Rajasthan High Court
Rajbir Singh S/O Niranjan Singh vs State Of Rajasthan on 6 November, 2024
Author: Sameer Jain
Bench: Sameer Jain
[2024:RJ-JP:43794]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 4394/2023
Ram Singh S/o Kundan Singh, Aged About 58 Years, R/o 382-A
Shrinath Puram, Kota (Raj).
----Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor.
2. Ravinder Singh S/o Shangar Singh, Aged About 35
Years, R/o At Present Pradisik Manager, Tagore Nagar
Petrol Pump, R.k. Puram, Kota City, Permanent Address
Sky Park, Subhash Nagar, Anantpura, Kota City, Raj.
—-Respondents
Connected with
S.B. Criminal Miscellaneous (Petition) No. 6799/2023
Ravinder Pal Singh S/o Shri Shangar Singh, Aged About 35
Years, Territory Manager, (Retail) Bharat Petroleum Corporation
Ltd., Territory Office Village Brijeshpura (Tathed) Baran Road,
Nh-27, Kota- 325201 Having Registered Office At Bharat
Bhawan, 4 And 6 Currimbhoy Road, Ballard Estate, Mumbai.
—-Petitioner
Versus
1. State Of Rajasthan, Through Secretary Home
Department, Rajasthan State Secretariat, Jaipur.
2. Director General Of Police, State Of Rajasthan, Jaipur.
3. Superintendent Of Police, Distt. Kota City, Kota.
4. Inspector General Of Police, Kota Range, Kota.
5. S.h.o. P.s. R.k. Puram, Kota City, Kota.
6. State Of Rajasthan, Through P.p.
—-Respondents
S.B. Criminal Miscellaneous (Petition) No. 4762/2023
Harmeet Singh S/o Palwinder Singh, Aged About 28 Years, R/o
Om Enclave Flat No. C-514 Anantpura, Kota (Raj).
—-Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor.
2. Ravinder Singh S/o Shangar Singh, Aged About 35 Years,
R/o At Present Pradisik Manager, Tagore Nagar Petrol
Pump, R.k. Puram, Kota City, Permanent Address Sky
Park, Subhash Nagar, Anantpura, Kota City (Raj).
—-Respondents
S.B. Criminal Miscellaneous (Petition) No. 4763/2023
Rajbir Singh S/o Niranjan Singh, Aged About 25 Years, R/o 382
A Shrinathpuram , Kota (Raj).
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—-Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor.
2. Ravinder Singh S/o Shangar Singh, Aged About 35 Years,
R/o At Present Pradisik Manager, Tagore Nagar Petrol
Pump, R.k. Puram, Kota City, Permanent Address Sky
Park, Subhash Nagar, Anantpura, Kota City (Raj).
—-Respondents
S.B. Criminal Miscellaneous (Petition) No. 5150/2023
Rashpal Singh S/o Nirmal Singh, Aged About 28 Years, R/o
Village Maloowali Ghuman, Gurdaspur, Distt. Punjab.
—-Petitioner
Versus
1. State Of Rajasthan, Through P.p.
2. Ravinder Singh S/o Shangar Singh, R/o At Present
Pradisik Manager, Tagore Nagar Petrol Pump, R.k. Puram,
Kota City, Permanent Address Sky Park, Subhash Nagar,
Anantpura, Kota City(Raj.)
—-Respondents
S.B. Criminal Miscellaneous (Petition) No. 5151/2023
Amarjeet Singh S/o Joginder Singh, Aged About 50 Years, R/o
17/2 Pwd Colony, Vigyan Nagar, Kota(Raj.)
—-Petitioner
Versus
1. State Of Rajasthan, Through P.p.
2. Ravinder Singh S/o Shangar Singh, R/o At Present
Pradisik Manager, Tagore Nagar Petrol Pump, R.k. Puram,
Kota City, Permanent Address Sky Park, Subhash Nagar,
Anantpura, Kota City(Raj.)
