K. P. Ramdas v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 1[ST] DAY OF AUGUST 2022 / 10TH SRAVANA, 1944** **CRL.MC NO. 3979 OF 2013** **AGAINST THE ORDER/JUDGMENTCC 640/2011 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS -I, KANNUR** ## **PETITIONER/ACCUSED :** **K.P RAMDAS, AGED 56 YEARS S/O.LATE KUNJI RAMAN, MANAGING DIRECTOR, KERALA EXPRESS CARGO LINE PVT. LTD., EXPRESS PARCEL SERVICE, KANNUR. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.K.RAJESH SUKUMARAN** ## **RESPONDENTS/COMPLAINANTS/STATE :** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 (CRIME NO.87/2007 OF KANNAPURAM POLICE STATION, KANNUR DISTRICT) 2 ADDL.R2 IMPLEADED P.SURENDRANATH, MANAGER, KELTRON RESISTOR(LTD), MANGATTUPARAMBU, KANNUR-670 563. ADDL.R2 IS IMPLEADED AS PER ORDER DATED 10.06.2020 IN CRL.M.A.NO.1/2020. 3 ADDL.R3 IMPLEADED THE MANAGER KELTRON RESISTORS (LTD), MANGATTUPARAMBU, KANNUR- 670563 ADDL.R3 IS IMPLEADED AS PER ORDER DATED 06.08.2020 IN CRL.M.A.NO.2/2020 IN CRL.MC.NO.3979/2013 PP SMT.M.K PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC 3979/2013** **2** ## **“C.R.”** ## BECHU KURIAN THOMAS, J ......….................................. Crl.M.C. No.3979 of 2013 ….................................. Dated this the 1st day of August, 2022 ## ORDER Petitioner is the accused in C.C.No.640/2011 on the files of the Judicial First Class Magistrate Court-I, Kannur. He is the Managing Director of a Company called Kerala Express Cargo Lines (P) Ltd. 2. An establishment by the name, 'Keltron Resistors’, had entrusted M/s.Kerala Express Cargo Lines Pvt. Ltd.,' [for short, 'the Company'] with 1400 Kgs. of tinned copper wire to be transported from Chennai Port to the warehouse of the defacto complainant at Kannur. When the tinned copper wire entrusted with the Company reached the warehouse of the defacto complainant on 21.05.2011, it was noticed on verification, that copper wires worth Rs.3,60,000/- were lost/missing, thereby causing loss to the defacto complainant. Alleging that the Company, which was entrusted with the work of transportation, acted contrary to the terms of the contract, a crime was registered arraying the Managing **CRL.MC 3979/2013** **3** Director of the Company as the accused for committing the offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code, 1860. Thus proceedings were initiated against the petitioner. 3. Sri.V.Vinay, the learned counsel for the petitioner, submitted that even if the entire prosecution case is assumed to be admitted for argument sake, still an offence under Section 406 of the IPC is not made out and, therefore, the continuance of proceedings before the Magistrate's Court is an abuse of the process of the court. 4. Smt.M.K.Pushpalatha, the learned Public Prosecutor submitted that whether an offence is made out as alleged or not is a matter to be considered at the time of trial and that since the Company was entrusted with the job of transportation of the tinned copper wire, the petitioner as Managing Director was responsible to answer the loss in quantity and therefore must be deemed to liable for the offence committed by the Company. 5. During the course of hearing, it was pointed out by the learned counsel for the petitioner that the trial, in this case, has already commenced and three witnesses have been **CRL.MC 3979/2013** **4** examined by now on behalf of the prosecution and that the case is now posted to 19.08.2022. It is noticed from the proceedings of this Court that, when the case came up initially on 11.09.2013, this Court had directed to defer the proceedings in the trial court, which was extended until further orders. Apparently, the learned Magistrate has proceeded with the trial of the case despite the stay until further orders in view of the decision of the Supreme Court in Asian Resurfacing of Road Agency Private Limited., and Another v. Central Bureau of Investigation (2018) 16 SCC 299. Therefore, notwithstanding the commencement of trial, I proceed to consider this Crl.M.C., on merits since, as mentioned above, there was a direction by this Court to defer all proceedings in the trial court until further orders. 6. A perusal of the final report reveals that an offence under Section 406 alone is alleged against the petitioner. The offence of criminal breach of trust is committed when the following ingredients are satisfied. - (a) A person was entrusted with property or any dominion over property. - (b) that person dishonestly misappropriated or **CRL.MC 3979/2013** **5** converted to his own use that property or disposed it, and - (c) such misappropriation, conversion, use or disposal was in violation of law or the mode in which it should have been discharged. 7. For the application of Section 406, the primary requirement is the entrustment of property or with dominion over property as per Section 405 of IPC and a consequent dishonest misappropriation or disposal of the property in violation of law or mode in which such trust has to be discharged. The Indian Penal Code does not contemplate any vicarious liability on a person who has not committed any specific overt act. It is trite law that a Company is a distinct legal entity. Thus when a Company is entrusted with any property, and there is an alleged misappropriation, it is primarily the Company that has committed the offence and not any other person. In the absence of an allegation of any specific overt act done by any other person, no one other than the Company can be proceeded with under Criminal law. The aforesaid principle applies rigorously when vicarious liability has not been created under the Statute. **CRL.MC 3979/2013** **6** ## 8. In the decision in S.K.Alagh v. State of Uttar Pradesh and others (2008) 5 SCC 662, it was observed that : - “16. The Penal Code, save and except some provisions specifically providing therefor, does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence. xxxx xxxx xxxx 19. 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 the Penal Code. If and when a statute contemplates creation of such a 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.” 9. Irrefutably, in the instant case, the entrustment of tinned copper wire was with the Kerala Express Cargo Lines Pvt. Ltd., which is evident not only from the goods forwarding note Annexure-1 but also from the Final Report. Since the admitted case of the prosecution is that goods were entrusted with the company, the Managing Director of the said **CRL.MC 3979/2013** **1** company cannot be prosecuted without the company as an accused. The entrustment of goods being with the company alone, in the absence of any specific overt act on the part of the petitioner, no offence under Section 406 of IPC can be made out against the petitioner. 10. Therefore, I find the initiation and continuance of proceedings in C.C.No.640/2011 on the files of the Judicial First Class Magistrate Court-I, Kannur, as against the petitioner, to be an abuse of the process of Court. 11. Accordingly, I quash all proceedings against the petitioner in C.C.No.640/2011 on the files of the Judicial First Class Magistrate Court-I, Kannur, pursuant to Annexure-2 final report. The Crl.M.C.is allowed as above. Sd/BECHU KURIAN THOMAS JUDGE AMV/01/08//2022 **CRL.MC 3979/2013** **2** ## **APPENDIX OF CRL.MC 3979/2013** ## **PETITIONER ANNEXURES** **ANNEXURE I: COPY OF THE TERMS AND CONDITIONS AGREED BY BOTH THE PARTIES ANNEXURE II: CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.87/2007 OF KANNAPURAM POLICE STATION, WHICH IS NOW PENDING AS CC NO.640/11 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, KANNUR.**