K. SLTARAM & ANR.versusCFL CAPITAL FINANCIAL SERVICE LTD. & ANR.

                            [2017] 4 S.C.R. 850


A                         K. SlTARAM & ANR.
                                     v.
          CFL CAPITAL FINANCIAL SERVICE LTD. & ANR.
                     (Criminal Appeal No. 2285of2011)
B                            MARCH21,2017
        . [R. K. AGRAWAL AND ADARSH KUMAR GOEL, JJ.]
         Penal Code, 1860 - ss. 409, 418, 423 and 425 r/w s.120-B -
  Complaint under - Quashing of - Complainant-respondent
C Company borrowed a sum of Rs. 900 lakhs from consortium of
  Banks led by State Bank of Travancore (SBT) - Non-payment of
  loan by respondent - Recovery proceedings by SBT before DRT,
  partially decreed - However, SBT assigned the debt due from
  respondent to Kotak Mahindra Bank through an Assignment Deed
  - The factum of said assignment deed not intimated to the
D respondent-Company either by SBT or Kotak - Unaware of such
  assignment deed in favour of Kotak, respondent inter alia assigned
  to Kotak all the dues of one of its defaulter for recovery - After
  nine months, respondent got to know of existence of the assignment
  deed between Kotak & SBT when Kotak filed an application for
E substituting its name in the recovery proceedings - Common
  complaint by respondent against officers of Kotak & SBT alleging
  criminal breach of trust, suppression of facts and surreptitious
  execution of assignment deed - Process issued- Howeve1; complaint
   withdrawn by respondent against officers of Kotak - Appellants
   challenged issue of process before High Court, which was dismissed
F - Plea of appellants that respondent withdrew complaint against
   the co-accused and since allegations against them are also same,
   thus the complaint is liable to be quashed- On appeal, held: There
   was suppression offacts by both the Banks as both were duty bound
   to inform the respondent about the Assignment Deed - However,
G admittedly, respondent in its wisdom withdrew complaint against
   officers of the Kotak, from a common complaint made against four
   persons -- Thus, there is no reason as to why the remaining two
   persons being appellants, officers of SBT, be prosecuted - Hence,
   in the interest ofjustice complaint against appellants is liable to be
   quashed - Negotiable Instruments Act,1881 - s.138.
H
                                     850
 K. SITARAM & ANR. v. CFL CAPITAL FINANCIAL SERVICE                     851
                      LTD. & ANR.

      Criminal law:                                                     A
       Criminal procedure - Complaint - Issuance of process -
Conditions for - Held: The only condition requisite for the issue of
process is that the complainant's deposition must show some
sufficient ground for proceeding.
      Vicarious liability of a Company - Held: If a company acting      B
through its officers commits an offence involving mens rea, it would
normally be the intent of individual acting on behalf of the company.
      Allowing the appeal, the Court
      HELD: 1.1 The respondent-Company came to know about c
the Assignment Deed dated 29.03.2006 only on 17.01.2007 i.e.
after a lapse of 9 months, when the Kotak Mahindra Bank moved
an application for substituting themselves in recovery
proceedings in place of State Bank of Travancore on the basis of
such Assignment Deed. It is pertinent to mention here that
neither the State Bank of Travancore nor the Kotak Mahindra D
Bank informed the respondent-Company regarding the alleged
Assignment Deed either before or after the alleged assignment.
[Para 17) [861-B-C]
       1.2 It is also on record that vide agreement dated
01.10.1999, the Kotak Mahindra Bank, which was earlier a                E
financial services Company, entered into an agreement with the
respondent-Company to act as an advisor and to provide necessary
assistance for the successful restructuring of the respondent-
Company and to provide follow up and support services to the
complainant-Company in recovery from its various defaulters.
                                                                        F
More so, the fact of such assignment deed must also have been
brought to the notice of the respondent-Company by the Kotak
Mahindra Bank when it was responsible to provide necessary
assistance to the respondent-Company. (Para 18) (861-C-D, Fl
      Maksud Saiyed v. State of Gujarat and Ors. (2008) 5
                                                                        G
      SCC 668 : [2007) 9 SCR 1113 - referred       to.
       1.3 The Assignment Deed dated 29.03.2006 specifically
contained a clause which required that the clients and other related
persons shall be informed about the alleged Assignment. But
this fact was not brought to the notice of the respondent-Company.
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852          SUPREME COURT REPORTS                    [2017) 4 S.C.R.