—-Respondents
S.B. Criminal Miscellaneous (Petition) No. 5441/2023
Jagir Singh S/o Tara Singh, Aged About 50 Years, R/o Badgaon,
Gurdwara Ke Samne, Bundi Road, Kota, Raj.
—-Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor.
2. Ravinder Singh S/o Shangar Singh, Aged About 35 Years,
R/o At Present Pradisik Manager, Tagore Nagar Petrol
Pump, R.k. Puram, Kota City, Permanent Address Sky
Park, Subhash Nagar, Anantpura, Kota City (Raj).
—-Respondents
S.B. Criminal Miscellaneous (Petition) No. 5442/2023
Gurjeet Singh S/o Heera Singh, Aged About 30 Years, R/o
Badgaon, Gurdwara Ke Samne, Bundi Road, Kota, Raj.
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—-Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor.
2. Ravinder Singh S/o Shangar Singh, Aged About 35 Years,
R/o At Present Pradisik Manager, Tagore Nagar Petrol
Pump, R.k. Puram, Kota City, Permanent Address Sky
Park, Subhash Nagar, Anantpura, Kota City (Raj).
—-Respondents
S.B. Criminal Miscellaneous (Petition) No. 5443/2023
Malkeet Singh S/o Jagir Singh, Aged About 28 Years, R/o
Badgaon, Gurdwara Ke Samne, Bundi Road, Kota, Raj.
—-Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor.
2. Ravinder Singh S/o Shangar Singh, Aged About 35 Years,
R/o At Present Pradisik Manager, Tagore Nagar Petrol
Pump, R.k. Puram, Kota City, Permanent Address Sky
Park, Subhash Nagar, Anantpura, Kota City (Raj).
—-Respondents
For Petitioner(s) : Dr. Mahesh Sharma with
Ms. Harshita Sharma
For Respondent(s) : Mr. Rishi Raj Singh Rathore, PP with
Mr. M. S. Shekhawat, PP
Mr. Manish Sharma, RPS, CO IV Kota
City
Mr. V. R. Bajwa, Sr. Advocate with
Mr. Amar Kumar &
Ms. Savita Nathawat
Ms. Sonal Singh for
Mr. Alok Garg
HON’BLE MR. JUSTICE SAMEER JAIN
Judgment
Reserved on :: 16/10/2024
Pronounced on :: 06/11/2024
1. A present bunch of petitions, sharing identical factual matrix
and grounds, are filed before this Court. In one of the petition nos.
6799/2023, titled as Ravindra Pal Singh Vs. State of Rajasthan,
filed under Section 482 of Cr.P.C, before this Court, with a prayer
to transfer the investigation to the cyber cell for fair, independent,
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and efficacious investigation. Moreover, the abovementioned
prayer is made by the Bharat Petroleum Corporation Limited
(BPCL) a public sector company, through its Competent Officer
(complainant) whereas, the connected bunch of petitions in the
instant matter are filed with a prayer to quash the FIR, on the
ground that civil/ contractual matters are given a color of criminal
jurisprudence wherein, criminal proceedings are initiated.
2. With consensus of the parties, SBCRLMP No. 4394/2023
titled as Ram Singh Vs. State of Rajasthan, is designated as a lead
file, accordingly the instant bunch of petitions are taking up for
final disposal.
3. The nitty-gritty of the instant matter is that the public sector
company Bharat Petroleum Cooperation Limited (for short “BPCL”),
which, for the benefit of its customers, through a marketing
scheme, launched an advanced loyalty program on 17th December
2021. This program, designed as a closed loop wallet (Prepaid
Payment Instrument) serves both B2B (business to business
specifically transporters) and B2C (Business to Consumer,
individual Customers) segments.
