Reserved On:-08.08.2019 Delivered On:-21.08.2019 Case :- APPLICATION U/S 482 No. - 27934 of 2019 Applicant :- Vijay Kumar Khurana Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Dileep Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
1. Heard Shri Sermon Rawat, Advocate assisted by Shri Dileep Kumar Srivastava, learned counsel for the applicant and learned AGA for the State.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the non-bailable warrant dated 02.04.2019 as well as summoning order dated 20.04.2018 passed by Additional Chief Metropolitan Magistrate, Court No. 3, Kanpur Nagar in Complaint Case No. 10180 of 2018 (Smt. Archana Ahuja Vs. M/s A.B.W. Infrastructure Ltd. and others), under Sections 406, 420, 120-B IPC, Police Station Govind Nagar, District Kanpur Nagar pending in the court of Special Chief Judicial Magistrate, Kanpur Nagar.
3. It is submitted by learned counsel for the applicant that summoning order passed in the matter is illegal. Role of the applicant assigned in the matter is signatory of the Company / Firm concerned. Offences levelled in the matter against the applicant are not attracted. If the complaint case is taken into consideration then also amount said to have been paid through cheques was paid in the account of the Company concerned. Applicant was not involved in day to day affairs of the company. Referring to the contents of the complaint, it is further submitted that property for which MOU was entered into between the parties situate in Gurgaon (State of Haryana). MOU was also executed at Delhi. No transaction took place within the territorial jurisdiction of court below. Learned counsel for the applicant also argued that concerned Magistrate while entertaining the complaint, taking cognizance there-on and passing summoning order did not go through the jurisdictional point, which resulted an illegal order. Mandatory provisions of Section 202 Cr.P.C. have not been followed. At this juncture, learned counsel for the applicant also referred to the annexure no. 2 and argued that at the time of offence disclosed in the matter, he was not working in the company concerned arrayed in the complaint but he was working and drawing salary from the Jasum Propcon Projects Pvt. Ltd. company. Deduction was also made by the Income Tax Department as the employee of the aforesaid company. Learned counsel for the applicant also placed reliance on the law laid down in the case of Birla Corporation Limited: Birla Buildings Limited: Govind Promoters Pvt. Ltd. Vs. Adventz Investments and Holding Limited & others: Birla Corporation Limited, 2019 Lawsuit (SC) 1202.
4. On the other hand, learned AGA argued that since cheques in question for the amount said to have been given by the applicant were payable at Standard Chartard Bank, Kanpur, assured amount of invested money have also not been paid, therefore, all the offences levelled against the applicant are attracted and court below has jurisdiction to try the matter. At this juncture, learned AGA referred to the provisions of Section 178 & 179 Cr.P.C. and further argued that there is no illegality, infirmity or perversity in the summoning order. Due to act committed by the applicant and other co- accused, consequences has also ensued within the territorial jurisdiction of District Kanpur Nagar. Thus, court below has not exceeded its jurisdiction. Applicant has admitted in the affidavit of the application itself that he has signed the MOU on the instruction of Atul Bansal, therefore, applicant cannot be exonerated from its liability because he was also involved in day to day affairs of the company and in that capacity, he has signed the MOU entered into between the parties. Specific role has been assigned against him. If he was drawing salary from Jasum Propcon Projects Pvt. Ltd., then also at the relevant time, he was working in the ABW Infrastructure Ltd..
5. I have considered the rival submissions and have gone through the entire record.
6. Before adverting to the facts and circumstances of the case and comparing the same with the submission raised by learned counsel for the parties, para nos. 31, 32, 33, 49, 50, 55, 56 & 61 of the Birla Corporation Ltd. (supra) case are quoted below, which run as follows:-
“31. Under the amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused.
32. By Cr.P.C. (Amendment) Act, 2005, in Section 202 Cr.P.C. of the Principal Act with effect from 23.06.2006, in sub-section (1), the words “and shall, in a case where accused is residing at a place beyond the area in which he exercises jurisdiction” were inserted by Section 19 of the Criminal Procedure Code (Amendment) Act, 2005. In the opinion of the legislature, such amendment was necessary as false complaints are filed against persons residing at far off places in order to harass them. The object of the amendment is to ensure that persons residing at far off places are not harassed by filing false complaints making it obligatory for the Magistrate to enquire. Notes on Clause 19 reads as under:-
“False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub- section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.”