A  Primarily, it was the duty of the State Bank ofTravancore to inform
   the respondent-Company about the said assignment and secondly,
   Kotak Mahindra Bank was to inform the same to the respondent-
   Company. If the intention of the Assignor and the assignee to
   the Assignment Deed dated 29.03.2006 was clear, then why the
 B facts of the same were not brought to the notice of respondent-
   Company that too when Clause 2.3 of the Assignment Deed very
   clearly stated so. [Para 19) [862-B-C]
           Sardar Trilok Singh and Ors. v. Satya Deo Tripathi
           (1979) 4 sec 396 - referred to.
 c        1.4 The position becomes more clear from the fact that even
   after the alleged assignment, in a proceeding before the appellate
   tribunal, none of the representatives of the State Bank of
   Travancore mentioned about the factum of such assignment. In
   the absence of such knowledge, on 11.01.2007, the respondent-
   Company entered into a deed of Assignment with the Kotak
 D Mahindra Bank wherein all the dues of a defaulter of more than
   Rs. 32 crores were assigned to the Kotak Mahindra Bank. The
   Kotak Mahindra Bank was under an obligation to inform the
   respondent-Company about the earlier Assignment Deed which
   was not done. More so, the Kotak Mahindra Bank received a
 E sum of Rs. 225 lakhs in March 2007 from the said defaulter but
   without giving any information as to the terms of settlement and
   the mode of payment to the complainant-Company, approached
   the Recovery Officer-I for appropriating the same. [Para 20) [862-
   D-G]
 F      1.5 In view of the above, it is clear that there was
   suppression of facts by both the Banks. However, from the
   admitted position, it is evident that the complainant-respondent
   Company in its wisdom had withdrawn the complaint against the
   two persons, who were the officers of the Kotak Mahindra Bank
   Ltd. from a common complaint made against four persons.
 G However, there is no reason as to why the remaining two persons,
   being the present appellants, who were the officers of the State
   Bank of Travancore at the relevant time, are being prosecuted.
   Hence, the complaint against the appellants does not survive
   and in the interest of justice the same is liable to be quashed.
 H [Paras 22, 24) [863-C, F-GJ
 K. SITARAM & ANR. v. CFL CAPITAL FINANCIAL SERVICE                        853
                     LTD. &ANR.

      Sunil Bharti Mittal v. Central Bureau of Investigation               A
      2015 (1) SCALE 140 - referred to.
                        Case Law Reference
      (2007] 9 SCR 1113          referred to             Para 12
      (1979) 4 sec 396           referred to             Para 13           B
      2015 (1) SCALE 140         referred to              Para 14
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2285 of 2011.
      From the Judgment and Order dated 07.01.2011 of the High Court       C
of Judicature at Bombay in Criminal Writ Petition No. 1279 of20 I 0.
      T. R. Andhyarujina, Sr. Adv., A. V. Rangam, D. V. Raghu Vamsy,
Advs. for the Appellants.
      Anirnddha P. Mayee, Adv. for the Respondents.
      The Judgment of the Court was delivered by                           D