4. Through this scheme, customers can register themselves by
providing their credentials, thereafter, on successful registration, a
fleet account is created with the wallet in BPCL’s loyalty application
which is seamlessly integrated with Razorpay and Pinelabs
payment gateway for recharge wherein, loyalty customers have to
login in their account in the application using their credentials to
facilitate a fund transfers from their bank account/UPI/
debit/credit card to Razorpay payment gateway.
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5. Thereafter, the customer account wallet can be recharged for
an amount via payment gateway interface modes, for instance net
banking, UPI, credit/ debit card, and Razorpay transfers the
corresponding amount to BPCL bank account. Subsequently, on
recharge of the said account, the amount in the wallet was utilized
for the purchase of fuel only at BPCL fuel station, and all the fuel
purchase transactions were made through OTP/PIN authentication
process by the customers.
6. The controversy in this matter arose on March 31, 2023,
when Razorpay’s risk assessment team notified BPCL of observed
anomalies and potential security concerns within the existing
integration framework between the BPCL loyalty application and
the Razorpay payment gateway, resulting in unauthorized and
irregular recharge process that may lead to unauthorized or undue
credits or recharge to customer account wallet.
7. Subsequently, upon receiving serious suspicion and concern,
BPCL conducted a meticulous analysis of their data, and found
that in approximately 1093 customer’s wallets various recharge
amounting to the tune of approximately Rs. 130 Crores, were
made without receipt of corresponding amount in BPCL’s bank
account, therefore indicating a shortage of approximately Rs. 130
Crores. Moreover, from the analysis of the said data, it was
deduced that 28 customers primarily located in Kota region, have
allegedly engaged in fraudulent activities amounting to
approximately Rs. 23 crores, resulting in wrongful loss to BPCL
and suggesting a deliberate scheme intended to induce this
financial harm.
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8. Consequently, based on the aforesaid, FIR No. 204/2023 and
other FIRs were lodged, for the offences punishable under
Sections 420, 406, 418 and 120B of IPC, thereafter, Investigating
Officer served notices upon the complainant under Section 91 of
Cr.P.C to furnish certain documents, and a detailed reply to the
said notice along with the documents was provided to the
investigating officer qua the said fraud.
9. In light of the aforementioned facts and allegations, learned
counsel appearing for the accused -petitioners, i.e. Ram Singh &
Ors., had submitted that the accused- petitioners engaged in the
transaction in good faith, following evaluation of their credentials.
Moreover, the petitioner- accused had been using the said
‘Fleetcard’ since 2021, with no intention to defraud or to cheat the
complainant company, moreover if the accused-petitioners had
intended to deceive BPCL, the company could have withdrawn or
cancelled the said “Fleetcard” or otherwise restricted the
petitioners from purchasing fuel.
10. It was further submitted that BPCL in their intimation letter
dated 02.04.2023 to the accused-petitioner (Annexure-2),
admitted that suspicious transactions have occurred due to system
error and relived accused-petitioner from the accusation qua
fraud. Moreover, the contents of the said letter makes it clear that
the recovery was initiated for a particular period for the excess
credit which was apprehended on recharge transaction, therefore
registration of FIR in these facts and circumstances, is abuse of
process of law, and is against the dictum laid down in the
judgments of Rana Ram Vs. State in SBCRP No. 4893/2024,
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Hon’ble Apex Court judgment in SLP No. 1570/2021 titled as
Naresh Kumar Vs. State of Karnatka, Radhey Shyam Vs.
State of Raj. in Criminal Appeal No. 3020/2024 and Lalit
Chaturvedi Vs. State of UP in SLP No. 13485/2023.
11. Learned counsel appearing for the accused-petitioner had
placed reliance on the abovementioned judgments and submitted
that the essential ingredients of Section 420,406 of IPC i.e.
neither the dishonest inducement nor delivery of property are
made out in the instant matter. Moreover, the present matter does
not pertain to cheating or dishonest inducement, rather it pertains
to a civil nature dispute qua recovery wherein, civil dispute and
legal notice(s) are already filed and served respectively by the
accused-petitioner against the company i.e. BPCL, which is
pending, and company had duly participated in the civil
proceedings. Therefore, the present proceedings are not tenable.
