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01.12.2021.

Order No.

12. 1. This matter is taken up through hybrid mode.

2. In the present application filed under Section 482 of Cr.P.C., the Petitioner seeks to challenge the order dated 12th February, 2020 passed by the learned S.D.J.M.(S), Cuttack in Complaint Case No.772/2019 in taking cognizance of the offences under Sections 417 and 418 of I.P.C.

3. The brief facts of the case are that the Petitioner is the Chief Executive Officer and Managing Director of M/s.Piaggio Vehicles Private Ltd., a Company incorporated under the Indian Companies Act, 1956 having its Office at Pune in the State of Maharashtra. A complaint was filed by the present Opposite Party No.2 on 13th December, 2019 in the court of learned S.D.J.M. (S), Cuttack against the present Petitioner and M/s. Sakambari Automobiles. It was alleged that the complainant-Opposite Party No.2 had purchased a Vespa Scooter from Accused No.1-Sakambari Automobiles upon payment of Rs.1,10,000/- on 17th February, 2019. On 21st February, 2019 the complainant brought the Scooter to the Show Room of Sakambari Automobiles as the Scooter was emitting certain sounds. He was advised to leave his vehicle for necessary repair and on 24th February, 2019 the vehicle was handed over to him after proper verification of the mechanical experts.It is alleged that the mechanic of Sakambari Automobiles admitted that the Scooter had manufacturing defect, which was beyond repair for which the complainant demanded a new Scooter in exchange from the seller, but it was refused. The complainant, therefore, left the Scooter in the Show Room and informed the matter to the higher authorities, but to no avail. On such facts, it was claimed that the accused persons having sold the Scooter with manufacturing defect have thereby committed the offence of cheating and wrongful loss to him.

7. Per contra, Mr. Sidhartha Mishra, learned counsel for Opposite Party No.2, argued that the allegation of the complainant does not relate to any after sales service relating to the Scooter, but entirely to the manufacturing defect found therein. Since the Company is the manufacturer, it cannot wriggle out of its liability to make good the loss sustained by the complainant. Moreover, by manufacturing a Scooter with defects, the Petitioner must also be held to have committed the offences of cheating and causing wrongful loss to the company.

8. As it appears, the basic dispute between the parties is that the complainant claims that the Scooter in question had some manufacturing defect which the seller (M/s. Sakambari Automobiles) could not remove. The question is, whether on such facts alone the Petitioner can be roped into the criminal proceeding as an accused. A perusal of the complaint petition does not reveal any direct allegation against the Petitioner, but as fairly submitted by Mr. Mishra, the Petitioner is attempted to be brought into the picture on the principle of vicarious liability. As was observed by the Hon'ble Supreme Court in the case of Sunil Bharti Mittal v. Central Bureu of Investigation; (2015) 4 SCC 609, it is the cardinal principle of criminal jurisprudence there is no vicarious liability unless the statutes specifically provides so and individuals who have perpetuated the commission of an offence on behalf of a 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 he can be implicated, is those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision. After observing thus, the Hon'ble Supreme Court referred to an example, i.e. Section 141 of the Negotiable Instruments Act. Further, in the case of Maksud Saiyed v. State of Gujarat; (2008) 5 SCC 668, it was observed that 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.