HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.2997 OF 2022
ORDER:
1. The petitioners, who are arrayed as A6 and A7 in CC No.796 of 2016 before the XIV Additional Chief Metropolitan Magistrate, Hyderabad, which case is filed for the offence under Sections 403, 406, 418, 420, 506 r/w 34 of IPC, filed this petition to set aside the orders passed in Criminal Revision Petition No.72 of 2021 on the file of the Metropolitan Sessions Judge, Hyderabad, dated 09.12.2021.
2. Briefly stated the facts are that the 2nd respondent has filed criminal complaint aggrieved by the non registration of a plot by A-1/M/s.Prasad Homes Private Limited, situated at 4th floor, Surabhi Lotus, beside Image Hospital, Ameerpet, Hyderabad, after taking the amount for plot No.586. Since there was no plot in the site as promised, complaint was filed. Police investigated and charge sheet was laid against A1 to A7. A1 is the company, A2 to A5 are the directors, A6 and A7/petitioners are also shown as part of A1 Company. 2
3. Learned counsel appearing for the petitioners would submit that these petitioners have nothing to do with the selling of plots by A1 Company. Though none of the witnesses have stated anything against the petitioners, police have implicated them only on the basis of the confessional statement of A5.
4. Counsel further submits that the Learned Magistrate by order dated 06.04.2021, dismissed the discharge application of these petitioners on the ground that A5 during the course of investigation confessed the involvement of A6 and A7/petitioners. Having perused the confessional statement of A5, the learned Magistrate noted that these petitioners were directly involved in the case. Except confession, there is no other evidence on record. He further submits that the amount which was taken and due to be paid by the defacto complainant was already paid in the civil court, which is not disputed.
5. On revision, learned Sessions Judge confirmed the order of the learned Magistrate and declined to discharge the 3 petitioners stating that documents have been collected from the Registrar of Companies, which reflect that these petitioners were directors in the said company. For the said reason, since the confession of co-accused and also the documents were collected from the Registrar of Companies point towards involvement of these petitioners, learned Sessions Judge declined the prayer of these petitioners and confirmed the order of the learned Magistrate, dismissing the petition seeking discharge. The judgment in Criminal Revision Petition No.72 of 2021, dated 09.12.2021 is now questioned.
6. Having perused the entire record, the basis for arraying these petitioners as accused is that the documents were collected from the Registrar of Companies by the investigating agency showing the names of these petitioners. Secondly, the confession of A5, who is the co-accused was taken into consideration to array these petitioners as accused.
7. In IPC offences, the employees or directors of the company cannot be made vicariously liable for the offences committed by the company. There has to be specific role 4 attributed to the persons who form part of the company and alter-ego of the company, to be arrayed as an accused. There should be either oral or documentary evidence to say that such persons were responsible for the day to day affairs of the company and also how the said persons were complicit in the offence that has been alleged against the company.
8. In the present case, except stating that the documents received from the ROC reflect the names of these petitioners, none of the witnesses have spoken anything about these petitioners. There is no interaction by any of the witnesses with these petitioners and further the passbooks were issued to the defacto complainant was not signed by these petitioners nor it is the case of the defacto complainant that he has met these petitioners at any point of time with regard to the purchase of the plot.
9. The only other evidence apart from the documents from the ROC is the confession of co-accused. The confession cannot be made basis to prosecute an accused. There should be corroborating evidence that has been placed on record to 5 the confession made. In the present case, except the confession of the co-accused-A5, there is no other evidence to remotely suggest that these petitioners were in any way responsible for selling of the plot to the defacto complainant. As held by the Hon'ble Supreme Court in the case of Dipakbhai Jagdishchandra Patel v. State of Gujarat1, Court cannot frame charge on the basis of alleged confession of co- accused unless corroborated by other evidence which has been placed on record by the investigating agency. In the said circumstances, the only basis for prosecuting these petitioners is the confession, which cannot even form the basis to frame a charge. The documents from the ROC reflecting that they were part of the company, cannot be made basis to make these petitioners vicariously liable.
10. In the said circumstances, the impugned order dated 09.12.2021 in Criminal Revision Petition No.72 of 2021 is set aside and the proceedings against the petitioners in CC 1 (2019) 16 Supreme Court Cases 547 6 No.796 of 2016 on the file of XIV Additional Chief Metropolitan Magistrate, Hyderabad are hereby quashed.
11. Accordingly, the Criminal Petition is allowed.
__________________ K.SURENDER, J Date: 24.11.2022 kvs 7 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITOIN No.2997 OF 2022 Date: 24.11.2022.
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