Telangana High Court
Md Nazar vs The State Of Telangana And Another on 1 November, 2022
Bench: K.Surender
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION Nos. 6295 & 6296 of 2020
COMMON ORDER:
Crl.P.No.6295 of 2020:
1. This Criminal Petition under Section 482 of the Code of Criminal
Procedure, 1973 (for short 'Cr.P.C.'), is filed seeking to quash the
Charge sheet filed in C.C.No.1331 of 2020 on the file of X Additional
Chief Metropolitan Magistrate, Secunderabad, against the petitioner
including the order dt.27.07.2020. The petitioner herein is accused
No.1 in the said crime.
Crl.P.No.6296 of 2020:
2. This Criminal Petition under Section 482 of the Code of Criminal
Procedure, 1973 (for short 'Cr.P.C.'), is filed seeking to quash the
Charge sheet filed in C.C.No.1331 of 2020 on the file of X Additional
Chief Metropolitan Magistrate, Secunderabad, against the petitioner
including the order dt.27.07.2020. The petitioner herein is accused
No.2 in the said crime.
3. Since both the criminal petitions are filed questioning the
criminal proceedings in C.C.No.1331 of 2020 on the file of X Additional
Chief Metropolitan Magistrate, Secunderabad, by accused Nos.1 and 2
respectively, both the petitions are heard and disposed of by way of this
common order.
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4. Heard learned counsel for the petitioners and learned Assistant
Public Prosecutor appearing for the State and perused the record.
5. The defacto complainant filed a private complaint which was
referred to the Police for the purpose of investigation. The said
complaint was filed vide crime No.89/2019 for the offences punishable
under Sections 206, 207 r/w 409, 410, 413, 414, 415, 418, 420, 421,
423, 424, 425, 426, 477, 477(A) of the Indian Penal Code and Section
66(A) of the Information Technology Act, and Section 107 r/w 108, 467,
463, 464, 468, 383, 385 r/w 384 of the Indian Penal Code.
6. However, the Sub-Inspector of Police filed charge sheet and
prayed to delete the Sections 413, 414, 415, 421, 424, 425, 477, 477(A),
107, 108, 467, 463, 464, 383 of Indian Penal Code and Section 66(A) of
the Information Technology Act.
7. The case of the defacto complainant is that he purchased a truck
having taken loan from HDFC Bank. Accused No.3 seized the said truck
for which reason, criminal complaint was also filed. The complainant
approached the Civil Court at Secunderabad and filed a suit for delivery
of possession of his seized vehicle bearing No.AP 10V 4090 in the year
2010 and the said suit was decreed in favour of the complainant and
Execution Petition was filed in the year 2014. Meanwhile, Accused No.3
has sold/transferred the vehicle belonging to the defacto complainant to
Accused No.2 having knowledge that the vehicle was subject matter of
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Civil Suit and in the Execution Petition warrants were also issued by
the Civil Court.
8. Admittedly, the vehicle which is a truck bearing No.AP 10V 4090
was not taken in possession by the petitioners/A1 & A2 herein. There
was only transfer of the outstanding account of the defacto complainant
to the Kotak Mahindra Bank of which Accused No.1 is the Managing
Director and Accused No.2 is the Collection Manager.
9. In the Judgments rendered by the Honourable Supreme Court
reported in 1) Sunil Bharti Mittal v. CBI 12) M/s.GHCL Employees
Stock Option v. M/s.India Infoline Limited 2 3) Thermax Limited v.
KM Jonhny3 4) Asoke Basak v. State of Maharashtra and others 4,
it was held that to fasten liability on the Managing director, Director or
other Officers and make them vicariously liable, there should be direct
evidence of role played by the said Managing Director, Director or
Officer.
10. On behalf of the respondents it was argued that the Managing
Director and the Collection Manager who are Accused Nos.1 and 2 are
liable to be prosecuted for the reason of transfer of the loan account of
the defacto complainant to the complainant bank and notices were also
issued for recovery of the amount, though the said transactions were
(2015) 4 SCC 609
(2013) 4 SCC 505
2011 (13) SCC 412
(2010) 10 SCC 660
subject matter of Civil Suit and the Civil Court had already ordered
execution petition.
11. In the entire complaint except stating that Accused No.1 is the
Managing director, there is no role which is attributed to the Accused
No.1 who is the Managing Director of Kotak Mahindra Bank. There
would be several thousands of accounts and thousands of transactions
that would be taking place in the bank. For the reason of any
account holder being aggrieved by the Bank in any manner, it cannot be
held that the Managing Director would be vicariously liable.
12. The Honourable Supreme Court in Maksud Saiyed v. State of
Gujarat and others 5 also held that requisite allegations have to be
spelled out in the complaint to make Directors of the Company liable
criminal.
13. Since the petitioner/Accused No.1 is made as accused only for
the reason of being the Managing Director, the prosecution cannot be
permitted to proceed only on the statement of the Company that the 1st
petitioner is the Managing Director. However, notices were sent and
whether A2 had knowledge regarding the civil suit or not are subject
matters of Execution Petition. The civil suit was pending or not and
Accused No.2 who is a Collection Manager whether acted on behalf of
(2008) 5 SCC 668
Bank having knowledge about the ongoing civil suit, are matters to be
decided in the trial Court.
14. For the said reason, the proceedings against the
petitioner/Accused No.1 Managing Director in C.C.No.1331 of 2020 on
the file of X Additional Chief Metropolitan Magistrate, Secunderabad are
hereby quashed. However, the trial Court shall proceed against Accused
No.2 who is the Collection Manager of Kotak Mahindra Bank.
15. Accordingly, Criminal Petition No.6295 of 2020 is allowed and
Criminal Petition No.6296 of 2020 is dismissed.
Miscellaneous applications pending, if any, in this criminal
petition, shall stand closed.
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K.SURENDER, J
01.11.2022
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THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION Nos. 6295 & 6296 of 2020
Dt. 01.11.2022
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