JUDGMENT [ENTITY], J.
1. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. Shri [ENTITY], learned Counsel waives notices on behalf of the respondent No. 1 and Shri [ENTITY], Additional Public Prosecutor waives notice on behalf of the respondent No. 2.
2. The applicants assail the order passed by the learned Judicial Magistrate, First Class, [ENTITY] dated 21st June, 2005 thereby issuing the process against the accused for the offence punishable Under [SECTION], [SECTION], [SECTION] of the [ACT]. The facts, in brief, leading to the present application are as under.
3. The applicant No. 1, Company, which is the accused No. 1 in the complaint, is a Sugar Manufacturing Company. The accused No. 2 is the Managing Director and Chairman of the accused No. 1. The accused Nos. 3 and 4 are the Merchants/Brokers working for the accused No. 1. The accused No. 5 is the partner of the accused No. 4.
4. It is an allegation of the complainant, respondent No. 1 that on 10th May, 2004, the accused No. 3 by telephonic message induced the complainant who was at [ENTITY] for purchasing 300 bags of sugar. It is the allegation of the complainant that the accused No. 3 gave a telephonic message to the complainant and offered him to purchase 300 bags of sugar at the rate of Rs. 1485/- per bag. It is further alleged that the complainant accepted the said offer and as such the accused No. 3 instructed the complainant to send a demand draft of Rs. 2,22,750/- in the name of the accused No. 1. It is alleged that accordingly demand draft for the said amount was drawn by the complainant in the name of the accused No. 1. Company payable at Bank of Maharashtra, Latur Branch and the same was posted and entrusted in the hands of the accused No. 3. It is alleged that the said demand draft was given by the accused No. 3 to accused No. 2. It is the allegation of the complainant that, however, the accused No. 2 neither gave the agreed sugar bags not repaid the said amount. It is alleged that though the accused Nos. 3 and 4 had sent a letter to the accused No. 2 requesting him to deliver the agreed goods to the complainant, the accused No. 2 flatly refused to deliver the said goods. It is alleged that the said amount was collected by the accused No. 2 in the name of accused No. 1. The complainant, therefore, alleging that the accused Nos. 1 to 4 had misappropriated the said amount and also cheated the complainant by inducing him to pay the amount and thereafter refused to deliver the goods, filed a complaint for the offence punishable Under [SECTION], [SECTION], [SECTION] of the [ACT]. The complaint was also verified by the complainant. The learned Magistrate initially called for an enquiry report from the police Under [SECTION] of the [ACT]. Vide order dated 21st June, 2005, the learned Magistrate issued a process for the offence punishable Under [SECTION], [SECTION], [SECTION] of the [ACT]. Being aggrieved thereby, the applicants are before this Court.
5. Heard Shri [ENTITY], the learned Senior Counsel, appearing on behalf of the applicants and Shri [ENTITY], the learned Counsel appearing on behalf of the respondent No. 1.
6. Shri [ENTITY], the learned Senior Counsel assails the impugned order on the following grounds.
(i) That, the Court at [ENTITY] did not have territorial jurisdiction as the entire cause of action arises within the jurisdiction of the Court at Mazalgaon.
(ii) That, the dispute was entirely civil dispute and no ingredients were made out to make out an offence for which the process was issued.
(iii) That, the applicant No. 1 was a juristic person and as such he could not be charged with the offence for which the process was issued, as mens rea, was an essential ingredient for the offence.
(iv) That, the order of issuance of process was passed mechanically and no reasons were recorded for issuance of process.
(v) That, since the report submitted by the police stated that the dispute appears to be civil, the learned Magistrate has erred in issuing the process.
