Mukta Gupta, J.

1. The present petitions lay a challenge to the common impugned order dated 5th November, 2011 passed by the learned Special Judge, CBI whereby he did not accept the closure report filed by the CBI and took cognizance of offences under Section 120-B IPC read with Section 12 of the Prevention of Corruption Act, 1988 (in short ‘PC Act’) and substantive offence under Section 12 PC Act against the Petitioners and M/s. Videocon Industries Limited through its Managing Director.

2. Learned counsel appearing for Sanjay Tripathi contends that the learned Special Judge took cognizance of the offences punishable under PC Act despite no sanction was granted by the competent authority. Section 11, PC Act is the fulcrum of the offence of which the abetment and conspiracy is alleged. In the absence of cognizance for offence under Section 11 PC Act, no cognizance for offences under Section 120-B IPC read with Section 12 of PC Act and Section 12 PC Act could have been taken. The Petitioner is a public servant and in the absence of sanction since no cognizance for offence under Section 11 PC Act could be taken, the cognizance for offence under Section 12 PC Act is also bad in law. Further the Petitioner could not have abetted the alleged offence committed by himself. On the facts of the case, even a case for abetment as defined under Section 107 IPC is not made out as neither there is an overt act nor instigation on the part of the Petitioner. Reliance is placed on M.S. Lamba v. State, (CBI) 1995 (33) DRJ 58 to contend that once sanction is not granted, the investigating agency could not have resorted to IPC offence by resorting to camouflage.

3. On behalf of the Petitioner Suresh Madhav Hegde in CRL.M.C.4059/2011 it is contended that Section 107(2) IPC requires an overt act or a manifestation thereof to perform the illegal act under Section 11 PC Act. Section 12 is not a stand alone offence and in the absence of cognizance for offence under Section 11 PC Act, no cognizance for offence under Section 12 PC Act could have been taken. The Petitioner is the authorized signatory of M/s. Videocon Industries Limited and in the usual course of business cheques come to him for signing after the concerned department in the company has applied its mind, and the duty of the Petitioner is only to sign the cheques and invoices on the basis of documents prepared by the concerned department. While signing the cheque the Petitioner was not even aware as to for which transaction the cheque was being signed, as M/s Videocon Industries Limited was regularly using the services of M/s. Prakash Packers and Movers, Mumbai for transporting the goods from one place to another. No vicarious liability can be fastened on the Petitioner in the absence of the same being specifically provided in the Statute. Reliance is placed on Maksud Saiyed v. State of Gujarat (2008) 5 SCC 668; Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd. (2010) 10 SCC 479 and Ashok Sikka v. State 147 (2008) DLT 552.

4. Relying on Kehar Singh and Ors. v. State (1988) 3 SCC 609 it is contended that abetment of an offence is not an independent or stand alone offence. Thus, no cognizance could have been taken for the offence of abetment under Section 12 PC Act. The offence of abetment created under Clause (2) of Section 107 IPC requires that there must be something more than a mere conspiracy. There must be some act or illegal omission in pursuance of the conspiracy. Without a charge of the substantive offence, no offence of abetment can be made out. Further the necessary ingredients of an overt act or instigation essential for abetment are absent. It is well settled that what cannot be done directly cannot be done indirectly.

5. On behalf of the Petitioner Prakash Kitta Shetty in CRL.M.C.4171/2011 it is contended that the reliance of the learned Special Judge to summon the Petitioner on the decision of M/s. India Carat Private Ltd. v. State of Karnataka 19