Dinesh Kumar Singh, J. - (1.) Heard Sri Pankaj Jaiswal learned counsel for the applicant, Sri Shiv Sagar Singh, learned counsel for opposite party no.2 Sri Attreya Dutt Mishra, learned A.G.A. appearing for the State and perused the record.
(2.) This application under Section 482 Cr.P.C has been moved with a prayer to quash the entire criminal proceedings of the complaint case no.4182 of 2014 (G.K. Traders vs. Sudhir Kumar Shukla and others) under sections 406, 420 IPC, Police Station Fazalganj, District Kanpur Nagar and the summoning order dated 20.02.2015 passed by Additional Chief Metropolitan Magistrate 8th Kanpur Nagar and also a prayer is made to stay the proceedings in this case till the disposal of this application.
(3.) Learned counsel for the applicant has mainly argued that the offences, which have been mentioned above, had been constituted against the accused-applicant because the material had only been transported in the ship of the applicant, which was about 23 metric tons of copper scrap. No entrustment of the said property was made to him. The matter is of civil nature. The opposite party no. 2 has also filed a claim petition for making good the loss of the goods. Further it was argued that the proceedings are barred by section 468 Cr.P.C. In criminal case no vicarious liability can be imposed against the accused applicant. The applicant was not Indian national. On the date of occurrence, the company of the applicant was not registered in India and even the address of the company of the applicant is shown wrong. The opposite party no. 2 has not made the company of the applicant as a party in this case but has only made the President of the said company to be an accused, which is illegal. Attention was drawn to page 24 of the paper book, which indicates that the same was bill of lading. The goods to be transported were in a sealed container, hence the applicant had no knowledge as to what was kept in them. On 26.9.2009 the ship had moved and had reached its destination on 29.9.2009 and on that date the opposite party no. 2 had gone for collecting the consignment then he came to know that the copper, which was transported, was missing. The complaint has been filed about five years after the occurrence, hence the same is barred by provision of section 468 Cr.P.C. The crime was not committed in India rather the same was committed in the ship. The jurisdiction of Kanpur Nagar has been falsely made in the present case and accordingly it is prayed that the criminal proceedings against the applicant need to be quashed. It was also argued that the bill of lading would indicate that the responsibility of the applicant was confined only upto custom yard to custom yard, which is indicated in the said bill. Therefore, if any of the goods were found less in weight, number and quantity after it had gone out of the custom yard, the accused-applicant cannot be treated to be responsible for the same. When a question was put to the learned counsel for the applicant as to how he was representing the applicant, who is stated to be foreign national, he replied that vakalatnama was got signed and obtained through courier from abroad. He has also relied upon the following case laws: i). M/s. Indian Oil Corporation vs. M/s NEPC India Ltd. & Ors., Appeal (Crl.) No.834 of 2002. ii). Harishchandra Prsad Mani & others vs. State of Jharkhand & another, Appeal (Crl.) No.124 of 2007. iii). Hira Lal & Ors. vs. State of U.P. & Ors. Crl. Appeal No.662 of 2009. iv) Arun Bhandari vs. State of U.P. and others, Crl. Appeal No.78 of 2013. v). Anil Kohli vs. State (NCT of Delhi), 2002 95 DLT 173. (vi). M/s. Zandu Pharmaceutical works vs. Md. Sharaful Haque & Anr., Appeal (Crl.) No.1241 of 2004. (vii).R. Kalyani vs. Janak C. Mehta & Ors. Crl. Appeal No.1694 of 2008. (viii).Maksud Saiyed vs. State of Gujarat & Ors. Appeal (Crl.) No.1248 of 2007. (ix). S.K. Alagh vs. State of U.P. & Ors., Appeal (Crl.) 317 of 2008.;