12. Additionally, it was submitted that wherever there was a
short payment, out of 28 petitioners, 8 accused-petitioners, who
had deposited the due amount under influence and pressure, were
enlarged on bail, therefore the criminal proceedings abusing the
process of law, are wrongfully initiated giving a color of civil
transaction and is merely used as a recovery proceeding.
13. In this background, the learned counsel had prayed that
present proceedings are not tenable, and FIR registered by BPCL
against the petitioners- accused ought to be quashed and set
aside.
14. Per contra, learned counsel appearing for the complainant
who is a competent officer representing the company i.e. BPCL
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has filed petition SBCRLMP 6799/2023, with a prayer seeking
directions for fair, efficacious and speedy investigation, as despite
their representation dated 08.09.2023 field before Superintendent
of Police, the said dispute is not yet transferred to the Cyber Cell
and there is ignorance of the provisions of Information Technology
Act, 2000 (for short, “the Act”) more particularly Section 2(HA)
(NB)(I), 2(T), 65, 66, 78 and others. Whilst placing reliance upon
the same, it was submitted that in a recent Circular of Director
General of Police dated 08.07.2024 and in light of the provisions of
B.N.S.S. 2023, whereby it is stated that the cybercrimes in the
facts and circumstances ought to be referred to the cyber cell, a
specialized wing.
15. The learned counsel had further contented that considering
the provisions of the Information Technology Act, a scam and
fraud upon the Public Sector Company, is a commercial fraud and
a white collar crime wherein, an enormous amount of money upto
the tune of approximately Rs. 25 Crores is involved only qua
accused petitioners located in Kota region and on PAN India basis,
different FIRs are registered. Hence, present SBCRLMP No.
6799/2023 qua transfer of investigation to cyber cell ought to be
allowed.
16. Heard and considered the rival arguments advanced by the
respective sides, after an assiduous scanning of the records and
considering the judgments cited at the Bar, this Court has noted
the following facts:
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16.1 BPCL is a public sector company dealing in marketing
and sale of oil petroleum products, referred to as complainant in
the present matter.
16.2 That in the connected petitions, accused-petitioners
like Ram Singh, are customers of the said oil company, who have
availed the facility launched by the company in the year 2021 i.e.
Loyalty Scheme.
16.3 That according to the report submitted by the Razorpay
(one of the stake holders or app providers), it is revealed that on
a PAN India basis there is a short payment, and a commission of
fraud, on account of approximately 1093 customers out of which
28 customers pertains of Kota region alone, who belong to the
same community and are having nexus as alleged. The tabular
chart in this regard, is reproduced as below: –
Sr. FA/CC FA Name Excess CMS Recovery Pending on Pending as
No. ID Credit Amount made 01.04.202 on date of
without from 3 FIR
Deducting wallet (12.06.20
Customer balance at 23)
Bank Account time of
from first fraud blocking
date till on
31.03.2023 31.03.202
3
1 FA2000 Sukhraj 1045000 63443 981557 979319
218246 Singh
2 FA2000 Ram Singh 8826799 35638 8791161 6598900
581866
3 FA2000 Praveen 2848996 702160 2146836 2138441
601177 Kumar
4 FA2000 Dhillon 6897488 14183 6883305 6857944
511911 Goods
Carrier
5 FA2000 Sukhdev 1755000 702 1754298 1597441
612000 Singh
6 FA2000 Mamraj 6149990 64 6149926 3033702
670008 Choudhary
7 FA2000 Pragat Singh 2099995 71142 2028853 2027700
687705
8 FA2000 Malkeet 5503000 148458 5354542 5335188(Downloaded on 07/11/2024 at 10:01:58 PM)
[2024:RJ-JP:43794] (10 of 20) [CRLMP-4394/2023]691962 Singh Pannu
