N. Sridhar Vs. Maruthi Jayaraman and M.R.F. Ltd. Rep. by Its Secretary - Court Judgment

Excerpt:
civil - recovery of money - appellant, share broker, filed suit for recovery of money against respondents on ground that his share certificates were forged by them by respondent no. 1 , employee of respondent no. 2, due to which he suffered loss - trial court allowed suit in respect of respondent no. 1 only - hence, present appeal filed for claiming relief against respondent no. 2 on ground that being employer it is also liable to pay the amount - held, facts revealed that respondent no. 1 fraudulently try to grab money of appellants by way of impersonation - however, respondent no. 2 removed respondent no. 1 from service when these facts come to notice of it - therefore, respondent no. 2/company could not be made liable to pay suit amount claimed by appellant because acts of misdeeds, omissions and commissions pointing out toward respondent no.1 only and all these were of individual, independent and personal wrongful acts of respondent no. 1 - thus, liability to suit money could not be transferred on respondent no. 2 as vicarious liability of employer - hence, appeal has no merits and same is liable to be dismissed - constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. m. venugopal, j.1. the appellant/plaintiff has preferred this appeal against the judgment and decree dated 20.10.2000 made in o.s. no. 9100 of 1995 by the learned ii assistant judge, city civil court, madras, in dismissing the suit claim of rs. 6,06,265/- along with interest at 18% per annum from the date of plaint till date of realisation etc. against the second respondent/second defendant company liability to pay the suit amount.2. the essential facts of the case are set out below:(i) the first respondent/first defendant was employed in the secretarial department of the second respondent/second defendant who had access to the share certificates lodged for transfer. the first respondent/first defendant in the course of his employment stole 350 shares lodged for transfer which came to his department with the help and connivence of other employees of second respondent/ second defendant and prepared a forged transfer deed attested by a notary public thiru. k. chandran, a lawyer from madras and presented them for sale to the appellant/ plaintiff on 17.3.1992.(ii) the appellant/plaintiff is a leading stock and share broker for more than 40 years and he is a senior member of the madras stock exchange. the first respondent/first defendant posing himself as t.sathyanarayana of h6k, poonambalam colony, k.k.nagar, madras presented the 350 shares of the second respondent/ second defendant company along with the duly completed share transfer application form on 17.3.1992. the appellant/ plaintiff never had the inclination that the first respondent/first defendant had impersonated some one and brought the stolen scrips and the duly completed transfer form contained the attestation of a notary public and the appellant accepted the same for trading and placed it for sale in the market. the certificates were sold in the market and the sale proceeds were realised to an extent of rs. 4,01,500/-. later the first respondent/first defendant collected a sum of rs. 4,01,500/- by way of three cheques drawn on bank of baroda in the name of t.sathyanarayana and the details are as follows:no. date amount4780 4.4.92 1,31,500/-4761 2.4.92 60,000/-4735 27.3.92 2,10,000/-the three cheques were credited in the accounts of t.sathyanarayana in the account with bank of india, thousand lights branch.(iii) during may 1992, the fraud came to the surface when an individual from bombay visited the plaintiff to enquire about the 350 shares accepted by the appellant for trading. it was learnt that one vipul damani of bombay sent 350 shares for transfer to the second respondent/second defendant and the same was stolen by the first respondent/ first defendant and handed it over to the appellant/ plaintiff and all of them visited the bankers of the appellant viz., bank of baroda, at errabalu chetty street, and found out that cheques were credited to the bank of india, thousand lights branch in the t.sathyanarayana's name. it was found out after investigation that the first respondent/first defendant had impersonated himself as t.sathyanarayana and handed over the shares to the appellant/plaintiff's and collected the amount from the appellant and appropriated it.(iv) subsequently, when the purchasers of the shares from the appellant recovered the entire amount from the appellant with the help of the madras stock exchange, when the fraud came to the light. the appellant pursued the matter with the police authorities and the crime branch police after registered a case in c.c. no. 8994 of 1993 before the court of additional chief metropolitan magistrate, egmore against the first respondent/first defendant.(v) the second respondent/second defendant as employer of the first respondent/first defendant on account of its carelessness and negligence had allowed their employee to meddle with the share certificates lodged for transfer and the first respondent/first defendant was taking advantage of the negligence of the second respondent/second defendant and the first respondent/first defendant impersonated himself as t.sathyanarayana and sold the share certificates and appropriated the amount. as a matter of fact, the appellant/ plaintiff was suspended by the madras stock exchange for not paying the purchaser of the shares in the market. the appellant/plaintiff was forced to borrow on heavy interest to clear the dues etc. the first respondent/first defendant and the second respondent/second defendant are jointly and severally liable to compensate the appellant. hence, the appellant had laid the suit praying for a judgment and decree against the respondents/defendants jointly and severally for a sum of rs. 6,06,265/- together with interest at 18% per annum from the date of plaint till realisation and for costs of the suit.