Karnataka High Court
Sri. G.S.P. Veerareddy vs State Of Karnataka on 17 December, 2021
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION No.203707/2019 (GM-RES)
CONNECTED WITH
WRIT PETITION No.205423/2019 (GM-RES) AND
CRIMINAL PETITION No.200882/2019
W.P. No.203707/2019
BETWEEN:
1. SRI. IRANNA S/O MALAKAPPA KUMBAR
AGED ABOUT 33 YEARS, OCC: SO RURAL
R/O VIJAYAPUR
2. SRI. CHANDRASHEKHAR
S/O HANAMANTH BOLEGAON
AGED ABOUT 36 YEARS
OCC: ASSISTANT ENGINEER
HESCOM, DEVAR HIPPARAGI
3. SRI. PRABHUSINGH
S/O GOURISINGH HAJERI
AGED ABOUT 34 YEARS
OCC: ASSISTANT EXECUTIVE ENGINEER
V-SUB-DIVISION, KPTCL
VIJAYAPUR
4. SRI. ADISHESH S/O ADAPPA
AGED ABOUT 62 YEARS
OCC: RTD. EXECUTIVE ENGINEER
2
R/O SILK HOUSE, KARMEL SCHOOL
GOKARE ROAD, H.NO. 271/01
DEVANAHALLI, BENGALURU.
5. SRI. SURESH
S/O SIDDAPPA HAVALAGI
AGED ABOUT 33 YEARS
OCC: JUNIOR EXECUTIVE ENGINEER
R/O NALATWAD
6. SRI. UMESH S/O KASHINATH
@ KASHAPPA ARAMANI
AGED ABOUT 28 YEARS
OCC: ACCOUNTANT, KPTCL
BAGALKOT
7. SRI. LAYAPPA
S/O CHANDRAM NASHI
AGED ABOUT 59 YEARS
OCC: PENSIONER
R/O BEERESHWAR NILAYA, NH-13
ZALAKI
8. SRI. HANAMANTH
S/O BHIMAPPA SAPALI
AGED ABOUT 57 YEARS
OCC: ASSISTANT
CIRCLE OFFICE, HESCOM, VIJAYAPUR
9. SRI. SHILADHAR
S/O LACHCHAPPA NATIKAR
AGED ABOUT 46 YEARS
OCC: ACCOUNTANT, HESCOM
KALABURAGI
10. SRI. BHIMARAO
S/O GANAPATI RAJAPUT
AGED ABOUT 47 YEARS
OCC: ACCOUNTANT, HESCOM
VIJAYAPUR.
... PETITIONERS
(BY SRI S S MAMADAPUR, ADVOCATE)
3
AND:
1. THE STATE OF KARNATAKA
REP BY ITS STATE
PUBLIC PROSECUTOR
THROUGH DEVAR HIPPARAGI PS
HIGH COURT BUILDING
KALABURAGI-585107
2. SRI GANAPPA
S/O BHIMAPPA HALAWAR
AGE: MAJOR
OCC: EXECUTIVE ENGINEER
HESCOM, INDI
AT INDI - 586 201
... RESPONDENTS
(BY SRI GURURAJ V.HASILKAR, HCGP FOR R1;
SRI RAVINDRA REDDY, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482
OF Cr.P.C., PRYAING TO ISSUE A WRIT OF CERTIORARI OR
ORDER OR ANY OTHER DIRECTION IN THE NATURE OF A WRIT
QUASHING THE PROCEEDINGS IN CC No.230/2017 (OLD CC
No.151/2012) FOR THE OFFENCES PUNISHABLE UDNER
SECTION 408, 409, 420, 465, 477A OF IPC VIDE ANNEXURE 'D'
PENDING ON THE FILE OF THE HON'BLE ADDL. CJ & JMFC,
SINDAGI AND ETC.
