Case: Asoke Basak Vs. State of Maharashtra &amp; Others

The appellant was the Chairman of the Maharashtra State Electricity Board (for short "MSEB"). Respondent No.2 - M/s Datar Switchgear Ltd. is a company which had entered into various contracts with MSEB for installation of Low Tension Load Management System. Respondents No.3 and 4 are the senior officials of respondent No.2; respondent No.1 is the State of Maharashtra and the aforestated respondent No.5 is one of the co-accused.4. On 2nd March, 2001 respondent No.2 deposited an amount of Rs.5 lakhs with MSEB as security deposit in lieu of bank guarantee to be used for tenders to be filed by respondent No.2 from time to time in the future. The conditions of tender and supply providedsecurity deposit in cash or in the form of bank guarantee or otherwise is for the due performance of the material/contract and the same shall be liable to apportion towards amount due or becoming due by the supplier on his failure to execute this order or any other contract and in the event of non fulfilment of the terms and conditions of thedisputes arose between MSEB and respondent No.2. On 16th September 2003, respondent No.2 informed MSEB that they were no longer interested in participating in any tenders which may be floated by MSEB and sought immediate refund of the said amount of Rs.5 lakhs.5. The Chief Engineer (Distribution), MSEB vide his letter dated 6th March 2004, informed respondent No.2 that the deposit of Rs.5 lakhs had been adjusted by MSEB against the dues payable by respondent No.2 to MSEB.6. On receipt of the said communication, on 29th June 2004, respondents No.2 to 4 filed Complaint No.1881 of 2004 before the Court of the Judicial Magistrate, First Class, Pune against the appellant and other senior officials of the MSEB under Sections 405 and 409 read with Section 34 of the IPC. The Judicial Magistrate, First Class, Pune took cognizance and issued summons against all the accused named in the complaint.7. Being aggrieved by the order of the Magistrate taking cognizance of the complaint, appellant preferred the afore-stated petition under Section 482 of the Code before the High Court of Bombay for quashing of the complaint.

Reasoning:
20. In the instant case, we are unable to gather from the complaint any averment which may suggest that Rs.5 lakhs was entrusted to the appellant, either in his personal capacity or as the Chairman of MSEB and that he misappropriated it for his own use. The basis of the allegation is that the appellant had caused the MSEB to refuse return of the money to the complainant in order to wilfully and dishonestly deprive the complainant of its use. In this regard, it would be useful to refer to the following observations in S.K. Alaghs caseadmittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself.Admittedly, in the present case, the said amount was deposited by the complainant company with MSEB and there is nothing in the complaint which may even remotely suggest that the complainant had entrusted any property to the appellant or that the appellant had dominion over the said money of the complainant, which was dishonestly converted by him to his own use, so as to satisfy the ingredients of Section 405 of the IPC. In the absence of any such specific averment demonstrating the role of the accused in the commission of the offence, we find it difficult to hold that the complaint, evendiscloses the commission of an offence by the appellant under Section 409 IPC, punishable under Section 406 IPC.22. We shall now examine whether the appellant is vicariously liable for theoffence with the aid of Section 34 of the IPC. The essence of liability under Section 34 IPC is the existence of a common intention. A common intention impliesprearranged plan and acting in concert pursuant to the prearranged plan.In Ramaswami Ayyangar & Ors. Vs. State of Tamil Nadu, (1976) 3 SCC 779 , this Court had observed that the essence of Section 34 IPC is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. It is true that to attract Section 34, no overt act is needed on the part of the accused if he shares the common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. Nonetheless, Section 34 IPC clearly envisagesg, which may even develop at the spur of the moment but such plan must precede the act constituting the offence. It is equally true that it may not be possible in every case to have direct evidence of a common intention and it may have to be inferred from the facts and circumstances of each case.Thus, in order to attract Section 34 of the IPC, the complaint in question must, prima facie, reflect a common prior concert or planning amongst the appellant and other accused. Having carefully gone through the complaint, we are of the view that it does not reveal anyng whereby all the accused had decided to misappropriate the said amount. It is pertinent to note that MSEB, in whose coffers the said amount was credited, has not been arraigned as an accused in the complaint. Be that as it may, having come to the conclusion that the ingredients of Section 409 IPC are not satisfied against the appellant, the question of his acting in concert with others does not arise. We are, therefore, convinced that Section 34 IPC is not attracted against the appellant.25. In light of theconclusions, we are of the opinion that no prima facie case has been made out against the appellant in respect of offence under Section 409 read with Section 405, even with the aid of Section 34 of the IPC. Therefore, it was a fit case where the High Court should have exercised its powers under Section 482 of the Code by quashing the complaint against the appellant.