(vi) before the trial court, the first respondent/first defendant remained exparte.(vii) the second respondent/second defendant filed a written statement inter alia pleading that the first respondent/first defendant was not working in the secretarial division of the second respondent/second defendant company but was employed in the speciality coatings division and that the second defendant's registered office was shifted from 826, anna road, tharapur towers to 124 greams road, chennai from 16.12.1991 after satisfying the statutory requirements and also after intimating the shareholders individually and that even though the registered office was shifted but the speciality coatings division continued to function from the aforesaid address.(viii) the second respondent/second defendant also took a stand that some transfer deeds along with share certificates were sent to the old office at anna road from where the speciality coatings division was functioning, by one vipul n. dhami and that the first respondent/first defendant who was the manager of the said division took possession of the share certificates and after executing a forged transfer deed attested by a notary sold it to the appellant/ plaintiff.(ix) the second respondent/second defendant after coming to know of the fraud played by the first respondent/first defendant lodged a police complaint and the matter was reported to sebi and all stock exchangers. further, the first respondent/first defendant was immediately dismissed from service of the second respondent/second defendant company and therefore, no liability could be fastened on the second respondent/second defendant.(x) the second respondent/second defendant had no joint liability whatsoever and that mr. vipul n.dhami, who was unaware of the change of address of the registered office of the company was to be blamed for this unfortunate occurrence. the second respondent/second defendant was an unnecessary party. if the documents had reached the secretarial department of the second respondent/second defendant company the first respondent/first defendant would hot have laid his hands on the same. (xi) before the trial court on the side of appellant/ plaintiff, witness p.w.1 was examined and exs.a.1 to a.13 were marked and on the side of second respondent/second defendant, witness d.w.1 was examined and exs.b.1 to b.23 were marked. 3. the trial court has framed in all three issues for determination. on an appreciation of oral and documentary evidence and after analysing the same in depth, the trial court has come to the conclusion that the appellant/ plaintiff is entitled to claim the suit amount from the first respondent/first defendant (employee) alone and not from the second respondent/second defendant (employer) and accordingly, passed a decree directing the first respondent/ first defendant to pay a sum of rs. 6,06,265/- together with interest on rs. 4,01,500/- at 18% per annum from the date of plaint i.e. 30.1.1995 till the date and thereafter at 12% per annum till the date of realisation etc. and also directed the first respondent/ first defendant to pay a cost of rs. 24,948/- to the appellant/plaintiff.4. dissatisfied with the judgment and decree made in o.s. no. 185 of 1995 by the trial court, the appellant/ plaintiff has projected this appeal before this court.5. the point for arises for determination in this appeal is:whether the liability to pay a sum of rs. 6,06,265/- along with interest at 18% per annum as claimed in the suit can be fastened on the second respondent/second defendant (employer) for the tortious act of the first respondent/ first defendant (ex-employee) on the principle of vicarious liability in law?6. the learned counsel for the appellant/plaintiff contends that the second respondent/second defendant company an employer of the first respondent/first defendant is vicariously liable for the tortious act committed by the first respondent during the course of his employment with the second respondent/second defendant and that the trial court has committed an error in not taking note of the negligence aspect of the second respondent/second defendant and that as an employer the second respondent/second defendant failed in its duty to take diligent care to prevent the theft of shares and therefore, the second respondent/second defendant company is squarely and equally responsible to make good the loss sustained by the appellant/plaintiff has to be allowed to prevent an aberration of justice.7. the main thrust of the argument of the appellant/ plaintiff proceeds on the basis that the second respondent/ second defendant company as an employer of the first respondent/first defendant, on account of its carelessness and negligence had allowed its employee viz., the first respondent/first defendant to meddle with the share certificates lodged for transfer and the first respondent/ first defendant took advantage of the negligence of the second respondent/second defendant and resultantly, came into the possession of the certificates and committed impersonation as one t. sathyanarayana and sold and appropriated the amount and therefore, the respondents 1 and 2 are jointly and severally liable to pay the amount claimed by the appellant/plaintiff.8. countering the submissions of the learned counsel for the appellant, the learned counsel appearing for the second respondent/second defendant submits that the first respondent/first defendant was working only in the speciality coatings division of the company and that he was not working in the secretarial division as averred in the plaint and further