CR.MA/6131/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 6131 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= ICICI BANK LTD. THRO NAGESH KABBER COLLEC.MANAGER & 2 - Applicant(s) Versus KETANKUMAR JASUBHAI PANDYA & 1 - Respondent(s) ========================================================= Appearance : MR CR ABICHANDANI for Applicant(s) : 1 - 2.DELETED for Applicant(s) : 3, MR NK MAJMUDAR for Respondent(s) : 1, MS FD PATEL, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/09/2008 ORAL JUDGMENT 1. Present application under Section 482 of the Criminal Procedure Code is filed by the applicants – CR.MA/6131/2008 2/7 JUDGMENT original accused Nos.2 and 3 to quash and set aside the complaint being Criminal Police Inquiry No.91 of 2005 registered on 17.08.2005 subsequently registered as Criminal Case No.787 of 2006 recorded on 16.10.2006 as well as order dated 16.10.2006 issuing summons / process by the learned Judicial Magistrate First Class, Mansa for the offence punishable under Section 500 of the Indian Penal Code (for short 'IPC'). 2. A private complaint came to be filed by respondent No.1 – original complainant against the petitioners and other being Criminal Police Inquiry No.91 of 2005 registered on 17.08.2005 for the offence under Section 500 of the Indian Penal Code. Same was subsequently registered as Criminal Case No.787 of 2006 and the learned JMFC, Mansa vide order dated 16.10.2006 issued summons /process upon the petitioners for the offence under Section 500 of the IPC. It appears from the complaint that as per the complainant, accused No.1 had stopped the complainant on a public street and misbehaved with him by raising his voice and on hearing the commotion, a big crowd CR.MA/6131/2008 3/7 JUDGMENT had gathered. It was alleged that such behavior is done only with a view to defame the complainant. That initially the learned Magistrate passed an order for inquiry under Section 202 of the Criminal Procedure Code (for short 'Cr.P.C') and thereafter, considering the report submitted by the PSI, Mansa Police Station issued summons / process. Being aggrieved and dissatisfied with the same, the petitioners – original accused Nos.2 and 3 have preferred the present application under Section 482 of the Cr.P.C. 3. Mr.Abichandani, learned Advocate for the petitioners has submitted that insofar as present petitioners are concerned, they are, in no manner directly connected with the incident in question. It is submitted that in case of criminal offences, there is no concept of vicarious liability so as to make the petitioners liable for the action of the Collection Officer. It is submitted that original complainant has taken advance / loan and as installments were not paid Collection Officer went to recover the amount and alleged incident has taken place. It is submitted that so far as the petitioners CR.MA/6131/2008 4/7 JUDGMENT are concerned, there is no specific role attributed and hence no offence as alleged is made made out qua the present petitioners. Therefore, it is submitted that to continue criminal proceedings against the petitioners would be nothing but abuse of process of law and unnecessary harassment to the petitioners. It is further submitted that as such so far as petitioner No.2 – Chairman / Managing Director, ICICI Bank Ltd. Is concerned, he cannot be made liable for action of Collection Officer more particularly incident in question. Therefore, it is requested to quash the impugned complaint so far as the petitioners are concerned. 4. The petition is opposed by Mr.N.K.Majmudar, learned Advocate appearing on behalf of respondent No.1 – original complainant. It is submitted that it is not that straightway learned JMFC has issued process / summons upon the petitioners and other accused. It is submitted that initially learned trial Court passed an order for inquiry under Section 202 of the Cr.P.C. and after the report was submitted by the Police Officer of the Mansa Police Station and CR.MA/6131/2008 5/7 JUDGMENT having considered said report and having prima-facie satisfied, summons / process came to be issued. Therefore, it is submitted that it is not a fit case to exercise powers under Section 482 of the Cr.P.C. Therefore, it is requested to dismiss present application. 5. Having heard the learned Advocates appearing on behalf of the respective parties and even allegations in the complaint, prima-facie it appears that no case is made out against petitioner No.2 – Chairman and Managing Director, ICICI Bank Ltd. So far as incident in question is concerned, main allegations are against petitioner No.1 and therefore, it cannot be said that petitioner No.2 has committed any offence as alleged under Section 500 of the Indian Penal Code. For the action of Collection Officer, petitioner No.2 cannot be said to be vicarious liable so as to make him liable for the action of Collection Officer. Even otherwise, it appears that there is no specific role attributed to petitioner No.2 for the offence in question. Under the circumstances, it appears that so far as CR.MA/6131/2008 6/7 JUDGMENT petitioner No.2 – Chairman/ Managing Director, ICICI Bank Ltd. is concerned, to condinue criminal proceedings against him would be abuse of process of Court and unnecessary harassment. Under the circumstances, impugned complaint and process / summons issued by the learned trial Court against petitioner No.2 requires to be quashed and set aside in exercise of powers under Section 482 of the Cr.P.C. Insofar as petitioner No.1 is concerned, impugned complaint and summons / process is not required to be quashed and set aside. 6. For the reasons stated above, the application succeeds in part. Impugned complaint being Criminal Police Inquiry No.91 of 2005, subsequently registered as Criminal Case No.787 of 2006 and summons / process issued by the learned Judicial Magistrate First Class, Mansa dated 16.10.2006 in the said Criminal Case against petitioner No.2 – original accused No.3 for the offence punishable under Section 500 of the Indian Penal Code is hereby quashed and set aside. Present application qua petitioner No.1 is hereby dismissed. CR.MA/6131/2008 7/7 JUDGMENT Rule is made absolute to the aforesaid extent. [M.R.Shah,J.] satish