       R. K. AGRAWAL, J. I. This appeal has been filed against the
judgment and order dated 07.01.2011 passed by the High Court of
Judicature at Bombay in Criminal Writ Petition No. 1279of2010 whereby
learned single Judge of the High Court dismissed the writ petition filed
by the appellants herein.                                                  E
      2. Brief facts:
      (a) The complainant-respondent Company borrowed a sum of
Rs. 900 lakhs comprising Rs. 180 lakhs through cash credits from the
consortium of Banks (of which the State Bank of Travancore was the         F
lead bank) and a sum of Rs. 720 lakhs being working capital demand
Loan. Due to non-payment of the loan amount, the account became
Non-Performing Asset. In order to recover the amount against the
borrower, the State Bank ofTravancore filed OA No. 96 of 2003 before
the Debts Recovery Tribunal (DRT), Mumbai. On 22.07.2005, the DRT
passed a partial decree awarding a sum of Rs. 812.26 lakhs with 12 per     G
cent interest.
      (b) On 29.03.2006, the State Bank ofTravancore assigned the
debts due from the complainant-Company to the Kotak Mahindra Bank
together with all the securities through an Assignment Deed. On
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854            SUPREME COURT REPORTS                         [2017] 4 S.C.R.


A  11.01.2007, the borrower-the respondent Company assigned to Kotak
   Mahindra Bank the debt due towards it from one Ravishankar Industries
   Pvt. Ltd. of more than Rs. 32 crores with an agreement that any excess
   recovery over and above Rs. 90 lakhs from Ravishankar Industries Pvt.
   Ltd. would be shared equally between the Kotak Mahindra Bank and
 B the complainant-Company. It is pertinent to mention here that the fact of
   the alleged Assignment Deed came to the notice of the complainant-
   Company only on 17.01.2007 when the Kotak Mahindra Bank handed
   over a copy of the application for substituting themselves in place of
   State Bank ofTravancore to the respondent-Company.
          (c) The Kotak Mahindra Bank initiated process for substituting
 C its name in place of the assignor-State BankofTravancore in the recovery
   application and also withdraws two criminal complaints filed by the
   respondent-Company against Ravishankar Industries Pvt. Ltd. without
   any information to the respondent-Company. On 28.04.2007, the Kotak
   Mahindra Bank moved an application before the Recovery Officer-I for
 D appropriating Rs. 67.5 lakhs due towards the complainant-Company, being
   50 per cent of the amount of Rs. 135 lakhs received in excess of Rs. 90
   lakhs from the Ravishankar Industries Pvt. Ltd., against the claim towards
   the State Bank of Travancore.
             (d) On 16.05.2007, the complainant-respondent Company filed a
 E    complaint against the Kotak Mahindra Bank and its officers being No.
      18/SW/07 before the Metropolitan Magistrate, Bandra, Mumbai under
      Sections 409, 418, read with 120-B of the Indian Penal Code, 1860 (in
      short 'the IPC'). On 25.06.2007, the Additional Chief Metropolitan
      Magistrate, Sandra, Mumbai issued process against all the accused in
      the complaint dated 16.05.2007. The accused therein preferred Criminal
 F    Revision Applications being Nos. 1024-1026 of2007 before the Court of
      Sessions for Greater Bombay. Learned Additional Sessions Judge, vide
      order dated 03/05.04.2008, allowed the revision applications while setting
      aside the order of issue of process dated 25.06.2007.
          (e) A fresh complaint being No. 0800009/SW/08 was filed by the
 G complainant-the respondent Company before the Additional Chief
   Metropolitan Magistrate, 8'11 Court, Esplanade, Mumbai under Sections
   409, 418, 423 and 425 read with Section 120-B of the IPC against the
   State Bank ofTravancore, KotakMahindra Bank Limited and its officers.
   The Metropolitan Magistrate, l/CACMM, 8111 Court, Esplanade, Mumbai,
 H vide order dated 25.01.2008, issued process against the officers of the
 K. SITARAM & ANR. v. CFL CAPITAL FINANCIAL SERVICE                            855
           LTD. & ANR. [R. K. AGRAWAL, J.]