the second respondent/second defendant company had shifted their residence from 826, anna road, tharapur towers to 124 greams road, chennai from 16.12.1991 after fulfilling the requirements of law and also intimating the shareholders individually and that the speciality coatings division only continued in the said registered office address, notwithstanding the fact that the registered office was shifted and the first respondent/first defendant who was the manager of the speciality coatings division took possession of the documents sent by vipul n.dhami of bombay and later sold it to the appellant/plaintiff and immediately when the second respondent/second defendant came to know of the fraud committed by the first respondent/first defendant lodged a police complaint and reported the matter to the sebi and all stock exchange authorities and hence, no liability could be tagged on to the second respondent/second defendant.9. the learned counsel for the appellant/plaintiff in support of his contention that the second respondent/second defendant was to pay the suit amount to the appellant because of its negligence relies on the decision of director of public prosecutions v. kent and sussex contractors, limited 1944 comp cas 133 wherein it is held as follows:the agents of a company made a return in compliance with the motor fuel rationing (no. 3) order, 1941, which return to their knowledge was false in material particulars: held, that the company was guilty of an offence against regulation 82 of the defence (general) regulations, 1939, notwithstanding that it is only through its human agents that a company can have the intent to deceive or can make a false statement knowingly.10. he also further relies on the observations made in page 135 and 136 of the aforesaid judgment which are extracted hereunder:the respondents were charged with producing a return false in a material particular with intent to deceive and, secondly, with making a statement which they knew to be false in a material particular. i should add this, that mr. james henry orpin was charged with analogous offences or an offence at any rate connected with the offences said to have been committed by the first-named respondents, the kent and sussex contractors, ltd. when the information came to be heard certain evidence was given, and as found by the special case the respondent company sent in certain returns made for the purposes of the motor fuel rationing order signed by mr. m.g. knowler, the transport manager of the respondent company, in respect of a vehicle which was in fact controlled by the respondent company. that return was false in material particulars and it was known by him to be false in material particulars. it was contended on that evidence by the appellant that the offences charged were proved to have been committed, but the respondents met that contention, according to the special case, by a contention that a body corporate could not in law be guilty of the offences charged as an act of will or state of mind implicit in the commission of the offences and that, therefore, the respondent company was not guilty of the offences charged and accordingly the respondent orpin must also be acquitted. the magistrates accepted that contention. they thought that the contentions on behalf of the respondents were right and dismissed the information. we have to say whether they came to a correct determination and decision in point of law. the special case appears to me to raise a quite clear question of law, whether a body corporate, in this case a limited company, can in law be guilty of the offences charged, or whether a company is incapable of any act of will or state of mind. when, however, counsel for the respondents came to argue the case before us it appears that he was not fully satisfied with the way the case was stated or the question raised for the opinion of this court, and he has laid an argument directed to a question which, so far i understand it, seems to me different from that which appears to be raised by the special case.the question is whether a company can be held to have an intention or knowledge which its agents, the officers of the company, have, and therefore, whether in the circumstances of this case the respondent company was capable of forming that intention or having that knowledge.i think it is only right that we should deal with the question which appears to be raised by the special case. it may be that other contentions raised by counsel for the respondents will have to be considered in determining that question. for my part i think it is a little easier than it would have been, because counsel has not disputed the proposition that the company can in the abstract be found to have the intention to do something wilfully. the position of a company, so far as criminal offences are concerned, is that it cannot be charged with or rather it cannot be found guilty of certain criminal offences, such as treason, nor other offences for which it is provided that death or imprisonment is the only punishment. the law has been stated in a way which has made it, i think, clearer as time has passed that there are a number of criminal offences for which a company can be convicted. there is a convenient citation from the judgment in r.v.cory brothers & co. (96 l.j.k.b., at p.764; (1927) 1 k.b., at p.816). in that judgment there is a citation from the judgment of patteson, j.. in r. v. birmingham and gloucester railway (11 l.j.m.c., at p.136); 3 q.b., at p.232) as follows (it begins with a note by holt, c.j.: ' 'a corporation is not indictable but the particular members of it are.' '): ' 'what the nature of the offence was to which the observation was intended to apply does not appear; and as a general proposition it is opposed to a number of cases, which