7. In respect of the first ground, it is submitted that the alleged entrustment was within the jurisdiction of Court at Mazalgaon. It is submitted that the demand draft was allegedly entrusted with the accused No. 3, who, in turn, entrusted with the accused Nos. 1 and 2 within the jurisdiction of Mazalgaon Court. It is, therefore, submitted that in view of the provisions of [SECTION] of the [ACT], it was only the Court at Mazalgaon which had territorial jurisdiction and the Court at [ENTITY] lacks territorial jurisdiction to entertain the said complaint. The learned Senior Counsel in support of this proposition relied on the judgments of the Apex Court in the case of [PRECEDENT] in the case of [PRECEDENT] of Karnataka High Court in the case of [PRECEDENT] of Calcutta High Court, in the case of [PRECEDENT] and of this Court in the case of Jivandas Savchand reported in AIR [SECTION]0 Bombay 490.
8. With respect to the second submission, it is submitted that the applicants had no concern with the complainant. It is submitted that one Sidhant Traders of which the accused Nos. 4 and 5 are the partners, had submitted the tender for purchase of the sugar bags. It was submitted that the said tender was accepted by the applicants and accordingly an agreement was executed between the applicants and the said Sidhant Traders. It is submitted that the amount which was deposited with the applicants was towards the earnest money of the said tender. It is submitted that the said amount was credited in the account of Sidhant Traders. It is submitted that since the said Sidhant Traders had failed to lift the goods within the prescribed time, the said amount was forfeited. It is alleged that prior to forfeiting the said amount, notices were issued to said Sidhant Traders. The applicants rely on the various documents like the tender, the agreement, the notice etc. in support of the submission that the matter pertains to civil dispute between the applicants and the Sidhant Traders and the applicants have no concern with the present complainant. It is submitted that no case for breach of trust was not made out. In support of this submission, reliance is placed on the judgment of the Apex Court in the case of [PRECEDENT] and in the case of [PRECEDENT] . The learned Senior Counsel also relies on the judgment of the Patna High Court in the case of [PRECEDENT] in support of the proposition that if there is no entrustment there cannot be criminal breach of trust. Reliance is also placed on the judgment of the Apex Court in the case of [PRECEDENT]. in support of the proposition that if the dispute is of a civil nature and if there is absence of ingredients of alleged offence of cheating, the proceedings are liable to be quashed.
9. In respect of third submission, since applicant No. 1 is a juristic person, complaint against it is not maintainable, as a juristic person cannot have 'mens rea'. Reliance is placed on the judgment of the learned Single Judge of this Court in the case of [PRECEDENT]. In support of the submission that the learned Magistrate has passed the order of issuance of process mechanically and that no reasons are given for issuance of process, the learned Senior Counsel relies on the judgment of this Court in the case of [PRECEDENT] and in the case of [PRECEDENT]. The learned Senior Counsel further relies on various other judgments wherein it is held that if upon reading the complaint and the documents in support of the complaint, the ingredients to constitute an offence are not made out, it is the duty of this Court to quash the proceedings by invoking its jurisdiction Under [SECTION] of [ACT] so as to prevent abuse of process of law.
10. Shri [ENTITY], the learned Counsel appearing on behalf of the respondent No. 1 submits that insofar as the territorial jurisdiction is concerned, the Court at [ENTITY] had also a territorial jurisdiction to entertain the complaint. Relying on the provisions of [SECTION], he submits that the Court at [ENTITY] also has a jurisdiction. He submit? that since the offence was committed at several places and partly in the area of [ENTITY] jurisdiction, as the inducement was made at [ENTITY], the Court at [ENTITY] also had a jurisdiction. Relying on the provisions of [SECTION], it is submitted that since the property was required to be returned or delivered at [ENTITY], the Court at [ENTITY] had also jurisdiction. Relying on the provisions of [SECTION], he submits that since the message was received at [ENTITY] and the inducement had also taken place at [ENTITY], the Court at [ENTITY] had a jurisdiction. He further submits that since the accused were charged with the offence punishable Under [SECTION], [SECTION], [SECTION] and since the offence has been committed in the course of same transaction in view of provisions of [SECTION], the accused can be tried together at the Court of [ENTITY]. In support of this proposition, he relies on the judgments of the Apex Court in the case of [PRECEDENT] , in the case of [PRECEDENT] , in the case of [PRECEDENT] , the judgment of the Allahabad High Court in the case of [PRECEDENT] , of Karnataka High Court in the case of [PRECEDENT], of Rajasthan High Court in the case of [PRECEDENT] and in the case of [PRECEDENT], of the Madras High Court in the case of [PRECEDENT].
