Anil Kumar Sinha, J.@mdashAll these cases were heard analogous and are disposed of by this common order/judgment as they arise out of the same case.
2. The petitioners filed application u/s 482 Cr.P.C. for quashing the order dated 8.8.94 passed by the Chief Judicial Magistrate, Ranchi, whereby he took cognizance in Complaint Case No. 218/94 and also for quashing the entire criminal proceedings and the order dated 16.12.94 passed by Sri O.P. Sinha, Judicial Magistrate, 1st Class, Ranchi, whereby he ordered to issue summons against the accused-petitioners.
3. The relevant facts, concerning the cases, as aforesaid are that the complainant, who is the Managing Director of Vijeta Construction Ltd. filed Complaint Case No. 218/94 against the petitioners in the Court of the Chief Judicial Magistrate, Ranchi, alleging therein that the accused-persons induced the complainant, its Directors and other officials for purchasing of Uelzender Heavy Duty Plaster Sprayer Model. S-80 D machine valued at Rs. 4,65,600/- and on their inducement the complainant and the company''s officials agreed to purchase the said machine. It has been alleged that it was the responsibility of the accused to instal the said machine at the work site of the complainant at Rudan (Gujarat) in working condition and the complainant gave undertaking of making payment to the accused through Allahabad Bank, Ranchi. The accused installed machine at Rudan on 26.3.93, which was found completely defective as it did not work at all and it was not according to the specification, on account of which, the complainant-company could not use the same. The complainant wrote several letters to the accused to take back machine and demanded back the payment made by him. But, the accused in order to put the complainant to wrongful loss and to gain for themselves realized the payment from the bank on 4.3.94. It has been alleged that the accused had the intention from the very beginning to deceive the complaint-company and to put it to wrongful loss and dishonestly induced the complainant-company to purchase the said machine, which according to the complaint-petition was changed because specification of the machine shown to the complainant at the time of securing order was different and the specification of the machine supplied was defective and was also different. Therefore, the complainant, prayed that the cognizance u/s 420/426, I.P.C. may be taken against the accused-persons and they may be proceeded in accordance with law.
4. The complaint was filed on 28.7.94 and on 8.8.94, the complainant was examined on oath and the learned Chief Judicial Magistrate kept the case in his own file for making inquiry u/s 202, Cr.P.C. One witness, namely, Lal Bhubaneshwar Nath Sahdeo was examined as C.W.No. 1 during inquiry and by order dated 16.12.94 the learned Chief Judicial Magistrate came to the conclusion that from the oral and documentary evidence adduced in the case and after considering the complaint-petition as also the S.A. examination of the complainant, a prima facie case under Sections 420/426 of the I.P.C. has been made out against the accused-persons. So, he took cognizance under the aforesaid counts and transferred the case to the Court of Sri O.P. Sinha, Judicial Magistrate, 1st Class, Ranchi, for disposal according to law. The case was received in the Court of Sri O.P. Sinha, Judicial Magistrate, 1st Class, Ranchi, on 3.1.95 and the transferee Court passed order for issuing summons against the accused-persons by the order dated 20.3.95.
5. The petitioners have challenged the order of taking cognizance and the order by which summonses have been issued against the accused-persons on the following grounds:
(i) that it is a case of civil dispute arising out of sale and purchase of machine, for which, a civil suit has already been filed and therefore, the prosecution of the petitioners in a criminal case is mala fide and liable to be quashed.
(ii) that in the facts and circumstances of the case the Court situated at Ranchi had no jurisdiction to try the case and, as such, the impugned order of cognizance and issuing summonses against the accused-persons by the Court situated at Ranchi is without jurisdiction.
(iii) that the learned Chief Judicial Magistrate while taking cognizance in the case vide his order dated 16.12.94 did not pass any order for issuing summonses against the accused-persons and the transfree Magistrate had no jurisdiction to issue summonses against the accused-persons.
(iv) that the accused had no mens rea.
(v) that according to the provision of Section 630 of the Companies Act, 1956, the officers of the Company can be proceeded for the offence committed in relation to the affairs of the company and they are not liable to prosecution under the general provision of the Indian Penal Code.
6. So far as the point No. i is concerned, it is a settled law that the criminal action is maintainable in a case where civil liability also arises. Therefore, the point raised by the learned Counsel for the petitioners that it is a case of civil liability and so, criminal case is not maintainable is devoid of any merit.
7. So far as the point No. ii regarding jurisdiction is concerned, the provision of Section 178, Cr.P.C. may usefully be quoted as hereunder:
178. Place of inquiry or trial:
(a) when it is uncertain in which of several, local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
In view of the aforesaid provisions, if the allegations in the complaint-petition are examined, it would be evident that the place, date and time of occurrence, as stated in the complaint-petition, is at Ranchi and it has also been stated that the assurance was given to the accused for payment of the price, of the machine through Allahabad Bank, Ranchi. The complainant-company is situated at Ranchi and the complainant-, company wrote letters to the accused to take back the machine and refund the payment from its Ranchi Office. According to the complaint-petition, the accused-persons induced the complainant and its Director and other officials for the purchase of the machine, in question, although the fact remains that the machine was installed at Rudan (Gujarat) and the head office of the Company of the accused is situated at Koimbatore. It would, therefore, appear that several acts were done in different local areas falling within the jurisdiction of Ranchi, Gujarat and Koimbatore. Hence, according to Section 178(d) of the Cr. P.C., the case can be inquired and tried into by a Court having jurisdiction over any of such local areas where the acts complained of is committed within the jurisdiction of different local areas. I am, therefore, of the view that the Court at Ranchi had the jurisdiction to inquire and try the case. As such, the point raised on behalf of the petitioners that the Ranchi Court had no jurisdiction has also got no merit in it.
