TMI Blog2021 (10) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... cie case against respondent nos. 2 to 5 and 7 8. Merely because respondent Nos. 2 to 5 and 7 8 are the Chairman/Managing Director/Executive Director/Deputy General Manager/Planner Executor, automatically they cannot be held vicariously liable, unless, as observed hereinabove, there are specific allegations and averments against them with respect to their individual role - the High Court has rightly dismissed the revision applications and has rightly confirmed the order passed by the learned Sessions Court quashing and setting aside the order passed by the learned Magistrate issuing process against respondent nos. 1 to 8 herein original accused nos. 1 to 8 for the offences punishable under Sections 427, 447, 506 and 120B read with Section 34 IPC. The present appeals deserve to be dismissed and are accordingly dismissed. - CRIMINAL APPEAL NOS. 1047-1048/2021 - - - Dated:- 27-9-2021 - M. R. SHAH And A. S. BOPANNA , JJ. FOR THE PETITIONER : ANANTHA NARAYANA M. G. FOR THE RESPONDENT : ANUP JAIN JUDGMENT M. R. SHAH , J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 28.09.2015 passed by the High Court of Karnataka at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accused No.6 in turn authorized accused Nos. 7 and 8 to execute and oversee the said work. They in turn had appointed accused No.9 as site supervisor and the accused No.10 being the sub-contractor engaged accused Nos. 11 to 13 as labourers. Accused Nos. 4 and 5 were entrusted the work of supervision and overseeing the pipeline works carried out by accused Nos. 6, 7 and 8 through accused Nos. 9 and 10 to 13. Accused Nos. 6 to 8 had put into service heavy machineries and excavators and their vehicles for carrying out the work. It was contended that accused Nos. 2 to 5 and 7 to 13 had conspired with common intention to lay the pipeline beneath the schedule properties belonging to the complainant without any lawful authority and right whatsoever. In furtherance thereof, they had trespassed over the schedule properties and demolished the compound wall which was having the height of 7 feet and foundation of 2 feet to a distance of 500 metres. They had cut and destroyed 100 valuable trees and laid pipeline beneath the schedule properties. It was contended that when this high-handed act was committed by the accused, the complainant was out of station and he came back on 21.4.2012 and noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed as an accused being Deputy General Manager (Civil Env.) of accused no.1. Accused No.5 was the Planner and Executor of the project work of accused no.1. Likewise, accused no. 6 was also a company incorporated under the Companies Act, accused nos. 7 8 were arrayed as an accused being Chairman and Executive Director respectively of accused no.6. Accused no.9 was the Site Supervisor of accused no.6 and accused no.10 was the Sub- Contractor under accused no.6 and accused nos. 11 to 13 were the employees of accused no.10. 3. Feeling aggrieved and dissatisfied with the summoning order passed by the learned Judicial Magistrate, First Class, Mangalore for the offences punishable under Sections 427, 447, 506 and 120B read with Section 34 IPC, original accused nos. 1 to 5 preferred Criminal Revision Petition No. 244/2013 and accused nos. 6 to 9 preferred Criminal Revision Petition No. 245/2013 before the learned Sessions Court. 3.1 That the learned Sessions Court by its order dated 7.4.2014 allowed criminal revision petition no. 244/2013 and partly allowed criminal revision petition no. 245/2013 and quashed and set aside the order passed by the learned Judicial Magistrate, First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the co-accused to lay the pipeline under the property of the complainant and therefore at the stage of issuing process/summons, the revisional court could not have interfered with the order passed by the learned Magistrate summoning the accused. It is submitted that being the administrators of the companies, all the executives are vicariously liable. 5.5 Making the above submissions, it is prayed to allow the present appeals and quash and set aside the orders passed by the High Court and the learned Sessions Court and restore the order passed by the learned Magistrate. 6. Shri Nishanth Patil, learned counsel appearing on behalf of accused nos. 1 to 5 and Shri P.P. Hegde, learned counsel appearing on behalf of accused nos. 6 to 8 respectively have vehemently submitted that in the facts and circumstances of the case and more particularly when it was found that there are no specific allegations and the role attributed to the accused except the bald statement that all of them have connived with each other, the learned Sessions Court was absolutely justified in setting aside the order passed by the learned Magistrate issuing the process/summons against accused nos. 1 to 8. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have committed trespass into schedule property and demolished the stone compound wall of 7 feet height foundation of 3 feet height beneath the ground and 2 feet wide to the extent of about 500 meters and also cut and destroyed about 100 valuable trees and laid pipeline beneath the schedule properties about to the extent of 500 meters. They have used heavy machineries for the above said destructive activities in the schedule properties. When those accused have committed the said offence the complainant was not in station and when he came back on 21-4-2012, he noticed the above said destructive activities in his properties. The accused have committed an act of mischief apart from other offenses which caused the pecuniary loss not less than ₹ 27,00,000/- to the complainant. The complainant was not able to cultivate his lands due to the threat of stray cattle's and animals and thereby he had suffered loss of 2 years paddy crops and vegetable cultivation. As a result, the complainant has suffered nearly about ₹ 9,00,000/- and he will continue to suffer same loss till the compound is reconstructed as before. All the accused jointly and severally are to make good past an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so. 43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision. 44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada v. Godfather Travels Tours (P) Ltd., (2012) 5 SCC 661, the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 8.3 As held by this Court in the case of India Infoline Limited (supra), in the order issuing summons, the learned Magistrate has to record his satisfaction about a prima facie case against the accused who are Managing Director, the Company Secretary and the Directors of the Company and the role played by them in their respective capa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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