Dismissed

Vikas Sarkar v. State Th.P/S.Gandhi Nagar and Anr.

J&K HC10 Nov 2020CRMC/560/2016

Case brief

AI extract

What is this about?

This judgment addresses a petition to quash an FIR for cheating filed against an accused who company director. The court held that disputes regarding the accused's capacity (individual vs. director) are factual issues unsuitable for the quashing stage. The court dismissed the petition, stating such claims must be resolved during investigation or at trial.

What did the court decide?

Petition dismissed; interim stay on investigation vacated.

Vikas Sarkar Vs State Th.P/S.Gandhi Nagar and Anr. — Cheating and Forgery | J&K HC (2020)

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU (THROUGH VIRTUAL MODE)

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CRMC 560/2016 IA No. 1/2018 IA 01/2016

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Reserved on 06.11.2020 Pronounced on 10.11.2020

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Vikas Sarkar

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.....petitioner(s)

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Through :- Mr.Sachin Gupta Advocate. V/s

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State and another .....Respondent(s)

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Through : Mr. Aseem Sawhney AAG Mrs S.Kour Sr. Advocate with Ms Vandana Kumari Advocate

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Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT

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1 Through the medium of instant petition, the petitioner has challenged FIR No. 126/2016 for the offence under Section 420 RPC registered with Police Station Gandhi Nagar, Jammu.

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2 The case of the petitioner is that he is one of the Directors of M/S Trestle Recruiters Private Limited, a Company incorporated under the Companies Act, 2013 with its registered office at Kolkata. According to the petitioner, the said Company is engaged in recruitment of persons for different kinds of job in the foreign countries and vessels. It is averred that the son of respondent No.2 Jasreet Singh Soodan, approached the office of the said Company with an intention to work abroad and, accordingly, forwarded his resume to the Company for his recruitment as Cadet in foreign vessels. Pursuant to the same, the son of respondent No.2 was offered employment with a foreign Company namely Happy Dolphin Marine having its office in Egypt at the monthly salary

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of 500 US Dollar. It is further averred that after landing at Cairo, the son of respondent No.2 did not join the Company for the reasons best known to him. It is also averred that a sum of Rs. 50,000/- was charged as fee and the same was returned to son of respondent No.2. The petitioner has further contended that in order to pressurize him to remit more money, respondent No.2 has filed the instant FIR against him.

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3 The status report filed on behalf of respondent No.1 reveals that on 01.06.2016, Crime Branch, Jammu forwarded a complaint lodged by respondent No.2 to SHO, P/S, Gandhi Nagar, Jammu. In the said complaint, it was alleged that the petitioner herein published an Advertisement in the newspaper with a representation that he would arrange work visa for boys. Accordingly, respondent No.2 contacted the petitioner on his telephone No.09163777519 with a request to send his son abroad. It was alleged in the complaint that the petitioner assured to arrange visa for son of respondent No.2 for Europe and demanded an amount for the purpose. Accordingly, an amount of Rs.1.50 lacs at different intervals was credited by respondent No.2/complainant in the Bank account of petitioner bearing No. 098305500455 maintained with ICICI Bank. It was further alleged in the complaint that, instead of arranging work visa, the son of respondent No.2/complainant was sent to Sudan on tourist visa where a further sum of Rs. 3.00 lac was paid. Thus, according to respondent No.2/complainat, his hard earned money has been swindled by the petitioner.

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4 On the basis of aforesaid complaint, FIR No.126/2016 for offence under Section 420 RPC stands registered with Police Gandhi Nagar, Jammu. Vide order dated 07.11.2016 passed by this Court, the investigation in the subject FIR has been stayed.

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5 I have heard learned counsel for the parties and have gone through the

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material on record including the case diary. The main argument advanced by learned counsel for the petitioner is that the petitioner has dealt with respondent No.2, the complainant, in his capacity as a Director of the Company, namely “Trestle Recruits Private Limited”, which is a Company duly incorporated under the Companies Act, 2013. The petitioner has placed on record a copy of the certificate of the incorporation of the aforesaid Company to support his contention. On this basis, it is contended that the Company being a legal entity has a distinct identity of its own separate from that of the petitioner. Thus, according to the petitioner, he cannot be prosecuted for the acts or omissions of the Company even if it is assumed that such acts/commission constitute a criminal offence. In support of his contention, the learned counsel has relied upon judgments of the Supreme Court in cases titled Sunil Bharti Mittal vs. CBI, (2015) 4 SCC 609; Maksud Saiyed vs State of Gujarat and ors, 2008 (5) SCC 668; Rita Honda vs. God Father, AIR 2012 SCC 2797; and Sharad Kumar Sanghi Vs. Sangta Rane 2015 (12) SCC 781.

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6 Learned counsel for the petitioner has further contended that the son of respondent No.2 was offered employment contract, but he did not take up the same and, as such, no offence of cheating is made out either against the Company or against the petitioner. In this regard, the petitioner has placed on record copy of the employment contract alleged to have been offered to the son of respondent No.2.