W.P. No.205423/2019
BETWEEN:
SRI SADASHIV
S/O KALLAPPA JAMAKHANDI
AGED ABOUT 60 YEARS
4
OCC: PENSIONER
(RETIRED CHIEF ENGINEER)
R/O # 12/B, SADASHIV NAGAR
BEHIND KHB COLONY, SOLAPUR ROAD
VIJAYPUR - 586 101
... PETITIONER
(BY SRI S S MAMADAPUR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS STATE
PUBLIC PROSECUTOR
THROUGH DEVAR HIPPARAGI PS
HIGH COURT BUILDING
KALABURAGI-585107
2. SRI GANAPPA
S/O BHIMAPPA HALAWAR
AGE: MAJOR
OCC: EXECUTIVE ENGINEER
HESCOM, INDI - 586 201
... RESPONDENTS
(BY SRI GURURAJ V.HASILKAR, HCGP FOR R1;
SRI RAVINDRA REDDY, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA R/W SECTION 482
OF Cr.P.C., PRYAING TO ISSUE A WRIT OF CERTIORARI OR
ORDER OR ANY OTHER DIRECTION IN THE NATURE OF A WRIT
QUASHING THE PROCEEDINGS IN CC No.230/2017 (OLD CC
No.151/2012) FOR THE OFFENCES PUNISHABLE UDNER
SECTION 408, 409, 420, 465, 477A OF IPC VIDE ANNEXURE 'D'
PENDING ON THE FILE OF THE HON'BLE ADDL. JMFC, SINDAGI
AND ETC.
5
CRL.P. No.200882/2019
BETWEEN:
SRI G.S.P. VEERAREDDY
AGED ABOUT 67 YEARS
DIRECTOR, GVPF ENGINERS LTD.
PLOT No.739-A, ROAD No.37
JUBILEE HILLS, HYDRABAD - 33
... PETITIONER
(BY SRI RAMACHANDRA A MALI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY DEVAR-HIPPARAGI P.S.
NOW REP. BY THE SPP
HIGH COURT OF KARNATAKA
KALABURAGI-585103
2. SRI GANAPPA BHIMAPPA HALAWAR
AGE: MAJOR
OCC: EXECUTIVE ENGINEER
HESCOM, INDI, TQ: SINDAGI
DISTRICT - BIJAPUR - 586 124
... RESPONDENTS
(BY SRI GURURAJ V.HASILKAR, HCGP FOR R1;
SRI RAVINDRA REDDY, ADVOCATE FOR R2)
THIS PETITION IS FILED UNDER SECTION 482 OF
Cr.P.C., PRYAING TO QUASH THE ENTIRE PROCEEDING OF
ADDL. SR. CIVIL JUDGE AND JMFC COURT, SINDAGI IN
C.C.NO.230/2017 FOR THE OFFENCES PUNISHABLE UDNER
SECTION 408, 409, 420, 465, 477A OF IPC IN CR.NO.23/2010
OF DEVAR HIPPARAGI P.S. AND ETC.
6
THESE PETITIONS COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Crl.P.No.200882/2019 is filed by the accused No.1
praying this Court to quash the proceedings in
C.C.No.230/2017 for the offences punishable under
Sections 408, 409, 420, 465, 477A of IPC in
Cr.No.23/2010 of Devara Hipparagi police station.
2. W.P.No.203707/2019 is filed by the accused
Nos.2 to 4, 6 to 10, 12 and 13 praying this Court to
quash the proceedings in C.C.No.230/2017 for the
offences punishable under Sections 408, 409, 420, 465,
477A of IPC in Cr.No.23/2010 of Devara Hipparagi police
station.
3. W.P.No.205423/2019 is filed by the accused
No.5 praying this Court to quash the proceedings in
C.C.No.230/2017 for the offences punishable under
Sections 408, 409, 420, 465, 477A of IPC in
Cr.No.23/2010 of Devara Hipparagi police station.
4. The factual matrix of the case is that the
respondent No.2-Executive Engineer, HESCOM, Indi
taluk, Indi, filed the complaint before the police vide
complaint dated 18.03.2010 making the allegation that
in respect of the villages like Chalavada, Boragi, Dhona
Budihala and Workanahalli in the year 2008 under the
scheme of Rajivgandhi Rural Electrification Scheme work
was entrusted to M/s. GVPR Engineer, Hyderabad. Sri
G.S.P.Veerareddi who was working as a Managing
Director and entrusted the electricity work totaling to
660 BPL houses and out of that electricity was provided
only for 418 houses and remaining 242 BPL houses were
not provided with electricity. However, drawn the
money of Rs.6,76,390/- and committed offences of
criminal breach of trust and in order to commit these
offences, created the documents along with HESCOM
officials and allegation is made that the documents are
created and used the same for the purpose of
swallowing the money which is provided under the
scheme. Based on the complaint, the police have
registered the case in Cr.No.23/2010 for the aforesaid
offences. The IO based on the complaint, investigated
the matter and filed the charge sheet against the
petitioners herein and also against the officials of the
HESCOM, in total arrayed accused Nos.1 to 13. While
filing the charge sheet, an allegation is made that in
terms of the investigation, it found that amounts were
misappropriated and committed the criminal breach of
process in total amounting of Rs.6,76,390/- in not
providing the electricity to the house of 242 houses out
of 660. Hence, the present petition is filed by all the
accused praying this Court to quash the criminal
proceedings.