State Bank of Travancore and Kotak Mahindra Bank Limited. On A
11.05.2008, learned Magistrate excluded the officers of the Kotak
Mahindra Bank Limited in view of an application filed by the respondent-
Company to withdraw the complaint against them.
       (f) Being aggrieved, the appellants herein preferred a Criminal
Writ Petition being No. 1279 of 2010 before the High Court. On                 B
07.01.2011, learned single Judge of the High Court, dismissed the writ
petition filed by the appellants herein for setting aside the order of issue
ofprocess by learned Magistrate dated 25.O1.2008 against the appellants.
       (g) Aggrieved by the order dated 07.01.2011, the appellants have
preferred this appeal by way of special leave.                                 c
      3. Heard the arguments advanced by Mr. T.R. Andhyarujina,
learned senior counsel for the appellants and Mr. Aniruddha P. Mayee,
learned counsel for the State and perused the records.
       Point for consideration:
                                                                               D
       4. The only point for consideration before this Court is whether
Criminal Case No. 0800009/SW /08, pending in the Court of Additional
Chief Metropolitan Magistrate, 81h Court, Esplanade, Mumbai, is liable
to be quashed or not?
       Rival contentions:
                                                                               E
       5. Learned senior counsel for the appellants vehemently contended
that the appellants were not the employees of the State Bank of
Travancore when the alleged Deed of Assignment was entered into
between the State Bank ofTravancore and the Kotak Mahindra Bank.
He further contended that the Deed of Assignment dated 29.03.2006 is
a valid and equitable assignment. The decision in respect of execution F
of the assignment is taken by the Executive Committee of the State
Bank ofTravancore and the same is not the individual decision of the
appellants herein. Learned senior counsel further contended that since
the State Bank ofTravancore had no knowledge about the transactions
between the respondent-Company and the Kotak Mahindra Bank, the G
State Bank ofTravancore cannot be said to have any intention to defraud
anyone. There is no wrongful gain to the appellants or the State Bank of
Travancore and the accusation that they acted in collusion and connivance
 with the officers of the Kotak Mahindra Bank to commit the criminal
 breach of trust, cheating and dishonest/fraudulent execution of deeds of
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        856           SUPREME COURT REPORTS                        [2017] 4 S.C.R.
.   '

        A transfer is baseless. He further submitted that as the complainant-
           respondent Company had withdrawn the complaint against the co-
           accused, i.e., the officers of the KotakMahindraBankLtd., the complaint
           made against the appellants herein cannot proceed and is liable to be
           quashed as the allegations against them are also same. The complainant-
        B respondent Company cannot be allowed to blow hot and cold in the
          . same breath. Learned senior counsel for the appellants finally contended
            that the appellants are in no way related to the said transaction and the
           complaint also has not specifically set out any offence against them.
                   6. On the other hand, learned counsel for the State submitted that
           the appellant No. 1 herein was the Managing Director of the State Bank
         C ofTravancore at the relevant time and was responsible for the business
           and day to day affairs of the Bank. Similarly, appellant No. 2 herein was
           the Deputy General Manager and Principal Officer, who had signed the
           alleged Assignment Deed dated 29.03.2006 on behalf of the State Bank
           ofTravancore. He further submitted that in such a scenario, the appellants
         D herein, being the principal perpetrators, actively connived and colluded
           with the Kotak Mahindra Bank and its officers with a common intention
           to deceive the respondent-Company in order to make wrongful gains.
           Learned counsel further submitted that the active collusion and conspiracy
           between both the Banks hatched together deliberately with a view to
           deceive the respondent-Company is also evident from the fact that in
         E the alleged assignment deed dated 29.03.2006, there was a clear
           undertaking under Clause 2.3 that simultaneously with the execution of
           the said deed, the State Bfillk ofTravancore must send a notice addressed
            to the respondent-Company herein informing it of the assignment of the
            alleged debts and the financial instruments to the Kotak Mahindra Bank.
         F        7. Learned counsel for the State further submitted that the State
           Bank of Travancore was duty bound to protect the interest of the
           respondent-Company as the Bank was entrusted with certain properties
           of the respondent-Company. By entering into such alleged assignment
           with deliberate suppre&Sion and concealment of material facts with
         G dishonest intention, the appellants herein, who were responsible for the
           day to day affairs of the Bank, have committed the offence of criminal
           breach of trust and cheating. Learned counsel for the State finally
           submitted that the order dated 25.01.2008 passed by the Metropolitan
           Magistrate for issue of process as well as the order dated 07.01.2011,
           passed by the learned single Judge of the High Court, dismissing the writ
         H
 K. SITARAM & ANR. v. CFL CAPITAL FINANCIAL SERVICE                        857
           LTD. & ANR. [R. K. AGRAWAL, J.]

