My Own Eco Energy Pvt. Ltd vs State Of Rajasthan
2022 Latest Caselaw 645 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

      S.B. Criminal Miscellaneous (Petition) No. 1395/2021
Sube Singh S/o Ramanth, R/o Village Bamanwas, Post Panthroli,
Tehsil Buhana, District Jhunjhunu (Rajasthan).
                                                                   ----Petitioner
                                    Versus
1.     State Of Rajasthan, Through Public Prosecutor

2.     Rahis Kumar S/o Surjaram, R/o Pithola Dhani, Tehsil
       Buhana, District Jhunjhunu (Rajasthan).
                                                                ----Respondents

Connected With

S.B. Criminal Miscellaneous (Petition) No. 6874/2021

1. My Own Eco Energy Pvt. Ltd., Through Its Authorised Representative Shri Adil Khan, Having Its Corporate Office At 401-406 Wing 4Th Floor Mhatre Pen Building, Senapati Bapat Marg, Baba Saheb Ambedkar Nagar, Dadar (West), Mumbai (400028)

2. Santosh Verma Alluri S/o Satyanarayan Raju Alluri, Aged About 45 Years, Residence Of Flat No. 2304/04 23Rd B- Wing, Siddhivinayak Horizon Cooperative Housing Society, Nariman Road, Prabha Devi, Mumbai.

3. Yogesh Dhirajlal Chande S/o D.R. Chande, Aged About 45 Years, Residence of 09, Aditya S.O.C. Gurudwara Road, Shingada, Taalav, Nashik, Maharashtra-422001.

----Petitioners Versus

1. State of Rajasthan, through Public Prosecutor.

2. Rahish Kumar S/o Surjaram Aged About 50, Residence Of Dhani Pithala, Khetri, Jhunjhunu, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Arun Singh Shekhawat, through VC (for Petitioner in No.1395/21) Mr. Pankaj Gupta, through VC (for Petitioners in No.6874/21)

For Respondent(s) : Mr. Subhash Sharma, through VC for complainant.

                                    (2 of 9)                   [CRLMP-6874/2021]


          HON'BLE MR. JUSTICE SUDESH BANSAL

                                  Order

25/01/2022

Both petitions have been filed invoking inherent powers

of High Court under Section 482 CrPC beseeching for

quashing of FIR No.316/2020 registered at Police Station

Singhana District Jhunjhunu for offences under Sections 420,

406 and 120B IPC. Since in both petitions, FIR in question is

same, therefore, have been heard together and are being

decided by this common order.

2. It appears that the respondent complainant Rahish

Kumar instituted a criminal complaint before the court of

Judicial Magistrate, Buhana, against the persons namely Sube

Singh, Aman Datta, Pankaj Didwaniya, and Manager &

Directors of the Company viz. My Own Eco Energy Pvt. Ltd.,

making allegations that the accused persons, in garb of giving

assurance to allot petrol pump by the company, hatched a

conspiracy in order to cheat the complainant and have

defrauded the complainant with Rs.11 lacs. It is alleged that

one Sube Singh met with the complainant and persuade him

that if he is ready to pay Rs.11 lacs, the company would allot

and install a petrol pump in his name on the land or on the

leased land, as provided by complainant and took an

application form from the complainant in the name of

company. Mr. Sube Singh received Rs.1,50,000/- in cash, and

(3 of 9) [CRLMP-6874/2021]

provided bank account number of Company in ICICI bank, to

deposit remaining amount, wherein complainant deposited

Rs.9,50,000/- in instalments. In this manner, accused

persons received Rs.11 lacs from complainant and gave a

letter dated 28-8-2017 of the company that petrol pump at

Singhana road in Shimni has been allotted and petrol pump

set would be installed within three months. One letter of

Aman Datta, and another letter of Pankaj Didwaniya, under

their signature and seal of company were also given to

complainant in conformity of receipt of amount. But lateron

petrol pump was not installed, and when the complainant

tried to contact, it transpired that the Regional Office of

company situated at C-scheme, Jaipur has been closed down

overnight, and they have run away. It is further alleged that

some how, complainant traced Mr. Sube Singh and requested

to return his amount Rs.11 lacs, but he denied to refund the

amount and thus neither petrol pump was established nor

money received from complainant was returned and thus, in

a pre-planned manner accused persons have defrauded the

complainant with Rs.11 lacs. It is alleged that they were

having a dishonest intention since inception, which could not

be gathered by the complainant earlier and revealed to him

lateron.

