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Calcutta High Court · body

2009 DIGILAW 880 (CAL)

K. v. Kamath VS Pradip KR. Sureka

2009-12-07

PARTHA SAKHA DATTA

body2009
Judgment :- (1.) The question involved in this revisional application is whether the petitioner Mr. K.V. Kamat, Managing Director and C.E.O. of the ICICI Bank Limited can be rightly prosecuted for offences under Sections 384/392/120B/427/500/504 of the I.P.C. The opposite party No.1 Pradip Kr. Surekha lodged a petition of complaint with the learned Additional Chief Judicial Magistrate of South 24-Pargamas at Alipore on 27.11.2008 alleging the following. (2.) Accused No.1 Rajib Dubey is the Recovery Manager, Eastern Zone, ICICI Bank Limited, Accused Nos.2 and 3, namely, Md. Ali and Gobardhan are said to be recovery agents, and accused No. 4, K. V. Kamat is the Managing Director-cum-CEO of the ICICI Bank Ltd. The complainant secured a loan of Rs.4,57,000/-sometime in November, 2004 on certain terms and conditions as. were embodied in the agreement. A sum of Rs. 8725/- was payable as EMI. The money was advanced for purchase of a vehicle being No. WB-02T-1323 (Ford Ikon). The vehicle was in the custody and control of the complainant and it was kept in the garage at 30, S. N, Roy Road under P.S. Behala. The car was fitted with tape recorder, AC machine and a small colour television. A Title Suit being No. 4762 of 2008 was instituted by the ICICI Bank in the 8th Bench of City Civil Court at Calcutta in respect of the vehicle allegedly by suppressing the material facts against one Chanda Prasad quoting the vehicle number as WB-02T-1323 and obtained an order for appointment of receiver to take possession of the vehicle. On 21.1.2008 at about 8 a.m. in terms of the direction of the accused No.4 who is the present petitioner for pursuing the policy of the bank in the matter of forcible possession of the vehicle the other three persons along with certain unknown persons by hatching a criminal conspiracy organised a raid for taking the vehicle. On 21.1.2008 at about 8 a.m. when the complainant was driving the vehicle after taking out the same from his garage with his son inside the vehicle and brief case containing a sum of Rs.20,000/-these three persons intercepted the vehicle; they dragged the complainant out of the vehicle and started assaulting him by fists and blows in the presence of the complainants son. The complainant and his son immediately rushed to Behala P. S. and informed the Duty Officer of the incident by lodging a G. D. E. No. 2089 dated 21.11.2008. At around 11 a.m. on 21.11.2008 the complainants son Pronoy being accompanied by two other members of the staff of the complainant visited ICICI Bank Limited at 2, Upper Wood Street, Calcutta- 16 under P.S. Sheakespeare Sarani and met the accused No.1 and narrated the incident and sought an explanation for interception and taking possession of the vehicle. By producing the xerox copy of the Order No.2 dated 15.11.2008 passed in Title Suit No. 4762 of 2008 the said accused stated that for non-payment of the EMI amount the order was obtained against one Chanda Prasad. Pronoy stated that the said vehicle was owned by his father, namely, the complainant and produced all papers including the EMI statement. Then the accused No.1 started finding out the actual position and asked Pronoy to wait for some more time. After about half an hour the said accused eventually came back to Pronoy and admitted the fault. On being asked for return of the vehicle the said accused No.1 asked him to take delivery of the vehicle, which was already damaged by the recovery agent, from their godown at Andul Road, Howrah. Pronoy expressed his unwillingness to go to Andul Road godown. Then the accused No.1 arranged for delivery of the vehicle in a damaged condition at the crossing of Park Street and Rati Ahmed Kidwai Road on the same date and it was found that the brief case containing cash of Rs.25,000/-tape recorder, television set were ail missing from the vehicle. The complainant also arrived at the time at the place and at the time of delivery of the vehicle the said accused No.1 and his people hurled abusive languages and assaulted the complainants father by fists and blows. His spectacles was damaged, shirt was torn by the accused persons. The complainant and Pronoy went to National Medical College and Hospital where the complainant was examined and treated by the doctor. At about 7.10 p.m. complainant went to Sheakespeare Sarani P.S. and lodged a written complaint. Since then the complainant and his family members have been regularly threatened over phone with dire consequences if he would proceed in the matter any further. At about 7.10 p.m. complainant went to Sheakespeare Sarani P.S. and lodged a written complaint. Since then the complainant and his family members have been regularly threatened over phone with dire consequences if he would proceed in the matter any further. Allegedly, the bank indulged in acts of commission and omission attracting the penal provisions disregarding the observation of the Supreme Court in ICICI Bank Limited v. Prakash Kaur, reported in AIR 2007 SC 1349 to the effect "we are governed by the rule of law in the country. The recovery of loans or seizure of vehicles can be done only through legal means. The