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“  REPORTABLE  ”   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     304     OF     2012   (Arising out of SLP (Criminal) No.9168 of 2009)

Lee Kun Hee & Ors. …. Appellants

Versus

State of U.P. & Ors. …. Respondents

J     U     D     G     M     E     N     T   

JAGDISH     SINGH     KHEHAR,     J  .

1. Leave granted.

2. 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.  As per the agreement, the product was to be  

further transferred by the buyer (Sky Impex Limited) to Samsung Gulf  

Electronics, Dubai (hereafter referred to as “Samsung, Dubai”), a wholly  

owned subsidiary of Samsung Corporation, South Korea (hereinafter  

referred to as “Samsung, South Korea).  Consequent upon supply of the  

product under the contract/agreement dated 1.12.2001, Samsung Dubai

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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 agreement dated 1.12.2001  

being of substantial relevance in the present controversy, is being  

extracted hereinunder:-

“Sky Impex Limited BVI Agreement     No.SA/100/019   

This agreement is made this day December the 1st 2001 between  M/s. Sky Impex Ltd., having its registered office at Omer Hodge  Bldg., 2nd Floor, Wickham’s Cay1, P.O. Box-985, Road Town,  Tortola, British Virgin Islands, herein referred to as the ‘the Buyer’  and M/s. J.C.E. Consultancy a proprietorship Company having its  office at 108, Rohini Complex, WA-121, Shakarpur, Delhi–110092,  India, herein referred to as ‘the Seller’.

The Agreement between the two parties constitute the following:

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1. The buyer has agreed to purchase Coke Calcination packages  from the Seller to the value of USD 1,370,000 as per order sheet  dated November, 25th, 2001 and duly acknowledge by the Seller.

2. The above packages will be delivered by the Seller to the  Buyer, no later than January, 30th 2002.  The packages shall be  handed over by the Seller to the Buyer’s representative as per  communication in writing to be sent by the Buyer to the Seller.

3. The Buyer should provide a Performance Certificate to the  Seller, confirming that the above packages are in accordance with  the order placed and thereafter the Buyer shall not have any claims  against the Seller in respect to the quality of the packages and  quantity ordered.

4. it is understood by the Seller that the said packages are to be  further transferred by the Buyer to M/s. Samsung Gulf Electronics,  Dubai, a company registered under the laws of Dubai, UAE and  which is a wholly owned subsidiary of Samsung Corporation, South  Korea.

5. The Buyer shall receive from Samsung Gulf Electronics, Dubai  a Bill of Exchange for the value of approx. USD 1,432,000 due for  payment of July, 2002 and shall endorse the same to the seller as  consideration for the sale of the packages to the Buyer.  Within 72  hours of receiving settlement of the said Bill of Exchange the Seller  shall transfer to the Buyer the amount of USD 62,000 to the  nominated account of the Buyer as his commission.  Alternatively  the Buyer shall transfer to the Seller the sum of USD 1,370,000  against delivery of goods to a Bank account that shall be nominated  by the Seller.

6. After endorsement of the said Bill of Exchange, the liability of  the Buyer towards the Seller ceases and the Seller shall become  holder in due course of the Bill of Exchange with all the rights as per  the Negotiable Instrument Act to claim value directly from the  Samsung Gulf Electronics, Dubai.

7. The Buyer, however, in good faith shall follow up with  Samsung Gulf Electronics, for payment of the said Bill of Exchange  at maturity expected in July, 2002 and shall in good faith keep the  Seller informed of any development in respect of settlement of the  Bill.

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8. This contract is governed by the Laws of India.”

3. Through a delivery receipt dated 28.1.2002, Sky Impex Limited  

confirmed having received the product valued at US$13,70,000 under the  

contract/agreement dated 1.12.2001.  The buyer neither complained about  

quality nor quantity.  There was also no protest that the goods/product was  

not received in time.  The aforesaid receipt of goods implies the delivery of  

the product by JCE Consultancy to Sky Impex Limited.  On 1.2.2002,  

Samsung, Dubai executed a bill of exchange valued at US$14,32,745 in  

favour of the buyer Sky Impex Limited.  This implies further delivery of  

goods/product from Sky Impex Limited to Samsung, Dubai.  The said bill of  

exchange was then endorsed in favour of the seller JCE Consultancy, in  

terms of agreement dated 1.12.2001.

4. Allegedly, on account of Samsung, Dubai not honouring its  

commitment under the bill of exchange dated 1.2.2002, a legal notice  

dated 20.12.2004 was issued by JCE Consultancy (the seller) through  

counsel, on instructions from M.A. Packir (Shaikh Allauddin Paker Maiddin  

- sole proprietor of JCE Consultancy) to Samsung, Dubai.  Through the  

aforesaid notice Samsung, Dubai, was called upon to make payment of  

US$14,32,000 to JCE Consultancy within 48 hours, either by way of bank  

draft or other smart investment.  Samsung, Dubai, was warned, that in  

case of non-receipt of payment, JCE Consultancy would be constrained to  

take recourse to legal remedies, both civil and criminal.  The legal notice

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issued by JCE Consultancy dated 20.12.2004 was responded to by  

Samsung, Dubai, through counsel on 21.12.2004.  In response, it was inter  

alia asserted:

“…that a Credit Note was already been issued by the  beneficiary for the Bill of Exchange, Sky Impex Limited on 22  June 2002 and before the due date of payment.  Therefore,  our client has no commitment or responsibility to pay your  client any amount in relating to the above mentioned Bill of  Exchange and your client can simply demand the amount of  the Bill of Exchange from Sky Impex Limited, who mislead  your client…”

It is therefore apparent, that in its response Samsung, Dubai,  

acknowledged execution of a bill of exchange valued at US$14,32,000, in  

favour of Sky Impex Limited, and thereby, its liability under the contract  

dated 1.12.2001.  Inspite thereof Samsung, Dubai, as a matter of defence,  

in order to avoid liability, took up the position, that the bill of exchange  

executed by it in favour of Sky Impex Limited had been satisfied, and the  

beneficiary (Sky Impex Limited) had already issued a credit note in its  

(Samsung, Dubai) favour on 22.6.2002.

5. JCE Consultancy filed a criminal complaint (complaint no.30 of  

2005) under Sections 403, 405, 415, 418, 420 and 423 read with Sections  

120B and 34 of the Indian Penal Code before the VIIth Additional Chief  

Judicial Magistrate, Ghaziabad.  In the complaint filed by Shaikh Allauddin  

Pakir Maiddin - the sole proprietor of JCE Consultancy, Samsung, Dubai,  

was impleaded as accused no.1 (appellant no. 5, herein); Byung Woo Lee,

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Managing Director of Samsung, Dubai, was impleaded as accused no.2  

(appellant no.3, herein); Lee Kun Hee, President, Samsung Corporation,  

was impleaded as accused no.3 (appellant no.1, herein); Yon Jung Yung,  

Vice President and Chief Executive Officer, Samsung Corporation, was  

impleaded as accused no.4 (appellant no. 2, herein); Dong Kwon Byon,  

Ex. Managing Director, Samsung, Dubai, was impleaded as accused no.5  

(appellant No. 4, herein); S.C. Baek, ex. Financial Advisor, Samsung,  

Dubai, was impleaded as accused no.6; Sky Impex Limited, was  

impleaded as accused no.7; and the Chairman of Sky Impex Limited, was  

impleaded as accused no.8.  Since the contents of the complaint are of  

substantial relevance to the present controversy, the same are being  

extracted hereunder:

“1. That the complainant company is dealing in consultancy  in the Engineering Field and Sh.Sheikh Allauddin Pakir  Maddin is its sole Prop. Who has been authorized on behalf of  the company to sign, verify and present the complaint and is  empowered to do all the acts. 2. That the accused no.1 is a Multi National Company who  have business in Foreign Countries and is reputed.  Accused  No.2 is the Managing Director of accused No.1, Accused No.3  the President, Accused No.4 the Vice President and Chief  Executive Officer, Accused No.5 the Ex. Managing Director,  Accused No.6 the Ex-Financial Controller, who are being  officers of the company and are responsible each and every  done by the company. 3. That on dated 25.11.2011, the Accused no.7 placed  order for supply of Coke Calcination package with complainant  company and was told to make supply of the said items to  accused no.1 which paper is Annexure K-1.  In this regard an  agreement (contract) between Accused No.7 and the  complainant company was executed vide L.A./100/019