5. The learned counsel for the petitioner in
Crl.P.No.200882/2019 vehemently contend that the
petitioner who was the then Managing Director and
present director of M/s GVPR Engineers Limited is totally
innocent and he has not committed any offence. The
respondent No.1 in the original complaint as well as in
the subsequent chargesheet filed by the police, several
allegations are made in the very complaint and FIR as
well as chargesheet filed by the respondent-Police itself
are totally bogus, frivolous, concocted, baseless and not
sustainable in the eye of law. The reasons assigned,
finding given by the trial Court in discharging the
application are totally arbitrary, illegal and not
sustainable in the eye of law. Even if the allegation
made in the chargesheet are taken at their face value
and accepted in their entirety do not prima facie
constitute commission of any offence. The learned
Magistrate has totally failed to see and appreciate the
vital aspect of the contract executed and completed by
the contractor Company i.e., M/s GVPR Engineers
Limited. Based on the certificate issued by the Company
HESCOM payments are made. The complainant
Company was completely discharged from all its
obligations and after nearly four years of the agreement
criminal proceedings are initiated in respect of all the
villages, electrification was done as agreed. Even
though some of the works were not sanctioned as
HESCOM has issued work order pertaining to the names
of eleven heads of the respective families for giving
connection. The very registration of the complaint by the
police as well as filing of the chargesheet is nothing but
abuse of process and the same is filed with malafide
intention and the agreement entered into by the parties
clearly speaks of the modes and modalities in the matter
of disputes between the parties and to approach the
Arbitration under Clause-4.1, instead of approaching the
Arbitrator, a criminal prosecution is initiated against the
petitioner herein and the same is contrary to the
contract agreement entered into between the parties.
The learned Magistrate failed to take note of all these
aspects while taking cognizance and while discharging
the application.
6. Learned counsel for the petitioner would also
submit though petitioner was the then Managing
Director and present Director of M/s GVPR Engineers
Limited and he was not even the signatory to the
agreement dated 24.01.2006 executed with the
HESCOM and the tender work in question was awarded
to this Company and agreement was also contracted
with the said corporate entity and not with the petitioner
in his personal capacity cannot be prosecuted and
Company has not been arrayed as accused. There is no
allegation that this petitioner was incharge of the affairs
of the Company and learned Magistrate also not applied
his mind while dismissing the application for discharging.
7. The learned counsel for the petitioner in
support of his argument, he relied upon the judgment of
the Hon'ble Apex Court in the case of Maksud Saiyed
vs. State of Gujarat and Others reported in 2008(5)
SCC 668 wherein the Hon'ble Apex Court in paragraph
No.13 held that prosecution of a person in criminal case
is a serious matter and it is obligatory on the part of the
complainant to make requisite allegations which would
attract and which would constitute vicarious liability. The
vicarious liability of the Managing Director and Director
would arise provided any provisions exists in that behalf
in the statute. Statute indisputably must contain
provision fixing such vicarious liability.
8. The learned counsel relied upon the
judgment of the Hon'ble Apex Court in the case of
V.Y.Jose and Another vs. State of Gujarat and
Another reported in 2009 (3) SCC 78 wherein
referring this judgment brought to the notice of this
Court paragraph Nos.15 and 18 wherein the Hon'ble
Apex Court discussed the matter which essentially
involves dispute of a civil nature should not be allowed
to be the subject matter of a criminal offence.