9 FA2000 Radhey 1910000 1488273 421727 412397
701035 Shyam
Gurjar
10 FA2004 Heera Singh 25778865 71055 25707810 25702432
140909
11 FA2004 Cheema 68208899 5699861 62509038 62305615
496053 Transport
12 FA2005 Rajbir Singh 26580099 3097467 23482632 22614502
112493
13 FA2010 Hardev 280000 4154 275847 142343
740494 Singh
14 FA9000 Harmeet 1652800 17604 1635196 1028798
094771 Singh
15 FA3000 Satya 4496997 1783 4495214 4191862
094819 Narayan
Gurjar
16 FA3001 Sukhpal 2267000 218363 2048637 2041596
43750 Singh
Sekhan
17 FA3000 Jagvinder 24275108 15408 24259700 24172489
154690 Singh
18 FA3000 Amrjit Singh 20580000 798977 19781023 19709917
156326
19 FA3000 Sawraj 480000 2816697 1983303 1976174
156333 Singh
20 FA3000 Jagir Singh 7161000 942626 6218374 6196017
156578
21 FA3000 Khalsa 4268000 75778 4192222 4177109
163319 Transport
Company
22 FA3000 Sukhdeep 188000 2566 185434 184767
163543 Singh
23 FA3000 Kailash 1600000 55966 1544034 1538478
165813 Chand
24 FA3000 Jaspal Singh 371000 1401 369599 368303
169687 Sekho
25 FA3000 Sukhpal 3199000 321440 2877560 2866500
170059 Singh
Sekhan
26 FA3000 Gurjit Singh 150000 41700 108300 107953
170262
27 FA3000 Akshay Kant 100000 527 99473 99132
170461 Sharma
28 FA3000 Jaideep 350000 49021 300979 300174
170536 Nawar
233343036 1675645 2165865 2087051
5 81 9316.4 That it is observed that the crime alleged in instant
matter pertains to a cybercrime.
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16.5 Upon consideration of definition of communication
device, computers, cyber security, provisions qua electronic
record, provisions of Section 65, 66 of the Information Technology
Act, and aim and intention of the said Act, it is noted that the
offence in the instant matter can be termed and understood as an
alleged cybercrime. The said definitions and provisions are
reproduced herein for the sake of convenience: –
Section 2(ha)- Communication device-
Communication device means cell phones, personal
digital assistance or combination of both or any other
device used to communicate, send or transmit any
text, video, audio or image.
Section 2(i)- Computer- Computer means any
electronic, magnetic, optical or other high-speed data
processing device or system which performs logical,
arithmetic, and memory functions by manipulations of
electronic, magnetic or optical impulses, and includes
all input, output, processing, storage, computer
software or communication facilities which are
connected or related to the computer in a computer
system or computer network.
Section 2(nb)- Cyber security – Cyber security
means protecting information, equipment, devices,
computer, computer resource, communication device
and information stored therein from unauthorised
access, use, disclosure, disruption, modification or
destruction.
Section 65- Tampering with computer source
documents.- Whoever knowingly or intentionally
conceals, destroys or alters or intentionally or
knowingly causes another to conceal, destroy, or alter
any computer source code used for a computer,
computer programme, computer system or computer
network, when the computer source code is required
to be kept or maintained by law for the time being in
force, shall be punishable with imprisonment up to
three years, or with fine which may extend up to two
lakh rupees, or with both.
Explanation- For the purposes of this section,
―computer source code means the listing of
programmes, computer commands, design and layout(Downloaded on 07/11/2024 at 10:01:58 PM)
[2024:RJ-JP:43794] (12 of 20) [CRLMP-4394/2023]and programme analysis of computer resource in any
form.
Section 66- Computer related offences. –
If any person, dishonestly or fraudulently, does any
act referred to in section 43, he shall be punishable
with imprisonment for a term which may extend to
three years or with fine which may extend to five lakh
rupees or with both.
