2012 Supreme(SC) 90

SUPREME COURT OF INDIA
ASOK KUMAR GANGULY & JAGDISH SINGH KHEHAR
Lee Kun Hee & Others
Versus
State of U.P. & Others
CRIMINAL APPEAL NO. 304 OF 2012 (Arising out of SLP (Criminal) No.9168 of 2009)
Decided on: 01-02-2012

IMPORTANT POINT
In a case of instant nature, civil action will not exclude criminal action.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 179 – Jurisdiction – Words “anything which has been done” – Would extend to anything which has been done in furtherance of the execution of the agreement dated 1.12.2001 – Delivery receipt dated 28.1.2002 issued by the intermediary buyer - Sky Impex Limited – Bill of exchange executed on 1.2.2002 by Samsung, Dubai - the ultimate beneficiary – Establish facts of supply and receipt of goods from India – Sufficient to vest jurisdiction with a competent Court at Ghaziabad. (Para 12)

       (b) Code of Criminal Procedure, 1973 – Section 179 – Jurisdiction – Words “consequence (of the criminal act) ensues” – Complainant holding the bill of exchange at Ghaziabad in India – Consequences thereof would be deemed to ensue at Ghaziabad – Competent court at Ghaziabad shall have jurisdiction. (Para 13)

       (c) Code of Criminal Procedure, 1973 – Section 181(4) – Bill of exchange being held by JCE Consultancy at Ghaizabad in India – Same has to be honoured/realized at Ghaziabad – Competent court at Ghaziabad in India, would have jurisdiction to hold the trial of the complaint. (Para 14)

       (d) Code of Criminal Procedure, 1973 – Section 182 – Place(s) from where the communications/messages/letters etc. were sent – Places at which the same were received – Would be relevant to determine the court of competent jurisdiction – Complainant-JCE Consultancy issuing legal notice from Ghaziabad – Denial of Samsung, Dubai received by counsel of complainant in India – Even if denial was received by the counsel for complainant in a place other than Ghaziabad (though in India), still the competent court at Ghaziabad in India, will have jurisdiction in view of section 178 (d) of the Code. (Para 15)

       (e) Indian Penal Code, 1860 – Section 2 – Foreign nationality of the appellants, their residence outside India, and the fact that they were not present in India when the offence(s) was/were allegedly committed – Are of no consequence – Court at Ghaziabad competent to hold trial. (Para 17)

       (1958) SCR 328 – Relied upon

       (f) Code of Criminal Procedure, 1973 – Section 482 – Accusations levelled by JCE Consultancy and supporting stance of Sky Impex Limited – Undesirable to exculpate the appellants from criminal proceedings before the competent court at Ghaziabad –Culpability of Company/Corporation – Company/Corporation cannot escape liability for a criminal offence merely because the punishment prescribed is that of imprisonment and fine – Absence of mens rea is not determinative. (Para 21, 22)

       (2011) 1 SCC 74; 1992 Supp.(1) SCC 335; (2009) 9 SCC 682 – Relied upon

       (g) Administration of Justice – Civil and Criminal liability – Cheating – What a party has been deprived of by an act of cheating, can be claimed through a civil action – Same deprivation based on denial by way of deception, emerging from an act of cheating, would also attract criminal liability – In a criminal prosecution complainant cannot seek recovery of money of which he was deprived – Instantly, monetary consideration under the bill of exchange cannot be claimed in criminal proceedings – Remedy lies only in civil proceeding – Contention that since a civil claim has been raised by the complainant it can be prevented from initiating criminal proceedings not acceptable. (Para 26)

       Facts of the case:

       Sky Impex Limited (as buyer) entered into an agreement with JCE Consultancy (as seller) on 1.12.2001. The sale consideration for the products to be supplied by JCE Consultancy was determined at US$13,70,000 (approximately Rs.9 crores).

       The product was to be delivered no later than 30.1.2002.

       The buyer was to confirm receipt and certify quality and quantity.

       The product was to be further transferred by the buyer to Samsung Gulf Electronics, Dubai. Consequent upon supply of the product under the contract/agreement dated 1.12.2001, Samsung Dubai was to issue a bill of exchange valued at US$14,32,000, in favour of the buyer Sky Impex Limited. Sky Impex Limited was to further endorse the bill of exchange in favour of the seller (JCE Consultancy). Within 72 hours wherefrom the seller was required to transfer to Sky Impex Limited US$62,000 as commission. Alternatively, the buyer (Sky Impex Limited) could transfer, upon delivery, a sum of US$13,70,000, as sale consideration for the product.

       It was also provided in the agreement, that after endorsement of bill of exchange, the liability of the buyer towards the seller would stand exhausted. Thereupon, the seller would hold the bill of exchange, in due course, and get vested with the authority under the Negotiable Instrument Act, to claim value, directly from Samsung, Dubai.

       Importantly, the agreement dated 1.12.2001 provided that the contract would be governed by the laws of India.

       The product was supplied and received. Bill of exchange was issued by Samsung Dibai but not honoured.

       The JCB consultancy then filed a complaint.

       The VIIth Additional Chief Judicial Magistrate, Ghaziabad passed an order dated 12.1.2005 summoning the accused including the appellant (President of Samsung, Korea) under Sections 403, 405, 420 and 423 read with Sections 120B and 24 of the Indian Penal Code.

       This order was assailed by the five appellants before the High Court filing Criminal Miscellaneous Application which was disposed of.

       Finding of the Court:

       There is no merit in the appeal.

       Result: Appeal dismissed.