9. The learned counsel would also relied upon
the judgment of the Hon'ble Apex Court in the case of
Vesa Holdings P.Ltd., vs. State of Kerala and
others reported in 2015 (8) SCC 293 and brought to
the notice of this Court paragraphs-8 and 9 wherein also
the Hon'ble Apex Court discussed with regard to
recording the offence of cheating and the same can be
invoked 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. He
further observed that civil wrong is also a criminal
offence and only because civil remedy is available to the
complainant that itself cannot be a ground to quash a
criminal proceeding. But real test is whether the
allegations in the complaint disclose the criminal offence
of cheating or not, has to be looked into.
10. The learned counsel also relied upon the
judgment of the Hon'ble Apex Court in the case of
Sharad Kumar Sanghi vs. Sangita Rane reported in
2015 (12) SCC 781 wherein also the Hon'ble Apex
Court in paragraph No.11 held that complainant's initial
statement would reflect the allegation are against the
Company, but the Company has not been made arrayed
as a party. Therefore, the allegations have to be
restricted to the Managing Director and when a
Company has not been arrayed as a party, no
proceedings can be initiated against it even where
vicarious liability is fastened on certain statutes. When
the Company has not been arraigned as an accused
such an order could not have been passed.
11. The learned counsel relied upon the
judgment of the Hon'ble Apex Court in the case of
Shivakumar Jatia vs. State of NCT of Delhi reported
in AIR 2019 SC 4463 and brought to the notice of this
Court paragraphs-27, 29 and 30 wherein also discussed
with regard to liability of the directors/controlling
authorities of the Company in a criminal liability and
observed that Hon'ble Apex Court considered the same
in Sunil Bharati Mittal's case and further observed that it
is obligatory on the part of the complainant to make
requisite allegations which would attract the provisions
constituting vicarious liability.
12. The learned counsel also relied upon the
judgment of the Hon'ble Apex Court in the case of
Sushil Sethi and Another vs. The State of
Arunachal Pradesh and Others reported in 2020(3)
SCC 240 wherein brought to the notice of this Court
paragraph-8 wherein the scope of section 482 of Cr.P.C.,
has been discussed and further held that it is required to
be noted that there are no specific allegations and
averments in the FIR and/or even in the chargesheet
that fraudulent and dishonest intention of the accused
was from the from the very beginning of the transaction.
If there are no specific allegations or averments in the
complaint that the accused had fraudulent or dishonest
intention at the time of entering into the contract, there
cannot be any criminal prosecution and when there are
specific allegations made against the Managing Director
even the Director and if such allegations do not
constitute the vicarious liability criminal prosecution
cannot be continued. He further observed that vicarious
liability of the Managing Director and Director would
arise provided any provision exists in that behalf in the
statute.
13. The learned counsel relied upon the
judgment of the Hon'ble Apex Court in the case of
Ravindranatha Bajpe vs. Mangalore Special
Economic Zone Ltd., and Others reported in 2021
Latest Case law SC 436 and brought to the notice of
this Court paragraph-8.3 wherein the Hon'ble Apex
Court discussed with regard to issuance of summons and
observed that learned Magistrate has to record his
satisfaction about a prima facie case against the accused
who are the Managing Director and other office bearers
with respect to the role played by them in their
respective capacities which is sine qua non for initiating
criminal proceedings against them. Looking into the
averments and the allegations in the complaint, there
are no specific allegations and/or averments with
respect to role played by them in their capacity as
Chairman, Managing Director , Executive Director,
Deputy General manager and Planner and Executor. He
further observed that merely because they are
Chairman, Managing Director /Executive Director and/or
Deputy General Manager and/or Planner/Supervisor
without any specific role attributed and the role played
by them in their capacity, they cannot be arrayed as an
accused.
14. The learned counsel also relied upon the
recent judgment of the Hon'ble Apex Court delivered on
29.10.2021 in Dayle Desouza vs. Government of
India through Deputy Chief Labour Commissioner
and brought to the notice of this Court paragraph No.13
wherein also in the absence of Company being arraigned
as an accused, a complaint against the appellant
therefore will not be maintainable.
15. The learned counsel appearing for the writ
petitioners i.e., employees of HESCOM would
vehemently contend that the very initiation of criminal
prosecution against these petitioners is nothing but
arbitrary and misuse and abuse of process and the
learned Magistrate failed to take note of the material on
record while taking cognizance and erroneously rejected
the application filed for discharge and not applied his
judicious mind while rejecting the application.