show that a corporation may be indicted for breach of a duty imposed upon it by law, though not for a felony, or for crimes involving personal violence, as for riots or assaults.' ' under the defence (general) regulations, 1939, it is very common for offences to be created in which certain ingredients are required to be found and this particular case seems to me very clearly to be one of such cases. they are offences in which it is not material to consider whether there is or is not mens rea, which i understand to mean criminal intention, but they are cases which state the ingredients, as for instance, in this case where one of the necessary ingredients in one of the offences is intent to deceive. when that intent to deceive is stated to be necessary it seems to me quite idle to go in search of the right answer to the question whether mens rea or not is involved.11. continuing further in the above decision, the learned counsel for the appellant relies on the following observations:the penalty is imposed upon the owner for the act of the servant'- of course, the result could only be reached where any person is given express or implied authority or is estopped from saying that he had not. 'once it is decided that this is one of those cases where a principal may be held liable criminally for the act of his servant, there is no difficulty in holding that a corporation may be the principal. no mens rea being necessary to make the principal liable, a corporation is in exactly the same position as a principal who is not a corporation.' it is necessary to bear in mind the position of a company, which is quite different from that of a private individual, a real person. it could not be put better than lord blackburn puts it in the case of the pharmaceutical society v. london and provincial supply association, ltd. (49 l.j.q.b., at p. 742 : 5 app. cas. at p.870). he says: 'a corporation may in one sense, for all substantial purposes of protecting the public, possess a competent knowledge of its business, if it employs competent directors, managers, and so forth. but it cannot possibly have a competent knowledge in itself'. then he says: 'nor, 'i think, can a corporation be supposed to be a 'person' known as a chemist and druggist.'12. moreover, he also brings it to the notice of the observations made in page 141 of the aforesaid judgment which are as below:it has been laid down over and over again that where a statute absolutely prohibits the doing of an act it is sufficient to show that the person accused did the forbidden act intentionally and that it is not necessary to go further and prove what is commonly known as mens rea or any intention other than to do the thing forbidden'. in the cas with which we are dealing the first charge was one of doing something with intent to deceive. the second charge was that of making a statement which the company knew to be false in a material particular.13. further, in the aforesaid decision at page 142, it is held as follows:i see nothing whatever in any of the authorities to which we have been referred which requires us to say that a company is incapable of being held guilty of those offences14. further, he relies on the decision of the hon'ble supreme court in sitaram v. santanuprasad jaishanker bhatt in : [1966]3scr527 whereby and whereunder it is held as follows:a master is not responsible for the negligence or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business. it must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it. the scope of employment of a servant need not of course be viewed narrowly, but the essential element that the wrong must be committed by the servant during the course of the employment, i.e. in doing the master's business ought always to be present. salmond, 13th edn., p.124, ref.; 1942 ac 509 and (1911) 2 kb 775, ref.; 1915-1 kb 644 and (1956) 1 wlr 376 and (1900) 2 qb 530 and 1897-1 qb 240, expl. 15. continuing further, he also presses into service the following observation made in the aforesaid judgment at page 1705 which are extracted as follows:.a master is not responsible for the negligence or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business. it must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it.(31) the scope of employment of a servant need not of course be viewed narrowly, but the essential element that the wrong must be committed by the servant during the course of the employment, i.e. in doing the master's business ought always to be present.16. however, the learned counsel for the second respondent/second defendant, in aid of his argument that no liability can be roped in on the second respondent/second defendant company, cites the decision of hon'ble supreme court in sitaram v. santanuprasad jaishanker bhatt in : [1966]3scr527 wherein it is inter alia held as follows:27. the law is settled that a master is vicariously liable for the acts of his servant acting in the course of his employment. unless the act is done in the course of employment, the servant's act does not make the employer liable. in other words, for the master's liability to rise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. the driver of a car taking the car on the mater's business makes him vicariously liable if he commits an accident. but it is equally well settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. there is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met. it was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. the de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. prima facie, the owner would not be liable in such circumstances.17. besides this, the learned counsel for the second respondent also cites the following observations made in paras 30 and 31 of the aforesaid judgment at page 1704 and 1705 which are as