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dt.1.12.01 which was signed by the Accused No.7 and the  authorized signatory of the complainant company which paper  is Annexure K-2. 4. That in compliance of the order dt.25.11.01 complainant  company supplied the ordered goods to Accused No.7 the  acknowledgement receipt was given by Accused No.7 vide  letter dt.28.1.02 which paper is Annexure K-3. 5. That the Accused No.7 handed over the supplied goods  by the complainant company to Accused No.1 and the handig  over – taking over receipt was acknowledged by the Accused  No.1 vide letter dt.1.2.02 in favour of the Accused no.7 which  paper is Annexure K-4. 6. That as per the clause No.5 of the agreement executed  between the complainant company and the Accused no.7 the  due payment of the received goods was to be made by the  Accused No.1 in the form of Bill of Exchange through Accused  No.7.  The accused No.7 was to endorse the bill of Exchange  in favour of the complainant company so received by the  Accused No.7. 7. That the Accused No.1 in its Board Meeting of the  company passed a resolution on 15.8.01 by virtue of which  Accused No.6 in addition to other works was also authorized  to sign Bill of Exchange.  The said resolution has been signed  by Accused No.5 in the capacity of Director and Secretary, the  same is Annexure K-5. 8. That in accordance with aforesaid resolution, Accused  No.1 intimated their Bank Manager vide their letter dt.26.1.02  informing that Accused No.6 is authorized to issue Bill of  Exchange on behalf of Accused No.1 and the signatures of  the Accused No.6 were also attested vide the abovesaid letter.  The signature of Accused no.6 have been attested by the  Bank Officer of Accused No.1 which is Annexure K-6. 9. That Accused no.6 for and on behalf of Accused No.1  issued Bill of Exchange No.S.M.I.C. dt:1.2.02 for  Rs.14,32,745/- American Dollars under his signature in favour  of Accused No.7 after having received the ordered goods and  on being satisfied of its quality, the same was endorsed by the  Accused No.7 in favour of the complainant company in view of  the agreement executed between him and the complainant  company which is Annexure K-7. 10. That the complainant company made demand of  payment from the Accused No.1 against the Bill of Exchange  issued in favour of the Accused No.7 and endorsement

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thereon which the Accused No.1 did not pay despite repeated  demands from time to time.  The complainant company sent a  legal demand notice dt: 20.12.04 through their Advocate to  Accused No.1 on not receiving the due payment which is  Annexure K-8, and a reply to the same was sent by Accused  No.1 on 21.12.04 through their Advocate stating therein that  the payment of the alleged Bill of Exchange has already been  made in favour of Accused No.7 on 22.6.02, they, therefore,  have no liability to discharge with regard to payment.  The  reply to notice is Annexure K-9. 11. That the aforesaid statement of Accused No.1 is illegal  and contrary to law.  The complainant company is the real  holder of the Bill of Exchange.  Till the demand for payment  against the Bill of Exchange is  made there is no question of  payment of the same.  Only the holder is entitled to receive  the payment, therefore, the Accused No.1 along with Accused  No.7 do not want to make the payment to the complainant  company and they want to misappropriate the same. 12. That the complainant company is entitled to receive the  payment against the supplied goods which amounts to  14,32,745/- American Dollars from the Accused no.1  personally and jointly and the accused persons have  deliberately not paid the same. 13. That the accused persons have committed the above  offence punishable under Sec.403, 405, 415, 418, 420, 423,  120B, 34 Indian Penal Code.

It is therefore prayed that this Hon’ble Court may be  pleased to summon the accused persons and on proof they be  punished.”

Shaikh Allauddin Pakir Maiddin - the sole proprietor of JCE Consultancy,  

examined himself under Section 200 of the Code of Criminal Procedure  

before the VIIth Additional Chief Judicial Magistrate on 7.1.2005.  In his  

testimony he, inter alia, asserted that accused nos.2 to 6 were individually  

and jointly liable/responsible for the activities of accused no.1 (Samsung,  

Dubai).  He deposed that on 25.11.2001 accused no.7 Sky Impex Limited  

had placed an order with the complainant, whereupon an agreement dated

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1.12.2001 was executed between Sky Impex Limited (as buyer) and the  

complainant –  JCE Consultancy (as seller).  He maintained, that the  

complainant delivered the contracted goods to accused no.7 (Sky Impex  

Limited), who further delivered the contracted goods to accused no.1  

(Samsung, Dubai).  He affirmed, that a receipt of the goods was also  

issued by accused no.7 (Sky Impex Limited) vide a letter dated 1.2.2002.  

It was maintained, in the statement of Shaikh Allauddin Pakir Maiddin, that  

accused no.1, in a Board meeting, approved the proposal to authorize  

accused no.6 (S.C. Baek, ex.-Financial Advisor, Samsung, Dubai) to sign  

and issue bills of exchange, for and on behalf of Samsung, Dubai.  He also  

asserted, that a bill of exchange for US$14,32,745 was signed and issued  

by accused no.6 on behalf of Samsung, Dubai, to accused no.7 (Sky  

Implex Limited).  He also deposed, that the said bill of exchange was  

endorsed in favour of the complainant - JCE Consultancy, by accused no.7  

(Sky Impex Limited).  Shaikh Allauddin Pakir Maiddin averred, in his  

statement, that despite repeated demands made to accused no.1, to  

honour the bill of exchange dated 1.2.2002, no payment came to be made  

by accused no. 1 to the complainant.  Resultantly, on 20.12.2004 the  

complainant sent a legal notice, through counsel, to accused no.1.  In its  

response dated 21.12.2004, through counsel, it was stated on behalf of the  

accused (Samsung, Dubai), that the amount of the said bill of exchange  

had already been made over to accused no.7 on 22.6.2002.  He also

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asserted, that in reply to the notice, the accused adopted the position of no  

liability towards the complainant under the bill of exchange dated 1.2.2002.  

Shaikh Allauddin Pakir Maiddin, in his statement under Section 200 of the  

Code of Criminal Procedure, contested the stance adopted by the accused  

in response to the legal notice, by testifying that the complainant company  

was the holder of the bill of exchange, consequent upon an endorsement  

made thereupon by Sky Impex Limited.  As such, the complainant - JCE  

Consultancy maintained, that it was entitled to payment under the bill of  

exchange.  He also averred, that accused no.1 (Samsung, Dubai), in  

collusion with accused no.7 (Sky Impex Limited), in order to deny payment  

to the complainant, had adopted the aforesaid position.  He asserted, that  

the complainant – JCE Consultancy was entitled to recover payment under  

the bill of exchange, individually and jointly from the accused.  Besides  

recording his statement under Section 200 of the Code of Criminal  

Procedure, Shaikh Allauddin Pakir Maiddin also tendered copies of the  

order sheet dated 2.11.2001, the agreement dated 1.12.2001, the delivery  

receipt dated 28.1.2002, the performance certificate dated 1.2.2002,  

proceedings of the Board meeting of accused no.1 approving the proposal  

to authorize accused no.6, the letter dated 26.1.2002 (issued by accused  

no.1 to its banker, informing its banker that accused no.6 was its  

authorized signatory), the bill of exchange dated 1.2.2002 in the sum of  

US$14,32,745 (issued in favour of Sky Impex Limited, duly endorsed to

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JCE Consultancy), the legal notice dated 20.12.2004 and its reply dated  

21.12.2004.

6. Based on the aforesaid criminal complaint, the statement of Shaikh  

Allauddin Pakir Maiddin under Section 200 of the Code of Criminal  

Procedure, as also, the supporting documents, the VIIth Additional Chief  

Judicial Magistrate, Ghaziabad passed an order dated 12.1.2005  

summoning the accused under Sections 403, 405, 420 and 423 read with  

Sections 120B and 34 of the Indian Penal Code for 3.2.2005.  The order  

passed by the VIIth Additional Chief Judicial Magistrate, Ghaziabad was  

first assailed by the five appellants herein before the High Court of  

Judicature at Allahabad by filing Criminal Miscellaneous Application No.  

11404 of 2006.  The aforesaid Criminal Miscellaneous Application was  

disposed of on 13.11.2009.  Through the instant appeal the appellants  

have assailed the order passed by the High Court on 13.11.2009.

7. The primary contention advanced at the hands of the learned  

counsel representing the five appellants before this Court was based on an  

admitted sequence of facts.  It was submitted, that none of the appellants  

is an Indian citizen.  It was also submitted, that none of the appellants have  

resided in India, either before, or after the execution of the agreement  

dated 1.12.2001, nor during its implementation.  It was submitted, that  

neither the criminal complaint nor the pre-summoning evidence recorded  

under Section 200 of the Code of Criminal Procedure, attributes any act of

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omission/commission, within the territorial jurisdiction of India, to any of the  

five appellants herein.  As such, according to learned counsel, the  

provisions of the Indian Penal Code cannot be relied upon to determine the  

culpability of the appellants.  In order to substantiate the instant contention,  

our attention was invited by the learned counsel for the appellants, to  

Section 2 of the Indian Penal Code, which reads as under:

“2. Punishment of offences committed within India –  Every  person shall be liable to punishment under this Code and not  otherwise for every act or omission contrary to the provisions  thereof, of which he shall be guilty within India.

Based on the Section 2 of the Indian Penal Code, it was sought to be  

emphasized, that culpability of an accused under Section 2 of the Indian  

Penal Code can only be relatable to an act “…of which he shall be guilty  

within India”.  Based on aforesaid legal and factual position, it was sought  

to be emphasized, that the appellants having not committed any act within  

the territorial jurisdiction of India, cannot be blamed of being guilty of an act  

“within India”, and as such, cannot be proceeded against in a Court in India  

for facing prosecution under the provisions of the Indian Penal Code.   

8. In order to support the aforesaid primary contention, it was also  

emphasized, that appellant nos. 1 to 4 are all foreign citizens, whereas,  

appellant no. 5 is a foreign company incorporated in Dubai.  Appellant no.  

1, we are told, was Chairman and Director of Samsung, South Korea.  It is  

contended, that he has had nothing to do with Samsung, Dubai.  We are

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informed, that he lives in South Korea.  Appellant no. 2, we are informed,  

was a former Vice Chairman and CEO of Samsung, South Korea.  He also  

has had nothing to do with Samsung, Dubai.  He too lives in South Korea.  