Learned Magistrate on receiving such complaint, under

Section 156(3) CrPC directed the Incharge of the concerned

Police Station to register a case and conduct investigation,

(4 of 9) [CRLMP-6874/2021]

pursuant to which, the aforesaid FIR in question came to be

registered against the accused persons on 3-12-2020.

3. Petition No.1395/2021 has been preferred by and on

behalf of Mr. Sube Singh and petition No.6874/2021 has been

preferred by and on behalf of the Company and its two

Directors.

4. It is not in dispute that the petitioners have not denied

that they received Rs.11 lacs from complainant for allotment

of petrol pump, which are lying with the company. Their

defence is that since complainant voluntarily applied for

allotment of petrol pump and deposited Rs.11 lacs as security

amount, but lateron after issuance of letter of allotment, he

did not agree to deposit the remaining security deposit of

Rs.21 lacs, and sought to withdraw his application, therefore,

the amount of Rs.11 lacs has been forfeited by the company.

5. Counsel for petitioner Mr. Sube Singh has argued that he

is only an employee of the company and acted for and on

behalf of the Company; the amount paid by complainant, is

deposited in the bank account of company, and he personally

has not cheated the complainant in any manner. He is

personally not liable for any offence of either cheating or

criminal breach of trust and FIR in question is liable to be

quashed, qua him at least.

(5 of 9) [CRLMP-6874/2021]

6. Counsel appearing for the company as well as two

Directors of the Company has argued that even a bare

reading of contents of FIR and allegations levelled therein, if

believed to be true, can only raise a civil liability. The dispute

raised by complainant is only a contractual dispute, which has

been tried to give colour of criminal nature with an ulterior

motive. He has further argued that the Company has not

been made party as accused and even if company commits

any offence, then also its Directors and Managing Directors

cannot be held vicarious liable, just because they held vital

post in the company, until and unless there are specific

allegations levelled against them, which constitute offence

under the Indian Penal Code, 1860. His contention is that

complainant himself entered into contract with the company

and after deposition of Rs.11 lacs has not been able to

deposit remaining amount of security of Rs.21 lacs, and once

he has withdrawn his application, after allotment of petrol

pump, as per terms and conditions of the contract his

deposits of Rs.11 lacs have been forfeited. He contends that

there is an arbitration clause in the agreement and at the

most, complainant may bring his claim for refund of Rs.11

lacs before the Arbitrator and no prima facie case of Sections

420 and 406 IPC is made out at least against Directors and

as such FIR in question is liable to be quashed against the

petitioner company as also against its both Directors.

Reliance has been placed upon illustration (g) of Section 415

(6 of 9) [CRLMP-6874/2021]

IPC and judgments of Hon'ble Supreme Court delivered in

case of S.K. Alagh Vs. State of UP [AIR 2008 SC 1731],

Sunil Bharti Mittal Vs. CBI [2015 AIR SCW 642] and

Ravindranatha Bajpe Vs. Mangalore Special Economic Zone

Ltd. [Law finder Doc Id 1887318].

7. Heard learned counsel for both parties and perused the

material made available on record.