16. The learned counsel also brought to the
notice of this Court that Departmental Enquiry is
conducted against these writ petitioners and the enquiry
officer exonerated these petitioners by coming to the
conclusion that there is no material available to proceed
against them and the same has been accepted by the
Disciplinary Committee vide proceedings dated
02.02.2019 and the Disciplinary Authority came to the
conclusion that there are no specific allegations in the
chargesheet leveled against them and hence, there
cannot be criminal prosecution and when the
complainant failed to prove the case against the
petitioners in proving the preponderance of probability,
the question of subjecting them for criminal prosecution
which requires proving beyond reasonable doubt, is
nothing but an abuse of process.
17. The learned counsel in support of his
argument he relied upon the judgment of the Hon'ble
Apex Court reported in the case of Ashoo
Surendranath Tewari vs. Deputy Superintendent of
Police, EOW CBI reported in AIRONLINE 2020 SC
809 and brought to the notice of this Court paragraph
No.7 wherein the Hon'ble Apex Court discussed the
judgment in the case of P.S.Rajya vs. State of Bihar
wherein paragraph Nos.3, 17, 23 and also judgment of
Radheshyam Kejriwal vs. State of West Bengal and
Another reported in (2011) 3 SCC 581 and also
referred paragraph-26, 29, 31 and also extracted
paragraph-38 to cull out the ratio of those decision and
applying the ratio laid down in paragraph-38 particularly
adjudication prosecution and criminal prosecution can be
launched simultaneously and held that decision in
adjudication proceedings is not necessary before
initiating criminal prosecution. The finding against the
person facing prosecution in the adjudication
proceedings is not binding on the proceeding for criminal
prosecution and further observed that in case of
exoneration, however, on merits where the allegation is
found to be not sustainable at all and the person held
innocent, the criminal prosecution on the same set of
facts and circumstances cannot be allowed to continue,
the underlying principle being the higher standard of
proof in the criminal cases and in paragraph-39, came to
the conclusion that yardstick would be to judge as to
whether the allegation in the adjudication proceedings
as well as the proceeding for prosecution is identical and
the exoneration of the person concerned in the
adjudication proceedings is on merits. In case it is
found that there is no contravention of the provisions of
the Act in the adjudication proceedings, the trial of the
person concerned shall be an abuse of the process of the
Court.
18. The learned counsel for the writ petitioners
referring the judgments would vehemently contend that
when departmental enquiry was conducted and these
petitioners were exonerated from departmental enquiry
and disciplinary proceedings, there cannot be any
criminal prosecution and hence, approached this Court
to quash the criminal prosecution initiated against these
petitioners. The learned counsel brought to the notice of
this Court that relying upon this judgment this Court in
W.P.No.19700/2018 quashed the proceeding in FIR/
criminal case No.659/2015 by coming to the conclusion
that Hon'ble Apex Court in detail discussed in Ashoo
Surendranath Tewari's case referred supra and
hence, the said judgment is also applicable to the facts
of the case on hand. The learned counsel also relied
upon the order passed in Crl.P.No.5091 of 2020 wherein
also the judgment of the Hon'ble Apex Court in the case
of Ashoo Surendranath Tewari's case referred supra
was considered and quashed the proceedings.
19. The learned counsel also would vehemently
contend that there is no such illegality or
misappropriation and further in the Departmental
enquiry all the allegations are traversed and came to the
conclusion that no role of this petitioner in disbursing
the amount and hence, it requires interference of this
Court.
20. Per contra, learned counsel for the
complainant would vehemently contend that the
petitioners are not disputing the fact that work was
entrusted to them for providing electricity to the BPL
households and also not disputing the fact that they
have drawn money but only their contention before the
Court is that no specific allegations are made in the
complaint. The learned counsel would vehemently
contend that in the complaint specific allegations are
made against the Managing Director and specific
statement is made that he being the Managing Director
representing the Company though work was taken to
provide electricity and specific allegation is made that
electricity was not provided to some of the houses
particularly in respect of 242 houses but amount was
drawn, the learned counsel would also submit that
Investigating Officer has received the complaint,
investigated the matter and collected the material and
filed the documents along with chargesheet.
