IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1277 of 2002 ASHOK MALU Versus STATE OF BIHAR & ORS with Cr.Misc. No.1304 of 2002 D.D.RATHI Versus STATE OF BIHAR & ANR ----------- 5. 19.8.2010. Heard Sri Jitendra Singh, learned senior counsel appearing in both the petitions. Also, heard Smt.Soni Shrivastava, learned counsel appearing for Opposite Party no.2, besides Smt. Rina Sinha has also been heard on behalf of the State in both the petitions. The whole dispute relates to the application by the complainant for obtaining debentures shares of the value of Rs.49,000/- at Rs.79/- per debenture with a premium of Rs.35/- on each of them. The total debenture as per the complainant was 700 in number and she claims that the debentures were allotted to her. The further statement of the complainant is that she sold the shares in secondary market but when an application for transfer of the shares was made the company, i.e., M/S Grasim Industries Limited which has also been impleaded as accused no.5 besides being impleaded through its Chairman Shri Kumar Mangalam Birla as accused no.1 stopped the transfer of the shares. The complainant sent - 2 - reminders but of no avail. Pleader’s notices also which appears as Annexure-16 to the present Miscellaneous Petition was given. Subsequently, the complainant finding no positive and meaningful reply on her correspondences so as to satisfying her grievances, preferred the complaint petition bearing no.1477(C)of 2001 before the Chief Judicial Magistrate, Patna. The order of cognizance was passed after holding an enquiry by a Judicial Magistrate of Ist Class in the truthfulness of the allegations of that complaint petition on 12.10.2001 by which the accused persons were summoned to stand their trial. As regards the present petitioner he was arrayed as an accused in the capacity as the Company Secretary of the above noted company. While addressing the court, the learned counsel submitted that it was a sheer clerical mistake and over sight that the 700 debentures were transmitted to the complainant by the company because another person of the same name who was the inhabitant of Kolkata had also applied for and had really been allotted those number of debentures. Besides the said Smt. Satyabhama Devi who was a resident of Kolkata was also entitled to 1500 numbers of bonus shares which were accruing on - 3 - account of the said Smt. Satyabhama Devi had previously been the holder of the additional 2,000/- shares of the company. This appears from the replies furnished by the company as may appear from Anexures-6 and 9 which appears at pages-16 and 17 respectively of the present petition that the company was making it very clear in its replies to the correspondences which were entered into by the complainant that it was sheer over sight and mistake on the part of the office of the company that the seven debentures were sent to her and she was not entitled to them. She was pointed out that the 1500 bonus debentures which had also been sent to her on account of over sight may be returned to the company for making it over to its real beneficiaries. It appears that the complainant was simply refuting the stand of the company and placing her own case as may appear from Annexure-7 at page-61 by asserting that she was simply surprised to note that she had not been allotted 700 debentures of 12.5 per cent partly convertable debentures was wrongly sent to her though she was impliedly admitting that on verifying the stand of the company as regards the sending of 1500 bonus shares to her she may return the same to the company. - 4 - The above are some of the facts which go to indicate that it could be a case of bonafide over sight on account of which the company while allotting shares to different applicants had wrongly allotted and sent the 700 shares to the complainant which in fact was allotted to another Smt. Satyabhama Devi who was resident of Kolkata. Besides, what I further find is that transactions were relating to the year 1989 and the correspondences were entered into from time to time in 1989 and a few months after April of that particular year. But this petitioner, Ashok Malu, had joined as Company Secretary in the company some times in April, 2001. As such there could not be any participation of the petitioner in the commission of the offence. Besides, the two decision which were placed before me by the learned senior counsel, appearing for the petitioners, specially the one reported in 2009(6)SCC 475 Keki Hormusji Gharda & Others Vrs. Mehervan Rustom Irani & Anr. in which it has been held in paragraph-17 that except some of the offences which are made punishable under the Penal code the question of vicarious liability and on that account summoning an accused or prosecuting him may not arise for other offence. - 5 - The other judgement of the Supreme Court which was placed before me for consideration is reported in AIR 1998 SC 2796 Ashok Chaturvedi & Others Vrs. Shitul H.Chanchani & Anr. That decision states the oft stated point of law that if the allegations do not constitute an offence against a particular accused or all the accused persons, then no summoning order could be passed. Going by the facts of the present case, as may appear from the discussions of facts, they are mostly admitted on account of different Annexures. What appears is that it could be a sheer bonafide mistake on part of the company and its officers that they were allotting 700 debentures to the complainant in place of a lady of the same name who was residing in Kolkata. Probably, the complainant was misled on account of the error committed by the office of the company which was handling the allotment of the shares to different aspiring purchasers. Besides, what is further found by me as regards the complicity of the present petitioners, it could be simply out of question inasmuch as the petitioner was joining the company in April, 2001. As regards the other petition filed by - 6 - D.D.Rathi, the facts being the same, his plea is that he was not working in the company as its employees or in any capacity in the year 1989-99. Thus, he takes a plea which may appear from paragraph-42 of his petition that he could not be slapped with any criminal liability of whatever hue which might be appearing from the facts of the case. In view of the above discussions and positions, the two petitions are allowed. The proceeding as against petitioners Ashok Malu and D.D.Rathi initiated in Complaint Case No.1477(C) by order dated 12.10.2001 is hereby quashed. The two petitions are allowed. B.Kr. ( Dharnidhar Jha, J. )