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7 Per contra , learned counsel for the respondents has contended that the contentions raised by the petitioner cannot be gone into at this stage as the same raise disputed questions of fact. According to the learned counsel, these contentions can be gone into by the Investigating Agency during the course of the investigation of the case or by the trial Court if and when the charge sheet is

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filed before it. Learned counsel for the respondents has vehemently argued that in the instant case, FIR clearly discloses commission of the offence under Section 420 RPC against the petitioner, as such, the same cannot be quashed.

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8 In order to test the merits of contention of learned counsel for the petitioner, that the petitioner in his capacity as Director cannot be prosecuted for the acts or omissions of the Company of which he is the Director even if the said acts or omissions constitute a criminal offence, we have to ascertain from the material on record whether respondent No.2/complainant has transacted with the petitioner in his capacity as a Director of the Company or in his individual capacity.

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9 So far as the contents of FIR which is based upon the complaint of respondent No.2 are concerned, the same clearly contain allegation that the complainant has transacted with the petitioner in his individual capacity. There is no averment in the FIR to even remotely suggest that the complainant, while entering into the transaction, which is subject matter of the instant case, had even remote idea that the petitioner is Director of any Company. The allegations contained in the FIR are directed against the petitioner in his individual capacity. It is distinctly alleged in the complaint that money was paid by the complainant to the petitioner and there is a clear allegation that it is the petitioner who has swindled the earned money of respondent No.2/complainant. The complaint has been filed against Vikas Sarkar, the petitioner herein and not against the Company.

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10 Apart from the above, the case diary shows that the bank account to which the respondent No.2 has transferred the money, is in the name of the petitioner and not in the name of the Company of which he claims to be the Director. Thus, there is material on record to prima facie suggest that

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respondent No.2 , the complaint, has transacted with petitioner in his individual capacity and not in his capacity as Director of the Company.

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11 So far as the ratio laid down in the judgment referred to by the learned counsel for the petitioner that, the cardinal principle of criminal jurisprudence is that there is no vicarious liability, unless the statue specifically provides so is concerned, there cannot be any dispute with the said proposition of law. However, in the instant case, the material on record prima facie shows that the complainant/respondent No.2 had dealt with petitioner/accused in his individual capacity and it is not shown either from the contents of the complaint filed by respondent No.2 or from the material collected by the investigating agency till the investigation was stayed that the respondent No.2 had dealt with the Company of which the petitioner claims to be the Director.

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12 The petitioner may be in possession of such material as would go on to show that he, in fact, has transacted with the complainant/respondent No.2 in his capacity as a Director of the Company. He may also be in possession of material/documents to show that, in fact, the respondent No.2/complainant or his son has not been cheated at all, but the question arises whether all these documents/material can be looked into by this Court in these proceedings.

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13 Learned counsel for the petitioner has contended that even in these proceedings, the said material can be looked into and in this regard, he has relied upon the judgment of Supreme Court in the case of Rukmini Narvekar vs. Vijaya Satardekar and ors, JT 2008 (11) SC 32 . I am afraid the ratio laid down by the Supreme Court in the said case does not apply to the facts of the instant case, inasmuch as in the said case, the Court was dealing with the question whether the material produced by the defence, at the time of framing of charge, can be looked into. Here we are dealing with a case where petitioner is seeking quashment of FIR on the ground that the contents of the FIR do not

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disclose commission of any offence against him and that he has dealt with respondent No.2 in his capacity as a Director of the Company and not in his individual capacity.

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14 In my considered opinion, in these proceedings, this Court cannot be go into the genuineness and authenticity of the documents and the material produced by the petitioner so as to form an opinion that petitioner had acted in his capacity as a Director of the Company while dealing with respondent No.2, or that respondent No.2/complainant has not been cheated at all. The genuineness and authenticity of the said material can be gone into by the investigating agency during the course of the investigation of the case or by the trial Court, if and when the charge sheet is presented before it.

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15 The scope of power of this Court under Section 561-A of J&K Cr.P.C is very limited and the criminal proceedings can be quashed only on limited grounds illustrated by the Supreme Court in the case of State of Haryana and ors vs Ch. Bhajan Lal and ors, 1992 AIR 604. The instant case does not come within the purview of any of the illustrations laid down by the Supreme Court in the aforesaid case. The contentions raised by the petitioner can be gone into only after investigation of the subject FIR and, as such, this is not a fit case where jurisdiction of this Court under Section 561-A of J&K Cr.P.C can be exercised to quash the impugned FIR.

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16 For the foregoing reasons, I do not find any merit in the instant petition. The same is, accordingly, dismissed. The interim directions shall stand vacated.

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(Sanjay Dhar) Judge

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Jammu 10.11.2019 Sanjeev

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Whether order is speaking: Yes Whether order is reportable:Yes/No

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SANJEEV KUMAR UPPAL 2020.11.11 15:40 I attest to the accuracy and integrity of this document

Vikas Sarkar v. State Th.P/S.Gandhi Nagar and Anr.

Case brief

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Vikas Sarkar v. State Th.P/S.Gandhi Nagar and Anr.

Case brief

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