petition filed by the appellants herein for setting aside the order of issue A
of process dated 25.01.2008 against the appellants are justified and do
not call for any.interference.
      Discussion:
       8. The present appeal has been filed for quashing of Criminal
Case No. 0800009/SW/08 pending in the Court of Additional Chief B
Metropolitan Magistrate, 81hCourt, Esplanade, Mumbai and for setting
aside the order dated 25'h January 2008, by which process was issued
against all the persons accused in the complaint. Appellant No. 1 herein
was working as Managing Director with the State Bank ofTravancore
during the period 11 'h May 2006 to 301h June 2007. Appellant No. 2 c
herein worked with the Bank as the Deputy General Manager during
the period from January 2005 to November 2006 ..
       9. The respondent-Company filed a complaint alleging offence
punishable under Sections409, 418, 423 and425 read with Section 120-
B of the IPC against the appellants herein. The Bank had in December D
1995 sanctioned loan of Rs. 180 lakhs by way of cash credit facility and
Rs. 720 lakhs by way of working capital demand loan, totaling to Rs.
900/- lakhs and the complainant-Company executed various documents
in favour of the Bank. As the respondent-Company was unable to pay
its dues to the Bank, the Bank had filed recovery proceedings before the
Tribunal wherein a partial decree for a sum ofRs.812.26 lakhs had been E
passed.
       10. In the said proceedings, Kotak Mahindra Bank Limited filed
an application for substituting its name in place of State Bank of
Travancore claiming all the dues and charge on the immovable properties
mortgaged in favour of State Bank of Travancore vide an Assignment F
Deed dated 29 .03.2006. The respondent-Company claimed that no notice
of the alleged assignment dated 29.03.2006 had been given to it. On
11.01.2007, the respondent-Company entered into a Deed ofAssignment
with the Kotak Mahindra Bank Limited, wherein all "the dues of
Ravishankar Industries Pvt. Ltd. of more than Rs. 32 crores were G
assigned to the Kotak Mahindra Bank. Under the agreement, it was
agreed that any amount received over and above Rs. 90 lakhs from the
Company would be shared equally between the respondent-Company
and Kotak Mahindra Bank. The Kotak Mahindra Bank withdrew the
proceedings filed by the respondent-Company under Section 138 of the
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858            SUPREME COURT REPORTS                           [2017] 4 S.C.R.


A Negotiable Instruments Act against the Ravishankar Industries Pvt. Ltd
  and also settled an amount of Rs. 225 lakhs without giving any info1mation
  to it as to the terms of settlement and the mode of payment. It is the
  allegation of the complainant that ifthe complainant was informed about
  the alleged Assignment Deed dated 29 .03 .2006, it would not have entered
B into the assignment agreement on 11.01.2007 with the Kotak Mahindra
  Bank. It is alleged that the suppression of facts and surreptitious execution
  of the deed of assignment dated 29.03.2006 was deliberately done with
  a dishonest intention to induce the complainant-Company and to make
  wrongful losses and to deceive it.
             11. Learned senior counsel for the appellants contended that the
 C    allegations against the appellants in their personal capacity are vague.
      He further contended that Appellant No. 1 herein joined the State Bank
      of Travancore on 11.05.2006 i.e. subsequent to the Assignment Deed
      dated 29.03.2006. He was, however, admittedly working with the Bank
      on 11.01.2007, when the complainant Company entered into the Deed
 D    of Assignment with the Kotak Mahindra Bank. As regards Appellant
      No. 2 herein, though he was signatory to the Deed of Assignment dated
      29.03.2006, he submitted that he was not in service of State Bank of
      Travancore on the date on which Deed ofAssignment dated 11.01.2007,
      was executed between the complainant-Company and the Kotak
      Mahindra Bank and hence he claims to have no connection whatsoever
 E    with the offence alleged. He further contended that the IPC does not
      contain any provision for attaching vicarious liability on the part of the
      Chairman and General Managers of the Company when the accused is
      the Company. When the Company is the offender, vicarious liability of
      the directors cannot be imputed automatically, in the absence of any
 F    statutory provisions to this effect.
             12. In support of his claim, learned senior counsel for the appellant
      cited a decision of this Court in Maksud Saiyed vs. State of Gujarat
      and Others (2008) 5 SCC 668 wherein it was held as under:-
             " 13. Where a jurisdiction is exercised on a complaint petition filed
 G           in terms of Section 156(3) or Section 200 of the Code of Criminal
             Procedure, the Magistrate is required to apply his mind. The 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
 H           Magistrate failed to pose unto himself the correct question viz. as
 K. SITARAM & ANR. v. CFL CAPITAL FINANCIAL SERVICE                             859
           LTD. & ANR. [R. K. AGRAWAL, J.]