banks cannot employee goondas to take possession by force." Thus a bank has been using money and muscle power by giving good bye to the rule of law to perpetuate their mission of recovery of loan by hooliganism. (3.) Learned Additional Chief Judicial Magistrate examined the complainant under Section 200 Cr.P.C, perused certain documents and by a lengthy order dated 27th November, 2008 issued non-bailable warrant of arrest against all the accused persons. The learned Magistrate observed that the present incident is not a new to the society as time and again several complaints have been come across against the illegal and unethical manner of recovery of loan by the banks in spite of caution given by the Supreme Court. Learned Magistrate observed that the present accused persons appeared to be attached to a bank against which such type of incident was noticed earlier. (4.) Now, in the context as above, accused No.4 M. V. Kamat has taken out this application under Section 482 of the Cr.P.C. for quashing of the proceeding as against him alone on the ground that the petitioner is the Managing Director and CEO of the Bank and principle of vicarious liability has no manner of application in respect of the offences under the penal code. The mere fact that the petitioner is a Managing Director and CEO of the Bank does not give rise to any reasoning that he was an accomplice to the alleged offence or that offence was committed by the other accused persons by hatching criminal conspiracy with him. Further, issuance of non-bailable warrant of arrest at the very first instance cannot be supported and is without any jurisdiction. Mr. Pradip Kr. Further, issuance of non-bailable warrant of arrest at the very first instance cannot be supported and is without any jurisdiction. Mr. Pradip Kr. Ghosh, learned Senior Advocate appearing for the petitioner submitted that the offences alleged are under Sections 384/392/120B/427/500/504 and 506 of the IPC. To find a person guilty of offences under these sections of the law the Court has to prima face make an opinion at the very initial stage of entertaining the petition of complaint that the said petition of complaint does disclose at least prima facie that the petitioner has committed the offences alleged. The petition of complaint does not at all disclose that the petitioner was at all present at the scene of the crime. The petition of complaint itself indicates that a wrong vehicle was intercepted by the recovery agents and admitting the mistake the accused No. 1 directed for return of the vehicle. The alleged damaged of the vehicle, loss of the brief case containing Rs.25,000/-and television set from the vehicle is a different matter for which the other accused persons can be made responsible. The petitioner was not present at the scene of the crime. He did not detect the vehicle; he did not assault the complainant. He did not cause damage to the vehicle nor did he use any defamatory word or criminal force or criminally intimidate the complainant. Even the petition of complaint does not show that so far as the petitioner is concerned, he participated in the commission of the offence. The petitioner is having his registered office at Allahabad and corporate office in Mumbai. He is not concerned with looking after each and every recovery case. It was not his concern to look out as to which vehicle was seized by which persons at which place on which day throughout the territory of India. A Chief Executive Officer and Managing Director of the bank normally takes his seat in the corporate office of the bank in Mumbai and he is solely occupied with the general policy of the bank. It is submitted that uncontroverted allegations in the petition of complaint, if taken up in their entireties and at the face value, did not make out a prima facie case against the petitioner at all. So far as the petitioner is concerned, no specific role has been ascribed in the petition of complaint. It is submitted that uncontroverted allegations in the petition of complaint, if taken up in their entireties and at the face value, did not make out a prima facie case against the petitioner at all. So far as the petitioner is concerned, no specific role has been ascribed in the petition of complaint. Merely, because the petitioner is holding a senior position in the corporate office it cannot be presumed that every act allegedly committed by the employees or agents of the ICICI Bank were done under the instruction of the petitioner because it is trite law that the principle of vicarious liability does not apply in respect of the offences under the Indian Penal Code. The learned Magistrate failed to pose unto himself the question whether the petition of complaint even if taken for granted at the face value to be correct in its entirety would lead to the conclusion that petitioner was personally liable for the offence. Vicarious liability of the managing director would only arise if statute prescribes for that. It is further submitted that the learned Magistrate issued non-bailable warrant of arrest against the petitioner without application of the judicial mind and moreover the complainant in the instant case has not made the petitioner an accused not in his individual capacity as would be evident from the cause title of the petition of