follows:30. in rickett's and engelhart's cases, 1915-1 kb 644 and 1897-1 qb 240 (respectively) each servant was acting, on the mater's business at the time. if the two servants in the engelhart's case had gone for a picnic or the boy had borrowed the cart to give a joy ride to his friends, the master would not have been liable although the effect cause would still have been the elder servant's negligence. the difference lies in this that in the two cases the negligent act took place in the executing of the master's business and in the examples suggested by us, no question or mater's business or the scope of the servant's or agent's employment arises, because the acts are clearly outside that scope. going for a picnic or lending the cart so that the co-servant's friends may go for an outing is not in the course of the master's employment. beard's case, 1900-2 qb 530 when compared with rickett's case, 1915-1kb 644 brings out the difference. in (1928) 44 tlr 294 the master himself lent the car to the servant for the latter's private work and the master was not held responsible for the negligence of the servant in causing injury because neither was the journey on the master's account not was the master in control at the time. sir john salmond has summed up the law thus:.a master is not responsible for the neglignece or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business it much be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it.31. the scope of employment of a servant need not of course be viewed narrowly, but the essential element that the wrong must be committed by the servant during the course of the employment, i.e., in doing the master's business ought always to be present. in century insurance co. v. northern ireland road transport board, 1942 accused 509 the driver of a petrol lorry while transferring petrol from the lorry to an underground tank, struck a march to light a cigarette and threw it on the floor, and there by caused a fire and explosion which did great damage. the masters were held liable because the negligence was in the discharge of the duty by the servant. although the act of lighting the cigarette was something the driver did for himself and was by itself quite harmless, it could not be regarded in the abstract and was a negligent method of conducting the master's work. similarly, in smith v. martin and kingston-upon-hull corporation 1911 2 kb 775 at p.784 a school authority was held liable when a teacher, during school hours sent a girl aged 14 wearing a print pinafore to poke the fire and to draw out the damper in a grate in the teachers' common room and the child was burnt. it was held that the teacher's duty was to provide education in the widest sense and included expecting obedience from the pupils and this was an act of negligence in the discharge of such duty.18. he also presses into service another decision of hon'ble supreme court in state bank of india v. shyama devi in : [1978]3scr1009 wherein it is among other things held that 'in such a case, the fact that false and fictitious entries to cover up his fraud were made by the employee in the pass book of the client and in the ledger account of the husband could not make the embezzlement committed by the employee an act committed in the course of his employment with the bank. consequently, the bank was not liable to make good the loss caused to the client by the act of the employee because the latter in such a case would be deemed to have acted as an agent of the client and not within the scope of his employment with the bank.'19. the learned counsel for the second respondent has referred to section 51, 53 and 108 of the companies act which refers to service of documents on company, service of documents on merits by company, and the transfer not to be registered except on production of instrument of transfer.20. in ex.a.1 the order form dated 17.3.1992 in the name of t. sathyanarayana, addressed to appellant/plaintiff, wherein a request was made to sell the 350 shares to second respondent/second defendant at the market rate. a perusal of ex.a.4 xerox copy of fir shows that the manager-secretarial of the second respondent company mr. r. janakiraman is the complainant. in the said complaint, theft, forgery and cheating in connection with the transfer of shares has been made mention of. based on the ex.a.4, the police have registered a case in x. cr. no. 1917/92 under section 379, 467, 468, 419, 420 r/w 471 and 34 i.p.c. ex.b.16 is the letter of the second respondent company dated 29.10.1992 addressed to the first respondent informing inter alia that the company has terminated the services with immediate effect and without notice pay. in ex.b.16 the facts and contents of affidavit, deed of indemnity and agreement regarding security dated 28.10.1992 made by the first respondent has been referred to. pertinently, ex.b.19 affidavit of first respondent/first defendant categorically avers in para 2 of his affidavit that he was extremely sorry for the misdeeds committed by him and he sincerely repent for the same and that he has requested the second respondent company not to dismiss him but only to terminate his services if his services are not required any longer and therefore, he voluntarily waive the notice period in regard to terminate of his services and requested the company to treat his case sympathetically etc.21. it is the evidence of p.w.1/appellant/plaintiff that he is a share broker and that sathyanarayana has informed through ex.a.1 to transfer the 350 shares of second respondent company standing in his name and that the said sathyanarayana has encashed the cheques given by him and that he has incurred a loss for which the second respondent/ second defendant company is responsible and that an employee working in the second