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TMI Blog2021 (10) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... thirteen accused (accused nos. 1 to 13) in the Court of the learned Judicial Magistrate, First Class, Mangalore being P.C. No. 119/2013 for the offences punishable under Sections 406, 418, 420, 427, 447, 506 and 120B read with Section 34 IPC. It was the case on behalf of the complainant that he is the absolute owner and in possession & enjoyment of the immovable property described in the schedule attached to the private complaint and the schedule properties were surrounded by a stone wall as boundary. That the schedule properties are abutting Mangalore-Bajpe Old Airport Road. It was stated that there were valuable trees on the schedule properties. 2.1 It was contended that the accused No.1 is a company incorporated under the Companies Act and accused No.2 being Chairman and accused No.3 being Managing Director and accused No.4 being Deputy General Manager (Civil & Env.) of accused No.1 and accused No. 5 was the planner and executor of the project work of accused No. 1. 2.2 It was stated that accused No. 6 is also a Company incorporated under Companies Act. Accused No.7 was its chairman. Accused No 8 was the Executive Director, Accused No. 9 was the Site supervisor of accused No.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the guilt and also undertaking to pay adequate compensation to the complainant towards the damages caused to the property. The said undertaking given by accused No.5 is binding on all the other accused. But thereafter, the accused have not come forward to make good the loss and thereby, they have committed an act of criminal breach of trust and cheating. 2.5 It was contended that the accused were having no right whatsoever to commit trespass over the schedule properties and to cause damage. Each one of the accused had common intention to lay the pipeline by damaging the property of the complainant. With that intention, they have committed criminal trespass and caused damages. Therefore, the complainant prayed the learned trial Court to take cognizance of the matter and to issue process against the accused. The schedule properties described as immovable property were situated at Malavur Bajpe Village of Mangalore Taluk comprised in Sy.No. 56/2, measuring 7.50 acres, Sy. No, 178/2C measuring 1.76 acres, Sy.No. 50/6B measuring 1.15 acres with trees standing thereon. 2.6 That the complainant was examined on oath before the Court. As many as nine documents came to be marked as 'Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Advocate appearing on behalf of the original complainant has vehemently submitted that in the facts and circumstances of the case both, the High Court as well as the learned Sessions Court have materially erred in quashing and setting aside the order passed by the learned Magistrate summoning accused nos. 1 to 8 which was issued for the offences punishable under Sections 427, 447, 506 and 120B read with Section 34 IPC. 5.1 It is vehemently submitted that the High Court has not properly appreciated and considered the fact that earlier the complainant filed an FIR before the concerned police station but nothing was done and therefore the complainant - appellant herein was constrained to file a private complaint under Section 200 Cr.P.C. 5.2 It is submitted that the learned Magistrate after examining the appellant - complainant on oath and after considering the evidence/material on record issued summons against accused nos. 1 to 13 for the offences punishable under Sections 427, 447, 506 and 120B read with Section 34 IPC. It is submitted that therefore the learned Sessions Court was not justified in setting aside the order passed by the learned Magistrate summoning the accused. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of commission of the alleged offence, they were present. It is submitted that similarly accused nos. 7 & 8 were arrayed as an accused being Chairman and Executive Director of accused no.6 who also were stationed at Hyderabad at the time of commission of the alleged offence and there are no allegations even against them that at the time of commission of the alleged offence, they were present. It is submitted that even accused no.7 was aged 82 years. Therefore, the learned Sessions Court has rightly quashed and set aside the order passed by the learned Magistrate issuing the process against accused nos. 1 to 8 herein for the offences punishable under Sections 427, 447, 506 and 120B read with Section 34 IPC. Heavy reliance is placed on the decisions of this Court in the cases of GHCL Employees Stock Option Trust v. India Infoline Limited, (2013) 4 SCC 505; and Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609. 7. We have heard the learned counsel for the respective parties at length. We have also gone through and considered the allegations in the complaint. It is required to be noted that the learned Magistrate issued the process against the respondents - acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used nos. 2 to 5 and 7 & 8 were present. Except the bald statement that accused nos. 2 to 5 and 7 & 8 have conspired with common intention to lay the pipeline within the schedule properties belonging to the complainant, without any lawful authority and right whatsoever and in furtherance they have committed to trespass into the schedule properties of the complainant and demolished the compound wall, there are no other allegations that at that time they were present. Accused nos. 2 to 5 and 7 & 8 are stationed at Hyderabad. There are no further allegations that at the command of A2 to A5 and A7 & A8, the demolition of the compound wall has taken place. All of them are arrayed as an accused as Chairman, Managing Director, Deputy General Manager (Civil & Env.), Planner & Executor, Chairman and Executive Director respectively. Therefore, as such, in absence of any specific allegations and the specific role attributed to them, the learned Magistrate was not justified in issuing process against accused nos. 1 to 8 for the offences punishable under Sections 427, 447, 506 and 120B read with Section 34 IPC. 8. In the case of Sunil Bharti Mittal (supra), it is observed by this Court in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The 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." 8.2 As observed by this Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 and even thereafter in catena of decisions, summon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuing the process against the respondents herein - accused nos. 1 to 8, there does not appear that the learned Magistrate has recorded his satisfaction about a prima facie 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. Under the circumstances, 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. 10. In view of the above and for the reasons stated above, the present appeals deserve to be dismissed and are accordingly dismissed. Needless to say, that the learned Magistrate shall proceed with the complaint against original accused nos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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