complaint. A plain reading of the petition and the initial deposition would show that there is absolutely no iota of materials to connect the petitioner with the alleged offence. The petitioners office is situated at Mumbai, while the incident took place in Calcutta. A person holding the post of Managing Director or Chief Executive Officer in Mumbai cannot be held to be responsible for whatever offences might have been committed by the employees of a large organization having branches all over the country. It is further submitted that this was really a case of forcible dispossession of property. It is not in dispute that there was instituted a civil suit and a receiver was appointed to take, possession of the vehicle from a defaulter but unfortunately, there was an error in the vehicle number which went unnoticed and that caused all the confusion and on the basis of mistaken identity of the vehicle the incident took place which no doubt is unfortunate. (5.) Mr. (5.) Mr. Ghosh referred to certain decisions, namely, Smt. Nagawwa v. Veeranna Shivalingappa Kohjaigi and Ors., AIR 1976 SC 1947 , Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors., 1998 (5) SCC 749 , Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors., AIR 2008 SC 251 , S. K. Alagh v. State of Uttar Pradesh and Ors., 2008 (5) SCC 662 , Bank of Baroda, Ahmedabad v. Rabari Bachubhai Hirabhai and Ors., AIR 1987 Guj 1 , Charanjit Singh Chauda and Ors. v. Sudhir Mehra, 2001 (7) SCC 417 , Maksud Saiyed v. State of Gujarat and Ors., 2008 (5) SCC 668 , Syndicate Bank v. Official Liquidator, Prashant Engineering Co. P. Ltd., AIR 1985 Delhi 256. (6.) In Maksud Saiyed (supra) the Honble Supreme Court held that the Penal Code does not contain any provision for extending vicarious liability on the part of the managing director of a company and the Magistrate should have examined whether the complainant made the director personally liable. This decision followed S.M.S. Pharmaceutical Ltd. v. Neeta Bhalla, 2007 (4) SCC 70 and Swaroj Kumar Poddar. Now SMS Pharmaceutical Ltd. and Swaroj Kr. Poddar relate to the proceedings under Section 138 of the N.I. Act in connection with a case where company is made an accused . The directors of the company who are said to be in-charge and responsible for day-to-day conduct of the affairs and business of the company are vicariously liable under Section 141 of the N. I. Act. It is not in dispute that in an offence under the Indian Penal Code vicarious liability cannot be extended. In Bank of Baroda. Ahmedabad (supra) the Supreme Court held that the Claims Tribunal was wrong in the conclusion that hypothecating bank can step into the shoes of the owner to foist the liability for payment of compensation on the bank. It was held that the hypothecating bank cannot be held vicarious liable to pay damage to the injured for the negligent act of the driver of the vehicle. This decision strictly does not apply to the factuality of the case. The decision in Syndicate Bank (supra) rendered by Delhi High Court reaffirms the position that it is not open to the bank to take possession of the hypothecated property on its own. This decision strictly does not apply to the factuality of the case. The decision in Syndicate Bank (supra) rendered by Delhi High Court reaffirms the position that it is not open to the bank to take possession of the hypothecated property on its own. In Charanjit Singh Chouda which is frequently taken aid of has ruled that offence of theft is not maintainable where a hirer commits default in making installments payment and financier takes possession of the property. Since it is not the subject-matter of our discussion as to whether taking re-possession of the vehicle was justified or not, these decisions are inapplicable. The subject-matter of the case is that by use of physical force a vehicle was taken re-possession of and it was a wrong vehicle that was taken. It is of course unfortunate that the bank by use of muscle force took repossession of a wrong vehicle without ascertaining whether the owner of the vehicle really defaulted in payment of the EMI. It is also unfortunate and shocking that recovery agents of the bank or the recovery manager would use criminal force, assault and humiliate its own customer even when it was detected that the complainant was not a defaulter. However, the decision in S. K. Alagh (supra) deals with vicarious liability of a person in connection with an offence under the Penal Code. It was held that vicarious liability cannot be cast on the managing director for alleged commission of offence under Sections 405/406 of the Indian Penal Code. The decision in Inder Mohan Goswami (supra) relates to a case of quashing of the FIR where it was held that when prosecution has not made out any offence through the FIR continuation of the criminal proceeding was impermissible . The decision in Pepsi Food Limited (supra) also reiterates the same principle that when the complaint does not make out any case against a person he cannot be made to undergo the agony of a criminal trial. In M/s. Pepsi Food Limited it was held that summoning an accused in a criminal case is a serious matter and unless a prima facie case is made out issuance of process was unjustified. Mr. Ghosh relied on a decision in Punjab National Bank and