IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.6256 of 2009 1. VENKAT RAMAN @ R.VENKATARAMAN, EXECUTIVE DIRECTOR, INDIA INFOLINE SEE PVT. LTD., NIRLOM COMPLEX OFF WE HIGHWY, GOREGAON (EAST) P.O. MUMBAI 63 2. ROHIT KOHLI, ZONAL MANAGER, INDIA INFOLINE SEE PVT. LTD., ZONAL OFFICE, SHAKESPEARE SARANI, A.C. MARKET, 5TH FLOOR, KOLKATTA – 700 071 .. PETITIONERS Versus 1. THE STATE OF BIHAR 2. SMT. SAVITA SINGH, W/O RANA RANBIR SINGH, R/O MOHALLA, T.N. SINGH ROAD, HANUMANNGAR, P.S. ADAMPUR, DISTRICT BHAGALPUR .. OPPOSITE PARTIES **** For the petitioners .. Mr. Naresh Dikshit, Adv. For the State .. Mr. Jharkhandi Upadhyaya A.P.P. For opposite party no. 2 .. Mr. Vivekanand Vivek, Adv. **** /3/ 10.12.2010 Heard the counsel for the parties. 2. This petition is for quashing the order, dated 14.07.2008, taking cognizance passed by Shri Niraj Bihari Lal, Judicial Magistrate, 1st Class, Bhagalpur, in Complaint Case No. 742 of 2008, by which he has taken cognizance against the accused persons mentioned in the complaint petition for offence under Sections 408 and 467 of the Indian Penal Code. 2 3. The prosecution case as alleged in the complaint petition by the complainant is that one India Infoline Pvt. Ltd with it’s office at Mumbai deals in share business and the complainant was allotted ID No. 11068223 by India Infoline Security Pvt. Ltd. and on 24.01.2008 the complainant issued a cheque of rupees one lac and handed over the same to accused, Diwesh Kumar, and, thereafter, several enquiries were made about the cheque from the accused, but, no information has been given. The complaint made enquiries from U.T.I. Bank about her SB account and enquiry from the statement from the account of U.T.I. Bank revealed that aforementioned cheque has been encashed in the name of R.K. Stores though the cheque was alleged to have been issued in favour of India Infoline Commodities Pvt. Ltd., Bhagalpur. It has, further, been alleged that the complainant along with her father and husband went to the office of accused, Diwesh Kumar, and asked him as to how the aforesaid cheque issued in favour of the India Infoline Commodities Pvt. Ltd., Bhagalpur, was encashed in the name of R.K. Stores, but, Diwesh Kumar refused to say anything. It is further alleged that then the 3 complainant down load the copy from the web site, which disclosed that India Infoline Commodities Pvt. Ltd., Bhagalpur, has been cut on the cheque and R.K. Stores has been written thereon and the cheque has been encashed in favour of R.K. Stores. It is further alleged that thereafter the complainant sent Pleader notice to petitioner no. 1, Venkat Raman @ R. Venkataraman, and petitioner no. 2, Rohit Kohli, who are the Executive Director and Zonal Manager respectively of India Infoline Security Pvt. Ltd. demanding a reply to be sent within a month, but, no reply has been received and, hence, it is alleged that the accused persons are in conspiracy with each other committed the breach of trust, forgery and cheat. 4. On the said complainant petition the complainant and her two witnesses were examined on oath and on their statement the cognizance has been taken against all the accused persons by the impugned order, dated 14.07.2008. 5. The learned counsel for the petitioners, however, contends that even taken to the allegation made by the complainant in the complaint petition and even assuming that the allegation made are true on the face 4 value of the complaint petition the allegation itself does not make out an offence against the petitioners, Venkat Raman @ R. Venkataraman and Rohit Kohli, as they are the Executive Director and the Zonal Manager of India Infoline Security Pvt. Ltd. as the allegation is that the cheque was handed over to Diwesh Kumar and it is alleged that such cheque was in the name of India Infoline Commodities Pvt. Ltd, but, the said cheque was encashed in the name of R.K. Stores by cutting the name of India Infoline Pvt. Ltd. and introducing R.K. Stores and there is no allegation that the cheque was ever presented to the petitioners or the petitioners have any role to play the only allegation against the petitioners is that the complainant filed a Pleader notice to the petitioners and the petitioners did not reply and it has been contended that if a notice sent and the petitioners do not reply, does not make an offence and further contended that a master is not liable for the criminal offence done by the servant and even if assuming that the accused, Diwesh Kumar, was an employee or staff of India Infoline Security Pvt. Ltd. a criminal liability for the act done by the servant can not be permitted to travel against the master. 5 6. The learned counsel for the opposite party, complainant, submitted that these petitioners are master and the cheque was issued in the name of India Infoline Security Pvt. Ltd. and the cheque was given in the office of the company and when the notice was issued to the petitioners, Venkat Raman @ R. Venkataraman and Rohit Kohli, by post disclosing the fact and demanding a reply, they did not give any reply and so there is involvement of the petitioners. It has, further, been contended that the money belongs to a small investor and such crime made out is a matter of public importance and further even if there is a criminal offence as well as civil liability together both civil case and criminal case can run together and for which has relied upon decision reported in (2009)8 S.C.C., 751 (Mohammad Ibrahim & Ors. Vrs. The State of Bihar & Anr.) for this proposition that both civil and criminal case run together if an offence is made out and further submitted that it is not a case of harassment, but, justice required a criminal prosecution. 7. However, on respective submissions between the parties, the question for consideration is whether an offence is made out against the petitioners and the master 6 can be held liable for the offence made by servant or not. 8. Having regard to the facts and circumstances, the allegation made by the complainant that she handed over cheque to Diwesh Kumar, an employee of India Infoline Security Pvt. Ltd. and the said cheque was encashed in the account of R.K. Store by deleting/cutting the name of India Infoline Security Pvt. Ltd. However, there is no allegation whatsoever against the petitioners in the encashment of the amount or for cutting the name on the cheque at all nor there is allegation that the said cheque was ever presented to the petitioners, Venkat Raman @ R. Venkataraman and Rohit Kohli, or there is no allegation whatsoever that they ever involved. The only allegation is that if the offence committed and the complainant learnt that the said cheque was in the name of India Infoline Security Pvt. Ltd. having been cut and the name of R.K. Store has been written and encashed then she sent a notice to the petitioners, Venkat Raman @ R. Venkataraman and Rohit Kohli, and only allegation is that they did not reply to the notice. However, even if accepting that they did not reply, I fail to understand that how it makes out a criminal liability. However, the question of civil appealable arise 7 in civil case and is not liable in criminal jurisprudence and any act of commission and omission of accused, Diwesh Kumar, the petitioners can not be held liable and even if in cases where civil and criminal cases run together, a criminal case can only be initiated if an offence is made out, however, if no offence is made out then criminal prosecution is not permissible. 9. Having regard to the facts and circumstances, taking the allegation on the face value itself is vague, hence, it appears that the learned Magistrate while issuing process against the accused persons after taking cognizance on the complaint did not apply his mind with regard to the facts and circumstances to find out whether an offence is made out against these petitioners and, hence, the order, dated 14.07.2008, issuing processes against the petitioners after taking cognizance is hereby set aside and the petition is allowed, so far the petitioners are concerned. S.A. ( Gopal Prasad, J.)