respondent company has stolen the shares and sold them and that as against the first respondent/first defendant, a case is going on before the criminal court and that action has been taken against him for selling the stolen shares by the stock authority and that it is not correct to state that for the law sustained by him the first respondent/first defendant alone is liable and that the second respondent company is not liable.22. it is the candid evidence of d.w.1 (manager of second respondent company) that the first respondent/first defendant has impersonated the shares in the name of sathyanarayana and that ex.b.16 is the termination order of the first respondent. ex.b.22 is the xerox copy of the final report filed before the criminal court against the first respondent/first defendant by the inspector general of police, central crime branch, egmore. in short, the charge in ex.b.22 against the first respondent/first defendant is to the effect that he after stealing the share certificates to the value of rs. 4,01,500/- and forged the signature and the instruments received three cheques to an extent of rs. 2,10,000/-, rs. 60,000/-, rs. 1,31,500/- amounting in all to an extent of rs. 4,01,500/- by impersonating himself as sathyanarayana and encashed the same by opening an account in the bank of india, thousand lights branch, chennai.23. one cannot loose sight of an important fact that for the master's liability to arise, the act must be a wrongful one authorised by the master or a wrongful one and unauthorised mode of doing some act authorised by the master. if the servant at the time of accident is not acting within the course of employment but is doing something for himself, certainly the master cannot be held liable in the eye of law, in the considered opinion of this court. moreover, if the unauthorised and wrongful act of an employee/servant is not so connected with the authorised act has to be a mode of doing it, but is an independent act, the master is not responsible; for in such a case the servant is not acting in the course of the employment but has gone outside of it as per the decision canadiyan pacific railway company v. leonard lock-hart air 1943 p.c. 63. as a matter of fact, whether master's vicarious liability is in issue has to answer two questions:(a) the first question is to see whether an employee/ servant is liable? if the answer is yes, (b) the second question is to see whether the employer who shoulder the employees liability?24. no wonder, the first question assumes significance that the question of master's liability can arise only when the servant is liable. the second question must be answered by factual determination of the issue whether the employees wrongful act or act of omission or commission committed by him has been done in the course of his employment.25. it is the settled principle of law that it is for the claimant to establish that he has suffered an injury as the foreseeable result of the employers breach of duty. duty, breach and causation are the three essentials of liability and the existence of a duty remains subject to the tests of foreseeability, proximity, fairness, justice and reasonableness that apply in the realm of law of torts, in the considered opinion of this court.26. as far as the present case is concerned, that the first respondent/first defendant employee was not serving in the secretarial division of the second respondent/second defendant company but was in the speciality coatings division of the second respondent/second defendant and further that the first respondent/first defendant after being possessed of the documents sent by one vipul n.dhami of bombay committed malevolent conduct and indulged in misdemeanour activity and after coming to know of the fraud committed by the first respondent/first defendant, the second respondent/second defendant had terminated his services for his involvement in connection with the fraudulent and forged share transfer. the second respondent/ second/defendant company had also lodged a fir with the police and action was also taken by them when they came to know of the fraud committed by the first respondent/first defendant and one cannot ignore a vital fact that after lodging a police complaint the fraud matter was brought to the notice of sebi and all stock exchangers authorities.27. on a careful consideration of respective contentions and on an overall assessment of the facts and circumstances of the case in an integral fashion, this court is of the considered view that the first respondent/first defendant employee had committed the fraud after being in possession of the documents, transfer deeds and share certificates sent by n.dhami and even though the first respondent/first defendant was employed under second respondent/second defendant, the second respondent/second defendant company could not be saddled with the liability to pay the suit amount claimed by the appellant/plaintiff because of the fact that the acts of misdeeds, omissions and commissions pointing out to the misdemeanour or malevolent conducts of the first respondent/first defendant, all these were of individual, independent and personal unauthorised wrongful acts of the said employee and in that view of the matter, the liability could not be tagged on to the second respondent/second defendant company on the footing of tortious liability to extend the vicarious liability of an employer and therefore, the appeal has no merits and resultantly, the same fails.28. in the result, the appeal is dismissed. the judgment and decree passed by the trial court in o.s. no. 9100 of 1995 are affirmed by this court for the reasons assigned in this appeal. however, having regard to the facts and circumstances of the case, the parties are directed to bear their own costs in this appeal.