Ors. v. Surendra Prasad Singh, reported in 1993 Supp. In M/s. Pepsi Food Limited it was held that summoning an accused in a criminal case is a serious matter and unless a prima facie case is made out issuance of process was unjustified. Mr. Ghosh relied on a decision in Punjab National Bank and Ors. v. Surendra Prasad Singh, reported in 1993 Supp. (1) SCC 499 when the Honble Supreme Court held that whether the complaint was lodged impleading the chairman, the managing director of a bank there lies responsibility and duty on the magistracy to find out whether the concerned accused should be legally responsible for the offence charged with. In A.L.E. Society and Ors. v. Siddalingesh, reported in 2002 (2) SCC (Criminal) 455 the Honble Supreme Court quashed a criminal proceeding on the ground that it was initiated maliciously and it would amount abuse of the process of the Court. Mr. Ghosh further referred to decision in O. N. Goenka v. State of West Bengal and Anr., reported in 2003 (3) CHN 304 , in support of the submission that the description of the petitioner as representative of the company is clearly contrary to law and the petitioner cannot by any process of law be compelled to represent the accused company in the instant proceeding. Mr. Ghosh further referred to decision in R. Kalyani v. Janak C. Mehra and Ors., reported in 2009 (1) SCC 516 in the line as S. K. Alagh where prosecution of managing director by invoking the doctrine of vicarious liability on account of offences under Sections 405/406 of the I.P.C. was deprecated. (7.) Mr. Tapendra Narayan Roychowdhury, learned Advocate for the opposite party No.1 makes a passionate argument depicting how the complainant was assaulted, tortured and humiliated by the accused persons even after when it was detected that a wrong vehicle was seized. There was no default at all committed by the petitioner. The petitioner was driving the vehicle with his son by his side and there were a television set and a brief case containing Rs. 25,000/-in cash. Some goondas, the accused persons included, surrounded the vehicle, refused to see the reason, dragged out the complainant and his son, assaulted the complainant, took away the vehicle and committed theft of the brief case and the television set and damaged the vehicle. 25,000/-in cash. Some goondas, the accused persons included, surrounded the vehicle, refused to see the reason, dragged out the complainant and his son, assaulted the complainant, took away the vehicle and committed theft of the brief case and the television set and damaged the vehicle. Even when the accused No.1 was told that he did not commit any default and even when wrong was detected still then assault continued and it is common knowledge to the people of the city that the ICICI Bank is of such a character and entity that it employs goondas to take possession of the vehicle by money and muscle power indiscriminately without following the rule of law. Even if it is presumed that a person commits default still then use of muscle power is absolutely forbidden because, as the Supreme Court has ruled, we are in the rule of law where goondas cannot be employed to take possession of vehicle, Mr. Roychowdhury argued that M. V. Kamath must be personally liable because it is the policy of the bank, with Mr. Kamat at the helm of affairs, to take possession of the vehicle by hiring goondas and unless it was the policy the other accused persons could not have taken this method to execute their purpose. Therefore, M.V. Kamat against whom there was earlier a complaint in Allahabad must be held responsible. It is not an isolated case, on the contrary, series of cases have been lodged against ICICI bank which is managed by Mr. Kamat and no amount of logic is required to see that unless Kamat agrees to this policy of taking vehicle by money and muscle power the bank would not have taken recourse to this illegal method, and Kamat cannot be made outside the purview of the act of commission and omission. Mr. Kamat was completely aware of this direction that goondas should be appointed to perpetuate their policy and the petition of complaint is very clear in this respect against all the accused persons. The post of managing director is a post for managing the affairs of the company and it cannot be said that Mr. Kamat is in such an exalted position that he is above the rule of law. Citizen must know from Mr. The post of managing director is a post for managing the affairs of the company and it cannot be said that Mr. Kamat is in such an exalted position that he is above the rule of law. Citizen must know from Mr. Kamat what steps he has taken so far to stop perpetuating the policy of hiring goondas to take possession of the vehicles since all these acts have been done to the knowledge of Mr. Kamat and pursuant to his policy Mr. Kamat cannot be exonerated. Mr. Roychowdhury refers to the petition of complaint to submit that in the petition of complaint it has been expressly stated that Mr. Kamat is the Managing Director-cum-Chief Executive Officer of the bank who looks after all the affairs of the bank and is responsible for its works including the implementation of the policy, Mr. Roychowdhury submitted that earlier a case was registered at Allahabad against Mr. Kamat and others and the matter went up