Explanation- For the purposes of this section, –
(a) the word ―dishonestly shall have the meaning
assigned to it in section 24 of the Indian Penal Code (45
of 1860);
(b) the word ―fraudulently shall have the meaning
assigned to it in section 25 of the Indian Penal Code (45
of 1860).”
16.6 Upon a meticulous analysis of the Act it is further noted
that according to the provisions of Section 78 of the Act, a
specialized investigation Inspector shall investigate the matter, not
below the same rank. For ease of reference, the same is
reproduced below:
Section 78- Power to investigate offences. –
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), a police officer
not below the rank of (Inspector) shall investigate
any offence under this Act.”
16.7 This Court has further taken into consideration that as
per the provisions of newly introduced B.N.S.S. Act, Circular No.
2990/2024, pertaining to cybercrime is issued wherein, the instant
matter can be dealt by cyber police stations, after permission of
Superintendent, considering the gravity and seriousness of
offences.
17. In the above stated facts and circumstances, the petition i.e.
SBCRLMP 6799/2023, wherein prayer for transfer of investigation
for fair, speedy, expeditious investigation to cyber cell, as the
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[2024:RJ-JP:43794] (13 of 20) [CRLMP-4394/2023]offence alleged in the instant matter pertains to alleged
cybercrime wherein an amount of approximately Rs. 130 Crores is
involved, and qua approximately 28 customers who specifically
belong to Kota region, an amount of approximately Rs. 25 Crores
is involved. Moreover, no concurrent results are provided by the
Investigating Authorities till date, and the case is not dealt with in
a manner, i.e. considering the application of the Information
Technology Act, which is agonizing, stirring, infelicitous, loathsome
and undesirable and are inconsistent and do not align with the
seriousness of the white collar pre-planned commercial crime, as
alleged in the instant matter. Therefore, for the stated reasons
above, this Court deems it apposite to allow the SBCRLMP
6799/2023.
18. Qua the petitions for quashing of the FIRs i.e. S.B. Criminal
Miscellaneous (Petition) No. 4394/2023, this court in the
facts and circumstances, is of the opinion that the said petitions
are not tenable, for the reasons stated below: –
18.1 That in the stated facts and circumstances, it is
analyzed that the books of accounts and notices qua BPCL reflects
said petitioners-accused and shortage of amount on their part.
18.2 That the petitioner-accused has nowhere displayed in
their books of account denying the above fact.
18.3 That the suit initiated, and the legal notice filed are
vague, ambiguous and merely to confuse, obfuscate and muddle
the Court proceedings.
18.4 That the judgments relied upon by the petitioners
pertain to the different factual matrix and do not pertaining to the
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[2024:RJ-JP:43794] (14 of 20) [CRLMP-4394/2023]issue in hand i.e. cybercrime on Public Sector Company. The
judgments cited pertains to individual disputes and are private in
nature, and are primarily related to the isolated transactions
pertaining to the land qua purchase or sale of a particular
commodity, whereas the present matter pertains to a recurring
transaction over a period of approximately two years, in-between
the group of particular person wherein, there is a misuse of
information technology facilities and despite of software being
framed in such a way that debit and credit is reflected on a
momentary basis, no amount qua payment is received at the end
of BPCL.
18.5 That the accused-petitioner has refuted the said
contentions qua legal notice and civil suit or mention of same in
the record.
18.6 That out of 28 parties, some of the parties
(approximately 8 parties) have deposited the said due amount and
have not opposed the conditional bail order/release order.
18.7 In the facts and circumstances of the case, apart from
notice dated 02.04.2023, the subsequent proceedings are not
brought on record before this Court by the accused-petitioners.
