deceive him either by making a false or misleading
representation or by any other action or omission, nor is it his case
that they offered him any fraudulent or dishonest inducement to
deliver any property or to consent to the retention thereof by any
person or to intentionally induce him to do or omit to do anything
which he would not do or omit if he were not so deceived. Nor did
the complainant allege that the first appellant pretended to be the
complainant while executing the sale deeds. Therefore, it cannot
be said that the first accused by the act of executing sale deeds in
favour of the second accused or the second accused by reason of
being the purchaser, or the third, fourth and fifth accused, by
reason of being the witness, scribe and stamp vendor in regard to
the sale deeds, deceived the complainant in any manner.
22. As the ingredients of cheating as stated in Section 415
are not found, it cannot be said that there was an offence
punishable under section 417, 418, 419 or 420 of the Code.
6. He submits that the entire criminal proceeding may kindly
be quashed.
7. On the other hand, the learned counsel for the O.P.No.2
draws the attention of the Court to the counter affidavit filed by the
O.P.No.2(a) and 2(b) and submits that the petitioners are General
Manager and General Manager (Personnel) of the said company and
they were having knowledge that the O.P.No.2 is also having share in
the land in question. She submits that the petitioners are liable for
prosecution. She submits that since the petitioners have signed the deed
in question their photographs are also there and case against them is
made out. She submits that if criminal ingredients are there, criminal
case as well as civil case may go simultaneously as has been held in the
several judgments of the Hon'ble Supreme Court. On these grounds, she
submits that there is no illegality in the order taking cognizance and this
Court may not interfere at this stage.
8. The Court has gone through the complaint petition as well
as the order taking cognizance. It is an admitted position that the
company namely M/s Narsing Ispat Private Limited has not been made
an accused in the complaint case and cognizance was also not taken
against the company. The registered deeds are brought on record by
way of counter affidavit filed by the O.P.No.2. Looking into the two
deeds it transpired that the purchaser is the M/s Narsing Ispat Private
Limited and in the complaint, there is no averment that these petitioners
are looking into the day to day affairs of the company. In criminal case
vicarious liability only can be fastened with regard to wrong done by the
company if there is direct statute to that effect. The petitioners were
only present in the capacity of representative of the said company.
Further it is well settled that every breach of contract would not give rise
to the offence of cheating and only in those cases breach of contract
would amount to cheating where there was any deception played at the
very inception. A reference may be made to the case of Uma Shankar
Gopalika vs. State of Bihar reported in (2005) 10 SCC 336 ,
paragraph no. 6 of which reads as under:-
"6. Now the question to be examined by us is as to whether
on the facts disclosed in the petition of complaint any criminal
offence whatsoever is made out much less offences under
Sections 420/120-B IPC. The only allegation in the complaint
petition against the accused persons is that they assured the
complainant that when they receive the insurance claim
amounting to Rs 4,20,000, they would pay a sum of Rs 2,60,000
to the complainant out of that but the same has never been
paid. Apart from that there is no other allegation in the petition
of complaint. It was pointed out on behalf of the complainant
that the accused fraudulently persuaded the complainant to
agree so that the accused persons may take steps for moving the
Consumer Forum in relation to the claim of Rs 4,20,000. It is well
settled that every breach of contract would not give rise to an
offence of cheating and only in those cases breach of contract
would amount to cheating where there was any deception
played at the very inception. If the intention to cheat has
developed later on, the same cannot amount to cheating. In the
present case it has nowhere been stated that at the very
inception there was any intention on behalf of the accused
persons to cheat which is a 7 Cr.M.P. No.221 of 2022 condition
precedent for an offence under Section 420 IPC."
(Emphasis supplied)
9. Further the Court finds that the case of the petitioners are
strengthened in view of the two judgments relied by the learned counsel
appearing for the petitioners in the case of Ravinranatha Bajpe vs.
Mangalore Special Economic Zone Ltd. & Ors and Mohd. Ibrahim
v. State of Bihar, (2009) 8 SCC 751(supra).
10. In view of the above reasons and analysis, entire criminal
proceeding including the order taking cognizance dated 04.02.2013 in
connection with Complaint Case being P.C.Case No.82 of 2011, pending
in the court of learned Judicial Magistrate, First Class, at Seraikella is
quashed.
11. Cr.M.P. No.1901 of 2013 is allowed and disposed of.
12. Pending petition if any also stands disposed of.
13. It is made clear that if any civil proceeding is there, that
will be decided in accordance with law without being prejudiced by this
order.
( Sanjay Kumar Dwivedi, J.)
SI/,