to the Supreme Court where the parties effected compromise but the proceeding as against Mr. Kamat was not quashed. Mr. Roychowdhury referred to Smt. Nagawwa v. Veeranna Shivalingappa Konjaigi and Ors., reported in AIR 1976 SC 1947 where it was held that the Magistrate has been given an undoubted discretion in the matter and once the Magistrate exercised his discretion it is not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, would ultimately end in conviction of the accused. Mr. Ghosh , learned Advocate for the petitioner also relied on this decision to submit that this decision lays down guidelines as to when process can be issued under Section 204 of the Cr. P. C. by the Magistrate. (8.) Having thus placed the submissions of the learned Counsels for the parties it is now necessary to examine whether so far as the petitioner is concerned process should have been issued against him. In a catena of decisions guidelines have been laid down by the Supreme Court as to when a process can be issued. Issue of process under Section 204 of the Cr. In a catena of decisions guidelines have been laid down by the Supreme Court as to when a process can be issued. Issue of process under Section 204 of the Cr. P.C. is definitely the discretion of the Magistrate but such discretion has to be exercised judiciously in order that as a person rightly to be prosecuted is not left out and a person against whom process cannot be issued is not put to harassment by such issuance of process. The decisions R. P. Kapoor v. State of Punjab, reported in AIR 1960 SC 866 and State of Haryana v. Bhajanlal, reported in 1992 Cri LJ 527(SC) are eloquent on this point. When on a reading of the petition of complaint or the FIR it appears that an offence cognizable has been committed by a person named therein then the Magistrate is obligated upon to summon the accused. It is only when a petition of complaint or the FIR is mala fide or the allegations are inherently improbable or when that taking cognizance of offence is barred by law issuance of process is impermissible. Further, when the allegations levelled against the accused do not constitute offence no process can be issued. Now the High Court while exercising jurisdiction under Section 482 Cr. P. C. will consider the facts and circumstances of each case so as to find out whether the magisterial action by issuance of process was justified or not. Exercise of such power would be permissible if it would appear to the Court that unless the power is exercised abuse of the process of any Court could not be prevented. (9.) It is the general perception of the people that the banks employ certain persons as recovery manager or recovery agent who take recourse to hooliganism and goondaism in the matter of taking re-possession of vehicle against the hirer. ICICI Bank is alleged to have earned notoriety as many cases are said to have been instituted against the ICICI Bank. As Mr. Roychowdhury submits, a case was filed in Allahabad where Mr. K.V. Kamat was made an accused and Their Lordships of the Supreme Court held in AIR 2007 SC 1349 that procedure adopted by the Bank by muscle men is to be deprecated when we are governed by the rule of law. Not a day passes when allegations did not pour in against the banks including the ICICI. K.V. Kamat was made an accused and Their Lordships of the Supreme Court held in AIR 2007 SC 1349 that procedure adopted by the Bank by muscle men is to be deprecated when we are governed by the rule of law. Not a day passes when allegations did not pour in against the banks including the ICICI. People are assaulted and humiliated by goondaism by the so called recovery agents and managers. This is the scenario which nobody can dispute. (10.) So far as the present case is concerned, it is all the more shocking and unfortunate that the complainant was not a defaulter in payment of EMIs. He was driving a vehicle with his son seated beside him and it is alleged that there was a suitcase containing Rs.25,000/- and A.C. machine was fitted in the vehicle. As they were proceeding in the vehicle the accused persons along with certain other persons who are unknown to the complainant intercepted the vehicle by show of muscle force, dragged out the complainant, beat him and took away the vehicle to an unknown destination. The complainant rushed to the bank to report the incident and the accused No.1 found that because of a wrong identity of the vehicle the complainants vehicle was intercepted and he directed the complainant to go to Howrah godown to bring the vehicle. He disagreed and then the vehicle was brought to a place near Park Street and was handed over to the complainant who found the vehicle in damaged condition with no brief case, no AC machine therein. He confronted the accused No.1 who along with others again beat the complainant and hurled abusive words. The complainant is a person who was not a defaulter. (11.) Perceiving that it has been the consistent policy of the bank to employ goondas as recovery agent to harass the hirers including innocent persons the complainant implicated the petitioner in the category of the accused persons. For, according to Mr. Roychowdhury, unless this was the policy of the bank approved by Mr. Kamat, the subordinates would not have done so. Formulation of this policy by