21. The learned Magistrate considering the
charges as well as its enclosures took the cognizance
and issued the process in coming to the conclusion that
there is a prima facie case to proceed against the
petitioners herein. The learned counsel would also
submits that the petitioners have filed application under
Section 239 of Cr.P.C., and the learned Magistrate while
rejecting the application also assigned the reasons that
it requires trial and detailed order has been passed in
coming to the conclusion that the allegations made
against them is criminal breach of trust and
misappropriation of the funds without doing the work of
providing electricity to the deserving persons, the
petitioner have indulged in misappropriating the amount
by creating the documents that even though work was
not done officials of the HESCOM department have
certified that work was satisfactory and based on those
created documents bill are passed and when the
petitioners have not disputed that they have received
the money in entirety for the work which was entrusted
to them and it is not their specific case that they have
provided electricity to the houses under the Scheme the
work was taken. Merely in the department enquiry they
have been exonerated and the same cannot be a ground
when criminal breach of trust was done with an intention
to cheat the complainant and the same is very clear that
from the inception when the document is created and
got the amount, under such circumstance, the
ingredients of section 420 of IPC attracts against the
accused No.1 as he is the Managing Director of the
Company and whether he is involved in the commission
of the offence has to be considered only after completion
of trial and unless trial is completed, the same cannot be
decided and also Court cannot conduct mini trial at the
time of considering the application filed under Section
227 of Cr.P.C., and the defence also cannot be
considered while considering the application filed under
Section 227 of Cr.P.C., for discharge.
22. The learned High Court Government Pleader
would submit that it requires trial and also disputed
facts cannot be considered under Section 482 of Cr.P.C.,
and the allegations made against accused persons have
been investigated by the Investigating Officer and the
Investigating Officer found the material with regard to
the offences invoked against them particularly offence
under Sections 408, 409, 420, 465, 477(A) of IPC and
hence, the proceedings cannot be quashed.
23. Having heard the respective counsels and on
perusal of material available on record, in the complaint
specific allegations are made particularly against the
Managing Director of the Company wherein specific
allegations are made against him that the work was
allotted to the Company under the Scheme Rajiv Gandhi
Rural Electrification Scheme and petitioner in criminal
petition No.200882/2019 is the Managing Director of the
Company and in respect of 4 villages electrification work
was entrusted particularly to provide electricity to the
BPL householders and out of 660 houses only 418
houses were provided electricity and in respect of 242
houses, though amount was drawn, electricity
connection was not given and hence, there was
misappropriation of Rs.6,76,390/-. Based on the
complaint, a case was registered and investigation was
conducted and filed the chargesheet and while filing the
chargesheet, in total 100 witnesses were examined,
both of the beneficiaries under the scheme as well as
concerned officials. Those witnesses are particularly in
respect of the villages which have been adopted for
giving electrification. No doubt, in the discharge
application particularly in paragraph-15, the Managing
Director has contended that even assuming payment
have received in excess, the beneficiary is M/s GVPR
Engineers Limited and not the petitioner and hence,
there cannot be criminal prosecution against the
petitioner. The very contention that Company has not
been arrayed as party to the proceedings, the Court has
to look into the contents of the complaint. In the
complaint, specific name is mentioned as M/s GVPR
Engineers Limited, Hyderabad is specified in the
complaint and it is also specific that in the year 2008
under the Rajiv Gandhi Rural Electrification Scheme
work was entrusted and this petitioner was working as
Managing Director and FIR is also registered against the
Managing Director and in his personal capacity his name
is also shown but he represents the Company i.e., M/s
GVPR Engineers Limited and apart from that the
documents which have been relied upon by the
petitioners also not disputed facts that he was then the
Managing Director and no doubt in the said agreement
authorized signatory has signed and he was authorized
to sign on behalf of the Company. When such being the
allegation made in the complaint itself that work was
entrusted in favour of the Company and by that time,
this petitioner was the Managing Director. The very
contention that no allegation against the Managing
Director and the very contention that even assuming
that excess amount was paid and the same is not in
favour of the Managing Director and the same is in
favour of the Company cannot be accepted. I have
already pointed out that allegation in the complaint is
specific against the Company as well as the Managing
Director who was on the date of entering into the
agreement. Hence, the contention of the petitioner's
counsel that there were no any specific allegations
against the Managing Director cannot be accepted.