11. Insofar as the second contention of the applicant regarding the dispute being of a civil dispute in concerned, he submits that at this stage only the averments made in the complaint, verification and the material in support of the complaint are to be looked into. He submits that the documents which are annexed with the application and produced for the first time before this Court cannot be looked into at this stage. He submits that in any case, the documents which are sought to be placed on record are all by way of an after thought to give colour of civil dispute to the criminal act of the respondents. He also relied on various documents to show that the documents relied by the applicants were by way of an afterthought. He submits that if upon taking the allegations in the complaint and verification and the material in support thereof the ingredients to constitute an offence are made out, then it is not permissible for this Court to do scrutiny of other documents of arrive at a conclusion that the order of issuance of process was not right. In support of this contention, he relies on the judgment of the Apex Court in the case of [PRECEDENT]. , in the case of [PRECEDENT], in the case of [PRECEDENT]. , in the case of [PRECEDENT]. . He further submits that at this stage, it is not necessary to set out all the evidence in possession of the complainant in the complaint. He submits that, if upon allegations taken at their face value, the ingredients to constitute an offence are made out, no interference would be called for by this Court.
12. Insofar as the contention of the applicants that since the applicant No. 1 is a juristic person, it cannot be charged with for the offence which requires mens rea is concerned, he submits that the reliance placed on the judgment of this Court in the case of [PRECEDENT]. (cited supra) is not well placed in view of the judgment of the Constitution Bench of the Apex Court in the case of [PRECEDENT]. .
13. In respect of next submissions on behalf of the applicants, the learned Counsel submits that upon perusal of the complaint, verification and enquiry report, the learned Magistrate has come to the subjective satisfaction that a prima facie case is made out and as such has issued process Under [SECTION], [SECTION], [SECTION] of the [ACT]. He submits that while issuing process, it is not necessary to record the reasons in detail and as such there is no substance in respect of the submissions of the applicants in this regard. He relies on the judgment of the Apex Court in the case of [PRECEDENT].
14. Insofar as the first contention on behalf of the applicants regarding territorial jurisdiction is concerned, the Apex Court in the Case of [PRECEDENT]. , after examining the provisions of [SECTION], [SECTION], [SECTION], [SECTION], has held that it is not necessary that the Magistrate taking cognizance of the offence must have territorial jurisdiction to try the case as well. It has been held that any Judicial Magistrate of First Class has power to take cognizance of any offence whether committed within his jurisdiction or not. The Apex Court in the aforesaid case has observed thus :
12. [SECTION] imposes a restriction on the Court of Session to take cognizance of any offence as a Court of original jurisdiction. But "any" Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not.
13. The only restriction contained in [SECTION] is that the power to take cognizance is "subject to the provisions of this chapter". There are 9 Sections in [SECTION] most of which contain one or other restriction imposed on the power of a First Class Magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the old [ACT] the commencing words were like these : "Except as hereinafter provided " Those words are now replaced by "Subject to the provisions of this chapter " Therefore, when there is nothing in [SECTION] of the Code to impair the power of a Judicial Magistrate of the First Class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a Magistrate of the power to take cognizance of an offence - of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non obstante clauses. Anyway that is a different matter.
14. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is, therefore, a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the Court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post-cognizance stage and not earlier.
15. Unfortunately, the High Court, without considering any of the aforesaid legal aspects rushed to the erroneous conclusion that the "Judicial Magistrate of the First Class, Gandhidham has no power to take cognizance of the offences alleged" merely because such offences could have been committed outside the territorial limits of the State of Gujarat. Even otherwise, without being apprised of the fuller conspectus a decision on the question of jurisdiction should not have been taken by the High Court at a grossly premature stage as this.