the petitioner entails that the acts committed by the other accused persons are said to have been abeted and aided by the petitioner and more so when even after the matter was brought to the notice of the managing director no action has been taken. Kamat, the subordinates would not have done so. Formulation of this policy by the petitioner entails that the acts committed by the other accused persons are said to have been abeted and aided by the petitioner and more so when even after the matter was brought to the notice of the managing director no action has been taken. But then it must not be lost sight of the fact that this is a proceeding for prosecution of persons under the I.P.C. wherein the principle of vicarious liability is not extended. Whether the ICICI Bank that has allegedly earned notoriety because of employment of the goondas as recovery agents has really formulated any policy in black and white that defaulter should be visited with the treatment in the manner as was done to the complainant is not known but it cannot be said that bank has laid down such a policy in writing because that would be repugnant to the rule of law, but then this is a practice employed by the ICICI Bank. Now the petition of complaint alleges certain specific incident which covered the offences under Sections 384/392/120B/427/504/506 I.P.C. In none of these offences the principle of vicarious liability cannot be extended, unquestionably, to the petitioner as Managing Director-cum-Chief Executive Officer who was having his office at Mumbai Evidently he was not present in the scene of the crime. At least, that is not the allegations in the petition of complaint. He did not cause any assault, did not take away the vehicle, did not damage the vehicle, did not commit any act of extortion, did not exercise any physical force and did not commit any criminal intimidation. It is fair enough to say that the petition of complaint could not make any such allegation against the petitioner. Now unless the principle of vicarious liability could be extended to the acts of commission or omission which are cognizable in law under the Indian Penal Code the petitioner cannot be brought into the picture. In Maksud Saiyed (supra), the Supreme Court observed as follows:-"Where a jurisdiction is exercised 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. In Maksud Saiyed (supra), the Supreme Court observed as follows:-"Where a jurisdiction is exercised 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. Indian 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 complaint to make requisite allegations which would attract the provisions constituting vicarious liability." (12.) In Saroj Kumar Podder v. State, JT 2007 (2) SC 233 it was observed as follows:-"Apart from the company and the appellant, as noticed hereinbefore, the Managing Director and all other Directors were also made accused. The appellant did not issue any cheque. He, as noticed hereinbefore, had resigned from the Directorship of the company. It may be true that as to exactly on that date the said resignation was accepted by the company is not know, but, even otherwise, there is no averment in the complaint petition as to how and in what manner the appellant was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning. He had not issued any cheque. How he is responsible for dishonor of the cheque has not been stated. The allegations made in Paragraph-3, thus, in our opinion do not satisfy the requirement of Section 141 of the Act." (13.) In S. K. Alagh v. State of U. P. and Ors., 2008 (2) SCC 686 Their Lordships observed that "as, admittedly, drafts were drawn in the name of the company, even if the appellant was its Managing Director, he cannot be said to have committed an offence under Section 406 of Penal Code. If and when a statute contemplates creation of such legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself. (14.) In the petition of complaint the petitioner has not been made an accused as an individual simpliciter. He has been shown as "ICICI Bank Limited, ICICI Bank Tower, Bandra, Kurla Complex, Bandra (East), Mumbai-400 051 through K. V. Kamat, Managing Director-cum-Chief Executive Officer, and other senior officers posted at Delhi, Mumbai and Calcutta." Where the company is an accused it is prerogative of the accused company to decide as to who would be appointed as its representative. The criminal case alleging the aforesaid incident cannot be made against the company which is a juristic entity. Therefore, description of the petitioner as representative of the bank, so as to compel him to answer the charge is not permissible; considering the nature of the case neither the company can be made an accused nor the petitioner who is said to be the representative of the company. (15.) Accordingly, so far as the petitioner is concerned, the petition of complaint does not disclose any offence against him. (16.) Accordingly, the application succeeds and is allowed. The proceeding being Case No.C-2272 of 2008 now pending before the learned Additional Chief Judicial Magistrate, Alipore under Sections 384/392/120B/427/504/506 I.P.C. is quashed only against the present petitioner. Urgent xerox certified copies of this order, if applied for, be given to the parties as expeditiously as possible.