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Judgment
Honourable Mr. Justice Rajendra Kumar Mishra
The petitioner has approached this Court u/s 482 passed in Complaint Case No.1308 (C) of 2005 by the court of Sub Divisional Judicial Magistrate, Patna, summoning the accused, named in the complaint petition, including the petitioner, on enquiry u/s 202 of the Code of Criminal Procedure, finding prima facie case under Sections 406, 420 and 120B of the Indian Penal Code and also the subsequent order dated 16.12.2005 to issue non-bailable warrants securing the attendance of the accused, named in the complaint petition, including the petitioner. A prayer has also been made to quash the entire criminal proceedings arising out of the aforesaid complaint case. In brief, the case is that the opposite party no.2, Shri Jitendra Narayan Agarwal, filed the Complaint Case No.1308(C) of 2005 in the court of the Chief Judicial Magistrate, Patna, against the opposite party nos.3 to 13 and the Bank of India of which the petitioner is Chairman, alleging therein that accused -opposite party no.3, Asian Alloys Limited published an application forms for attracting the public under private placement of fully secured Redeemable non-convertible Debentures secured by the Bank of India. On the persuasion of the workman of the accused -opposite party no.3, the opposite party no.2 invested Rs.1,12,000/- on 28.6.1997 in his name and in the name of his wife, Smt. Kusum Kumari Agarwal. Out of the aforesaid amount, Rs.50,000/- was under the scheme of Regular Income and rest was under the Scheme of Deep Discount Bond for 17 months 29 days. On maturity, the opposite party no.2 sent fully discharged receipt to the Company, accused - opposite party no.3 through registered post for payment of maturity value but the Company, accused -opposite party no.3 did not bother to pay the same. The opposite party no.2 also sent several reminders as well as legal notice to the Company, accused-opposite party no.3 for payment of maturity amount of the debentures but the same was not paid. As such, the accused persons cheated the opposite party no.2 after long persuasion to deposit Rs.1,12,000/-.
After filing of the aforesaid complaint case by the opposite party no.2, on enquiry u/s 202 of the Code of Criminal Procedure, the court of the Sub Divisional Judicial Magistrate, Patna, summoned the opposite party nos.3 to 13 and the Bank of India of which the petitioner is Chairman, finding prima facie case under Sections 406, 420 and 120B of the Indian Penal Code vide order dated 12.8.2005 and, thereafter, issued non-bailable warrants against them securing their attendance vide order dated 16.12.2005. Both the orders are impugned in the present application.
Learned counsel appearing on behalf of the petitioner made submission that the Bank of India was only a trustee of the concerned Scheme. The Bank of India was in process of filing the suit for enforcing its security as debenture trustee and in the interest of the debenture holders including the complainant but the opposite party no.3, the Company, lodged the case before BIFR u/s 15 of SICA to declare as sick undertaking, hence, the Bank instead of filing the suit filed an application u/s 22(1) to the SICA. Subsequently on rejection of the aforesaid application on 24th of September, 2002, the Bank of India filed the Suit No.98 of 2003 to secure the second charge held by the Bank as debenture trustee as also for recovery of debenture trustees, which is pending in the court of the Additional District Judge, Amlok. As such, whatever error or default was committed by the accused -opposite party no.3, Asian Alloys Limited, the petitioner, who is a Chairman of the Bank of India, cannot be held responsible for any commission of the offence. It has also been submitted that in a situation of vicarious liability, no criminal offence can be constituted against the petitioner nor petitioner can be held responsible for commission of any offence. It has further been submitted that in a similar matter, Shri K.V. Krishnamurthy, the Chairman of the Bank of India and the Senior Branch Manager, Main Branch, Bank of India, had approached this Court vide Criminal Misc. No.6299 of 2001 for quashing the summoning order dated 18.11.2000 passed by the court of Judicial Magistrate, First Class, Patna, in Complaint Case No.1140(C) of 2000 filed on behalf of Anant Jha and the said application was allowed by a Bench of this Court vide judgment dated 24th of January, 2011.
In spite of notice, the complainant-opposite party no.2 did not appear in this case and file his show cause.
From perusal of the complaint petition, it appears that there is no specific allegation against the petitioner and in the complaint petition the Bank of India of which the petitioner is a Chairman has been shown as a trustee of the scheme of the debentures issued by the accused-opposite party no.3. As such, the dispute appears to be civil in nature and the initiation of the criminal proceeding against the petitioner through the impugned orders appears to be an abuse of the process of the court. Under the aforesaid facts and circumstances, both the impugned orders passed in Complaint Case No.1308 (C) of 2005 by the court of Sub Divisional Judicial Magistrate, Patna, and the entire criminal proceeding, arising out of the aforesaid case, with respect to the petitioner, are hereby quashed and the application is allowed.