Judgment 1. Heard the parties. 2. Union of India and Registrar of Companies are represented. 3. The present application is for quashing of prosecution of the petitioner for alleged violation of the provision of Sections 63, 68 and 628 of the Companies Act.The prosecution has been instituted at the instance of the Registrar of Companies and is pending before the learned Special Judge, Economic Offences, Patna being Company Case No. 50(c) of 2003. It is alleged that a company was incorporated under the name of M/s Blue Heavens Agro Industries Limited on 26.5.1994 with the Registrar of the Companies, Patna. In 1995 it made a public issue and for the said purpose issued a prospectus for consumption of the public. It is alleged that the said company was being set up with Collaboration of German experts. It is alleged that in view of the audit balance-sheet filed by the company in 2000- 2001 it is found that the company has failed to keep up the promises as made in the prospectus. In substance, it is alleged that the promises as made in the prospectus were false. All the Directors, who were Directors at the time when prospectus was issued have been made accused. 4. Petitioner is the Director and Managing Director of State Bank of India. He was a Non-Executive Director. He was named as such in the prospectus. It is not in dispute that he resigned from the member of the company on 15.6.1996 and the same was duly intimated to and registered with the Registrar of the Companies. In the above facts, it is submitted on behalf of the petitioner that petitioner being a Non-Executive Director could not be held to be the incharge or responsible for the affairs of the company specially when the promises were not acted upon. The petitioner was not with the company at the relevant time. Petitioner, though was on the Board of Director of the Company at the initial stage resigned soon thereafter. There was no occasion on the part of the petitioner nor the petitioner had the power or authority in respect of company working after 1996. 5. There is nothing in the complaint to show that when prospectus was issued, the promises as made therein were incapable of being fulfilled. There was no occasion on the part of the petitioner nor the petitioner had the power or authority in respect of company working after 1996. 5. There is nothing in the complaint to show that when prospectus was issued, the promises as made therein were incapable of being fulfilled. l find that the only basis for holding that the petitioner had made false promise was that the promises as made were not ultimately fulfilled. In my view, the two things are different. A false promise is a promise never intended to be fulfilled and a promise made but not fulfilled is a breach of promise. The two are essentially different, first is culpable and the other is not. Here it is said with reference to balance-sheet of 2000-2001 that the promises as made in the prospectus in 1995 were not carried out. On the face of the record petitioner being a Non-Executive Director had resigned even as such in 1996 petitioner cannot be said to be either the person incharge or the person responsible to or for the company, in question. 6. In that view of the matter the prosecution of the petitioner is misconceived and is liable to be set aside. 7. The application is allowed and the order dated 25.6.2003 passed by the learned Special Judge, Economic Offences, Patna, in Complaint Case No. 50 of 2003 is set aside so far as the petitioner is concerned.