Learned counsel for the appellant contends, that on the date of the  

execution of the agreement dated 1.12.2001, appellant no. 3 was the  

Managing Director, of Samsung, Dubai.  He is no longer so.  He too now  

resides in South Korea.  Likewise, according to learned counsel, appellant  

no. 4, on the date of execution of the agreement dated 1.12.2001, was ex-

Managing Director of Samsung, Dubai.  He also resides in South Korea.  

Appellant no. 5, we were told, is a foreign company incorporated in Dubai  

(in the United Arab Emirates).  It has its registered office at Dubai.  It is  

also asserted, that the five appellants herein, have no concern with the  

other accused, in the criminal complaint filed by JCE Consultancy.   

9. Additionally, it was submitted, that respondent no. 2-JCE  

Consultancy, is a proprietary concern under the sole ownership of Shaikh  

Allauddin Pakir Maiddin.  The aforesaid concern according to the  

appellants carries on its business activities either in Delhi or at Ghaziabad,  

in India.  It was contended on behalf of the appellants, that as per the  

averments made in the complaint, it was Sky Impex Limited which had  

placed an order with JCE Consultancy under the agreement dated  

1.12.2001.  Sky Impex Limited, according to the learned counsel for the  

appellants, is a foreign company registered in the British Virgin Islands.  It

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was submitted, that the complainant has not disclosed where and how the  

agreement was executed.  It was submitted, that there is no averment at  

the hands of the complainant, that the agreement dated 1.12.2001 was  

executed in India.  It was asserted, that even according to the averments  

made in the complaint, the goods were supplied to Sky Impex Limited, and  

not to any one or more of the appellants herein.  It was pointed out, that  

the complaint does not even narrate how or from where the goods were  

exported from India.  Or how, and from where, delivery was taken by Sky  

Impex Limited.  It was contended, that the complainant has merely  

asserted, that the goods were delivered by Sky Impex Limited to Samsung,  

Dubai.  It is pointed out, that the complaint does not disclose how and  

where, the delivery of goods was made by Sky Impex Limited to Samsung,  

Dubai.   

10. We shall now endeavour to deal with the primary contention  

advanced on behalf of the appellant.  The instant contention has a  

jurisdictional flavour.  We shall deal with the matter, firstly on the basis of  

an analysis of some of the provisions of the Code of Criminal Procedure.  

For the instant purpose reference may first of all be made to Section 4 of  

the Code of Criminal Procedure which is reproduced hereunder :

4. Trial     of     offense     under     the     Indian    Penal     Code     and     other     laws-   

1. All offences under the  Indian Penal Code (45 of 2860) shall be investigated, inquired

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into, tried, and otherwise dealt with according to the provisions  hereinafter contained.

2. All offences under any other  law shall be investigated, inquired into, tried, and otherwise dealt  with according to the same provisions, but subject to any  enactment for the time being in force regulating the manner or  place of investigating, inquiring into, trying or otherwise dealing  with such offences.”

It is apparent, from a perusal of Section 4, that inquiry and trial of offences  

contemplated under the Indian Penal Code, are to be conducted in the  

manner stipulated under the Code of Criminal Procedure.  The offences in  

this case, as noticed above, have been framed under sections 403  

(dishonest misappropriation), 405 (criminal breach of trust), 420 (cheating)  

and 423 (dishonest/fraudulent execution of an instrument containing a  

false statement relating to consideration) of the Indian Penal Code.  The  

denial of liability by the accused under the agreement dated 1.12.2001 is  

allegedly the basis of the criminal complaint lodged by JCE Consultancy.  

The place where the agreement was executed, as well as, the places  

where different constituents of the agreement were carried out, are  

material factors to determine the relevant court(s) which would/could have  

jurisdiction in the matter.  The place where the consequence of the criminal  

action (alleged in the complaint) ensues, may also be relevant for the said  

purpose.  And finally, place(s) of receipt and dispatch of communications  

exchanged by the rival parties, revealing deception as an ingredient of  

cheating alleged by the complainant, can also be relevant to identify the

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court(s) having jurisdiction in the matter.  The aforesaid relevance  

becomes apparent from Sections 179, 181 and 182 of the Code of  

Criminal Procedure, which we shall presently examine.   

11. The aforesaid examination has to be based on certain salient facts,  

which we may first recapitulate.  The complaint alleges the execution of a  

contract dated 1.12.2001, wherein consideration in the form of  

goods/product produced in India, by the seller (JCE Consultancy) stationed  

in India, were to be supplied to the buyer (Sky Impex Ltd.), in Dubai.  The  

reciprocal consideration in the agreement was in the form of a monetary  

payback, by the eventual recipient of goods (Samsung, Dubai), to the  

seller in India (JCE Consultancy).  The complaint narrates a circuitous  

passage of the goods from the seller (JCE Consultancy) to the eventual  

buyer (Samsung, Dubai), as also, the return consideration from the said  

buyer (Samsung, Dubai) to the seller. Both the aforesaid transactions,  

according to the complainant, passed through an intermediary – Sky Impex  

Limited.  The agreement, according to the complainant, also contemplates  

commission for the intermediary (Sky Impex Ltd.).  There is definiteness in  

the complainant’s allegations of the transfer of goods from India, as also,  

the receipt of monetary consideration in India.  The complainant has  

supported his allegations on the basis of documents, wherein each  

document connects the passing of goods from the seller, and of the  

reciprocal monetary consideration from the eventual buyer (Samsung,

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Dubai) to the seller (JCE Consultancy) through a fine unbroken chain of  

events.  The foundation of the complaint has been laid on the basis of the  

agreement dated 1.12.2001, whereby the complainant wishes to establish  

the corresponding obligations of the rival parties.  Through the delivery  

receipt dated 28.1.2002, the complainant desires to demonstrate  

communication of the goods by the seller, as also, their receipt by the  

buyer.  Based on the execution of the bill of exchange on 1.2.2002 by, the  

authorized signatory of Samsung, Dubai, and the endorsement of the bill of  

exchange on 1.2.2002 itself by Sky Impex Limited, in favour of the  

complainant JCE Consultancy as reciprocal consideration; exactly in the  

manner contemplated under the agreement dated 1.12.2001; the  

complainant desires to establish the liability of Samsung, Dubai, under the  

agreement dated 1.12.2001.

12. On the question of jurisdiction, based on the factual position  

indicated above, reference may first be made to Section 179 of the  

Criminal Procedure Code which is being reproduced hereunder:-

“179. Offence     triable     where     act     is     done     or     consequence     ensues:   When an act is an offence by reasons of anything which has been  done and of a consequence which has ensued, the offence may be  inquired into or tried by a Court within whose local jurisdiction such  thing has been done or such consequence has ensued.”

In Section 179 aforesaid, two phrases need to be noticed.  Firstly,  

“anything which has been done”, with reference to the offence.  And  

secondly, “consequence which has ensued”, also with reference to the

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offence.  Both the aforesaid phrases substantially enlarge and magnify the  

scope of jurisdiction contemplated under Section 179 aforesaid, so as to  

extend the same over areas contemplated by the two phrases.  In so far as  

the present controversy is concerned, the offence(s) alleged in the  

complaint emerge from the fact, that even though the complainant faithfully  

performed its obligations under the agreement/contract dated 1.12.2001,  

the accused dishonestly/fraudulently/falsely denied/avoided the reciprocal  

obligation(s) which they were obliged to perform thereunder.  In our view,  

the words “anything which has been done”, for the present controversy,  

would extend to anything which has been done in furtherance of the  

execution of the agreement dated 1.12.2001. The facts constituting the  

performance of obligations by the complainant, actually constitute the  

foundational basis for the criminal accusation levelled against the accused  

(in refusing to honour the corresponding obligation).  The instant  

foundational basis for establishing the commission of the offence, in our  

view, would fall within the ambit of the words “anything which has been  

done”  used in the aforesaid provision.  In the absence of the instant  

affirmation of the factual position, in the present controversy, the culpability  

of the accused cannot be established.  In the complaint it is asserted, that  

the contracted goods/product were/was supplied by JCE Consultancy from  

Ghaziabad in India.  The factum of having supplied the goods/product to  

Samsung, Dubai through Sky Impex Limited, is sought to be established

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not only through a delivery receipt dated 28.1.2002 (issued by the  

intermediary buyer - Sky Impex Limited), but also, on the basis of the bill of  

exchange executed on 1.2.2002 by Samsung, Dubai (the ultimate  

beneficiary), constituting the payment for the goods/product purchased.  

The factum of supply of goods from Ghaziabad (in India) to Dubai (in the  

United Arab Emirates), as an essential component of the offence(s)  

allegedly committed by the accused, in our view, is relatable to the words  

“anything which has been done”  used in Section 179 aforesaid.  This  

factual position, in our view, is sufficient to vest jurisdiction under Section  

179 of the Code of Criminal Procedure, with a competent Court at  

Ghaziabad.