8. A perusal of allegations made in FIR clearly shows that

allegations have been levelled against all accused persons

including Manager and Directors of the Company to hatch

conspiracy and to grab money of the complainant with help of

Sube Singh. As per FIR Sube Singh is stated to be Area

Manager, Aman Datta is stated to Zonal Head North and East,

Pankaj Didwaniya is stated to be Territory Manager of the

company and have been made accused with the Directors of

the Company. Learned Judicial Magistrate on receipt of such

criminal complaint, which give rise of occurrence of

cognizable offences, sent the complaint for investigation to

concerned police station after registering FIR. The FIR itself,

by bare perusal of its contents and on its face value may not

be treated as bogus and in abuse of process of law at least

for the purpose of investigation of cognizable offences. The

FIR is at the stage of investigation before the Police. It is not

appropriate for this court to examine the merits of

accusation, and truthfulness of allegations made in FIR, when

the matter is at the stage of investigation before the police.

(7 of 9) [CRLMP-6874/2021]

Simultaneously, to assume the accused persons as innocent

and having no involvement in alleged offences, would also be

amount to interference in process of investigation and would

tantamount to overreaching the process of investigation,

which is not permissible in law. The defence put forth by

accused persons cannot be examined at this stage. It is

suffice to note that allegations of having conspiracy by the

Directors of the Company with other named accused persons

are available in the FIR. All these Judgments of Hon'ble

Supreme Court referred by counsel for petitioners propound

the fundamental principles of law that unless specific

allegations and averments against Directors and Managing

Directors, CEOs of company with respect to their individual

role is made, they cannot be held vicariously liable for

offences committed by Company itself. There is no res integra

about such proposition of law. But in all these cases the

Hon'ble Supreme Court has discussed the aforesaid principles

of law on merits after conclusion of investigation and trial,

whereas, in the present case, the FIR in question is at the

initial stage of investigation by police. On the face value of

FIR in question, there are allegations of hatching conspiracy

by Mangers and Directors of the company with other accused

to grab the money from complainant in the name of company

and indisputably amount of Rs.11 lacs of complainant has

been pocketed by the company. Thus, judgments relied upon

(8 of 9) [CRLMP-6874/2021]

by counsel for petitioners do not render any help to quash the

FIR at this stage.

9. As far as the another point raised by petitioners that the

dispute at the most gives rise to a contractual dispute, and

arbitration clause exists to resolve such dispute, is concerned,

criminal law can also be set at motion, when there are

allegations that accused persons dishonestly cheated and

defrauded complainant in order to gain benefits and to put

complainant at a loss by hatching a conspiracy. It is a matter

of investigation, as to whether all the petitioners with other

accused persons are involved in offences of cheating and

criminal breach of trust or not?

10. In matters related to quashing of FIR at initial stage or

at the investigation stage, Hon'ble Supreme Court in

celebrated judgment of State of Haryana Vs. Bhajan Lal

[1992 Supp(1) SCC 335] has laid down seven principles

enunciated in paragraph 102 of the said judgment. Such

seven principles have been followed and approved in series of

subsequent judgments by Hon'ble Supreme Court including

the recent judgment in case of Neeharika Infrastructure Pvt.

Ltd. Vs. State of Maharashtra [(2021) SCC Online SC 315].

In order to maintain the brevity, such seven principles are not

being reproduced here, but are well known to all.

(9 of 9) [CRLMP-6874/2021]

11. The present case of petitioner does fall in any of seven

principles/ illustrations set out by Hon'ble Supreme Court in

case of Bhajan Lal (supra). The Hon'ble Supreme Court has

repeatedly observed and held that power of quashing of

criminal proceedings should be exercised very sparingly and

with circumspection and that too in rarest of rare cases.

Extraordinary inherent powers of High Court may not be

allowed to embark upon an enquiry about genuineness of

allegations made in FIR or complaint.

12. In backdrop of aforesaid factual matrix and proposition

of law, as discussed herein above, this court does not find it

fit to quash the FIR in question against either of the

petitioners, under its inherent powers, and therefore, not

inclined to interfere with the FIR in question, pending at the

stage of investigation by police. Accordingly, both petitions

are dismissed.

All pending applications, if any, stand disposed of.

(SUDESH BANSAL),J

Arn/2

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