CRIMINAL MISCELLANEOUS No.6299 OF 2001 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. THE CHAIRMAN, SHRI K.V. KRISHNAMURTHY (ON BEHALF OF THE PETITIONER),BANK OF INDIA, HEAD OFFICE, EXPRESS TOWERS, NARIMAN POINT, MUMBAI-400001. 2. THE SENIOR BRANCH MANAGER, MAIN BRANCH, BANK OF INDIA, MUMBAI MAIN BRANCH-70/80, MAHATMA GANDHI ROAD,MUMBAI- 400023. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. ANANT JHA, SON OF NOT KNOWN TO THE PETITIONER, MAGISTRATE COLONY, P.S. SHASTRINAGAR IN THE TOWN AND DISTRICT PATNA-800025. ... ... RESPONDENTS. ---- For the Petitioners : Mr. Alok Kumar Choudhary, Adv. For the State : Mr. A.M.P. Mehta, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 18.11.2000 passed by Judicial Magistrate, Ist Class, Patna in Complaint Case No.1140(c) of 2000 and also subsequent orders whereby processes were directed to be issued for securing attendance of accused persons including both the petitioners. 2. Short fact of the case is that the opposite party no.2 filed a complaint in 2 the court of Chief Judicial Magistrate, Patna, which was numbered as Complaint Case No.1140(c) of 2000 arraying the petitioners and other two as accused for commission of offence under Sections 420, 406, 409 and 120B of the Indian Penal Code. It was disclosed in the complaint petition that M/S Asian Alloys Ltd. (Accused No.1) had floated secured redeemable debentures highlighting attractive interest and other lucrative offers in the year 1997 in the brochure issued by the Company. The Bank of India was shown as debenture trustee of the scheme. On the publication made by the Accused No.1 (Company), the complainant purchased ten application forms worth Rs.10,000/- each and thereafter, he deposited the cheques, which were credited in the account of Company through the Bank of India, Patna, which had operated as collection centre on behalf of the Company. The date of redemption of such debenture was 28.12.1998 i.e. one year six months from the date of purchase. However, even after expiry of the said period, payment was not made to the petitioners, despite the fact that complainant had sent 3 several reminders and legal notices. Both the petitioners being trustees of Accused No.1 were also approached by the complainant. Accordingly, it was alleged that the accused persons had cheated the complainant and obtained wrongful gain. After filing the complaint petition, the complainant was examined on S.A. and in support of complaint, three witnesses were also examined. The learned Magistrate, after examining the materials available on record by order dated 18.11.2000, took cognizance of the offence under Sections 420 and 406 of the Indian Penal Code and directed for summoning all the accused persons including both the petitioners. Thereafter, other processes were also issued. 3. Aggrieved with the order of cognizance and issuance of process, both the petitioners approached this Court by filing the present petition. On 26.3.2001, while issuing notice to opposite party no.2, this Court directed that till further order is passed, further proceeding of the court below in Complaint Case No.1140(c) of 2000 pending in the court of Shri Mahboob Hassan, 4 Judicial Magistrate, Ist Class, Patna shall remain stayed so far as against the petitioners. Subsequently, on 23.4.2002, the case was admitted for hearing and it was directed that during the pendency of this application, the interim order passed earlier on 26.3.2001 shall continue so far as two petitioners are concerned. The order of stay is still continuing. 4. Shri Alok Kumar Choudhary, learned counsel appearing on behalf of the petitioners, at the very outset, submits that from the averments made in the entire complaint petition, no offence is made out. It was submitted that it was purely a civil dispute for which the petitioners has preferred to invoke the jurisdiction of a criminal court and the learned Magistrate, also in a mechanical manner, has proceeded with the case and passed order of cognizance as well as for issuance of processes against the accused persons. Shri Choudhary has argued that in the present case, the Bank of India was only a trustee and as such whatever error or default was committed by the Accused No.1 i.e. M/S Asian Alloys Ltd, 5 the Bank cannot be held responsible for commission of any offence. It was also argued that so far as both the petitioners are concerned, in a situation of vicarious liability, no criminal offence can be constituted nor petitioners can be held responsible for commission of any offence. It was submitted by Shri Choudhary that after going through the entire complaint petition or materials available on record, no prima facie case is made out so far as both the petitioners are concerned. It was submitted that being trustee neither the Bank nor its officer can be prosecuted for default committed by the Accused No.1. Shri Choudhary has heavily relied on a judgment of apex court reported in A.I.R. 1999 SC 2979 (Common Causes, a Registered Society Vs. Union of India). Learned counsel for the petitioner has specifically referred paragraphs 153 and 154 of the judgment and it was submitted that since in the present case, the Bank was a trustee neither the Bank nor its officer or employee cannot be held responsible for commission of any criminal offence nor criminal court can be 6 allowed to proceed with the case in the facts and circumstances of the present case. In some and substance, it has been submitted that no offence is made out on the basis of materials available on record and the learned Magistrate, without any rhyme or reason, has proceeded with the case in a mechanical manner. It has also been submitted that in absence of prosecution sanction, the order of cognizance is liable to be set aside. Shri Choudhary has also argued that on the basis of vicarious liability, the petitioners cannot be prosecuted. 5. Learned Additional Public Prosecutor Shri A.M.P. Mehta has opposed the prayer of the petitioners. 6. In this case, the opposite party no.2 has filed counter affidavit. However, none appeared on behalf of the opposite party no.2 at the time of hearing of the present petition. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. From the contents of the complaint petition, it is 7 not clear as to how both the petitioners were made accused in the present case. There is no specific assertion regarding commission of offence against the petitioners. Moreover, the Bank was itself a trustee, which has also been mentioned in the counter affidavit filed by the opposite party no.2. The allegation made in the complaint petition appears to be purely civil in nature and for which criminal court cannot be allowed to proceed. After going through the materials available on record, the court is of the opinion that it is a fit case for interference with the impugned order. 8. Accordingly, the order of cognizance dated 18.11.2000 passed in Complaint CaseNo.1140(c) of 2000 as well as entire proceeding, so far as two petitioners are concerned, is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 24th January,2011 N.A.F.R./N.H.