13. Besides the aforesaid, under Section 179 of the Code of Criminal  

Procedure, even the place(s) wherein the consequence (of the criminal  

act) “ensues”, would be relevant to determine the court of competent  

jurisdiction.  Therefore, even the courts within whose local jurisdiction, the  

repercussion/effect of the criminal act occurs, would have jurisdiction in the  

matter.  The reciprocal consideration, flowing out of the agreement dated  

1.12.2001, is comprised of a monetary payback.  The aforesaid monetary  

payback was allegedly transmitted by the recipient of goods (Samsung,  

Dubai) to the intermediary buyer (Sky Impex Limited), by way of a bill of  

exchange valued at US$ 14,32,745, on 1.2.2002.  The aforesaid bill of  

exchange was then endorsed by Sky Impex Limited, to the complainant-

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JCE Consultancy. JCE Consultancy maintains, that it holds the said bill of  

exchange at Ghaziabad in India.  The execution of the bill of exchange (by  

Samsung, Dubai) and its endorsement (by Sky Impex Limited) is in  

consonance with the terms and conditions of the agreement dated  

1.12.2001.  Upon alleged denial of payment to JCE Consultancy (under  

the bill of exchange dated 1.2.2002), a legal notice dated 20.12.2004 came  

to be issued demanding payment.  In its response dated 21.12.2004,  

Samsung, Dubai, allegedly dishonestly/fraudulently/falsely denied  

liability/responsibility.  Since the complainant is allegedly holding the bill of  

exchange dated 1.2.2001 at Ghaziabad in India, the consequence  

emerging out of the said denial of encashment of the bill of exchange, in  

our view, would be deemed to “ensue”  at Ghaziabad in India.  In the  

instant view of the matter, the competent Court at Ghaziabad in India, in  

our view, would have jurisdiction in the matter under Section 179 of the  

Code of Criminal Procedure.

14. Insofar as Section 181 of the Code of Criminal Procedure is  

concerned, while inviting our attention to the same, learned counsel for the  

complainant-JCE Consultancy, in order to emphasize the issue of  

jurisdiction, brought to our notice sub-section (4) thereof.  Section 181(4) of  

the Code of Criminal Procedure is being extracted hereunder:-  

181. Place     of     trial     in     case     of     certain     offences   –    (1) ……………….. (2) ………………..

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(3) ……………….. (4) Any offence of criminal misappropriation or of criminal breach  of trust may be inquired into or tried by a Court within whose local  jurisdiction the offence was committed or any part of the property  which is the subject of the offence was received or retained, or was  required to be returned or accounted for, by the accused person.

A perusal of the aforesaid provision leaves no room for any doubt, that in  

offences of the nature as are subject matter of consideration in the present  

controversy, the court within whose local jurisdiction, the whole or a part of  

the consideration “…were required to be returned or accounted for…”  

would have jurisdiction in the matter.  In the present case, a bill of  

exchange dated 1.2.2002 was issued on behalf of Samsung, Dubai, to Sky  

Impex Limited;  Sky Impex Limited, in terms of the agreement dated  

1.12.2001, endorsed the aforesaid bill of exchange in favour of the  

complainant-JCE Consultancy;  JCE Consultancy claims to be holding the  

aforesaid bill of exchange at Ghaziabad in India.  Being holder of the bill of  

exchange dated 1.2.2002, JCE Consultancy demanded the right of  

payment thereunder, which is being denied by the accused.  Since the bill  

of exchange issued by Samsung, Dubai, dated 1.2.2002 for US$14,32,745  

was received, and is allegedly being held by JCE Consultancy at  

Ghaizabad in India; the aforesaid bill of exchange, according to the  

complainant, has to be honoured/realized at the place where it is held (i.e.  

at Ghaziabad, in India).  In the instant alleged factual background of the  

matter, we are of the view, that the competent court at Ghaziabad in India,

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would have jurisdiction to hold the trial of the complaint under Section  

181(4) of the Code of Criminal Procedure.

15. Lastly, reference may be made to section 182 of the Criminal  

Procedure Code which is being reproduced hereunder:-

182. Offences     committed     by     letters,     etc.   –    (1) Any offence which includes cheating may, if the deception is  practiced by means of letters or telecommunication messages, be  inquired into or tried by any Court within whose local jurisdiction  such letters or messages were sent or were received; and any  offence of cheating and dishonestly inducing delivery of property  may be inquired into or tried by a Court within whose local  jurisdiction the property was delivered by the person deceived or  was received by the accused person.

(2) Any offence punishable under section 494 or section 495 of  the Indian Penal Code (45 of 1860) may be inquired into or tried by a  Court within whose local jurisdiction the offence was committed or  the offender last resided with his or her spouse by the first marriage,  or the wife by first marriage has taken up permanent residence after  the commission of offence.”

A perusal of section 182 (extracted above) reveals that the said provision  

can be invoked to determine jurisdiction in respect of a number of offences  

which include cheating as a component.  When acts of  

fraud/dishonesty/deception, relatable to the offence(s), contemplated  

under Section 182 aforementioned, emerge from  

communications/messages/letters etc., the place(s) from where the  

communications/messages/letters etc. were sent, as also, the places at  

which the same were received, would be relevant to determine the court of  

competent jurisdiction.  The allegations contained in the complaint reveal,

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that the complainant-JCE Consultancy, addressed a legal notice dated  

20.12.2004 to Samsung, Dubai, calling upon Samsung, Dubai, to honour  

its reciprocal commitment of the monetary payback contemplated under  

the agreement dated 1.12.2001.  In its response dated 21.12.2004,  

Samsung, Dubai, denied liability, by asserting that Samsung, Dubai, had  

no commitment/responsibility towards JCE Consultancy, under the bill of  

exchange dated 1.2.2002.  The aforesaid denial according to the  

complainant, constitutes the basis of the criminal complaint filed against  

the accused.  The place at which the said response on behalf of Samsung,  

Dubai, was received, in our view, would be relevant to determine the Court  

of competent jurisdiction, under Section 182 of the Criminal Procedure  

Code.  Even if the response was received by the counsel for JCE  

Consultancy in a place other than Ghaziabad (though in India), still the  

competent court at Ghaziabad in India, in our view, would be vested with  

jurisdiction, as under Section 178 (d) of the Code of Criminal Procedure, in  

cases where an offence consists of several acts carried out under different  

jurisdictions, a court having jurisdiction where any one of such acts was  

committed, will be competent to try the same.   

16. In view of the aforesaid deliberations, it is not legitimate for the  

appellants to contend, that the actions attributed by JCE Consultancy to  

the accused, have no connectivity to territorial jurisdiction in India.  Section  

179 of the Code of Criminal Procedure vests jurisdiction for inquiry and trial

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in a Court, within whose jurisdiction anything has been done with reference  

to an alleged crime, and also, where the consequence of the criminal  

action ensues.  Section 181(4) of the Code of Criminal Procedure leaves  

no room for any doubt, that culpability is relatable even to the place at  

which consideration is required to be returned or accounted for.  Finally,  

Section 182 of the Code of Criminal Procedure postulates that for offences  

of which cheating is a component, if the alleged act of deception is shown  

to have been committed, through communications/letters/messages, the  

court within whose jurisdiction the said communications/letters/messages  

were sent (were received), would be competent to inquire into and try the  

same.  Thus viewed, it is not justified for the appellants to contend, that the  

allegations levelled by the complainant against the accused, specially in  

respect of the five appellants herein, are not relatable to territorial  

jurisdiction in India, under the provisions of the Code of Criminal  

Procedure.

17. Our deliberations in the preceding paragraphs are based on the  

facts of the present case, as also, the offences which have been  

incorporated in the impugned summoning order.  We would have had to  

examine the scope of Section 2 of the Indian Penal Code, which  

constitutes the plank on which submissions advanced on behalf of the  

appellants rest.  But that may not really be necessary, as our research lead  

us to the decision rendered by this Court in Mobarik Ali Ahmed  vs.  The

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State of Bombay (1958) SCR 328.  This Court in the aforesaid judgment  

held as under:-  

“(24) It would be desirable at this stage to notice certain well- recognised concepts of International Law bearing on such a  situation.  Wheaton in his book on Elements of International Law  (Fourth Edition) at page 183, dealing with criminal jurisdiction states  as follows:

“By the Common Law of England, which has been adopted, in  this respect, in the United States, criminal offences are considered  as altogether local, and are justiciable only by the courts of that  country where the offence is committed.” At page 182 thereof it is stated as follows :

“The judicial power of every independent State, extends (with  the qualifications mentioned earlier) to the punishment of all  offences against the municipal laws of the State, by whomsoever  committed, within the territory.” In Hackworth’s Digest of International Law (1941 Edition), Vol.II, at  page 188 there is reference to opinions of certain eminent American  Judges.  It is enough to quote the following dictum of Holmes J.  noticed therein :

“Acts     done     outside     a     jurisdiction,     but     intended     to     produce     and    producing     detrimental     effects     within     it,     justify     a     State     in     punishing     the    cause     of     the     harm     as     if     he     had     been     present     at     the     effect,     if     the     State    should     succeed     in     getting     him     within     its     power  .” In Hyde’s International Law (Second Edition), Vol.I, at page 798, the  following quotation from the judgment of the permanent Court of  International Justice dated September 7, 1927, in the case relating  to S.S. Lotus (Publications, Permanent Court of International Justice,  Series A, Nos.10, 23) is very instructive :

“It     is     certain;     that     the     courts     of     many     countries,     even     of    countries     which     have     given     their     criminal     legislation     a     strictly    territorial     character,     interpret     criminal     law     in     the     sense     that     offences,    the     authors     of     which     at     the     moment     of     commission     are     in     the     territory    of     another     State,     are     nevertheless     to     be     regarded     as     having     been    committed     in     the     national     territory,     if     one     of     the     constituent     elements    of     the     offence,     and     more     especially     its     effects,     have     taken     place    there.” This quotation is also noticed in Openheim’s International Law  (Eighth Ed.), Vol.I at page 332 in the footnote.  In noticing the  provisions of International Law in this context we are conscious that  what we have to deal with in the present case is a question merely