15. The learned Single Judge of this Court, in the case of [PRECEDENT]. (cited supra) has also observed that in some cases the question of territorial jurisdiction of the Court is somewhat complicated and can be decided by that Court only after bilateral hearing. In view of the aforesaid judgment of the Apex Court, I find that the present complaint cannot be quashed on the question of territorial jurisdiction. As held by the Apex Court, any Judicial Magistrate First Class has a power to take cognizance of the offence whether committed in his jurisdiction or not. The issue of jurisdiction would become relevant only when the question of enquiry of trial arises. In any case, it is open for the parties to raise this issue before the learned Magistrate and the learned Magistrate after perusing the documents in support of the submissions of either of the parties can decide the question of jurisdiction, and if he finds that he does not have a jurisdiction and some other Court has a jurisdiction, he can transfer the case to the Magistrate who would have the jurisdiction. However, I find that, at this stage, it would not be permissible for this Court to go into the said question. If the parties so desire, they may raise the issue pertaining to the jurisdiction before the learned Magistrate who has taken cognizance and the learned Magistrate would decide the same after hearing the parties. 16. Insofar as the second contention regarding the dispute being of civil nature is concerned, at this stage, what would be relevant is the allegations made in the complaint and the verification at its face value. I find that it will not be permissible for this Court to go into the documents which have been placed before this Court for the first time by both the parties. The Apex Court in the case of [PRECEDENT]. (cited supra) has observed thus :
It is thus obvious that 'the annexures' were neither part of the police-reports nor were relied upon by the investigating officer. These documents were produced by the respondents before the High Court along with the writ petitions. By treating 'the annexures' and affidavits as evidence and by converting itself into a trial Court the High Court pronounced the respondents to be innocent and quashed the proceedings. The least we can say is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has repeatedly held that the appreciation of evidence is the function of the Criminal Courts. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law.
17. In view of the aforesaid judgment of the Apex Court, I find that it will not be permissible for this Court to examine the documents which have been produced for the perusal of this Court for the first time by the applicants so also the complainant. The Apex Court in the case of [PRECEDENT]. (cited supra) has also held that this Court should not act while exercising jurisdiction Under [SECTION] of the Code on annexures to the petition, which cannot be termed as evidence without being tested and proved.
The Apex Court, in the catena of cases, has held that the power to quash proceedings Under [SECTION], has to be used very sparingly. It has also been held that only when, taking allegation in the complaint on its face value, and accepting them in entirety, the ingredients to constitute an offence are not made out, this Court would be justified in quashing the proceedings. It is also a settled law that it would not be permissible for this Court to go into the question of correctness or otherwise of the allegations made in the complaint. The Apex Court in the case of [PRECEDENT]. (cited supra), after considering the law on the point, has observed thus.
The scope of exercise of power Under [SECTION] of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by this Court in [PRECEDENT]. A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:
102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Whether the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under [SECTION] of the Code except under an order of a Magistrate within the purview of [SECTION] of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under [SECTION] of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view of spite him due to private and personal grudge.
As noted above, the powers possessed by the High Court Under [SECTION] of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See [PRECEDENT]. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers Under [SECTION] of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT]) and [PRECEDENT]]
18. In this view of the matter, the limited enquiry that can be permissible for this Court would be as to whether taking the allegations in the complaint on their face value and accepting them in entirety, whether the ingredients to constitute an offence are made out or not. In order to attract the offence punishable Under [SECTION], it will have to be alleged that there was an entrustment of the property, that the said property was dishonestly misappropriated or converted to his own use by the accused or that it was dishonestly used or dispossessed in violation of any direction of law prescribing the mode in which such trust is to be discharged. To attract [SECTION], it will have to be shown that the criminal breach of trust was by public servant, or by banker, merchant or agent. In order to attract [SECTION], it will have to be averred that there was dishonest inducement to the person deceived to deliver the property.
