The Supreme Court has dismissed a petition filed by the director of a company facing allegations of fraud, forgery, and criminal conspiracy. (Birendra Kumar Singh Vs Union of India & Anr.)
A three-judge bench of Justice U.U. Lalit, Justice Indira Banerjee, and Justice Ajay Rastogi while hearing the matter observed, “No criminal cases are said to be identical unless they come from the same crime.” The court made this observation over the contention made by the petitioner that several similar matters are pending before the Court.
The present matter brought before the Apex Court challenged the order passed by the Jharkhand High Court where it had dismissed the petition seeking to quash criminal proceedings including the FIR registered by CBI under Section 420, 468 and 471 read with Section 120B of IPC.
In the Apex Court, the counsel for the petitioner submitted that the petitioner is the director of the company namely Solar Industries Pvt. Ltd. and the Fuel Supply Agreement was entered into as back as 2007. He submits that the signatory to the Fuel Supply Agreement was Tarkeshwar Sahay, who is not the petitioner, although he is co-accused in the case. He further submits that the petitioner had no role to play at the stage of entering into Fuel Supply Agreement and accordingly no criminal case is made out against the petitioner.
The learned counsel has made various arguments in his support such as-
(a) the company has not been made an accused in the instant case and accordingly the petitioner, who was merely one of the Directors of the company, could not have been made an accused. He argued that Directors could not have been made accused as there is no vicarious liability under Indian Penal Code.
The learned counsel also submits that in this view of the matter, the entire criminal proceeding as against the present petitioner is fit to be set-aside.
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(b) the alleged offence arises out of violation of terms of contract and the consequences of the violation of the terms of contract has been given in the agreement itself. Therefore, by no stretch of imagination, any criminal case could have been instituted for alleged violation of terms of contract. He submits that accordingly, the present criminal proceedings by C.B.I. is an abuse of process of Court and accordingly, the entire criminal proceeding, including order taking cognizance, is fit to be set-aside.
(c) the First Information Report in the instant case has been filed suo moto by C.B.I. and no complaint was made either by coal company or by any other person and it appears that there was no loss to the coal company. The counsel has referred to the new coal distribution policy to submit that out of total requirement of coal by the company of the petitioner, only 75 per cent was to be given by way of Fuel Supply Agreement and the rest 25 per cent was to be purchased by the company from e-auction.
(d) The learned Senior counsel for the petitioner also submits that the jurisdictional issue regarding power of CBI to lodge and investigate the criminal case involved in this case has been raised in para 36 and 37 of the present petition. However, during the course of argument, he submits that this point of jurisdiction of CBI has been considered and decided by this Court in other cases.
Opposing the arguments of the petitioner the counsel on behalf of the respondent has submitted before the court that, he had submitted incorrect utilization certificate of coal, which led to further release of coal. Investigation revealed that the unit of the petitioner was not having any electricity connection and the said unit was claimed to be running with the help of generator and the vouchers showing purchase of diesel were found to be forged and fabricated. He further submits that it is not in dispute that the unit could not run in absence of power.
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The counsel for the CBI further submits that the present proceedings is at the stage of order taking cognizance and the points raised by the petitioner, can at best be raised before the learned court below at appropriate stage, and these facts may not be entertained at this stage.
After going to the facts and arguments the High Court observed that, the argument of the petitioner that no prima-facie criminal case is made out for constituting a case particularly under section 420 of IPC, is hereby rejected at this stage.