33. Considering the scope of amendment to Section 202 Cr.P.C., in Vijay Dhanuka and Others v. Najima Mamtaj and Others (2014) 14 SCC 638, it was held as under:-
“12. The use of the expression “shall” prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression “shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.” Since the amendment is aimed to prevent persons residing outside the jurisdiction of the court from being harassed, it was reiterated that holding of enquiry is mandatory. The purpose or objective behind the amendment was also considered by this Court in Abhijit Pawar v. Hemant Madhukar Nimbalkar and Another (2017) 3 SCC 528 and National Bank of Oman v. Barakara Abdul Aziz and Another (2013) 2 SCC 488.
49. So far as respondent No.11 who is the CEO of respondent No.10- Company is concerned, it is stated that he is responsible for the day to day affairs of respondent No.10-Company and the complainant invoked the doctrine of vicarious liability. The learned senior counsel Mr. Desai has submitted that for proceeding against respondent No.11, the complaint must show “active role” of the natural person. Reliance was placed upon Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609, wherein it was held as under:-
“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”
50. As rightly submitted by learned senior counsel for respondents No.10 and 11, it is inconceivable that respondent No.11, CEO of respondent No.10-Company, if committed the offence of theft, would have been permitted to continue in that profession. Be it noted, the complainant-appellant Company is also a shareholder in respondent No.10-Company and had its nominee Mr. S.N. Prasad on the Board of Directors of the appellant at the relevant time till his death in December, 2012. It is pertinent to note that no complaint has ever been made against respondent No.11 against alleged theft or any other overt act. In the absence of particulars or prima-facie case in the complaint or the statement of Shri Samir Ganguly against respondents No.10 and 11, the satisfaction of the Magistrate appears to be on the presumptive footing that respondents No.10 and 11 are in-charge of maintenance of the building. Likewise, issuance of process to other respondents is only on the presumptive footing that they have filed copies of the documents in CP No.1/2010 and in the civil suits filed challenging revocation of the trusts.
55. While ordering issuance of process against the accused, the Magistrate must take into consideration the averments in the complaint, statement of the complainant examined on oath and the statement of witnesses examined. As held in Mehmood Ul Rehman, since it is a process of taking a judicial notice of certain facts which constitute an offence, there has to be application of mind whether the materials brought before the court would constitute the offence and whether there are sufficient grounds for proceeding against the accused. It is not a mechanical process.
56. As held in Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and Another AIR 1963 SC 1430 and in a series of judgments of the Supreme Court, the object of an enquiry under Section 202 Cr.P.C. is for the Magistrate to scrutinize the material produced by the complainant to satisfy himself that the complaint is not frivolous and that there is evidence/material which forms sufficient ground for the Magistrate to proceed to issue process under Section 204 Cr.P.C. It is the duty of the Magistrate to elicit every fact that would establish the bona fides of the complaint and the complainant.
61. The object of investigation under Section 202 Cr.P.C. is “for the purpose of deciding whether or not there is sufficient ground for proceeding”. The enquiry under Section 202 Cr.P.C. is to ascertain the fact whether the complaint has any valid foundation calling for issuance of process to the person complained against or whether it is a baseless one on which no action need be taken. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding against the accused. The issuance of process should not be mechanical nor should be made as an instrument of harassment to the accused. As discussed earlier, issuance of process to the accused calling upon them to appear in the criminal case is a serious matter and lack of material particulars and non-application of mind as to the materials cannot be brushed aside on the ground that it is only a procedural irregularity. In the present case, the satisfaction of the Magistrate in ordering issuance of process to the respondents is not well founded and the order summoning the accused cannot be sustained. The impugned order of the High Court holding that there was compliance of the procedure under Section 202 Cr.P.C. cannot be sustained and is liable to be set aside. Production of copies of documents in the Company Petition – whether would amount to theft:”
7. In this matter, as is evident from the record, property for which the amount i.e. Rs. 11 lakhs has been paid by the opposite party no. 2 through Cheques Nos. 594047 & 594054 dated 03.07.2008 & 03.08.2008 payable at Standard Chartard Bank, Kanpur Nagar situate within the territorial jurisdiction of Gurgaon (State of Haryana). MOU entered into between the parties regarding the property in dispute was executed at Delhi. Complaint case is also that as per MOU till the possession of the building in question is handedover to the complainant, assured amount Rs. 34,000/- per month after deducting the T.D.S. was to be paid by the applicant and other co-accused regularly to the complainant but the same was not paid.