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of municipal law and not of any International Law.  But as is seen  above, the principles recognized in International Law in this behalf  are virtually based on the recognition of those principles in the  municipal law of various countries and is really part of the general  jurisprudence relating to criminal responsibility under municipal law.  No     doubt     some     of     the     above     dicta     have     reference     to     offences    actually     committed     outside     the     State     by     foreigners     and     treated     as    offences     committed     within     the     State     by     specific     legislation.      But     the    principle     emerging     therefrom     is     clear     that     once     it     is     treated     as    committed     within     the     State,     the     fact     that     he     is     a     foreigner     corporeally    present     outside     at     the     time     of     such     commission     is     no     objection     to     the    exercise     of     municipal     jurisdiction     under     the     Municipal     law  .  This  emphasizes the principle that exercise of criminal jurisdiction  depends on the locality of the offence and not on the nationality of  the alleged offender (except in a few specified cases such as  Ambassadors, Princes etc.). 25. Learned counsel for the appellant has relied on various  passages in the judgment of Cockburn, C. J., in the well-known case  The Queen v. Keyn (Franconia’s case) [(1876) 2 Ex D 63].  Fourteen  learned Judges participated in that case and the case appears to  have been argued twice. Eight of them including Cockburn, C. J.,  formed the majority. Undoubtedly there are various passages in the  judgment of Cockburn, C. J., which prima facie seem capable of  being urged in favour of the appellant's contention. In particular the  following passage at p. 235 may be noticed:

“The question is not whether the death of the deceased, which  no doubt took place in a British ship, was the act of the defendant in  such ship, but whether the defendant, at the time the act was done,  was himself within British jurisdiction.” The learned Chief Justice, however, recognized at p. 237 that there  were certain American decisions to the contrary. Now the main  debate in that case was whether the sea upto three mile limit from  the shore is part of British territory or whether in respect of such  three mile limit only limited and defined extraterritorial British  jurisdiction extended which did not include the particular criminal  jurisdiction under consideration. In respect of this question, as a  result of the judgment, the Parliament had to enact the Territorial  Waters Jurisdiction Act, 1878 (41 & 42 Vict., c. 73) which in  substance overruled the view of the majority and of the learned  Chief Justice on this point. The main principle of criminal jurisdiction,  however, relevant for our purpose was enunciated in the minority  judgment of Amphlett, J. A., at p. 118, that “it is the locality of the

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offence that determines the jurisdiction” implying by contrast that it is  not the nationality of the offender. 26. The question, however, that still remains for consideration is  whether there is anything in the language of the sections of the  Indian Penal Code relating to the general scheme of the Code which  compels the construction that the various sections of the Penal Code  are not intended to apply to a foreigner who has committed an  offence in India while not being corporeally present therein at the  time. For this purpose we are not concerned with such of the  sections of the Penal Code, if any, which indicate the actual  presence of the culprit as a necessary ingredient of the offence. Of  course, for such offences a foreigner ex hypothesi not present at the  time in India cannot be guilty. The only general sections of the Indian  Penal Code which indicate its scheme in this behalf are Sections 2,  3, and 4 and as they stand at present, they are as follows:

“2. Every person shall be liable to punishment under this Code  and not otherwise for every act or omission contrary to the  provisions thereof, of which he shall be guilty within India.

3. Any person liable, by any Indian Law, to be tried for an  offence committed beyond India shall be dealt with according to the  provisions of this Code for any act committed beyond India in the  same manner as if such act had been committed within India.

4. The provisions of this Code apply also to any offence  committed by-

(1) any citizen of India in any place without and beyond  India;

(2) any person on any ship or aircraft registered in India  wherever it may be.

Explanation:— In this section the word ‘offence' includes every  act committed outside India which, if committed in India, would be  punishable under this Code.” Sections 3 and 4 deal with offences committed beyond the territorial  limits of India and Section 2 obviously and by contrast refers to  offences committed within India. It     appears     clear     that     it     is     Section     2    that     has     to     be     looked     to     determine     the     liability     and     punishment     of    persons     who     have     committed     offences     within     India.     The     section    asserts     categorically     that     every     person     shall     be     liable     to     punishment    under     the     Code     for     every     act     or     omission     contrary     to     the     provisions    of     the     Code     and     of     which     he     shall     be     guilty     within     India  . This  recognises the general principle of criminal jurisdiction over persons  with reference to the locality of the offence committed by them,  being within India. The     use     of     the     phrase   “  every     person  ”   in     Section     2    as     contrasted     with     the     use     of     the     phrase   “  any     person  ”    in     Section     3   

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as     well     as     Section     4     (2)     of     the     Code     is     indicative     of     the     idea     that     to    the     extent     that     the     guilt     for     an     offence     committed     within     India     can     be    attributed     to     a     person,     every     such     person     without     exception     is     liable    for     punishment     under     the     Code  . Learned counsel for the appellant  suggests that the phrase “within India” towards the end of Section 2  must be read with the phrase “every person” at the commencement  thereof. But this is far-fetched and untenable. The     plain     meaning     of    the     phrase   “  every     person  ”   is     that     it     comprehends     all     persons     without    limitation     and     irrespective     of     nationality,     allegiance,     rank,     status,    caste,     colour     or     creed  . This section must be understood as  comprehending every person without exception barring such as may  be specially exempt from criminal proceedings or punishment  thereunder by virtue of the Constitution (See Article 361(2) of the  Constitution) or any statutory provisions or some well-recognised  principle of international law, such as foreign sovereigns,  ambassadors, diplomatic agents and so forth, accepted in the  municipal law. 27. Learned counsel drew our attention to a number of sections in  the Penal Code, viz., Sections 108-A, 177, 203, 212, 216, 216-A and  236. The argument based on reference to these sections is that  wherever the legislature in framing the Penal Code wanted to  legislate about anything that has reference to something done  outside India it has specifically said so and that therefore it may be  expected that if it was intended that the Penal Code would refer to a  person actually present outside India at the time of the commission  of the offence, it would have specifically said so. We are unable to  accept this argument. These sections have reference to particular  difficulties which arose with reference to what may be called, a  related offence being committed in India in the context of the  principal offence itself having been committed outside India — that is  for instance, abetment, giving false information and harbouring  within India in respect of offences outside India. Questions arose in  such cases as to whether any criminal liability would arise with  reference to the related offence, the principal offence itself not being  punishable in India and these sections were intended to rectify the  lacunae. On the other hand, a reference to Section 3 of the Code  clearly indicates that it is implicit therein that a foreigner who  commits an offence within India is guilty and can be punished as  such without any limitation as to his corporeal presence in India at  the time. For if it were not so, the legal fiction implicit in the phrase  “as if such act had been committed within India” in Section 3 would  not have been limited to the supposition that such act had been

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committed within India, but would have extended also to a fiction as  to his physical presence at the time in India. 28. In     the     argument     before     us,     there     has     been     some     debate     as     to    what     exactly     is     the     implication     of     the     clause   “  of     which     he     shall     be    guilty     within     India  ”    in     Section     2     of     the     Code.     It     is     unnecessary     to    come     to     any     definite     conclusion     in     respect     thereto.     But     it     is     clear     that    it     does     not     support     the     contention     of     the     appellant's     counsel.     We    have,     therefore,     no     doubt     that     on     a     plain     reading     of     Section     2     of     the    Penal     Code,     the     Code     does     apply     to     a     foreigner     who     has     committed    an     offence     within     India     notwithstanding     that     he     was     corporeally    present     outside  .

… … … 32. After giving our careful consideration to the questions raised  before us, we     are     clearly     of     the     opinion     that     even     on     the     assumption    that     the     appellant     has     ceased     to     be     an     Indian     citizen     and     was     a    Pakistani     national     at     the     time     of     the     commission     of     the     offence,     he    must     be     held     guilty     and     punished     under     the     Indian     Penal     Code    notwithstanding     his     not     being     corporeally     present     in     India     at     the    time.”  (emphasis is ours)

We are in respectful agreement with the conclusion drawn in Mobarik Ali  

Ahmed’s case (supra).  It is unnecessary for us to again repeat the same.  

In view of the above, we are satisfied that all components of the  

submissions advanced on behalf of the appellants, more particularly their  

foreign nationality, 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, in view of the aforesaid decision  

rendered by this Court.  We, therefore, find no merit in the first contention  

advanced on behalf of the appellants in the instant case, that the Court of  

the VIIth Additional Chief Judicial Magistrate could not have entertained  

the complaint filed by JCE Consultancy against the appellants.

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18. Another allied submission (the second submission), advanced on  

the same lines as the first contention was, that consequent upon the  

passing of goods/product to Samsung, Dubai, S.C. Baek (accused no. 7) is  

said to have paid the consideration amount through a bill of exchange.  It  

was submitted, that even as per the averments made by the complainant-

JCE Consultancy, the aforesaid bill of exchange was executed by S.C.  

