important point
A Director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself.

judgment

S.B. Sinha, J. —

1.Leave granted.

2.M/s. Akash Traders was an Area Wholesale dealer of Britannia Industries Limited (the Company) for Azamgarh, U.P. Dealership of Respondent No.2 was terminated by the said company. It was earlier informed that goods will be delivered only upon receipt of demand drafts issued by it. Complainant sent two demand drafts for a sum of Rs.18,000/- and Rs.1,50,000/- for supply of goods on 14.9.2000 despite the fact that the dealership had been terminated earlier.

3.The said demand drafts were sent to the appellant through the local Sales In-charge of the Company. It is stated that the complainant refused to take the same back.

4.A new Area Wholesaler for Azamgarh was appointed by the company.

5.A demand was made by the complainant to deliver goods by a letter dated 24.9.2000 stating that the company owes him a sum of Rs.1,00,000/-. The stand of the company that his dealership had been terminated was reiterated by a letter dated 25.9.2000.

6.Ashok Kumar Aggarwal, purported to be the proprietor of the firm M/s. Akash Traders, filed a complaint petition in the court of Chief Judicial Magistrate, Azamgarh against the appellant herein for commission of an offence under Section 406 of the Indian Penal Code. Britania Industries Ltd. was not impleaded as an accused therein.

7.On or about 17.2.2001, i.e., after filing of the complaint petition, the dealer accepted the said demand drafts being dated 8.1.2002 for a sum of Rs.1,68,000/-. On or about 25.2.2001, Ashok Kumar Aggarwal, the original complainant expired. A substitution application was filed by the second respondent-Alok Kumar Aggarwal on or about 19.4.2001.

8.Inter alia, relying on or on the basis of the allegations made in the complaint petition that ‘the company with mala fide intention neither sent the goods, nor returned the money’; an order for summoning the appellants was passed on 8.5.2001. A publication to that effect was also made in an article in a local newspaper.

9.An application for recalling the order summoning before the learned Chief Judicial Magistrate was filed by the appellant. The learned Chief Judicial Magistrate, by an order dated 13.12.2001 discharged the accused in terms of Section 245(2) of the Code of Criminal Procedure, holding :

“From the perusal of the record, this fact has come to light that in between the complainant M/s. Akash Traders, Azamgarh and Britannia Industries Ltd., Kolkata an agreement was made. M/s. Akash Traders were the authorized agent of Britannia Industries Ltd. and according to terms and conditions of the Agreement, Britannia Industries Ltd. used to supply biscuit to M/s. Akash Traders, Azamgarh. On 8.9.2000, Britannia Industries Ltd. terminated the agency regarding agreement as a result of which in between the parties dispute arose. It is the submission of the complainant that on 13.9.2001 bank draft of Rs.1,68,000/- was sent in favour of Britannia Industries Ltd. but on behalf of the accused the above amount did not return till 7.2.2001 to the complainant. The pleading on behalf of the accused is that the bank draft of Rs.1,68,000/- was returned to M/s. Akash Traders on 8.1.2001 and its payment was received by the complainant on 19.2.2001 under protest. Both the parties regarding the above reference after the case being decided this legal position has been made clear that if in any matter civil or criminal case is made out then on the basis of obtaining civil relief the proceedings of the suit could not be terminated. In the present matter, it has to be decided that whether in between both the parties during the business transactions prima facie criminal case was found? If in the present case any criminal case is not found then under Section 245(2) Cr.P.C. the accused could be released at any stage. After the termination of agreement in between the accused and the complainant regarding agency on 13.9.2001 bank draft for an amount of Rs.1,68,000/- was sent to Britannia Industries Ltd. for the s