8. As far as jurisdiction of the court below is concerned, keeping in view the provisions of Section 178 & 179 Cr.P.C. and the facts mentioned in para no. 3 of the complaint to the effect that cheques issued by the complainant were payable at Standard Chartard Bank, Kanpur Nagar, it cannot be held that complaint was not maintainable at Sessions Division, Kanpur Nagar. Amount was received by the accused person in the Bank situate at Kanpur Nagar. Thus, submission raised by learned counsel for the applicant in this respect is not acceptable.
9. So far as the compliance of provision of Section 202(1) Cr.P.C. is concerned, it is settled position of law that if the accused is residing at the place beyond the area of the territorial jurisdiction of the court concerned, issuance of process shall be postponed against the accused and concerned Magistrate shall either enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he/she thinks fit. The enquiry contemplated in the aforesaid circumstances under Section 202 Cr.P.C. is for the purpose for deciding whether or not, there is sufficient ground for proceeding in the present matter. Perusal of the complaint annexed with the application clearly reveals that all the accused named in the complaint were residing beyond the territorial jurisdiction of the court below. Thus, it was mandatory to follow the provisions provided under Section 202(1) Cr.P.C.. It further appears that in the present matter court below has decided to enquire the matter himself and in compliance thereof, he has recorded the statement of complainant under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C. Court below has also collected the documentary evidence. Thus, concerned Magistrate has complied with the mandatory provisions provided under Section 202(1) Cr.P.C. If the statement of the complainant and witnesses recorded under Sections 200 & 202 Cr.P.C. are taken into consideration, it is also evident that facts mentioned in the complaint finds support with the statement of the complainant and witnesses. Applicant himself in para no. 20 of the affidavit annexed with the application has clearly admitted that he has signed the MOU entered into between the parties on the instruction of Atul Bansal (co-accused) and was employed in his company. If concerned Magistrate has decided to make enquiry himself and has examined the complainant and the witnesses under Sections 200 & 202 Cr.P.C., then, submission raised by learned counsel for the applicant that mandatory provisions of Section 202(1) Cr.P.C. have not been followed in the present matter is not acceptable.
10. As far as arbitration clause in MOU entered into between the parties is concerned, the said clause will not create any bar in entertaining the complaint, if offences are disclosed said to have been committed by either of the parties of the agreement. Whether applicant was also employee of Jasum Propcon Projects Pvt. Ltd. and was drawing the salary from the said firm, this fact require evidence which could be done during trial and the annexure no. 2 filed in support of the plea is not an uncontroverted document. On scrutiny of entire evidence permissible at this stage and going through impugned order passed by concerned Magistrate, it is also evident that concerned Magistrate while passing the summoning order against the applicant has gone through the entire record as required under law. A prima facie case is made out. Satisfaction recorded by the concerned Magistrate is well founded and need no interference by this Court. Thus, prayer made in the application is not liable to be allowed and is hereby refused.
11. At this stage, learned counsel for the applicant prays that a direction may be issued to the court below for expeditious disposal of the bail application of the applicant.
12. Hence, it is directed that in case the applicant surrender before the court below and apply for bail within thirty days from today, the same shall be considered and decided in view of the settled law. For a period of thirty days from today, no coercive action shall be taken against the applicant.
13. It is made clear that no further time shall be allowed to the applicant for surrender before the court concerned.
14. With the above observations, the application stands disposed of.
Order Date :-21.08.2019 Sanjeet