Baek in Dubai.  And as such, that liability under the aforesaid bill of  

exchange would ensue only at Dubai.  It was also contended, that the  

aforesaid bill of exchange was allegedly drawn on behalf of Samsung,  

Dubai, which is a company registered at Dubai (in the United Arab  

Emirates).  According to the learned counsel representing the appellants  

herein, even the consideration, as per the averments made in the  

complaint, was liable to pass from Samsung, Dubai, to Sky Impex Limited  

at Dubai (in the United Arab Emirates).  It is submitted, that thereafter the  

said bill of exchange came to be settled between the executor thereof  

(Samsung, Dubai) and the beneficiary thereunder (Sky Impex Limited),  

inasmuch as, Sky Impex Limited, consequent upon the settlement of the  

said bill of exchange, allegedly executed a credit note in favour of  

Samsung, Dubai on 22.6.2002.  This credit note was also allegedly  

executed at Dubai.  It is further submitted, that the aforesaid bill of  

exchange was stated to have been endorsed in favour of the complainant  

by Sky Impex Limited.  This endorsement, according to the learned

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counsel for the appellants, was also made at Dubai (in the United Arab  

Emirates).  As such, it was contended by the learned counsel for the  

appellants, that even the passing of consideration in furtherance of the  

alleged contract dated 1.12.2001, took place beyond the territorial barriers  

of India.  It was, therefore, asserted on behalf of the appellants, that Courts  

in India, by no stretch of imagination, can have jurisdiction over the matter.

19. It is not necessary for us to re-examine the issue projected at the  

hands of the learned counsel for the appellants, in terms of the factual  

position noticed in the foregoing paragraph, because the instant  

submission, is in sum and substance, exactly akin to the one raised on  

behalf of the appellants as their primary submission.  Having threadbare  

examined the primary contention, we are satisfied in rejecting the instant  

contention of the appellants, for exactly the same reasons which had  

weighed with us while dealing with the primary contention raised on behalf  

of the appellants.

20. The third submission advanced at the hands of the learned counsel  

for the appellants was, that the complaint lodged by JCE Consultancy was  

based on an agreement dated 1.12.2001.  The aforesaid agreement was  

between JCE Consultancy and Sky Impex Limited.  It was submitted, that  

the appellants herein are not privy to the aforesaid contract/agreement.  

Accordingly, it was contended, that the grievance of the complainant, if  

any, could have been raised only as against Sky Impex Limited.  It was

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asserted, that the appellants are independent of the persons who are privy  

to the agreement dated 1.12.2001.  It is asserted, that only such persons  

who are privy to the contract/agreement dated 1.12.2001, can be  

proceeded against for breach of the same.  Stated differently, it is  

contended , that even if the parties to the contract/agreement dated  

1.12.2001 had breached the same, the appellants could not be held liable  

therefor.  Accordingly, it is asserted, that the appellants herein having no  

role to play under the contract/agreement dated 1.12.2001, have been  

wrongfully involved in the controversy by the complainant-JCE  

Consultancy.

21. Having perused the pleadings filed before this Court, and having  

heard the learned counsel for the complainant-JCE Consultancy, as also,  

Sky Impex Limited, it becomes necessary for us to record their respective  

stances in respect of the involvement of the five appellants, with the  

allegations made by JCE Consultancy.  First and foremost, it is necessary  

to mention, that in the complaint filed by JCE Consultancy, it was expressly  

averred in paragraph 1, that all the appellants herein were involved in  

“each and every act done by the company”  (Samsung, Dubai).  In the  

statement recorded under Section 200 of the Code of Criminal Procedure,  

Shaikh Allauddin Paker Maiddin on 7.1.2005 deposed, that the appellants  

herein were individually and jointly liable for the commission of offences  

emerging from the complaint.  How they were liable (if at all), is a question

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of evidence, which would emerge only after evidence is recorded by the  

trial court.  But what is interesting is, that Sky Impex Limited, though an  

accused in the complaint filed by JCE Consultancy, has totally supported  

the accusation(s) levelled by the complainant against the appellants.  In a  

detailed response to the culpability of the appellants herein, Sky Impex  

Limited has adopted a firm stance, wherein it has averred as under:-

“10. It is submitted that the applicant, through other group  companies Sky Impex Isle of Man, had been conducting business  with petitioner/accused since the year 1999.  Various other bills of  exchange had been drawn by the applicant and accepted by S.C.  Baek-accused with complete authority vested in him via Board  resolutions issued by petitioner/accused and substantiated by  petitioner/accused through Board resolution of their parent company  in South Korea. 11. It is further pertinent to mention here that the applicant also  had been involved in a bonafide discounting of bill numbers SM 4B  for USD 2,550,432 (Rs.11 crores approx.) and SM 3B for USD  2,448,340 (Rs.11 crores approx.) maturing July 20th, 2002 with  Bankhaus Wolbern in Germany and HSBC Bank (Hong Kong and  Shangai Bank) in London/Dubai, which bills had been duly accepted  by petitioner/accused with full knowledge of petitioner/accused,  based at the head office in South Korea.  It is submitted that in one  of the cases, on July 24, 2002 Bankhaus Wolbern a bank in  Germany, to whom the bills were endorsed by the applicant in 2002  made a demand for payment of bill numbers SM 4B and SM 3B to  the office of petitioner/accused in South Korea as petitioner/accused  was trying to renegade on their bonafide obligation to discharge the  bills in their capacity as the acceptor.  The bank after making their  investigations concluded that operational control of these  transactions were vested with the offices of the petitioner/accused in  Seoul, South Korea and accordingly issued threat for legal action to  the petitioner/accused at their Head Office in Seoul, to black list the  Samsung Group.  A true copy of the said letter dated July 24th, 2002  is being filed as Annexure A-8.  It is submitted that within a short  time span of receiving the said letters from Bankhaus Wolbern, USD  3.6 million (Rs.16.2 crores) the bills were paid by accused No. 1  through Emirates International Bank transfer signed jointly by

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accused no. 5 and to Bankhaus Wolbern on Aug. 14, 2002.  A true  copy of said transaction is being filed as Annexure A-9……. 12. It is submitted that in Nov. 2003 HSBC Bank Dubai was paid  USD 4.85 million (approx. 21.8 crores) by accused no. 1 through  bank transfer from Emirates Bank International instructions to  discharge bill numbers SM 2A for USD 2,440,925 (approx. 11  crores) –  drawn July 8th, 2002, No. SM 17 for USD 1,038,725  (approx. 4.6 crores) drawn July 14th, 2002 and No. SM 18 for USD  1,095,070 (approx. 5 crores) drawn July 14, 2002.  It is submitted  that these bills of exchange were from the same series as the bill of  exchange drawn by the applicant and accepted by Mr. S.C. Baek  (accused no. 6) that is now the subject of the criminal case filed at  Ghaziabad by the complainant/respondent.  These bills were  endorsed to HSBC Bank in London and were duly and legally paid  by accused number 1 under instructions from the office of the  petitioner/accused under whose orders other set of bills amounting  to USD 3.6 million (16.2 crores) had been paid by accused no. 1 as  indicated in para 11 above.  The transfer instructions were duly  signed jointly by accused no. 5, the Managing Director of accused  no. 1 alongside accused Mr. S.C. Baek.  The documents including  the bills of exchange, and the instructions to remit are money are  collectively filed and marked as Annexure A-10………………… It is quiet apparent that had the bills really been part of a criminal  enterprise, as alleged, no corporation big or small would voluntarily  pay out without protest or demur, these sums to the tune of  approximately 18 crores to Bankhaus Wolbern in Germany and 21.8  crores to HSBC in Dubai.  It would be pertinent to mention here that  the bills to Bankhaus Wolbern were paid in August 2002 almost 18  months before the police complaint was filed in Dubai on January 7th,  2004 against the applicant and accused no. 6, Mr. S.C. Baek who  continued in his job as Financial Controller with accused no. 1 right  until Dec. 2003 i.e. sixteen (16) months after the bills were paid to  Bankhaus Wolbern by accused no. 5 the Managing Director of  accused no. 1.”  (the term applicant in the extract, is a reference to  Sky Impex Limited; and the term petitioner/accused, is a reference  to the appellants).

Even though it was wholly unnecessary for us to examine, at the present  

juncture, the involvement or the culpability of the appellants herein, in the  

background of the accusations levelled by JCE Consultancy, and the

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supporting stance of Sky Impex Limited,  we are of the view, that even the  

pleadings before us, prima facie demonstrate the connectivity of the  

appellants, with the foundational basis expressed in the complaint.  We  

are, therefore, satisfied, at the present juncture, that it is undesirable to  

exculpate the appellants from the proceedings initiated by JCE  

Consultancy before the VIIth Additional Chief Judicial Magistrate,  

Ghaziabad.  Needless to mention, that the issue under reference may be  

reagitated, after evidence has been produced by the rival parties before  

the trial court.

22. The fourth contention advanced at the hands of the learned counsel  

for the appellants was aimed at demonstrating; firstly, that the charges, as  

have been depicted in the summoning order, were not made out; secondly,  

that the appellants herein were functionaries of a company, and therefore,  

per se could not be made vicariously liable for offences emerging out of  

actions allegedly taken in furtherance of the discharge of their  

responsibilities towards the company; and thirdly, that none of the  

appellants had any concern whatsoever (even as functionaries of the  

concerned company), with the allegations levelled by the complainant.  To  

the credit of the learned counsel representing the appellants, we must  

place on record, that reliance was placed on legal precedent, to  

substantiate the aforesaid submissions.  We are however of the view, that  

it is not necessary for us at the present juncture to deal with any of the

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aforesaid submissions, in view of the legal position expressed by this Court  

in its recent judgment in Iridium India Telecom Limited  vs.  Motorola  

Incorporated and others, (2011) 1 SCC 74, wherein while examining a  

matter similar to the one in hand, this Court examined at great length, not  

only the scope of interference under Section 482 of the Code of Criminal  

Procedure (including that under Articles 226 and 227 of the Constitution of  

India), but also, the culpability of a body corporate/company, including its  

functionaries, in respect of criminal charges.  The only difference between  

the present controversy, and the one adjudicated upon by this Court in  

Iridium India Telecom Limited’s case (supra) is, that while in the present  

controversy the accused have approached this Court, consequent upon  

the denial of reliefs sought from the High Court; in Iridium India Telecom  

Limited’s case (supra) the claim raised by the accused had been accepted  

by the High Court, whereupon, the complainant had approached this  

Court.  The submissions which came to be dealt with by this Court in  

Iridium India Telecom Limited’s case (supra), at the behest of the  

complainant party, are summarized in paragraph 23, which is being  

reproduced hereunder:-

“23. The submissions made by Mr Jethmalani although very  elaborate, may be summed up as follows:

(i) The power to quash a criminal complaint that too at the  stage of cognizance, is an extreme power, which must be exercised  very sparingly and with abundant caution; that too in the rarest of  rare cases.

