TMI Blog2019 (5) TMI 1871X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 9-5-2019 - HONOURABLE DR. JUSTICE A. P. THAKER MR MIHIR THAKORE, Senior Advocate with SAIRICA S RAJU(8761) for the Applicant(s) No. 1 MR RD DAVE (264) for the Respondent(s) No. 2 MS MONALI BHATT, APP (2) for the Respondent(s) No. 1 ORAL JUDGMENT 1. By filing this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused no. 6 has prayed to quash and set aside Criminal Case No. 1095/1998 as well as to quash and set aside order dated 23.04.1998 issuing process thereof by learned Chief Judicial Magistrate, Valsad, for the offences punishable under Sections 418, 421, 422, 427 read with Section 114 of the Indian Penal Code. 2. The brief facts of the prosecution case are that the respondent no. 2 has filed a complaint in the Court of learned Judicial Magistrate, First Class at Valsad, being Criminal Case No. 1095 of 1998 against one Summex Chemicals Limited and six others, wherein present applicant has been arraigned as accused no. 6. It is alleged that the complainant was working as Deputy Manager in Gujarat Industrial Capital Investment Corporation Limited. That accused nos. 2 to 7 are the directors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ua him. 4. Heard Mr. Mihir Thakore, learned Senior Counsel appearing with Ms. Sairica S. Raju for the applicant, Ms. Monali Bhatt, learned APP for the respondent-State and Mr. R.D. Dave, learned advocate for respondent no. 2 at length. Perused the material placed on record and considered the decisions cited at bar. 5. Mr. Mihir Thakore, learned Senior Counsel has submitted the same facts, which are narrated in the memo of the application. He has contended that no document has been signed by the present applicant and there is no specific allegation or role ascribed against present applicant. According to him, the applicant herein was independent Director and had no authority on behalf of accused no. 1. According to him, no vicarious liability can be fastened upon him under various Sections of the Indian Penal Code. He has also contended that vague and bald allegations have been made against the present applicant without any basis. While relying on the following decisions, he has prayed to allow present application. (i) S.K. Alagh v. State of Uttar Pradesh and Others, (2008) 5 SCC 662. (ii) Maksud Saiyed v. State of Gujarat and Others, (2008) 5 SCC 668. (iii) Chundu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sanctioned to the tune of ₹ 145 Lacs on 4th May 1995. It is also alleged that on behalf accused no. 1, signature was made by accused no. 7 and as per the loan agreement entered into between the complainant-Corporation and accused no. 1-company on 28th June 2015, properties, machineries etc. were required to be hypothecated with the complainant-Corporation and, accordingly, they were hypothecated. That for the purpose of availing loan on behalf of accused no. 1-company, a certificate dated 25th July 1995 was given by Chartered Accountant. That relying on the said certificate, the Corporation disbursed ₹ 72.5 Lacs on 4.8.1995. It is alleged that the goods which were hypothecated to the Corporation have been removed and shifted to unknown place or they have been sold. It is also clear that the applicant herein is a Solicitor by profession and was partner in a renowned solicitor firm, Crawfard Bayley and Company from where he retired in the year 1997. Thereafter he set up his own firm known as Udwadia and he has also retired from the said firm and confined to chamber practice being associated with Dhruve Liladhar and Company. He was appointed on the legal panel of Summex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. Indian Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. 12. In S.K. Alagh (supra), the Apex Court has observed as under:- 16. Indian Penal Code, save and except some provisions specifically providing therefor, does not contemplate any vicarious liability on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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