8. So far as the point No. iii is concerned, it is the admitted position that the learned Chief Judicial Magistrate while taking cognizance under Sections 420/426, I.P.C. against the accused-petitioners did not pass any order of issuing summons against the petitioners. The order passed by him is definitely the order u/s 204, Cr.P.C. because he passed that order after holding an inquiry u/s 202, Cr.P.C. Therefore, it was incumbent upon the learned Chief Judicial Magistrate to pass order for issuing summonses against the accused-persons which was not done by him and the transfree Court had no jurisdiction to issue summonses against the accused-petitioners. Hence, in such view of the matter, the order dated 20.3.95 passed by the transfree Court of Sri O.P. Sinha, Judicial Magistrate, 1st Class, Ranchi, whereby he ordered for issuing summonses against the accused-petitioners is without jurisdiction. In the case of Umasharikar Vidyarthi @ Umesh Singh @ Umesh Singh and Anr. v. The State of Bihar and Anr. 1975 B.B.C. J. 531, it was held by the Division Bench of this Court that:
...Whenever a Magistrate says, after receipt of the inquiry report, that, agreeing with the inquiry report he was taking cognizance, for all purposes it is an order u/s 204 of the Code. In such cases, the Magistrate should also issue summons or warrant, as the case may be, in accordance with Section 204 of the Code and then only he should transfer the case for disposal. The question whether a complaint, case could be transferred even before the issuance of process was examined by a Bench of this Court in Sudama Singh v. Kauindro Narain Singh and it was held that in view of the judgment of the Supreme Court in Rajendra Nath Mahto and Section 202 of the Code, a complaint can be transferred to another Magistrate for inquiry before summons is issued and such transferee Magistrate can later issue summons, if he is satisfied that there was sufficient ground for proceeding against the accused. But, if the power of transfer has not been exercised and the inquiry report is placed before the Sub-Divisional Magistrate, he should issue summons or warrant, as the case may be, in terms of Section 204 of the Code.
Their Lordships, therefore, set aside that part of the order by which the case was transferred before issuance of process and directed the Sub-Divisional Magistrate to pass an order for issuance of process in terms of Section 204, Cr.P.C. Relying upon the aforesaid decision in the case of Umashankar Vidyarthi @ Umesh Singh and Anr. (supra), I am also of the view that the order dated 20.3.1995 passed by Sri O.P. Sinha. Judicial Magistrate, 1st Class, Ranchi for issuing summons against the accused petitioners cannot be sustained and is fit to be quashed and the matter should be remitted back to the learned Chief Judicial Magistrate for passing necessary orders for issuing process u/s 204, Cr.P.C. in accordance with law.
9. As regards point No. iv is concerned, suffice it to say that in the complaint-petition, the complainant had alleged that the accused had intention from the very beginning to deceive the complainant-company and to put it to wrongful loss and to gain for themselves wrongfully demanded the payment from the bank. It was also alleged that by changing the specification of the machine the petitioner .supplied the defective machine and under the inducement of the officials of the accused-persons the complainant-company agreed to purchase the machine of a price of Rs. 4,65,600/-. As such, the facts referred to above would show prima facie that the petitioners had the mens rea. Therefore, the submission of Mr. Bhowmik, learned Counsel appearing for the petitioners, that there was no mens rea on the part of the petitioners to commit the alleged offence has got no force in it and his submission is fit to be rejected.
10. The last point which was urged by Mr. Bhowmik is that according to provision of 630 of the Companies Act, 1956, the Officers of the Company can be proceeded for the offences committed in relation to the affairs of the Company and they are not liable to be prosecuted under the general provision of the Indian Penal Code. In reply to his submission, Mr. M.M. Banerjee, learned Counsel for the complainant-opposite party No. 2 submitted that the provision of the Companies Act is not applicable in the instant case where there is definite allegation that the complainant-Company was cheated by the petitioners who supplied defective machine by deceiving the complainant for their wrongful gain causing wrongful loss to the complainant. It was, therefore, submitted that in view of the specific allegation in the complaint-petition the petitioners are liable to be prosecuted under the provisions of the Indian Penal Code and it is not a company matter which will be governed by the provisions of the Indian Companies Act. The submission of Mr. Banerjee is well founded and carries much force in it. In the facts and circumstances of the case. I am also of the view that the petitioners can be prosecuted under the provisions of the Indian Penal Code as it is not a company matter or any offence committed in respect of a company that the petitioner can only be prosecuted under the provisions of the Companies Act which prescribes penalty u/s 630 of that Act. I, therefore, find no merit in the argument advanced by Mr. Bhowmik that the petitioners are not liable to be prosecuted under the general provision of the Indian Penal Code.
11. In view of my above discussions, the order dated 20.3.95 passed by Sri O.P. Sinha, Judicial Magistrate, 1st Class, Ranchi, in complaint. Case No. 218/94, whereby he issued summonses against the petitioners is quashed and it is directed that the learned Chief Judicial Magistrate, Ranchi, shall recall the case from the Court concerned where it is pending and shall pass order for issuance of process against the accused-persons in terms of Section 204, Cr.P.C.
12. In the result, these applications are disposed of accordingly.