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(ii) In exercise of its power under Section 482, the High Court  has to consider the complaint as a whole, without examining the  merits of the allegations i.e. genuineness of the allegations is not to  be examined at this stage.

(iii) The complaint is not required to verbatim reproduce the  legal ingredients of the offence. If the necessary factual foundation is  laid in the complaint, proceedings should not be quashed.

(iv) Quashing of a complaint is warranted only where the  complaint is so bereft of even basic facts which are absolutely  necessary for making out an offence; that it would be a miscarriage  of justice to permit the proceedings to continue.

(v) In support of the aforesaid submissions, Mr Jethmalani has  relied on the following judgments of this Court: Nagawwa v.  Veeranna Shivalingappa Konjalgi (1976) 3 SCC 736, MCD v. Ram  Kishan Rohtagi (1983) 1 SCC 1, Dhanalakshmi v. R. Prasanna  Kumar 1990 Supp. SCC 686 and State of Haryana v. Bhajan Lal  1992 Supp.(1) SCC 335.”

In paragraphs 24 to 30, this Court in Iridium India Telecom Limited’s case  

(supra) noticed the facts pertaining to the controversy, and the emerging  

legal technicalities canvassed at the hands of the appellants.  In paragraph  

31 to 37, this Court recorded the response thereto, at the behest of the  

accused.  Thereupon, this Court in Iridium India Telecom Limited’s case  

(supra) made the following observations in paragraph 38 :-

“38. We have considered the submissions made by the learned  Senior Counsel. A bare perusal of the submissions would be  sufficient to amply demonstrate that this cannot be said to be an  “open and shut”  case for either of the parties. There is much to be  said on both sides. The entire scenario painted by both the sides is  circumscribed by “ifs”  and “buts”. A mere reading of the 1992 PPM  would not be sufficient to conclude that the entire information has  been given to the prospective investors. Similarly, merely because  there may have been some gaps in the information provided in the  PPM would not be sufficient to conclude that the respondents have  made deliberate misrepresentations. In such circumstances, we  have to examine whether it was appropriate for the High Court to  exercise its jurisdiction under Section 482 CrPC to quash the

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proceedings at the stage when the Magistrate had merely issued  process against the respondents.”

In  paragraphs 39 to 51, this Court examined the parameters, of the scope  

of exercise of jurisdiction in proceedings initiated to quash criminal  

charges/proceedings, under Section 482 of the Code of Criminal  

Procedure (and/or under Articles 226 or 227 of the Constitution of India).  

In this behalf, reliance was placed on past precedent including the decision  

rendered by this Court in State of Haryana  vs.  Bhajan Lal 1992 Supp.(1)  

SCC 335, wherein this Court inter alia held as under:-  

“102. In the backdrop of the interpretation of the various relevant  provisions of the Code under Chapter XIV and of the principles of  law enunciated by this Court in a series of decisions relating to the  exercise of the extraordinary power under Article 226 or the inherent  powers under Section 482 of the Code which we have extracted and  reproduced above, we give the following categories of cases by way  of illustration wherein such power could be exercised either to  prevent abuse of the process of any court or otherwise to secure the  ends of justice, though it may not be possible to lay down any  precise, clearly defined and sufficiently channelised and inflexible  guidelines or rigid formulae and to give an exhaustive list of myriad  kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or  the complaint, even if they are taken at their face value and  accepted in their entirety do not prima facie constitute any offence or  make out a case against the accused.

(2) Where the allegations in the first information report and other  materials, if any, accompanying the FIR do not disclose a cognizable  offence, justifying an investigation by police officers under Section  156(1) of the Code except under an order of a Magistrate within the  purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or  complaint and the evidence collected in support of the same do not  disclose the commission of any offence and make out a case  against the accused.

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(4) Where, the allegations in the FIR do not constitute a  cognizable offence but constitute only a non-cognizable offence, no  investigation is permitted by a police officer without an order of a  Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so  absurd and inherently improbable on the basis of which no prudent  person can ever reach a just conclusion that there is sufficient  ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the  provisions of the Code or the Act concerned (under which a criminal  proceeding is instituted) to the institution and continuance of the  proceedings and/or where there is a specific provision in the Code or  the Act concerned, providing efficacious redress for the grievance of  the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala  fide and/or where the proceeding is maliciously instituted with an  ulterior motive for wreaking vengeance on the accused and with a  view to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of  quashing a criminal proceeding should be exercised very sparingly  and with circumspection and that too in the rarest of rare cases; that  the Court will not be justified in embarking upon an enquiry as to the  reliability or genuineness or otherwise of the allegations made in the  FIR or the complaint and that the extraordinary or inherent powers  do not confer an arbitrary jurisdiction on the Court to act according to  its whim or caprice.”

While dealing with the various judgments rendered by this Court on the  

subject, reference was also made to the decision in M.N. Ojha  vs.  Alok  

Kumar Srivastav, (2009) 9 SCC 682.  In M.N. Ojha’s case (supra) similar  

views as in Bhajan Lal’s case (supra) came to be recorded in the following  

words :

“25. Had the learned SDJM applied his mind to the facts and  circumstances and sequence of events and as well as the  documents filed by the complainant himself along with the complaint,  surely he would have dismissed the complaint. He would have  realised that the complaint was only a counterblast to the FIR lodged

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by the Bank against the complainant and others with regard to the  same transaction.                               * * *

27. The case on hand is a classic illustration of non-application of  mind by the learned Magistrate. The learned Magistrate did not  scrutinise even the contents of the complaint, leave aside the  material documents available on record. The learned Magistrate  truly was a silent spectator at the time of recording of preliminary  evidence before summoning the appellants.

28. The High Court committed a manifest error in disposing of the  petition filed by the appellants under Section 482 of the Code  without even adverting to the basic facts which were placed before it  for its consideration.

29. It is true that the Court in exercise of its jurisdiction under  Section 482 of the Code of Criminal Procedure cannot go into the  truth or otherwise of the allegations and appreciate the evidence if  any available on record. Normally, the High Court would not  intervene in the criminal proceedings at the preliminary stage/when  the investigation/enquiry is pending.

30. Interference by the High Court in exercise of its jurisdiction  under Section 482 of the Code of Criminal Procedure can only be  where a clear case for such interference is made out. Frequent and  uncalled for interference even at the preliminary stage by the High  Court may result in causing obstruction in the progress of the inquiry  in a criminal case which may not be in the public interest. But at the  same time the High Court cannot refuse to exercise its jurisdiction if  the interest of justice so required where the allegations made in the  FIR or complaint are so absurd and inherently improbable on the  basis of which no fair-minded and informed observer can ever reach  a just and proper conclusion as to the existence of sufficient grounds  for proceeding. In such cases refusal to exercise the jurisdiction may  equally result in injustice more particularly in cases where the  complainant sets the criminal law in motion with a view to exert  pressure and harass the persons arrayed as accused in the  complaint.”

In dealing with the issue under reference, this Court in Iridium India  

Telecom Limited’s case (supra) also examined the scope of a body  

corporate/company being proceeded against in criminal cases, on the

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canvassed premise, that no mens rea could be attributed to them, and as  

such, criminal action could not be taken against them.  For the said  

purpose reference was made to the legal position on the subject prevailing  

in the United Kingdom, the United States of America and Canada, and  

thereupon, this Court dealt with the declaration of the legal position on the  

subject, at the hands of this Court.  Whereupon, its conclusion was  

recorded in paragraph 66 as under :

“66. These observations leave no manner of doubt that a  company/corporation cannot escape liability for a criminal offence  merely because the punishment prescribed is that of imprisonment  and fine. We are of the considered opinion that in view of the  aforesaid judgment of this Court, the conclusion reached by the High  Court that the respondent could not have the necessary mens rea is  clearly erroneous.”

In sum and substance, all the pleas canvassed on behalf of the  

complainant (already extracted above) were upheld by this Court in Iridium  

India Telecom Limited’s case (supra).

23. Through the complaint, as also, in the statement of Shaikh Allauddin  

Paker Maiddin recorded under Section 200 of the Code of Criminal  

Procedure, JCE Consultancy has categorically asserted, that the  

appellants herein were jointly or severally liable to honour the bill of  

exchange dated 1.2.2002, which had been endorsed in its (JCE  

Consultancy’s) favour.  In order to demonstrate the appellant’s liability, a  

series of documents were also placed before the Trial Court.  The VIIth

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Additional Chief Judicial Magistrate, having considered the said material,  

issued the summoning order. The culpability of the appellants herein would  

obviously depend upon the evidence produced before the jurisdictional  

Court.   It can definitely be stated from the pleadings before this Court, that  

one of the accused, namely, Sky Impex Limited, has totally supported the  

cause of the complainant-JCE Consultancy, through its written reply.  