24. The law is set in motion by giving the
complaint wherein the Company's name is also
mentioned and name of this petitioner is also mentioned
as Managing Director of the Company and when the
legal entity is shown in the complaint, specifying the
name of the Company and this petitioner is representing
the Company as Managing Director and all these
questions should be considered in the trial only. The
Hon'ble Apex Court in the judgment in the case of
Ashapura Minechem Ltd., vs. Philip J. reported in
AIR Online 2019 SC 730 held that though it is case of
dishonor of cheque, wherein also similar defence was
taken that case was filed against only one of the
partners of the partnership firm without joining the
partnership firm as respondent/accused, wherein also
the Hon'ble Apex Court extracted the description of the
accused given in the order wherein the name of the
persons is mentioned, occupation is also mentioned as
partners and firm name is also mentioned and taking
note of the said fact held that High Court was not right
in quashing the complaint on the assumption that
partnership firm has not been made a party in the
complaint. The question whether such description is
substantial compliance of the requirement of Section
138 read with Section 141 of Negotiable Instruments Act
is a matter to be analysed by the trial Court in the first
instance and further observed that not intended to
answer any other contention except to observe that the
assumption of the High Court for allowing the quashing
petition is contrary to the records and for which reason
the same is set aside. The other contentions are kept
open and it is a matter of trial and this issue has to be
urged in the trial Court. In the case on hand also in the
FIR while registering the case, the name of the
Managing Director is mentioned first and thereafter the
Company name is also found.
25. No doubt, the counsel appearing for the
petitioner in criminal petition No.200882/2019 has
referred to the judgments of the Hon'ble Apex Court
delivered in the years 2019, 2020 and 2021 wherein the
Hon'ble Apex Court held that the learned Magistrate has
to apply his mind and record his satisfaction of prima
facie case against the respondent and also take note of
the vicarious liability and whether there are specific
allegations or averments against them with respect to
their individual role. In the absence of any specific
allegations criminal proceedings cannot be continued.
There is no dispute with regard to the settled principles.
If no such allegation is made in the complaint, there
cannot be criminal prosecution. I have already pointed
out referring the complaint that specific allegation is
made both against the Company as well as the
Managing Director who was the Managing Director on
the date of entering into the agreement. No doubt
authorized signatory has signed the document on behalf
of the Company and he was authorized signatory to
enter into the agreement with the complainant. Apart
from that, it is not in respect of breach of contract as
rightly contended by the learned counsel for the
complainant. The allegation against the petitioner is that
even though work was not done that is entrusted to
them to provide electricity to the BPL card holders
houses, without completing work, the amount was
drawn. The petitioners are not disputing the fact that
amount was released in favour of them. The very
allegation is also against the officials of the HESCOM
that they also indulged in fabrication of the documents
in creating bills and they themselves have given
certificate that the work is satisfactory even though
work was not done in respect of the houses. The
statement of the witnesses also recorded during the
course of investigation in respect of those houses where
electrification was not provided in terms of the scheme.
The statement of the witnesses also recorded in respect
of houses in which electrification was not provided and
their statement is also available before the Court. When
such being the allegations made against the petitioners,
now they cannot contend that the learned Magistrate
has not applied his mind while taking cognizance and
also in dismissing the application filed under Section 239
of Cr.P.C., for discharge need not consider the defence
of the accused. It is a matter of trial and the document
placed before the Court apparent on record that the
other accused persons have certified the bills which have
been placed for honouring the same in favour of accused
No.1 even though there was no documentary evidence
to show that electricity was provided to all the
beneficiaries. The allegation is specific that out of 660
houses, only 418 houses were provided with electricity
and in respect of 242 houses there was no electricity
provided and statement of those beneficiaries of the said
houses was also recorded. When such being the case,
the trial Judge has not committed any error. While
rejecting the discharge application, the learned
Magistrate need not conduct mini trial or appreciate the
defence of the accused. The accused can place those
materials during the course of the trial and while
framing the charge, the Court has to take note of
whether any strong suspicion is available and strong
suspicion is enough for proceeding against the accused.
In the case on hand, specific allegations are made that
they indulged in creation of documents and used those
documents for drawing the money even though work
was not done. Under the circumstances, I do not find
any error committed by the learned Magistrate in taking
the cognizance as well as dismissing the discharge
application. Well reasoned order is passed by the Trial
Court. Hence, I do not find any merit in the petitions.
26. In view of the discussions made above, I
pass the following:
ORDER
The petitions are dismissed.
Sd/-
JUDGE
SAN/VNR/NB*