      to whether the complaint petition, even if given face value and A
      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 B
      provision fixing such vicarious liabilities. Even for the said purpose,
      it is obligatory on the part of the complainant to make requisite
      allegations which would attract the provisions constituting vicarious
      liability."
       13. In support of his claim that the transactions between the
complainant and the State Bank ofTravancore were purely civil in nature         C
and criminal court has nothing to do with it, learned senior counsel for
the appellants fm1her relied upon a decision of this Court in Sardar
Trilok Singh and Others vs. Satya Deo Tripathi (1979) 4 SCC 396
wherein it was held as under:-
      "5 ..... The question as to what were the terms of the settlement         D
      and whether they were duly incorporated in the printed agreement
      or not were all questions which could be properly and adequately
      decided in a civil court. Obtaining signature of a person on blank
      sheet of papers by itself is not an offence of forgery or the like. It
      becomes an offence when the paper is fabricated into a document           E
      of the kind which attracts the relevant provisions of the Penal
      Code making it an offence or when such a document is used as a
      genuine document. Even assuming that the appellants either by
      themselves or in the Company of some others went and seized
      the truck on July 30, 1973 from the house of the respondent they
      could and did claim to have done so in exercise of their bona fide        F
      right of seizing the truck on the respondent's failure to pay the
      third monthly installment in time. It was, therefore, a bona fide
      civil dispute which led to the seizure of the truck. On the face of
      the complaint petition itself the highly exaggerated version given
      by the respondent, the appellants went to his house with a mob            G
      armed with deadly weapons and committed the offence of dacoity
      in taking away the truck was so very unnatural and untrnstworthy
      that it could take the matter out of the realm of civil dispute. Nobody
       on the side of the respondent was hurt. Even a scratch was not
       given to anybody.
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860            SUPREME COURT REPORTS                            [2017] 4 S.C.R.


A            6. In our opinion on the facts and in the circumstances of this
           case criminal prosecution deserves to be quashed. On behalf of
           the respondent it was argued that the appellants' filing a petition
           in the High Court for quashing the proceeding before issuance of
           the summons was premature and the High Court could not have
           quashed it. In our opinion the point is so wholly without substance
B
           that it has been stated merely to be rejected. Since the parties
           during the course of the hearing in this appeal showed their·
           inclination to settle up and end all their disputes and quarrels in ·
           relation to the matter in question after we indicated our view that
           we are going to allow the appeal and quash the proceedings, we
c          have not thought it necessary to elaborately gi"e other reasons in
           support of our order".
         14. Learned senior counsel for the appellants further relied upon
  Sunil Bharti Mittal vs. Central Bureau of Investigation 2015 (1)
  SCALE 140 wherein it was held that a corporate entity is an artificial
D person which acts through its officers, directors, managing director,
  chairman etc. If such a Company commits an offence involving mens
  rea,jt would normally be the intent and action of that individual who
  would act on behalf of the Company. It would be more so; when the
  criminal act is that of conspiracy. However, at the same time, it is a
  cardinal principle of criminal jurisprudence that there is no vicarious liability
E unlesc the statute specifically provides so.
          15. As the appellants herein have challenged the legality of the
   order of issue of process, it would be worthwhile to recapitulate the law
   regarding issue of process. The relevant point that arises for consideration
   at this stage is whether the material available is sufficient enough to
 F constitute a prima facie case against the accused.

