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2010 (7) Supreme 144
SUPREME COURT OF INDIA
Dalveer Bhandari and A.K. Patnaik, JJ.
M.A.A. Annamalai — Appellant
versus
State of Karnataka & Another — Respondents
Criminal Appeal No. 1504 of 2010
(Arising out of SLP (Crl) No.5768 of 2008)
Decided on : 12-8-2010
(b) Money Circulation and Banning Act, 1978 – Sections 3 to 6 – Mere fact that the company got into financial distress and went into liquidation would not in any manner make the activity carried out by them unlawful so as to invoke provisions of sections 3 to 6. (Para 25)
(c) Indian Penal Code, 1860 – Section 420 – Vicarious liability – Person who ceased to be Director of the Company on resignation cannot be prosecuted for occurrences thereafter. (Para 28)
(d) Indian Penal Code, 1860 – Section 420 – Fraudulent or dishonest intention at the time of making promise or representation must be shown – Merely by failure to keep promise subsequently, such a culpable intention right at the beginning cannot be presumed – Ingredients of cheating restated. (Paras 29 to 33)
(2003) 5 SCC 257; (2005) 10 SCC 336; (2009) 6 SCC 77; (2007) 7 SCC 373; (1998) 5 SCC 749 – Relied upon
(e) Code of Criminal Procedure, 1973 – Section 482 – Nothing to show that the appellant was in-charge of or responsible for the conduct of the company’s business which gave rise to the alleged offence – There cannot be any vicarious liability. (Paras 41 and 42)
1992 Supp (1) SCC 335; (1999) 3 SCC 259; (2000) 3 SCC 269; (2008) 8 SCC 708 – Impliedly distinguished
Facts of the case:
1. The appellant, who was one of the Directors of R.P.S. Benefit Fund Ltd. submitted his resignation letter on 8.12.1997 which became effective from the date of filing of Form 32 (27.12.1997) with the Registrar of Companies.
2. The Respondent No.2 lodged a FIR on 15.10.1999 alleging the offence under section 420 Indian Penal Code read with sections 3, 4, 5 and 6 of the Money Circulation and Banning Act, 1978.” In the FIR, it was stated that the alleged offences, if any, were committed during the period between 24.05.1998 and 17.09.1999.
3. Additional Chief Metropolitan Magistrate, Bangalore issued a non bailable warrants against the appellant.
4. On Company Petition filed at the instance of the creditors, the Company Court on 23.7.2002 directed the winding up of the company. In the winding up petition, nothing had been mentioned about the appellant because he was not the Director of the company at the relevant point of time.
5. High Court disposed the petition with a direction to the appellant to approach the trial court seeking for order of discharge.
Finding of the Court:
Element of cheating as alleged cannot be made out against the appellant.
Result : Appeal allowed.
JUDGMENT
Dalveer Bhandari, J. —
1. Leave granted.
2. This appeal is directed against the judgment and order dated 26.05.2008 passed by the High Court of Karnataka at Bangalore in Criminal Petition No.2625 of 2004.
3. Brief facts of the case are as under:-
The appellant, who was one of the Directors of R.P.S. Benefit Fund Ltd. submitted his resignation letter on 8.12.1997 which became effective from the date of filing of Form 32 (27.12.1997) with the Registrar of Companies. The said Form has been filed with this petition.
4. Respondent no.2 filed a complaint with the Indira Nagar Police Station, Bangalore, alleging:
- that RPS Benefit Fund had invited deposits from the public vide circular dated 06.12.1998 and that monies had been invested by the Petitioner and his wife in the Pensioner’s Benefit Fund, pursuant to the approval of the scheme by the Reserve Bank of India;
- that the Company had issued letters on 18.05.1999 and 14.06.1999 to the investors not to present their interest warrants and that payments of interests would be made by August 1999; - that the company had since closed its business and the amount due to the Respondent No.2 was about Rs.2,91,778/-;
5. The Respondent No.2 lodged a First Information Report on 15.10.1999 with the Indira Nagar Police Station alleging the offence under section 420 Indian Penal Code read with sections 3, 4, 5 and 6 of the Money Circulation and Banning Act, 1978.” In the FIR, it was stated that the alleged offences, if any, were committed during the period between 24.05.1998 and 17.09.1999.
6. According to the appellant, he ceased to be a Director of the company from 27.12.1997, therefore, he was not responsible in any manner for what had happened in the company after he had resigned as a Director of the company.
7. The First Information Report was lodged by respondent no.2 and consequently the then Xth Additional Chief Metropolitan Magistrate, Bangalore issued a non bailable warrants against the appellant.
8. On Company Petition filed at the instance of the creditors, the Company Court on 23.7.2002 directed the winding up of the company. In the winding up petition, nothing had been mentioned about the appellant because he was not the Director of the company at the relevant point of time.
9. The Karnataka High Court on 10.6.2004 directed quashing of the entire proceedings in Criminal Petition No.4007 of 2002 regarding the erstwhile Directors of the company. The proceedings before the Xth Additional Chief Metropolitan Magistrate were based on the complaint filed by respondent no.2 stating that he and his wife had invested in the Short Term Deposit Scheme with the company.
10. The High Court held that some of the Directors of the company had retired in April 1999 and that the non-payment of matured funds and non payment of interest amount had taken place after April 1999. According to the appellant, he is in no manner responsible for company’s non payment of either the mature funds and interest amount. The appellant submitted that the petition had been filed for some collateral purposes for unnecessary exerting the pressure on the former Directors.
11. The learned Judge also held that material ingredients of the offence of cheating had not been made out. The appellant filed a petition before the High Court of Karnataka under section 482 of the Code of Criminal Procedure seeking to quash the proceedings initiated on the basis of the complaint registered as CC 22656 of 2001 arising out of the Crime No.425/1999 pending before the Xth Additional Chief Metropolitan Magistrate, Bangalore.
12. The appellant submitted that he cannot be held liable or responsible for any of the alleged illegalities committed by the company after he had resigned from the company. The appellant’s main grievance is that in the impugned judgment, the learned Single Judge has not dealt with this principal argument advanced by the appellant. In the impugned judgment the court observed:-
“It is needless to say that ther
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