JUDGMENT D.K. Sinha, J. 1. The petitioner, Managing Director, I.C.I.C.I. Bank Ltd. having its Office at I.C.I.C.I. Bank Towers, Bandra, Kurla Complex, Bandra East, Mumbai 400051, by designation preferred this petition under Section 482 Cr.P.C. for quashing of the entire criminal proceeding against him in connection with C/1 Case No. 153 of 2004 including the order dated 31.03.2004 and subsequent order dated 15.6.2004 passed by Miss Kamal Hazarika, Judicial Magistrate, Jamshedpur whereby and whereunder the cognizance of the offence under Section 406 I.P.C. was taken against three persons including the petitioner. 2. Briefly stated the O.P.No. 2 Deobrat Prasad had presented a written complaint before the C.J.M., Jamshedpur alleging that he had purchased two trailors in the month of February, 2002 at a time by taking the loan from the I.C.I.C.I. Bank with the registration of the Trailor being No. (1) H.R.-38-H/8012 and (2) NL-01-A/7075. The complainant was paying the instalment of loan regularly till January, 2003 but one of the Trailors vide registration No. H.R.-38-H/8012 met a major accident and for such account he could not pay any instalment. Thereafter the complainant contacted accused persons on phone with the proposal to grant some time for the payment of the instalment which was accepted. The Insurance Company was also informed to indemnify the accident and it was assured by the complainant to the accused that he would start paying instalments for the said two trailors as soon as he would get the insured amount. It was alleged that in the month of October while the Trailor No. N.L.-01-A/7075 was returning from Bankura to Jamshedpur and arrived near Dimna Chowk accused persons through their Gundas intercepted the trailor and took it to Kharagpur forcibly by putting threat to the driver and Khalasi of the said truck. Page 915 The accused persons took away all the papers of the said trailors and it is alleged that the said trailor was chased by the accused No. 1 & 2 along with 10/12 unknown persons and assaulted the driver and Khalasi. The accused persons by putting dagger on the chest of the driver of the trailor had managed to obtain their signatures. After few months the matter was narrated to the complainant. It was explained that though the complainant was ready to pay the instalment but due to unavoidable circumstances he could not do so and he had talked with the Finance Department. After few months the matter was narrated to the complainant. It was explained that though the complainant was ready to pay the instalment but due to unavoidable circumstances he could not do so and he had talked with the Finance Department. Later on the complainant came to learn that the accused persons were trying to dispose of the said trailors which was seized by them and then the complainant sent notice to the accused through registered letter but without reply. All the relevant papers related to the said trailor were in the name of the complainant and finally it was learnt that the said trailor was disposed of by creating forged documents by the accused without informing him. The said trailor was disposed of with mala fide intention and for some wrongful gain by preparing forged papers by the accused who had forcibly obtained the signatures of the driver and Khalasi on the stamp papers and blank papers. No notice was issued to the complainant prior to seizure of the trailor and that the local police was also not informed. Finally it was alleged as communicated by the driver to him that on the instance of the Managing Director of I.C.I.C.I. the trailor was seized and for that the Managing Director had committed offence under Section 120B I.P.C. 3. The learned Counsel submitted that the petitioner is the Managing Director and Chief Executive Officer of the I.C.I.C.I. Bank Ltd. and is stationed at its registered office at I.C.I.C.I. Bank Towers, Bandra, Kurla Complex, Bandra East Mumbai. The said bank is the Indias second largest bank with its total assets of about Rs. 1,25,229.00/- crores and a network of over 450 Branches and Offices. In 1999, I.C.I.C.I. Bank became the first Indian Company and the first Bank or financial institution from non-Japan Asia to be listed on the NYSE. The ICICI Bank extends loan facilities such as house loan, personal loans, loans for purchase of vehicle etc. to various persons 4. Learned Counsel further contended that in the month of January, 2002 the complainant O.P.No. 2 representing himself to be financially sound, approached the Jamshedpur Branch Office of I.C.I.C.I. Bank Ltd. with a request to extend loan facility for two chassis through the dealer M/s Tiwari Bacher & Co. to various persons 4. Learned Counsel further contended that in the month of January, 2002 the complainant O.P.No. 2 representing himself to be financially sound, approached the Jamshedpur Branch Office of I.C.I.C.I. Bank Ltd. with a request to extend loan facility for two chassis through the dealer M/s Tiwari Bacher & Co. Ltd. with the promise unambiguous terms to repay the said loan through post dated cheques in the event the same was sanctioned to him. Upon such request the loan facility was extended to him by entering into agreement for loan cum hypothecation between the complainant and the I.C.I.C.I. Bank on 30.1.2002. It was agreed that a total amount of Rs. 17,48,000/- would be granted as loan at an interest rate of Rs. 8.32%. The total amount was to be repaid by the complainant O.P.No. 2 to I.C.I.C.I. Bank Ltd. through post dated cheques to the tune of Rs. 21,84,296/- in 34 equated monthly instalments of Rs. 64,244/-. The agreement is annexure-2 of the present petition. The instalment was to commence on 1.4.2002 and the last date was 1.1.05 with re-payment schedule as contained in Annexure-3. In pursuance of the aforesaid clause in agreement, the complainant O.P.No. 2 delivered post dated cheques each for grant of Rs. 64,244/-. The complainant after taking the loan purchased two chassis vide registration No. H.R.38H/8012 and N.L.01 A/7075. 