          16. When a person files a complaint and supports it on oath,
   rendering himselfliable to prosecution and imprisonment if it is false, he
   is entitled to be believed unless there is some apparent reason for
   disbelieving him; and he is entitled to have the persons, against whom he
 G complains, brought before the court and tried. The only condition requisite
   for the issue of process is that the complainant's deposition must show
   some sufficient ground for proceeding. Unless the Magistrate is satisfied
   that there is sufficient ground for proceeding with the complaint or
   sufficient material to justify the issue of process, he should not pass the
 H order of issue of process. Where the complainant, who instituted the
 K. SITARAM & ANR. v. CFL CAPITAL FINANCIAL SERVICE                           861
           LTD. & ANR. [R. K. AGRAWAL, J.]

prosecution, has no personal knowledge of the allegations made in the A
complaint, the magistrate should satisfy himself upon proper materials
that a case is made out for the issue of process. Though under the law,
a wide discretion is given to magistrate with respe.ct to grant or refusal
of process, however, this discretion should be exercised with proper
care and caution.
                                                                              B
        17. The respondent-Company came to know about the Assignment ·
 Deed dated 29.03.2006 only on 17.01.2007 when the Kotak Mahindra
,Bank moved an application for substituting themselves in place of State
 Bank ofTravancore on the basis of that alleged document i.e. Assignment
 Deed dated 29.03.2006. It is also pertinent to mention here that neither C
 the State Bank of Travancore nor the Kotak Mahindra Bank informed
 the respondent-Company regarding the alleged Assignment Deed either
 before or after the alleged assignment. It is also on record that vide
 agreement dated 01.10.1999, the Kotak Mahindra Bank, which was
 earlier a financial services Company, entered into an agreement with
 the respondent-Company to act as an advisor and to provide necessary D
 assistance for the successful restructuring of the respondent-Company
 and to provide follow up and support services to the complainant-Company
 in recovery from its various defaulters.
       18. Under the above terms and conditions, when the Kotak
Mahindra Bank was already in an agreement with the respondent- E
Company in order to safeguard its interest, the fact of the Assignment
Deed between the State Bank of Travancore and the Kotal Mahindra
Bank with regard to alleged rights of the State Bank of Travancore
pertaining to the immovable properties allegedly mortgaged in its favour,
must be communicated by the State Bank of Travancore to the
respondent-Company. More so, the fact of such assignment deed must F
also be brought to the notice by the Kotak Mahindra Bank to the
respondent-Company when it was responsible to provide necessary
assistance to the respondent-Company.
       19. In view of the above, it is pertinent to mention here Clause 2.3
of the Assignment Deed dated 29.03.2006, which reads as under:                G

       "Simultaneously with the execution of this Deed, the Assignor
       shall send a notice addressed by the Assignor to the clients and
       other related persons at their last known addresses informing them
       of the assignments of Debts and the Financial lnstrnments to the
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862             SUPREME COURT REPORTS                          [2017] 4 S.C.R.


