Suraj Arora vs State Of U.P. & Anr.
2021 Latest Caselaw 11430 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 11
 
Case :- CRIMINAL REVISION No. - 829 of 2021
 
Revisionist :- Suraj Arora
 
Opposite Party :- State Of U.P. & Anr.
 
Counsel for Revisionist :- Vaibhav Gupta,Rakesh Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

1. Heard learned counsel for the revisionist and learned A.G.A. for the State.

2. This Revision has been filed against the order dated 22.11.2021 passed by learned Additional Sessions Judge, Ist, Balrampur, in Special Sessions Trial No.17/2021: State of U.P. Vs. Pramod Arora and others, under Section 18(a) (i)/27(c) of Drugs and Cosmetic Act 1940 relating to P.S. Pachperwa, Disrict Balrampur.

3. It has been submitted by learned counsel for the revisionist that the revisionist had earlier approached this Court by filing a petition under Section 482 Cr.P.C., namely, Petition No.3227 of 2021: Suraj Arora Vs. State of U.P. and Another, challenging the summoning order dated 19.12.2019, relating to same Sessions Trial No.8 of 2019. The Court was satisfied that the cognizance order and the summoning order was issued without application of mind as no facts were mentioned therein. The language of the order did not disclose any facts of the case. The Court had set aside the order and remanded the matter to the Magistrate to pass a fresh order as per law. After this order was passed by this Court on 17.09.021, the matter was reconsidered by the Court and fresh order was passed on 22.11.2021, which is challenged in this Revision.

4. It has been further submitted by learned counsel for the revisionist that the revisionist had no role to play in the affairs of the company i.e. M/s Corona Pharmaceuticals Pvt. Ltd., Kashipur, Udham Singh Nagar, Uttarakhand, as he had resigned as Director of the Company in the year 2008 and had written a letter to the Director, Medical Health and Family Welfare, Dehradun, Uttarakhand on 02.06.2011 that he had resigned from the post of Director, yet the same was not taken into account by the learned trial court. Learned trial court has erred in law recording the finding that while passing the summoning order/ cognizance order it has only to see a prima facie case.

5. This Court has perused the order impugned.

6. It has been pointed out by learned A.G.A. that under Section 190 (A) of the Cr.P.C. for taking cognizance and for summoning the accused only the papers that are submitted by the prosecution has to be taken into account. A prima facie case alone has to be seen where the accused can be tried for the offences for which the prosecution proposes that the accused are guilt of.

7. Learned counsel for the revisionist has cited the judgement rendered by Hon'ble Supreme Court in Criminal Appeal No.1047/1048/2021: Ravindranatha Bajpe Vs. Mangalore Special Economic Zone Ltd. and others etc., decided on 27.11.2021, but no appreciation thereof is evident from the order impugned.

8. This Court has carefully gone through the judgement rendered by Hon'ble Supreme Court in Ravindranatha Bajpe (Supra), it appears that the Appellant before the Supreme Court was the original complainant. He had filed the complaint before the Judicial Magistrate Ist Class Mangalore on 24.09.2013 on which summons were issued to the original accused nos. 1 to 8. The original accused approached the Sessions Court in Revision. The Revision was partly allowed by the Sessions Court. Aggrieved against the same, the complainant approached the High Court. The High Court rejected the Revision filed by the appellant Ravindranath Bajpe. The complainant/ appellant thereafter approached the Supreme Court.

9. In the original complainant filed by the appellant there were 13 accused. It was the case of the complainant that he was not absolute owner and in possession of immovable property described in the scheduled attached to the complainant and the scheduled property was surrounded by a stone wall as boundary. The scheduled properties were abutting Mangalore- Bajpe Old Airport Road and valuable trees were situated in the said property. The accused no.1 was a company incorporated under the Companies Act and accused no.2 was the Chairman, the accused no.3 was the Managing Director, the accused no.4 was the Deputy General Manager (Civil & Env.), the accused no.5 was the Planner and Executor of the project work of accused no.1. The accused no.9 was the Site Supervisor, accused no.10 was the Sub Contractor, and accused no.11 to 13 were the employees of the Sub Contractor.

10. The accused no.1 intended to lay water pipeline by the side of Mangalore-Bajpe Old Airport Road abutting the scheduled properties. The accused no.1 engaged the accused no.6 company to do the work. The pipeline instead of being laid under the road or on the side of the road, was laid beneath the scheduled properties belonging to the complainant. The pipeline trespassed the scheduled property and demolished the compound wall which was having the height of 7 feet and foundation of 2 feet to a distance of 500 metres. The accused had cut and destroyed 100 valuable trees in the process. When the complaint was filed initially before the police in 2012, the accused no.5 had given the statement admitting the guilt and also undertaking to pay compensation to the complainant towards the damages caused to his property but the undertaking was not respected thus the accused committed the criminal breach of trust. The complainant had been examined on oath by the court of the Judicial Magistate, Ist Class, Mangalore, and he summoned accused nos.1 and 8 only. Feeling aggrieved by the summoning order, the original accused 1 to 5 preferred a Criminal Revision which was partly allowed with respect to the Directors of the company. The Judicial Magistrate's order having been set aside the appellant approached the High Court and the High Court affirmed the order passed by the Sessions Court.

11. It had been argued before the Supreme Court that at the stage of summoning the accused only thing that has not be considered is as to whether a prima facie case is made out on the basis of statement made by the complainant on oath and the material produced at that stage and detail examination on merit is not required. The specific allegation was that the accused no.1 to 8 has conspired with the Contractor and sub Contractor and caused damages to the property of the appellant.

