The central legal point established in the judgment is the requirement for fraudulent or dishonest intention at the time of making a promise or representation for establishing the offence of cheating under the Indian Penal Code, and the vicarious liability of a director for the acts of the company.

ORDER :

1. Shri Vishal Baheti, learned counsel for the applicant. Shri Lokesh Bhargawa, learned Public Prosecutor for the respondent/State.

The applicant has preferred this criminal revision under section 397 read with section 401 of Criminal Procedure Code ( in short Cr.P.C.) against the order dated 25-9-2018 passed by Special Judge (Electricity Act No. 7) Indore in Sessions Trial No. 118/2018 whereby the application filed by the applicant under section 227 of the Criminal Procedure Code has been rejected.

2. Brief facts of the case are that a written complaint was filed by Shivkumar Raghuwanshi and 20 others on 14-10-2014 against the applicant and seven other accused persons regarding the act of cheating and fraud committed by them in selling the plots to the complainants situated at Betma Khurd, Mohna and Jamli, District Indore. As per the complaint, accused person induced them to purchase the plots in Natural Valley Colony and cheated them by taking the money from them and not giving them their plots and not getting the plots registered in their name. It is also alleged that accused persons did not allot the plots to the complainants and they have cheated them. It is also alleged that the accused persons were not having any land in Betma Khurd, Mohna and Jamli, in spite of that they have entered into an agreement of sale of plots with the complainants and cheated them.

3. As per prosecution case, the present applicant was appointed on the post of marketing agent in Phoenix Infra Estate International Company, a Company incorporated under the Companies Act, 1956. The applicant was allegedly inducted as Director of the Company. After completion of the investigation, charge-sheet was filed before the Court of Judicial Magistrate, First Class, Indore, who committed the case to the Session Court and ultimately, it was transferred to the Special Judge (Electricity Act No. 7).

4. The applicant has filed an application under section 227 of Criminal Procedure Code for discharging him from offence under sections 420, 467, 468, 470 and 120-B of Indian Penal Code registered against him, however, the said application was dismissed vide order dated 25-9-2018, which is subject matter of challenge before this Court.

5. Learned counsel for the applicant has submitted that applicant has not executed any agreement in favour of the complaints nor he has received any amount, more over there is no allegation that he ever acted in his personal capacity for the act of the Company. The applicant cannot be held personally liable in the offence of legal fiction. The only averments in the FIR regarding the non-fulfillment of the promise which does not constitute for offence under section 420 of Indian Penal Code. No mens rea is inducted on the part of the applicant based on the FIR. He has not alleged to have prepared any forged documents, thus no offence can be said to be committed under sections 467, 468, 470 and 120-B of Indian Penal Code. It is also submitted that the applicant has been implicated in the said crime on the premises that he is being one of the Directors of the Company is vicariously liable for the acts of the Company. Although the director can be vicariously liable for the act done by the Company but it is the Company who is the Principal offender and without impleading the Company as accused, no prosecution is legally maintainable against the director of the Company. Under these grounds, it is prayed for quashment of FIR bearing Crime No. 1056/2014 and charge-sheet dated 25-9-2018 filed against the applicant.

6. Learned counsel for the respondent/State opposed the prayer by contending that there are allegations against the applicant that number of persons booked the plots in the Natural Valley Colony and they have paid the consideration amount of plots but despite the payment of full plots price no sale deed was executed in their favour and applicant committed fraud with them, therefore, he prayed for dismissal of the petition.

7. I have