19. On the perusal of the complaint and the verification, it can be seen that there is an averment in the complaint that the accused No. 3 induced the complainant to purchase 300 bags of sugar at the rate of Rs. 1485/- per bag. There is an averment that by telephonic message, the accused No. 3 instructed the complainant to send a demand draft of Rs. 2,22,750/- in the name of accused No. 1. It can also be seen that it is averred that the complainant sent a cheque of Rs. 2,22,750/- in the name of accused No. 1 payable on Bank of Maharashtra, Branch at Latur and the same was entrusted to the accused No. 3. It is also averred that since there was a mistake in the name of accused No. 1 on the demand draft, the said mistake was pointed out by the bank to the complainant and the complainant, in turn, intimated about the same to the accused No. 3 and the Bank of Maharashtra, Latur Branch. It is also averred that the said demand draft was entrusted to accused No. 3, who, in turn, entrusted the same to the accused No. 2. It is also averred that on receipt of gate pass from accused No. 3, the son of the complainant went to accused No. 2. However, the accused No. 2 flatly refused to deliver 300 bags to the complainant's son. It is also alleged that in spite of accused Nos. 3 and 4 giving letters to the accused No. 2 that the said amount was of the complainant and the goods were to be delivered to the accused No. 2, he did not deliver the goods. It is further averred that though the amount was given by the present applicant for supply of sugar, the said amount was credited by the accused No. 2 in the account of accused No. 3. It is not necessary for the complainant to set out in the complaint all the evidence in the possession of the complainant. What is necessary is only the allegation of the facts which constitute an offence.
20. As already discussed hereinabove, it is not permissible at this stage to go into the truthfulness or otherwise of the allegations in the complaint. The only scrutiny that would be permissible, would be as to whether after reading the complaint as a whole and taking the averments on its face value and accepting them in entirety whether the ingredients to constitute an offence, for which the process has been issued are made out or not. I am of the considered view that upon perusal of the complaint as a whole, and taking the allegation at their face value and accepting them in entirety, at least, prima facie, the ingredients to constitute the offence for which the process has been issued are made out. I, therefore, do not find that this is a rarest of the rare case, wherein this Court should exercise its jurisdiction Under [SECTION] of the Code fit case for quashing the proceedings.
21. Insofar as the contention regarding the learned Magistrate not passing a detailed order regarding issuance of process, it has been held by the Apex Court in the case of [PRECEDENT]. (cited supra), that it is not necessary for the learned Magistrate to pass a detailed order at the stage of issuance of process. Therefore, no merit can be found in respect of the present contention.
22. Insofar as the contention regarding the learned Magistrate issuing the process in spite of the report of the police stating the dispute to be of civil nature is concerned, I am unable to accept the said contention also. The Apex Court in the case of [PRECEDENT]. has held that the learned Magistrate can ignore the conclusion arrived at by the Investigating Officer and can independently apply his mind to the facts of the case and if he finds that the case is made out can take cognizance of the matter. As already discussed hereinabove, I find that the averments made in the complaint and the verification and taken it on its face value and accepting them in entirety, do make out the ingredients to constitute an offence for which process is issued. As such, the order of the learned Magistrate cannot be faulted with on this ground also.
23. However, insofar as the contention of the applicants that since the applicant No. 1 is a juristic person and that since the offence charged with required means rea and as such the complaint cannot proceed against accused No. 1 is concerned, I find that the said contention to be well merited. The learned Single Judge of this Court in the case of [PRECEDENT]. (cited supra) has observed thus.
Coming to the first contention, it is the general principle of Criminal Law that a crime is not committed unless the person committing it has the mens rea viz. Guilty mind. The maxim "actus non facit recum, nisi mens sit rea" means that the intent and act must both concur to constitute the crime. Crime is a general term. Offence is that crime which is made punishable by law. For commission of every offence the requisite thing is mens rea unless the statute expressly excludes it. So far as the offence of cheating is concerned it does require the mens rea to deceive. [SECTION] of the [ACT] defines the offence of cheating as under :
415. Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat.
