Andhra Pradesh High Court - Amravati

M.Venkata Krishna Rao vs State Of Ap., on 14 December, 2022

            IN THE HIGH COURT OF ANDHRA PRADESH

                                  ***

Crl.P.Nos.1596 & 1597 of 2022

BETWEEN:

# Sri Mannam Venkata Krishna Rao, S/o. Late Sri Mannam Venkateswararao, R/o. Plot No.20, Yashoda Nagar, Sagar X Roads, L.B. Nagar, Hyderabad.

... Petitioner (in both the petitions)

AND $ 1. The State of A.P. rep. by Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh.

2. Sri E. Srinivasa Rao, S/o. Sri Raghavendra Rao, R/o. H.No.26-1-20/b, Ameenapeth, Near Kondanda Ramalayam, Eluru, West Godavari District, Andhra Pradesh.

3. M/s. Manisha Agri Biotech P. Ltd., registered office at Sy.No.47, 48 & 49, Gandi Mysamma Road, Kandlakoya Village, Medchal Mandal, Ranga Reddy District rep. by its Director.

... Respondents (in both the petitions)

Date of Judgment pronounced on : 12.12.2022

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

1. Whether Reporters of Local newspapers : Yes/No May be allowed to see the judgments?

2. Whether the copies of judgment may be marked : Yes/No to Law Reporters/Journals:

3. Whether The Lordship wishes to see the fair copy : Yes/No Of the Judgment?

2 RRR,J Crl.P.Nos.1596 & 1597 of 2018

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

*HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

+ Crl.P.Nos.1596 & 1597 of 2022

% Dated:02.12.2022

BETWEEN:

# Sri Mannam Venkata Krishna Rao, S/o. Late Sri Mannam Venkateswararao, R/o. Plot No.20, Yashoda Nagar, Sagar X Roads, L.B. Nagar, Hyderabad.

... Petitioner (in both the petitions)

AND $ 1. The State of A.P. rep. by Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh.

2. Sri E. Srinivasa Rao, S/o. Sri Raghavendra Rao, R/o. H.No.26-1-20/b, Ameenapeth, Near Kondanda Ramalayam, Eluru, West Godavari District, Andhra Pradesh.

3. M/s. Manisha Agri Biotech P. Ltd., registered office at Sy.No.47, 48 & 49, Gandi Mysamma Road, Kandlakoya Village, Medchal Mandal, Ranga Reddy District rep. by its Director.

... Respondents (in both the petitions)

! Counsel for Petitioner : Sri B. Nalin Kumar representing T.S. Praveen Kumar

^Counsel for Respondents No.2 : Sri Madhava Rao Nalluri <GIST :

>HEAD NOTE:

? Cases referred:

3 RRR,J Crl.P.Nos.1596 & 1597 of 2018

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

Crl.P.Nos.1596 & 1597 of 2018

COMMON ORDER:

The petitioner herein is said to have been the Managing Director of

a company, which is sole accused in C.C.Nos.679 & 759 of 2016 on the file

of the Judicial Magistrate of I Class, Special Mobile Court, Eluru, West

Godavari District, for the offences punishable under Section 138 of the

Negotiable Instruments Act.

2. The complaint of the petitioner is that the complainant in the

said cases had named him as the representative of the accused-company

and is insisting on his appearance on behalf of the accused-company.

3. It is the case of the petitioner that he had resigned as the

Managing Director of the company even prior to filing of the complaint

and cannot be forced to appear on behalf of the company on that count

also.

4. Sri B. Nalin Kumar, learned counsel appearing for the

petitioner submits that Section 305 Cr.P.C., sets out the manner in which

the company, which is arrayed as an accused in a criminal case is to be

represented. He submits that the provisions of Section 305 Cr.P.C., would

not give discretion to the complainant to name the person who should

represent the company. He further submits that Section 305 Cr.P.C., in

fact provides discretion to the company to decide whether any person

should represent it or whether a particular person should represent it 4 RRR,J Crl.P.Nos.1596 & 1597 of 2018

before the Court. In the circumstances, the insistence that the petitioner

should represent the accused company before the trial Court is not in

accordance with Section 305 Cr.P.C.

5. Sri Madhava Rao Nalluri, learned counsel appearing for the

respondent/complainant, contends that the petitioner is very much the

Managing Director of the company and had only set up documentation to

claim that he had ceased to be the Managing Director of the company

even before the filing of the criminal complaint. This issue is a question of

fact, which is not being considered by this court and this judgment is

proceeding on the basis of the petitioner continuing to be the managing

director of the company.

Consideration of the Court:

6. The method and procedure of service of summons on a

company is contained in section 63 of Criminal Procedure Code, which

reads as follows:

Section 63: Service of summons on corporate bodies and societies:

Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed, to have been effected when the letter would arrive in ordinary course of post.

7. The above provision permits service of summons on a

company by serving the said summons on any of the principal officers of 5 RRR,J Crl.P.Nos.1596 & 1597 of 2018

the company mentioned in the Section 63. However, the manner in which

the company is to be represented before a court, after service of

summons, is contained in section 305 of the criminal procedure code

which reads as follows:

305. Procedure when corporation or registered society is an accused.

(1) In this section," corporation" means an incorporated company or other body corporate, and includes a society registered under the Societies Registration Act, 1860 (21 of 1860 ).

(2) Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the corporation.

(3) Where a representative of a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall be examined.

(4) Where a representative of a corporation does not appear, any such requirement as is referred to in sub- section (3) shall not apply.

(5) Where a statement in writing purporting to be signed by the managing director of the corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the 6 RRR,J Crl.P.Nos.1596 & 1597 of 2018

statement has been appointed as the representative of the corporation for the purposes of this section, is filed, the Court shall, unless the contrary is proved, presume that such person has been so appointed.

(6) If a question arises as to whether any person, appearing as the representative of a corporation in an inquiry or trial before a Court is or is not such representative, the question shall be determined by the Court.

8. A reading of the above provision would make it clear that,

after receipt of the notice, it would be open to the company to decide

whether the person named in the notice would continue to represent the

company or not. It would also be open to the person named as the

representative of the company to decline to represent the company. In

both the situations, applications may be made before the trial Court under

Section 305 Cr.P.C., to remove the name of the person who is arrayed as

the representative of the said accused-company. This view is fortified by

the judgement of the Hon'ble High Court at Bombay, dated 14.01.2020, in

criminal Writ Petition No.4942 of 2019, in the case of Sanjeev S. Malhotra

vs. the State of Maharashtra.

9. In such circumstances, the contention of the petitioner