Tanushree Banerjee, age about 40 years, daughter of Ashok Kumar Banerjee resident of Section v. 1. The State of Jharkhand 2. R. B. Singh son of late Uttam Singh
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.429 of 2018 ------ Tanushree Banerjee, age about 40 years, daughter of Ashok Kumar Banerjee resident of Section 3D, Quarter No. 11, Bokaro Steel City, P.O. + P.S.- Bokaro Steel City, District- Bokaro … Petitioner Versus 1. The State of Jharkhand 2. R. B. Singh son of late Uttam Singh resident of Quarter No.430, Sector- 3E, Bokaro Steel City, P.O. + P.S.- Bokaro, District- Bokaro … Opposite Parties ------ For the Petitioner For the State For the O.P. No.2
Legal Reasoning
co-ordinate Bench of this Court in the case of S. K. Goel & Others vs. The State of Jharkhand & Others passed in Cr.M.P. No.750 of 2021 dated 12.07.2022 wherein in the facts of that case, where the Directors of the company were made accused of the case without the company being made the accused and there was no direct allegation or any whisper against the Directors of mala fide, the co-ordinate Bench considering the settled principle of law that if a wrong has been done by the company the representative of the wrong doer cannot be proceeded with; quashed the entire criminal proceeding. 6. Learned counsel for the petitioner further relies upon the judgment of another co-ordinate Bench of this Court in the case of Krishna Kumar Dokania vs. The State of Jharkhand & Others passed in Cr.M.P. No.2183 and 2190 of 2017 dated 08.06.2022 wherein in a prosecution for an offence punishable under Section 138 of N.I. Act, the Hon’ble Supreme Court of India observed that in absence of a firm as an accused and the admitted position that the accused of that case before the Hon’ble Supreme Court of India being not a drawer; in both the cases he cannot be liable to be punished and quashed the entire criminal proceeding. 7. Learned counsel for the petitioner submits that when the main allegation is against the company and the company has not been made a party, the Managing Director and Director of the company, without any specific allegation against them cannot be prosecuted. 8. Learned counsel for the petitioner further submits that in Cr.M.P. No.431 of 2007 vide order dated 25.06.2008, the co-ordinate Bench of this Court in the facts of that case held that as the money invested by the opposite party No.2 of 3 Cr. M.P. No.429 of 2018 that case was with the firm was not misappropriated or defalcated by the petitioner and she was not a beneficiary, quashed the order by which summon was issued. 9. Learned counsel for the petitioner next relies upon Criminal Revision No.183 of 2007 and submits that in the said case in the similar situation, the co- ordinate Bench of this Court set aside the order by which the petition to discharge the accused of the case was rejected. Hence, it is submitted that the prayer, as prayed for in this Cr.M.P., be allowed. 10. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 vehemently oppose the prayer of the petitioner made in this Cr.M.P. and submit that the facts of this case are entirely different from the facts of the cases; the judgments of which have been relied upon by the learned counsel for the petitioner. It is next submitted that in this case there is direct allegation against the petitioner of inducing the complainant, taking the money, issuing receipt for money all by herself, in connivance and in conspiracy with the co-accused persons. It is then submitted that there is direct allegation against the petitioner of thus having cheated and dishonestly induced the complainant and his family to part with Rs.17,06,000/-, hence, the company, in no way, comes into the picture, in the offence of cheating committed by the petitioner. It is then submitted that therefore, in view of direct and specific allegation against the petitioner of all by herself committing the offence of cheating and criminal breach of trust, there is no necessity of any company being arrayed as an accused. 11. In support of his contention, learned counsel for the opposite party No.2 relies upon the judgment of the Hon’ble Supreme Court of India in the case of 4 Cr. M.P. No.429 of 2018 S. V. Muzumdar & Others vs. Gujarat State Fertilizer Co. Ltd. & Another reported in (2005) 4 SCC 173. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 12. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the petitioner ought to have filed Criminal Revision instead of filing this petition under Section 482 of Cr.P.C. against an order by which his petition to discharge has been rejected. 13. Now, coming to the facts of the case, there is direct and specific allegation against the petitioner of all by herself in connivance and in conspiracy with the co-accused persons, cheating and thereby dishonestly inducing the complainant and his family members to the tune of Rs.17,06,000/- and even issuing receipts for the same. 14. Under such circumstances, this Court is of the considered view that no illegality has been committed by the learned Judicial Magistrate-1st Class, Bokaro in the order dated 19.12.2017 passed in connection with C.P. Case No.395 of 2005 in rejecting the prayer to discharge the petitioner. 15. Accordingly, this Cr.M.P., being without any merit, is dismissed. 16. In view of disposal of the instant Cr.M.P., the interim relief granted vide order dated 16.02.2018, is vacated. 17. Registry is directed to intimate the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 14th of August, 2024 AFR/ Animesh 5 Cr. M.P. No.429 of 2018
Arguments
: Mr. Abhay Kr. Mishra, Advocate : Mr. Sanjay Kr. Srivastava, Addl.P.P. : Mr. Sandeep Kr. Burnwal, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 19.12.2017 passed in connection with C.P. Case No.395 of 2005 by the learned Judicial Magistrate-1st Class, Bokaro whereby and where under the petition filed by the petitioner under Section 245 of the Cr.P.C. has been rejected. 3. The allegation against the petitioner is that the petitioner along with co- accused persons went to the house of the complainant and induced the complainant and his family members to invest money and to build up confidence of the complainant, the petitioner inter alia assured the complainant 1 Cr. M.P. No.429 of 2018 that the agreement will be executed inter alia by him and the payments will be made on monthly basis through cheque. Thus, having been induced by the petitioner, the complainant and his family members deposited Rs.17,06,000/-, the money receipt for which was issued inter alia by the petitioner in favour of the complainant and his family members but when the complainant demanded the agreement paper, the petitioner evaded to enter into the agreement with the complainant with the false pretext that non-judicial stamp papers were not available in the market and thereby the petitioner has defrauded the complainant and his family of huge amount of money in a deceitful manner and two cheques were issued by the co-accused persons but stop payment instructions was given by the co-accused persons, hence, the said cheques could not be honoured. Hence, it is alleged that in connivance with and in conspiracy, all the accused persons have cheated the complainant. On the basis of the complaint, statement on solemn affirmation and the statement of the enquiry witnesses, the learned Judicial Magistrate has found prima facie case against the petitioners, the order of which has not been enclosed herein nor has the same been challenged. The petitioner filed a petition for discharge which was rejected by a reasoned order on 19.12.2017 by the learned Judicial Magistrate-1st Class, Bokaro. 4. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Himanshu vs. B. Shivamurthy & Another reported in (2019) 3 SCC 797 wherein in the facts of that case it was observed by the Hon’ble Supreme Court of India that commission of offence by company is express condition precedent to attract vicarious liability of others. 2 Cr. M.P. No.429 of 2018 5. Learned counsel for the petitioner further relies upon the judgment of a