Explanation A dishonest concealment of facts is a deception within the meaning of this Section.
[SECTION] of the [ACT] defines the word 'person' as including any Company or Association or body of persons, whether incorporated or not. The definition is not exhaustive but it is inclusive. Therefore, the word 'person' means both a natural person, whether man, woman or child and an artificial or juridical person like a Company or Corporation. Reading [SECTION] in the light of the definition of the word 'person' as given in [SECTION], it becomes clear that "any person" can be deceived. It need not be an individual or natural person but it can be a Company or Association as well. But the question is whether the deceiver can be any "person" viz. a natural person and a juridical person. In other words, whether the word "whoever' used in [SECTION] means both natural person and juridical person. To put it more directly and specifically, whether a juridical person like a Company or Corporation can commit the offence of cheating within the meaning of [SECTION]. There can be no dispute of the fact that the offence of cheating involves mens rea as an essential ingredient. This is obvious from the use of the words "fraudulently" or "dishonestly" or "wilful'. Under [SECTION] a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. Under [SECTION] whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". It therefore, follows that "whoever" is alleged to have deceived must be a person capable of having the requisite mens rea of fraudulently or dishonestly inducing the person so deceived. The question posed before me is whether a company can have the mens rea of deceiving others.
24. The learned Single Judge has cited the judgment of the Apex Court in the case of [PRECEDENT] . The following passage from the judgment of the Apex Court has been reproduced in the said judgment.
We are aware that in many recent penal statutes, companies or corporations are deemed to be offenders on the strength of the acts committed by persons responsible for the management or affairs of such company or corporations e.g. [ACT], [ACT], etc. But there is no such provision in [ACT] which makes the Company liable for the acts of its officers. Hence, there is no scope whatsoever to prosecute a company for the offence Under [SECTION] of [ACT].
25. It cannot be disputed that the offences punishable Under [SECTION] and [SECTION] require mens rea. It is, therefore, necessary that "whoever" is alleged to have deceived must be a person capable of having the requisite mens rea. Since Company is a juristic person and not a natural person, by no stretch of imagination, it can be said to have requisite mens rea. Insofar as the reliance placed by the learned Counsel on the judgment of the Constitution Bench of the Apex Court in the case of [PRECEDENT]. (cited supra) in concerned, I do not find that the said judgment would be applicable to the facts of the present case. In the aforesaid case, the Apex Court was considering a question of statutory offence. The Apex Court in the said case has held that in the case of absolute liability where the legislature by the clearest intendment establishes an offence where liability arises instantly upon the breach of the statutory prohibition, no particular state of mind is a prerequisite to guilt. It has been held that Corporation and individual person stand on the same footing in the face of such a statutory offence and that it is a case of automatic primary responsibility. The Apex Court itself has observed in paragraph 8 thus.
It is only in a case requiring mens rea, a question arises whether a corporation could be attributed with requisite mens rea to prove the guilt.
26. In that view of the matter, I find that the said judgment would not be applicable to the facts of the present case. Since the process is issued for an offence of criminal breach of trust and cheating, it is essential to have requisite mens rea. Since the accused No. 1 is a juristic person and cannot have necessary mens rea, I find that the complaint against the accused No. 1 is not tenable.
27. The application is, therefore, partly allowed.
(i) The order dated 21-6-2005 insofar as it relates to issuance of process against the applicant No. 1 (accused No, 1) is quashed and set aside.
(ii) The application of the applicant No. 2 (accused No. 2) stands dismissed.
(iii) The applicant No. 2 would be at liberty to apply before the learned Magistrate for exemption from personal appearance and on such application being made, the learned Magistrate would consider it on its own merit and would consider exempting the applicant No. 2 from personal appearance except as and when it is necessary for enquiry or trial.
(iv) It is further made clear that nothing observed herein be construed to: have been observed on the merits of the matter including the issue regarding territorial jurisdiction.
Rule is made partly absolute in the aforesaid terms.