12. The respondent on the other hand had submitted before the Supreme Court that there was only a bald statement that the company and its Directors has conspired with the Contractor and Sub Contractor and caused damages to the property of the appellant and that issuing summons by the court is a very serious matter. Reference was made to GHCL Employees Stock Option Trust Vs. India Infoline Limited, (2013) 4 SCC 505; and Sunil Bharti Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609; and specific reference was made to paragraph-42 to 44 of the judgement rendered in Sunil Bharti Mittal (supra). The Supreme Court had observed that no doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman etc.. If such a company commits an offence involving mens rea, it 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 and no liability can be placed on the Directors unless there is a specific role assigned to such individual who had perpetrated the commission of offence on behalf of the company. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically. Reference was made to the judgment rendered in Aneeta Hada Vs. Godfather Travels & Tours (P) Ltd., 2012 (5) SCC 661, that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is because of statutory intendment making it a deeming fiction. However, where a group of persons that guide the business had intent, that is to be imputed to the body corporate and not the vice-versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company.

13. The Supreme Court referred to the judgment of Maksud Saiyed Vs. State of Gujarat, (2008) 5 SCC 668 and Pepsi Foods Ltd. Vs. Special Judicial Magistrate (1998) 5 SCC 749, to say that the Magistrate is required to apply its mind when a complaint is filed before him to see as to whether the complaint even if taken to its face value and taken to be correct in its entirety, would lead to the conclusion that the respondents were personally responsible for any offence. Summoning of an accused in a criminal case being a serious matter, Criminal Law cannot be set into motion as a matter of course. The Magistrate has to examine the nature of the allegation made in the complaint and the evidence both oral and documentary in support thereof, and that it would be sufficient for which the complainant to succeed in bringing charge home to the accused. The Magistrate has to record his prima facie satisfaction for initiating criminal proceeding. When there are no specific allegations or averments with respect to the role played by them in their capacity as Chairman, Managing Director, Deputy General Manager, Planner or Executor, they cannot be arrayed as accused. The Supreme Court observed that the High Court had rightly dismissed the Revision filed by the appellant and had rightly affirmed the order passed by the learned Sessions Judge.

14. Having perused the observations made by Hon'ble Supreme Court in the case of Ravindranatha Bajpe (supra), this court has carefully gone through the complaint that was filed by the revisionist before the learned Additional Sessions Judge, Gonda, under the Drugs and Cosmetic Act, 1940. It is evident that in February, 2019, the complainant had collected a drug sample of Rabeprazole and Domperidone from a medical store during routine inspection. It was manufactured by M/s Corona Pharmaceuticals Pvt. Ltd., Kashipur, Udham Singh Nagar, Uttarakhand. The test analysis report declared it as sub standard quantity and not conforming to declared formula in respect of its content. The complainant had sent notice to the medical store concerned and on production of invoice of having bought it from the drug distributor concerned, had also sent notice to Manokamna Drug Distributor. The drug distributor sent invoice regard purchase of the same from another distributor and the origin of the drug was traced thereafter to the company itself i.e. M/s Corona Pharmaceuticals Pvt. Ltd., Kashipur, Udham Singh Nagar, Uttarakhand. On notice being sent, the company admitted that it had manufactured the capsule. A notice was sent to it to provide the name and address of the person responsible for day to day activities and Memorandum of Association of the company. The same was provided by the company saying that Pramod Arora and Suraj Arora were Directors of the Company and Mr. Kush Agarwal was the person responsible for day to day activities. A copy of the Memorandum of Association had been filed with the complaint which showed that Pramod Arora and Suraj Arora were Directors. On the basis of such information, the complaint was rightly filed.

15. It is the case of the revisionist herein that they had resigned on 10.12.2008 and information regarding the same was sent to the Directorate Medical Health & Family Welfare, Uttarakhand on 02.06.2011.

16. If such be the case, it can only be considered by the learned trial court at the time of discharge application having been moved by the revisionist.

17. It has been submitted by learned A.G.A. that under Chapter 19 of the Cr.P.C., there are two parts. Part A deals with the case instituted on a police report and Part B deals with the cases instituted otherwise than on a police report. In this case, the complaint case was filed by the Inspector of Drugs, U.P. in the office of the District Magistrate Balrampur after due authorization of the competent authority. It was therefore a complaint case under Drugs and Cosmetic Act which is a special act and therefore was filed before the Special Judge. Under Section 244 and 245 of the Cr.P.C., cognizance can be taken and discharge can be considered by the Sessions Judge.

18. Learned A.G.A. has pointed out that the general provision for filing discharge under Section 227 would apply also in such cases even though filed under the special act therefore the appropriate remedy for the revisionist is to approach the learned trial court and file appropriate discharge application when his case regarding his specific role can also be considered by the learned trial court. The orders summoning the accused in this case can only be passed on the contents of the complaint and prima facie role having been assigned by the complainant to the Directors of the company.

19. Having heard the learned counsel for the parties, this Court is of the considered opinion that the Additional Sessions Judge, Gonda, had not erred in summoning the accused. It is now for the accused to file discharge application and show that they had resigned in 2011, and the manufacturing of drug which was found to be sub standard was much later in the year 2018-2019 and as such they cannot be held responsible for such act of the company.

20. The Revision is dismissed with the liberty to the revisionist to file appropriate discharge application through counsel within three weeks from today. The procedure prescribed in law shall be followed by the learned Additional District and Sessions Judge, Gonda, and reasoned and speaking order thereafter be passed on such application.

Order Date :- 4.12.2021

Rahul