18.8 In this regard, this Court has relied upon the dictum
enunciated in the judgment passed by Hon’ble Apex Court
reported in (2020) 14 SCC 52 titled as K. Jagdish Vs. Udai
Kumar, wherein it was opined that civil and criminal proceedings
are both maintainable in respect of same set of facts, even if civil
remedy is availed to the party, he is not precluded from initiating
or setting in motion criminal proceedings, and for the same
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[2024:RJ-JP:43794] (15 of 20) [CRLMP-4394/2023]following principles are enumerated. Reference in this regard is
made to the relevant para(s), which are reproduced as under:
“9. It is thus well settled that in certain cases the very
same set of facts may give rise to remedies in civil as
well as in criminal proceedings and even if a civil
remedy is availed by a party, he is not precluded from
setting in motion the proceedings in criminal law.
10. In Pratibha Rani v. Suraj Kumar and another,
this Court summed up the distinction between the two
remedies as under:
“21. There are a large number of cases where
criminal law and civil law can run side by side. The
two remedies are not mutually exclusive but
clearly coextensive and essentially differ in
their content and consequence. The object of
the criminal law is to punish an offender who
commits an offence against a person, property or
the State for which the accused, on proof of the
offence, is deprived of his liberty and in some cases
even his life. This does not, however, affect the civil
remedies at all for suing the wrongdoer in cases like
arson, accidents etc. It is an anathema to
suppose that when a civil remedy is available,
a criminal prosecution is completely barred.
The two types of actions are quite different in
content, scope and import. It is not at all intelligible
to us to take the stand that if the husband
dishonestly misappropriates the stridhan property
of his wife, though kept in his custody, that would
bar prosecution under Section 406 IPC or render
the ingredients of Section 405 IPC nugatory or
abortive. To say that because the stridhan of a
married woman is kept in the custody of her
husband, no action against him can be taken as no
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offence is committed is to override and distort the
real intent of the law.”
11. In Rajesh Bajaj v. State NCT of Delhi and
others this Court observed:
“10. It may be that the facts narrated in the
present complaint would as well reveal a
commercial transaction or money transaction. But
that is hardly a reason for holding that the offence
of cheating would elude from such a transaction.
In fact, many a cheatings were committed in
the course of commercial and also money
transactions. One of the illustrations set out
under Section 415 of the Indian Penal Code
[Illustration f] is worthy of notice now: “(f) A
intentionally deceives Z into a belief that A means
to repay any money that Z may lend to him and
thereby dishonestly induces Z to lend him money,
A not intending to repay it. A cheats.”
11. The crux of the postulate is the intention of
the person who induces the victim of his
representation and not the nature of the
transaction which would become decisive in
discerning whether there was commission of
offence or not. The complainant has stated in the
body of the complaint that he was induced to
believe that the respondent would honour
payment on receipt of invoices, and that the
complainant realised later that the intentions of
the respondent were not clear. He also mentioned
that the respondent after receiving the goods had
sold them to others and still he did not pay the
money. Such averments would prima facie make
out a case for investigation by the authorities.
12. The High Court seems to have adopted a
strictly hyper technical approach and sieved the
complaint through a colander of finest gauzes for
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testing the ingredients under Section 415 IPC.
Such an endeavor may be justified during trial,
but certainly not during the stage of investigation.
At any rate, it is too premature a stage for the
High Court to step in and stall the investigation by
declaring that it is a commercial transaction
simpliciter wherein no semblance of criminal
offence is involved.”
12. The aforesaid view was reiterated in Kamladevi
Agarwal v. State of West Bengal and others as
under:
“9. Criminal prosecution cannot be thwarted
at the initial stage merely because civil
proceedings are also pending. After referring to
judgments in State of Haryana v. Bhajan Lal and
Rajesh Bajaj v. State NCT of Delhi this Court in
Trisuns Chemical Industry v. Rajesh Agarwal5
held: (SCC p. 690, paras 7-8) “7. Time and again
this Court has been pointing out that quashing of
FIR or a complaint in exercise of the inherent
powers of the High Court should be limited to
very extreme exceptions (vide State of Haryana
v. Bhajan Lal4 and Rajesh Bajaj v. State NCT of
Delhi5). 8. In the last referred case this Court also
pointed out that merely because an act has a civil
profile is not sufficient to denude it of its criminal
outfit. We quote the following observations: (SCC
p. 263, para 10)
’10. It may be that the facts narrated in the present
complaint would also reveal a commercial
transaction or money transaction. But that is hardly
a reason for holding that the offence of cheating
would elude such a transaction. In fact, many
cheatings were committed in the course of
commercial and also money transactions.”