5. The learned Counsel pointed out that the complainant O.P.No. 2 has made absolute false statement and misled the Court by mentioning in the complaint petition though he was paying instalments in regular way till January, 2003 and that such false representation tantamount to a "Fraud on Court" as held by Honble supreme Court in From the statement of accounts as contained in Annexure-4 it would transpire that on presentation of even the first cheque towards repayment of the complainant O.P.No. 2, was dishonoured and thereafter on each due date when the cheques were so presented, all the cheques were dishonoured. However, after 5 cheques towards first equated monthly instalments were dishonoured the complainant O.P.No. 2 made a cash payment of Rs. 65,000/- on 31.8.202. Again when the cheques were presented by the complainant O.P.No. 2 the same were dishonoured and it was only again on 13.1.2003 and 17.1.2003 the complainant repaid Rs. However, after 5 cheques towards first equated monthly instalments were dishonoured the complainant O.P.No. 2 made a cash payment of Rs. 65,000/- on 31.8.202. Again when the cheques were presented by the complainant O.P.No. 2 the same were dishonoured and it was only again on 13.1.2003 and 17.1.2003 the complainant repaid Rs. 1,00,000/- each on both the dates and the repayment made by the complainant has been given in tabular chart in paragraph 22 of the petition. Though the complainant O.P.No. 2 explained in the complaint case that the trailor bearing registration No. H.R.38H/8012 met with a major accident and as such he could not make proper payments even though another trailor bearing registration No. N.L.01A/7075 was in a working condition and was plied by the complainant for his business purpose but as a matter of fact to the best of knowledge, the trailor bearing registration No. H.R.38H/8012 was sold by the complainant O.P.No. 2 without even repaying the entire loan amount as well as in contravention of the agreement viz. clause C-6 whereby the O.P.No. 2 had undertaken and warranted that he was not inter alia sold the vehicle and if such transfer or sale is made then that would be deemed to be criminal breach of trust and a case of cheating since on one hand the post dated cheques of the complainant O.P.No. 2 were being consistently dishonoured on the other hand he had sold one of the two trailors purchased under the loan agreement in violation of the terms of the agreement, the I.C.I.C.I. Bank was left with no other option and was forced to exercise their right to take back possession of the said vehicle as enshrined in Clause G-1 of the said agreement. In the meantime, two letters on 11.3.03 and on 10.8.03 vide Annexure-5 & 5/1 respectively were sent calling upon the O.P.No.2 complainant to make outstanding payments. In the meantime, two letters on 11.3.03 and on 10.8.03 vide Annexure-5 & 5/1 respectively were sent calling upon the O.P.No.2 complainant to make outstanding payments. Besides the aforesaid letters repeated request through personal visits of the company representatives, tele-calling and reminders, no positive response was received and therefore on 13.9.2003 after giving prior intimation to the Chandil Police Station, one of the vehicles bearing registration No. N.L.01A7075 was taken back by the officials and agents of I.C.I.C.I. Bank in exercise of its rights under the aforesaid agreement, the fact was also intimated to the police before taking possession and the police was also intimated after the vehicle was taken into possession vide letter dated 13.9.2003. The vehicle aforesaid was taken into possession by the authorized agent of the Bank as per law in due accordance to the terms and conditions of the agreement and the driver of the truck had signed on letter of surrender as well as on inventory of the assets. It was denied categorically that the aforesaid vehicle was taken back into possession forcibly. However, after taking back the possession of the vehicle a letter under registered cover with Acknowledgement due was sent on 30.9.03 to the complainant O.P. No. 2 asking him to remit the over due amount and in the event he defaulted, it was made clear that it would be assumed that he was no longer interested in settling the accounts/ outstanding dues and necessary steps would be taken to dispose of the assets and the sale proceedings would be adjusted towards his outstanding dues vide Annexure-7 but in spite of the aforesaid letter the complainant never reverted back to the bank and therefore in exercise of right conferred upon the Bank as per Clause G (1) read with G-5 the Bank in order to recover its dues sold vehicle so re-possessed to Shri N. Kishore even at a loss for a sum of Rs. 3,75,000/- on 23.12.2003 and subsequently the vehicle was handed over to Shri N. Kishore on 24.12.2003. It would be evident that the vehicle was taken in possession by the I.C.I.C.I. Bank on 13.9.2003 whereas the complaint was lodged by the complainant O.P.No. 2 on 9.2.2004. After delay of more than 5 months and no plausible explanation has been given in the complaint petition about such inordinate delay. 6. It would be evident that the vehicle was taken in possession by the I.C.I.C.I. Bank on 13.9.2003 whereas the complaint was lodged by the complainant O.P.No. 2 on 9.2.2004. After delay of more than 5 months and no plausible explanation has been given in the complaint petition about such inordinate delay. 