2009 (9) TMI 573 - HC - Companies Law

Offences and prosecution - cognizance of offences under sections 420 and 409 read with section 34 of the Indian Penal Code 1860 - Held that - So far as the offence of criminal breach of trust is concerned it is imperative to note that the complainant nowhere claims that he either entrusted the vehicle or any money with the accused company or its authorised agents or representatives inasmuch as the vehicle was admittedly taken possession of by the accused company and as far as the payments of money were concerned the same were made by the complainant against his own outstanding dues. The complainant was even according to the complaint a defaulter and in such circumstances the mere fact that the accused-petitioners had taken possession of the vehicle and disposed of the same in terms of the loan agreement cannot be stretched to hold even tentatively that the accused company has committed offence of criminal breach of trust . In the result and for the reasons discussed above the order dated 7-8-2008 cannot to the extent that it directs issuance of processes against the two accused-petitioners be sustained and the same shall accordingly stand set aside and quashed.

Issues Involved:
1. Quashing of the order dated 7-8-2008 passed by the Judicial Magistrate.
2. Whether the complaint discloses commission of offences under Sections 420 and 409 read with Section 34 of IPC.
3. Distinction between the offences of "cheating" and "criminal breach of trust."
4. Vicarious liability of the managing director for the offences allegedly committed by the company.

Issue-wise Detailed Analysis:

1. Quashing of the Order Dated 7-8-2008:
The application under Section 482 of the Code of Criminal Procedure, 1973, seeks to set aside the order dated 7-8-2008, passed by a Judicial Magistrate in C.R. Case No. 7889 of 2007. The Magistrate had taken cognizance of offences under Sections 420 and 409, read with Section 34 of the Indian Penal Code, 1860, and directed issuance of process against the accused-petitioners. The court emphasized that criminal proceedings can be quashed if the allegations in the FIR or complaint do not constitute an offence or make out a case against the accused. The court referenced the case of R.P. Kapur v. State of Punjab, which established that if the complaint or FIR does not disclose an offence, it can be quashed.

2. Complaint Disclosing Commission of Offences:
The court examined whether the complaint disclosed the commission of any offence. The complainant alleged that the accused company induced him into a hire-purchase agreement and later seized and auctioned the vehicle without proper notice, causing wrongful loss. The accused-petitioners argued that the complainant was a habitual defaulter and that the vehicle was seized and auctioned as per the terms of the agreement after repeated defaults in payment. The court noted that the complainant did not deny the default in payment and that the agreement authorized the accused company to seize and auction the vehicle in case of default. Therefore, the court found that the complaint did not disclose the commission of offences under Sections 420 and 409 of IPC.

3. Distinction Between "Cheating" and "Criminal Breach of Trust":
The court clarified the distinction between "cheating" and "criminal breach of trust." In "criminal breach of trust," the accused initially possesses the property honestly but later develops a dishonest intention and misappropriates the property. In "cheating," the dishonest intention exists from the beginning of the transaction. The court observed that the accused cannot be charged with both offences simultaneously as they involve different states of mind. The court found that the Magistrate's cognizance of both offences reflected non-application of mind, as the accused must know whether they are defending against "criminal breach of trust" or "cheating."

4. Vicarious Liability of the Managing Director:
The court addressed the issue of vicarious liability of the managing director for the offences allegedly committed by the company. The complainant did not identify any natural person with criminal intent attributable to the company. The court referenced the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, which dealt with vicarious liability under the Negotiable Instruments Act, 1881. The court noted that the Indian Penal Code does not have provisions for vicarious liability similar to the Negotiable Instruments Act. Therefore, the managing director cannot be held vicariously liable for the offences of "cheating" or "criminal breach of trust" allegedly committed by the company.

Conclusion:
The court concluded that the complaint did not disclose the commission of offences under Sections 420 and 409 of IPC. The accused-petitioners acted within the terms of the agreement, and the complainant's default in payment justified the seizure and auction of the vehicle. The managing director cannot be held vicariously liable in the absence of specific statutory provisions. Consequently, the order dated 7-8-2008, directing issuance of processes against the accused-petitioners, was set aside and quashed.

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