* THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL PETITION No.9342 of 2009 % 01.11.2011 # The Managing Director & Chief & 3 others. …Petitioners/A1 to A4 Vs. $ Nageshwara Rao Turaga & another. …. Respondents ! Counsel for the Petitioner: Sri N.Harinath Reddy ^Counsel for Respondent No.1:Party-in-Person ^Counsel for Respondent No.2: Additional Public Prosecutor <Gist : >Head Note: ? Cases referred: [1] (1997) 8 Supreme Court Cases 72 [1] AIR 1986 PATNA 133 THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJ CRIMINAL PETITION No.9342 of 2009 ORDER: The petitioners 1 to 4/A1 to A4 are accused of offences punishable under Sections 409, 406, 468/473, 120-B I.P.C. The 1st respondent/complainant is stated to be an advocate. He filed private complaint in the lower Court and it was taken cognizance by the lower Court for the said offences and summonses were issued to the accused. The complainant was holder of credit card issued by SBI Cards and Payment Services (P) Limited. It is alleged that the 1st respondent gave a cheque bearing No.383253 dated 30.06.2005 for Rs.600/- towards the amount payable by him under the credit card account and that the said cheque was interpolated as Rs.1,600/- both in letters as well as words and an excess amount of Rs.1,000/- was debited from his account. Thereupon, there was correspondence between the 1st respondent and the company. The correspondence discloses that after the company came to know about illegal debiting of Rs.1,000/- in the account of the complainant by way of interpolating cheque issued by him, the said debit entry was reversed to the extent of Rs.1,000/- and the 1st respondent was made good the loss sustained by him due to the interpolation of cheque drawn by him. The complainant was persisting with the company to find out the person who was responsible for the said interpolation in the cheque given by him. The correspondence further reveals that the said correction or interpolation in the cheque was made by one worker of out sourcing agency. It is the complaint of the complainant that the company did not disclose name of the person who was responsible for the interpolation made in the cheque issued by him. In the light of the said correspondence, the complainant filed private complaint in the lower Court against A1 to A4. 2. A1 is Managing Director/CEO of SBI Cards and Payment Services (P) Limited (in short, the Company) at Gurgaon (Haryana). A2 is Head, Sales and Marketing of the Company at Gurgaon (Haryana). A3 is Manager, Customer Services of the Company at New Delhi. A4 is Manager of the Company at Hyderabad. It is alleged in the complaint that A1 to A4 treated the offence in callous manner and that the act of materially altering the cheque cannot be made by last cadre person in the company without the support and guidance of the officials of the accused organization and that therefore, the accused have committed the offences complained by the complainant in the complaint. It is contended by the petitioner’s counsel that without there being specific allegations against A1 to A4 as the persons who are responsible for the offences and without there being specific allegation of the accused having participated in commission of the offence, the complaint should not have been entertained by the lower Court. On the other hand, the 1st respondent (party-in-person) placing reliance on M.V.JAVALI Vs. MAHAJAN BOREWELL & CO.[1] of the supreme Court and Mahmud Ali Vs. State of Bihar[2] of the Patna High Court contended that Manager or officers of the company who were in charge of and was responsible to the company are liable for prosecution, in case the offences were committed in the company. 2. Vicarious liability is unknown to general criminal law, unless there is a specific provision in any enactment. Contrary thereto, be it in a special enactment or Indian Penal Code. No person who did not participate in commission of the offence proper can be mulcted with criminal liability. The supreme Court in M.V.JAVALI was considering special provision under Section 276(b) of the Income Tax Act and full bench of the Patna High Court in Mahmud Ali was considering a case relating to a prosecution under Section 47(1) of the Water (Prevention and Control of Pollution) Act, which provisions enabled prosecution of a company and also the persons who were responsible to the company for conduct of its business of the company along with the company. These are similar provisions to section 141 of the Negotiable Instruments Act, 1861. The said special provisions specifically empower prosecution of the company as well as officers or managers or persons who were responsible for conduct of business of the company along with the company. But, there is no provision which is in pari materia with the said provisions under the Indian Penal Code. In any event, the offence of interpolation of cheque deposited by the complainant with the company was not interpolated by any of A1 to A4. It is not an offence committed by the company. Simply because the complainant was labouring under a misnomer that a ground level worker of the company did the said interpolation with the connivance and support of the officers and managers of the company, the Court cannot entertain such complaint which is based on conjectures and surmises of the complaint, without there being any factual basis for the said misnomer or misapprehension on the part of the complainant. 3. Further, A1 to A4 were impleaded in the criminal case by only their official designations and not by their names. It is contended by the complainant that Section 2(d) Cr.P.C. defines ‘complaint’ as follows: “(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.” 4. It is contended by the 1st respondent that the complaint can include a person whether known or unknown to the complainant. In such a situation, the Magistrate cannot take cognizance of the case against an unknown person, in exercise of his power under Section 190(1)(a) Cr.P.C. If the complaint contains allegations against unknown persons, then it is for the Magistrate to resort to Section 156(3) Cr.P.C. and not to Section 190 Cr.P.C., so that the complaint will be referred to the Police for investigation and during investigation, the Police will find out the person who committed the offence and will come up with a final report/charge sheet under Section 173 Cr.P.C. Without following the said procedure, the Magistrate in this case totally erred in taking cognizance against A1 to A4 by their offices and not by their names. 5. Instead of filing complaint against unknown person who interpolated cheque of the complainant, filing complaint against A1 to A4 is sheer abuse of process of law. 6. In the result, the Criminal Petition is allowed quashing proceedings in CC.No.163 of 2009 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad, against the petitioners 1 to 4/A1 to A4. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:01.11.2011 Note: L.R. copy to be marked B/o.ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.9342 of 2009 Dt:01.11.2011 ysk [1] (1997) 8 Supreme Court Cases 72 [2] AIR 1986 PATNA 133