A           Assignee and instructing them to pay all amounts constituting the
            Debts to the Assignee and a copy of the said notice shall be
            delivered to the Assignee."
              It is very much clear from the above that the Assignment Deed
      dated 29.03.2006 specifically contains one clause which requires that
B     the clients and other related persons shall be informed about the alleged
      Assignment. But this fact was not brought to the notice of the respondent-
      Corripany. Primarily, it was the duty of the State Bank ofTravancore to
      inform the respondent-Company about the said assignment and secondly,
      Kotak Mahindra Bank was to inform the same to the respondent-
      Company. If the intention of the Assignor and the assignee to the
 C    Assignment Deed dated 29 .03 .2006 was clear, then why the facts of the
      same were not brought to the notice of respondent-Company that too
      when Clause 2 .3 of the Assignment Deed very clearly states so .
                                                                        •
              20. The position becomes more clear from the fact that even
      after the alleged assignment, in a proceeding before the appellate tribunal,
 D    none of the representative of the State Bank ofTravancore mentioned
      about the factum of such assignment. The respondent-Company came
      to know about the alleged As ·.ignment after a lapse of9 months i.e. on
       17.01.2007, when an application was moved by the Kotak Mahindra
      Banlc for substituting its name in place of State Bank ofTravancore. In
 E    the absence of such knowledge, on 11.01.2007, the respondent-Company
      entered into a deed· of Assignment with the Kotak Mahindra Bank
      wherein all the dues of a defaulter, viz., Ravishankar Industries Pvt.
       Ltd., of more than Rs. 32 crores were assigned to the Kotak Mahindra
       Bank. The Kotak Mahindra Bank was under an obligation to inform the
       respondent-Company about the earlier Assignment Deed which was
 F     not done. More so, the Kotak Mahindra Bank received a sum of Rs.
       225 lakhs in March 2007 from Ravishankar Industries Pvt. Ltd. but without
       giving any information as to the terms of settlement and the mode of
       payment to the complainant-Company, approached the Recovery Officer-
       ! for appropriating the same.
 G        21. With regard to the contention ofleamed senior counsel for the
   appellants herein that there can be no vicarious liability attributed to the
   Director, Deputy Director of a Company unless the Statute specifically
   creates so, no doubt, a corporate entity is an artificial person which acts
   through its officers, Directors, Managing Director, Chairman, etc. If
 H such a company commits an offence involving mens rea, it would normally
 K. SITARAM & ANR. v. CFL CAPITAL FINANCIAL SERVICE                           863
           LTD. & ANR. [R. K. AGRAWAL, J.]

be the intent and action of that individual who would act on behalf of the A
company that too when the criminal act is that of conspiracy. Thus, an
individual who has perpetrated the commission of an offence on behalf
of the company can be made an accused, along with the company, if
there is sufficient evidence of his active role coupled with criminal intent.
Second situation in which an individual can be implicated is in those B
cases where the statutory regime itself attracts the doctrine of vicarious
liability, by specifically invoking such a provision.
      22. In view of the above, we are of the considered opinion that
there was suppression of facts by both the Banks and the State Bank of
Travancore was duty bound to inform the respondent-Company about
the Assignment dated 29.03.2006. As regards the appellants herein, C
appellant No. I herein has claimed to have joined the State Bank of
Travancore on 11.05.2006 i.e. subsequent to the assignment deed dated
29.03.2006 whereas appellant No.2 was the signatory to the .said deed.
      23. There is no denying the fact that both the appellants were
responsible for day to day functioning of the State Bank ofTravancore. D
Furthermore, admittedly, appellant No. l was in employment of the State
BankofTravancore at the time of the execution of the deed ofassignment
and the appellant No.2 was the signato1y to it. On a bare perusal of the
complaint, it creates an iota of doubt as to why the respondent-Company
was kept in dark by the State Bank ofTravancore at the time of alleged E
Assignment Deed dated 29.03.2006
      24. However, from the admitted position, it is evident that the
complainant-respondent Company in its wisdom had withdrawn the
complaint against the two persons, who were the officers of the Kotak
Mahindra Bank Ltd. from a common complaint made against four                  F
persons. However, we do not find any reason as to why the remaining
two persons, being the present appellants, who were the officers of the
State Bank of Travancore at the relevant time, are being prosecuted.
Hence, the complaint against the present appellants does not survive
and in the interest of justice the same is liable to quashed and is
accordingly quashed.                                                          G
      25. In view of the above discussion, the appeal succeeds and is
allowed. However, there shall be no order as to costs.


Divya Pandey                                                Appeal allowed.   H