Amitav Kumar Gupta, J. - (1.) THIS revision is directed against the order dated 01.02.2011 passed by the learned Judicial Magistrate, Ist Class, Pakur in Pakur Nagar P.S. Case No. 02/2004 whereby petition for discharge from the charges for the offence under Sections 406, 408, 420 and 120B IPC has been rejected.
(2.) LEARNED counsel for the petitioner has submitted that the informant had earlier lodged a complaint case under Sections 138 of Negotiable Instruments Act in the year 2002 alleging therein that Somnath Chatterjee, brother of the petitioner had received the money and issued the receipt. That subsequently, in 2004 on the same facts the informant has lodged the present case under Sections 406, 408, 420 and 120B IPC alleging that this petitioner along with Somnath Chandra had assured the informant that they would deliver the second hand truck and had taken Rs. 2,40,000/ -. It is alleged that when the petitioner asked for delivery of the truck then on one pretext or other they kept delaying the delivery of the truck and finally refused to deliver the truck. That after investigation police submitted the charge -sheet. It is argued that there is no material in the case diary to show that any money or the draft was handed over or entrusted to this petitioner. Thus in the absence of any entrustment of property there can be no breach of trust to make out a case under Section 406 IPC or of cheating under Section 420 IPC against the petitioner. In support of the contention reliance has been placed on the decision in the case of G. Sagar Suri vs. State of U.P., reported in : (2000) 2 SCC 636. It is urged that in similar facts and circumstances, the aforesaid case was filed under Section 138 of the Negotiable Instrument Act and the Supreme Court had held that since no averment was made regarding the offence under Sections 406 and 420 in the case filed under Section 138 of the N.I. Act then lodging of a subsequent case, on the same set of facts, is an abuse of process of court and law, accordingly discharged the accused and quashed the proceeding. It is submitted that the facts of this case is in pari materia with G. Sagar Suri's case (Supra) and as per the ratio laid down by the Apex Court the impugned order is fit to be set aside.
(3.) IT is submitted that the petitioner is the Director and there is no provision in the Indian Penal Code fastening vicarious liability on a Director of a Company. To substantiate the argument reference has been made to the decision in the case of S.K. Alagh vs. State of U.P., reported in : 2008 (4) East. Cr. C. 11 (SC) wherein it has been held that Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself. Learned counsel has also placed reliance on the decision in the case of Sanjiv Paul vs. Central Bureau of Investigation, reported in : 2013 (3) JCR 469 (Jhr.) wherein it has been held that in Indian Penal Code, save and except some provisions specially providing thereof, does not contemplate vicarious liability on the part of the party, if the person is not charged directly for commission of an offence.;