6. Learned Counsel further submitted that the complainant O.P.No. 2 was a habitual defaulter and that he had also entered into another agreement for loan for amount of Rs. 2,50,000/- for the purpose of body building of the aforesaid trailor and in respect of this agreement also the complainant O.P.No. 2 had issued 34 post dated cheques which was also consistently being dishonoured on being presented which would be evident from the statement of accounts in respect of the aforesaid loan agreement as contained in Annexure-9. 7. It was submitted that the well settled principle of law was that recovery of possession of goods as per the terms of an agreement did not amount to a criminal offence. The above factual aspect, learned Counsel contended, amounts to attempt of the complainant O.P.No. 2 by initiating criminal proceedings before the Judicial Magistrate to coerce the petitioner to the unjust terms since the complainant O.P.No. 2 was in huge arrears to the tune of Rs. 1359560/- as on 13.9.2003. The agreement entered into by and between the I.C.I.C.I. Bank Ltd. and the complainant O.P.No. 2 specifically gave authority to the Bank to take physical possession either by itself or through its agents and therefore no offence under Section 406 I.P.C. can be made out as against the petitioner. On the contrary the O.P. No. 2 complainant himself is liable to be prosecuted for criminal breach of trust and cheating because he without prior permission of the Bank, sold one of the vehicles being Registration No. H.R.38H/8012 which was also covered under the loan agreement. 8. On the contrary the O.P. No. 2 complainant himself is liable to be prosecuted for criminal breach of trust and cheating because he without prior permission of the Bank, sold one of the vehicles being Registration No. H.R.38H/8012 which was also covered under the loan agreement. 8. Finally it has been submitted that there is no whisper of commission of any crime as against the petitioner and he has been made a party to the offence in the name of Managing Director having given instructions for the alleged offence under Section 120B I.P.C. as contained in paragraph 24 of the Complaint petition and no direct overt act against him as alleged by giving incorrect and false address of Kolkata and he has been arrayed as an accused by the complainant O.P.No. 2 in the capacity of Managing Director of I.C.I.C.I. Bank Ltd. and as such no criminal proceedings can be initiated or continued against a particular office or post as ex-officio impleadment is untenable in law. Even if assuming the entire prosecution case to be true, cognizance under Section 406 I.P.C. could not have been taken for the reason that there was no entrustment by the complainant to the petitioner of the vehicle which was the prime ingredient to constitute such offence and therefore very basis of the offence of criminal breach of trust was entirely lacking. Learned Magistrate acted in an erroneous and in mechanical way without appreciating the facts and circumstances and that the connection between the offence and the petitioner cannot be established and the complainant brought about by the complainant O.P.No. 2 is a mere retaliation on the part of the de facto Page 918 complainant and is a clear abuse of the process of law. Principle of vicarious liability is alien to the offence punishable under the Indian Penal Code and Officers of corporate body by their status in such corporate body cannot per se be implicated in connection with the commission of an offence punishable under the Indian Penal Code. Mere holding of a senior position in a body corporate does not automatically attract liability and therefore the prosecution case as disclosed in the complaint is patently absurd inherently improbable and should be quashed for the ends of justice. 9. Mere holding of a senior position in a body corporate does not automatically attract liability and therefore the prosecution case as disclosed in the complaint is patently absurd inherently improbable and should be quashed for the ends of justice. 9. Having regard to the facts and circumstances, the Court finds that the cognizance of the offence against the petitioner and two others was taken under Section 406 I.P.C. The petitioner who is the accused No. 3 in the Complaint Case No. 153/04 (Annexure-1) has been presented as the Managing Director of I.C.I.C.I. Bank Ltd. and has not been named and that the Court further finds that the cognizance of the offence has been taken by the court below by designation Managing Director and not by name which amounts to abuse of process of law. There is substance in the argument of the learned Counsel that the principle of vicarious liability is alien to the offence punishable under the Indian Penal Code and Officers of corporate body by their status in such corporate body cannot per se be implicated in connection with the commission of an offence punishable under the Indian Penal Code and that mere holding of senior position in a body corporate does not automatically attract liability. Even on the factual aspect there is lack of ingredient of Section 406 I.P.C. with respect to entrustment of any property to the petitioner and hence cognizance of the offence under Section 406 I.P.C. is not sustainable in the eyes of law. 10. This petition is allowed. The entire criminal proceeding including the cognizance of the offence vide order impugned dated 31.3.04 passed in Complaint Case No. 153/04 by Miss. Kamal Hazarika, Judicial Magistrate, 1st Class, Jamshedpur is quashed. 11.This petition is allowed.