Relevant extracts of the said reply have already been reproduced  

hereinabove (during our deliberations on the third contention).  The  

situation which emerges, in the case in hand, is similar to the one  

encountered by this Court in Iridium India Telecom Limited’s case (supra),  

wherein, this Court on being confronted with the factual and legal position  

was constrained to record, that the scenario painted by both the sides is  

circumscribed by “ifs”  and “buts”.  Herein also, factual details emerging  

from the evidence to be produced by the rival parties, would be necessary  

to project a clear picture.  It is only thereafter, that a rightful decision on  

this issue canvassed will be possible.   As of now we are satisfied, that the  

factual foundation/background of the acts of omission and commission  

presented by the complainant is specific and categoric.  We are also  

satisfied that the allegations levelled by the complainant, fully incorporate  

all the basic facts which are necessary to make out the offences  

whereunder the impugned summoning order dated 12.1.2005 has been  

passed.  The instant controversy does not suffer from any of the

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impairments referred in Iridium India Telecom Limited’s case (supra).  

Accordingly,  we leave it open to the appellants to canvass the legal  

issues, as were canvassed before us, before the trial court.   After the rival  

parties have led their evidence, the trial court will return its finding thereon,  

in accordance with law, without being influenced by any observations  

made on the merits of the controversy hereinabove, or hereafter.   

24. The last contention advanced at the hands of the learned counsel for  

the appellants, was based on the assertion, that the complainant –  JCE  

Consultancy had filed a civil suit bearing Commercial Action No.482 of  

2005 before the Court of First Instance, Dubai, praying for the recovery of  

the amount depicted in the bill of exchange dated 1.2.2002.  It was  

submitted, that in the pleadings of the aforesaid civil suit, there was no  

allegation against the appellants herein, depicting their criminal  

involvement.  It was the contention of the learned counsel for the  

appellants, based on the averments made in ground D (of the petition for  

special leave to appeal) filed before this Court, that JCE Consultancy had  

lead evidence in the aforesaid civil suit, whereupon, the said civil suit was  

dismissed on 24.9.2008.  It is further asserted, that the Court of First  

Instance, Dubai, while dismissing the civil suit had held, that the bill of  

exchange dated 1.2.2002 had nothing to do with the alleged supply of  

goods, by the complainant-JCE Consultancy to Sky Impex Limited.  It was  

also sought to be asserted, that the said bill of exchange was merely an

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accommodation bill, to enable the complainant-JCE Consultancy “to raise  

money, and to use the bill of exchange as a collateral”.   It was further  

submitted, on behalf of the appellants, that the liability emerging out of the  

bill of exchange dated 1.2.2002, can either have civil consequences or  

criminal liability.  The fact that the aforesaid civil suit came to be filed at the  

behest of JCE Consultancy, according to learned counsel, is an  

acknowledgement at the hands of the complainant (JCE Consultancy), that  

the liability emerging out of the bill of exchange dated 1.2.2002 was civil in  

nature.  As such, it was asserted at the hands of the learned counsel for  

the appellants, that the very initiation of criminal proceedings by the  

complainant, against the appellants herein, was misconceived.  It is also  

contended, that the filing of the criminal complaint by JCE Consultancy,  

must be deemed to be an act emerging out of extraneous considerations,  

so as to browbeat the appellants herein, and thereby, compel them to  

succumb to the illegal demands of the complainant-JCE Consultancy.  

Additionally, it was submitted by the learned counsel for the appellants,  

that in the civil claim raised by JCE Consultancy before the Court of First  

Instance, Dubai, from amongst the appellants, only Samsung, Dubai, was  

impleaded as a defendant, whereas, no action was initiated even for the  

recovery of the dues under the bill of exchange dated 1.2.2002, against the  

other four appellants herein.  Based on the aforesaid factual and legal  

submissions, it was the contention of the learned counsel for the

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appellants, that criminal prosecution initiated by the complainant-JCE  

Consultancy against the appellants herein, is liable to be quashed.   

25. In response to the aforesaid averments made on behalf of the  

appellants, it was the contention of the learned counsel for the  

respondents that the civil proceeding initiated by JCE Consultancy in the  

Court of First Instance, Dubai, is still pending in appeal.  In this behalf, it  

was pointed out, that the Dubai Appeals Court passed an order dated  

21.7.2010 directing the reattachment of assets of the defendants in the  

aforesaid civil suit, in the sum of Dhs.30 million (approximately Rs.45  

crores).  A copy of the aforesaid order dated 21.7.2010 has been  

appended to the reply filed by Sky Impex Limited (to the averments made  

in the petition for special leave to appeal) as Annexure A-11.  It was  

submitted, that consequent upon the passing of the order dated 21.7.2010,  

the Dubai Judicial Administration executed the attachment of Dhs.30  

million.  In order to substantiate the aforesaid factual position, Sky Impex  

Limited has appended to its reply Annexure A-12, a bank guarantee dated  

22.9.2010, issued by Emirates Bank International, on behalf of Samsung  

Dubai, in favour of JCE Consultancy.  It is also pointed out by the learned  

counsel for the respondents, that an act of omission or commission at the  

hands of a party, may lead to civil, as well as, criminal consequences.  In  

this behalf, learned counsel for the respondents also invited our attention  

to the order passed by the Dubai Appeals Court dated 21.7.2010, wherein,

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it was pointed out, that there was no connection between the criminal  

action brought out by JCE Consultancy (in the proceedings initiated by it,  

before the VIIth Additional Chief Judicial Magistrate, Ghaziabad) and the  

civil suit filed by JCE Consultancy (before the Court of First Instance,  

Dubai).  It was also the contention of the learned counsel for the  

respondents, that the civil liability, in the instant case, was raised as  

against the eventual purchaser of the goods/product (Samsung, Dubai), in  

lieu of the goods/product supplied by the complainant-JCE Consultancy,  

which had passed onto the purchasers under the agreement dated  

1.12.2001.  Accordingly, the civil liability was only raised as against  

Samsung, Dubai.  However, insofar as the criminal liability is concerned,  

Samsung Dubai being one of the subsidiary companies of Samsung,  

South Korea, it was allegedly under the overall control exercised by  

Samsung, South Korea. Samsung, South Korea, according to the  

complainant, was instrumental in the eventual decision taken by Samsung,  

Dubai, to deny the passing of the reciprocal monetary consideration, for  

the goods supplied under the agreement dated 1.12.2001.  This, according  

to the respondents, has been the categorical stance of JCE Consultancy in  

the criminal complaint, as also, in the pre-summoning evidence recorded  

before the VIIth Additional Chief Judicial Magistrate, Ghaziabad under  

Section 200 of the Code of Criminal Procedure.  These allegations made  

by JCE Consultancy, are supported by documents furnished to the

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summoning court.  The aforesaid factual position has also been endorsed  

by Sky Impex Limited, before this Court.  According to the learned counsel  

for the respondents, the culpability of the appellants before this Court, in a  

series of similar actions, clearly emerges even from documents placed on  

record of the instant case, by Sky Impex Limited.  As such, it is submitted,  

that the respondents have per se repudiated all the submissions advanced  

on behalf of the appellant, obviously subject to the evidence which rival  

parties will be at liberty to adduce before the trial court.

26. We have given our thoughtful consideration to the last contention  

advanced at the hands of the learned counsel for the appellants.  We are  

of the considered view, that in offences of the nature contemplated under  

the summoning order, there can be civil liability coupled with criminal  

culpability.  What a party has been deprived of by an act of cheating, can  

be claimed through a civil action.  The same deprivation based on denial  

by way of deception, emerging from an act of cheating, would also attract  

criminal liability.  In the course of criminal prosecution, a complainant  

cannot seek a reciprocal relief, for the actions of the accused.  As in the  

instant case, the monetary consideration under the bill of exchange dated  

1.2.2001, cannot be claimed in the criminal proceedings, for that relief the  

remedy would be only through a civil suit.  It is therefore not possible for us  

to accept, that since a civil claim has been raised by the complainant-JCE  

Consultancy, based on the alleged breach of the agreement dated

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1.12.2001, it can be prevented from initiating proceedings for penal  

consequences for the alleged offences committed by the accused under  

the Indian Penal Code.  It would not be appropriate for us, to delve into the  

culpability of the appellants at the present juncture, on the basis of the  

factual position projected by the rival parties before us.  The culpability (if  

at all) would emerge only after evidence is adduced by the rival parties  

before the trial court.  The only conclusion that needs to be drawn, at the  

present juncture is, that even on the basis of the last submission  

canvassed on behalf of the appellants, it is not possible to quash the  

summoning order at this stage.  In the aforesaid view of the matter, it is left  

open to the appellants to raise their objections, if they are so advised,  

before the trial court.  The trial court shall, as it ought to, adjudicate upon  

the same in consonance with law, after allowing the rival parties to lead  

evidence to substantiate their respective positions.

27. For the reasons recorded hereinabove, we find no merit in the  

instant appeal.  The same is accordingly dismissed.

…………………………….J. (Asok Kumar Ganguly)

…………………………….J. (Jagdish Singh Khehar)

New Delhi; February 1, 2012.

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