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After referring to various decisions it was finally
concluded as below:
’17. In view of the preponderance of authorities to
the contrary, we are satisfied that the High Court
was not justified in quashing the proceedings
initiated by the appellant against the respondents.
We are also not impressed by the argument that as
the civil suit was pending in the High Court, the
Magistrate was not justified to proceed with the
criminal case either in law or on the basis of
propriety. Criminal cases have to be proceeded with
in accordance with the procedure as prescribed
under the Code of Criminal Procedure and the
pendency of a civil action in a different court even
though higher in status and authority, cannot be
made a basis for quashing of the proceedings’.”
18.9 On consideration of the ratio referred above, it is notedthat in the instant matter, criminal proceedings are initiated on
account of dishonesty and fraud, as referred to under Section 66
of the Information Technology Act.
18.10 That in the facts and circumstances, dishonestly,
fraudulently, as per provisions of Section 24 and 25 of IPC are also
committed in conjunction with cheating. For clarity, relevant
sections are reproduced below: –
Section 24- ”Dishonestly”-
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”.
Section 25- ”Fraudulently-
A person is said to do a thing fraudulently if he does
that thing with the intent to defraud but not
otherwise.
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18.11 Additionally, upon perusal of the contents of the FIR, it
is noted that there is an involvement of inducement and extortion
along with other accusations.
18.12 The prayer made in the civil suit filed by the petitioner
pertains to the ascertainment of exact liability/recovery, whereas
the criminal proceedings demand punitive action for the alleged
fraud made upon the BPCL on Pan India basis with the intention of
cheating or otherwise.
19. In the facts and circumstances of the present matter, the
investigation is at the initial stage and various stakeholders are
yet to be thoroughly investigated including BPCL itself, its
employees, razorpay, banking authorities, petitioners(accused)
(purchasers) and other connected people.
20. This Court at the stage of the investigation and on the ex-
facie perusal of the present FIR, is not inclined to initiate a mini
trial or draw any presumption qua anybody or any stake holder.
This Court makes it clear that it is the duty of the investigating
authorities to disclose and reveal the true and correct facts and
provide a fair and independent version of the investigation.
Therefore, at this stage, in the above stated facts and
circumstances, this Court is not inclined to entertain the petitions.
21. Accordingly, for the reasons stated above, petitions are
dismissed i.e. S.B. Criminal Miscellaneous (Petition) No.
4394/2023 which are filed by the accused-petitioners, having the
same set as that of Ram Singh.
22. It is further made clear that the investigating agency which
will be a cybercrime agency, as the present matter is alleged to be
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a cybercrime, provisions of the Information Technology Act will be
applicable along with other relevant laws. In light of the circular
dated 08.07.2024, this Court directs that the matter be referred to
cyber cell/competent authority in terms of Section 78 of the IT
Act. Full cooperation be provided by the present investigators.
23. All the applications and interim orders are disposed of.
24. The Investigating Agency will be at liberty to initiate any act
in accordance with law as they deem fit, considering the alleged
white-collar crime and commercial fraud of huge nature.
25. S.B. Criminal Miscellaneous (Petition) No. 4394/2023 and
SBCRLMP Nos. 4762/2023, 4763/2023, 5150/2023, 5151/2023,
5441/2023, 5442/2023, 5443/2023, are dismissed.
(SAMEER JAIN),J
Pooja /54-62
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