Bombay High Court
Atul S/O Ramesh Rumale vs The State Of Maharashtra And ... on 24 October, 2016
Bench: V.K. Jadhav
1 CRI. W.P. 28/2015 - JUDGMENT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 28 OF 2015
Atul S/o Ramesh Rumale,
Age : 44 years, Occu.: Advocate,
R/o - Baliram Peth, Jalgaon .. Petitioner
Vs.
1] The State of Maharashtra,
Through the Investigating Officer,
Jalgaon City Police Station,
Jalgaon, Taluka and
District Jalgaon
2] Kishor S/o Rajaram Chhabria,
Age : 59 years, Occu.: Business,
Chairman of M/s Allied Blenders &
Distillers Ltd., having its registered
Office at 397/C, Ground Floor,
Lamington Chambers, Lamington Road,
Mumbai
3] BDA Ltd. Company,
through its Chairman,
Mr. Kishor Rajaram Chhabria,
Age : 59 years, Occu.: Business,
Chairman of M/s Allied Blenders &
Distillers Ltd.,
having its registered Office at
12, Evergreen Industrial Estate,
Shakti Mills Lane, Mahalaxmi,
Mumbai - 400 011
at present 397/C, Ground Floor,
Lamington Chambers,
Lamington Road, Mumbai
4] Mr. B.D. Vartak,
Age : Major, Occu.: Service
as Sales Manager of BDA Ltd. Company,
R/o : 24, Khetan Bhavan,
198, Jamshedji Tata Road,
Churchgate, Mumbai - 400 020
::: Uploaded on - 25/10/2016 ::: Downloaded on - 26/10/2016 01:01:00 :::
2 CRI. W.P. 28/2015 - JUDGMENT
5] Mr. B.K. Irani,
Age : Major, Occu.: Service
as Marketing Manager of BDA Ltd. Company,
R/o : 24, Khetan Bhavan,
198, Jamshedji Tata Road,
Churchgate, Mumbai - 400 020
6] Mr. Rajesh Agrawal,
Age : Major, Occu.: Service
as Marketing Officer of BDA Ltd. Company,
R/o : 24, Khetan Bhavan,
198, Jamshedji Tata Road,
Churchgate, Mumbai - 400 020 .. Respondents
[Resp. No.2 to 6 - Orig. accused.]
----
Mr. A.P. Bhandari, Advocate for the petitioner
Mrs. R.P. Gour, APP for the respondent/State
Mr. Parvez Rustom Khan, Advocate with Mr. P.K. Joshi,
Advocate with Mr. Manik Mulla, Advocate and Mr. Joydeep
Chatterji, Advocate for respondent no.2
----
CORAM : V.K. JADHAV, J.
RESERVED ON : 13/10/2016
PRONOUNCED ON : 24/10/2016
JUDGMENT:
Rule. Rule made returnable forthwith.
The writ petition is heard finally with consent of the
learned counsel for the parties, at the admission
stage.
2. Being aggrieved by the judgment and order
passed by the Sessions Judge, Jalgaon dated 21/11/2014
in Criminal Revision Application No. 60 of 2011, the
original complainant has preferred the present Writ
Petition.
3 CRI. W.P. 28/2015 - JUDGMENT
3. Brief facts giving rise to the present Writ
Petition, are as follows :-
. The petitioner possesses license for
consumption of liquor issued in his favour in
accordance with law and the said license was renewed
time to time. It was valid on the date of the
incident. BDA Company Ltd. is dealing in the business
of manufacture and sales of alcoholic beverages
including whisky, beer etc. On 23/1/2004, there was a
religious function arranged by the petitioner at his
house and as per the tradition, the petitioner had
prepared the non vegetarian food by inviting 70-75
persons. Even on the request of the guests/invitees,
the petitioner had to arrange liquor for consumption.
Consequently, the petitioner went to Ashok Brandy
Center at Jalgaon for purchasing the liquor. At that
time, the petitioner was informed that there is a
scheme of various gifts for the purchase of the
"Officer's Choice Whisky" of BDA Company Ltd. On
enquiry, the shop owner gave a pamphlet to the
petitioner, wherein it was specifically mentioned that
a person would get a Santro car, if he succeeds in
4 CRI. W.P. 28/2015 - JUDGMENT
collecting 125 points. The scheme was introduced as
"Officer's Choice Dhakkan Se Santro Tak" and by adding
points starting from 0 to 6 printed inside the caps,
the purchaser would get Santro car, if he collects 125
points. The petitioner therefore was convinced to
purchase the entire carton of Officer's Choice whisky.
In view of the launching of the said scheme and the
possibility of getting the gift, the petitioner had
also shown his liquor license to the shop owner and
purchased the box with the bill. On the same day, the
petitioner had served the said whisky to the invitees
and succeeded in collecting 45 caps of the bottle and
earn 125 points thereby. The petitioner had therefore
approached the shop owner. Accordingly, the shop
owner had issued receipt of the said caps in favour of
the petitioner on 23/1/2004. According to the
petitioner, original accused no.3 to 5 again came to
Jalgaon on 25/1/2004 at the shop and also called the
petitioner in the said shop named and styled as Ashok
Brandy Center and after verification of the documents,
passed the endorsement to the effect that the
intimation regarding the winner by post will be given.
The petitioner was assured that he will get the
prize/gift, however, on 19/2/2004, the petitioner
5 CRI. W.P. 28/2015 - JUDGMENT
received a letter from the accused no.1-Company,
asking him to submit certain documents after
verification of the same by the Government Officer.
In response to the said letter, the petitioner had
also furnished documents and requested the accused
persons to give him the gift as per the said scheme.
As per the communication dated 16/3/2004, the
petitioner was informed that his claim for the gift
articles stands cancelled. In the said communication,
certain
grounds are mentioned for
cancellation/rejection of the claim of the petitioner.
The petitioner has filed complaint before the Chief
Judicial Magistrate, Jalgaon being RCC No.249 of 2004
against the respondent/accused for having committed
the offences punishable under section 417, 420, 427
r/w. section 34 of the Indian Penal Code.
. Initially, by order dated 3/12/2008, the
learned Judicial Magistrate First Class was pleased to
issue the process against the respondent/accused,
however, the respondent no.6 herein has challenged the
said order of issuance of process by filing Criminal
Revision Application No.17 of 2009. The learned
Sessions Judge, Jalgaon, by judgment and order dated
6 CRI. W.P. 28/2015 - JUDGMENT
21/12/2009 passed in Criminal Revision Application
No.17 of 2009, partly allowed the Revision Application
and thereby directed the Magistrate to hold enquiry in
accordance with the provisions of section 202 of the
Code of Criminal Procedure and, thereafter, to proceed
further with the matter, in accordance with law.
In the peculiar facts and circumstances of the case
and by consent of the parties, the learned Sessions
Judge has further directed that the complaint shall be
dealt with by the learned Chief Judicial Magistrate,
Jalgaon.
. In compliance of the directions given by the
learned Sessions Judge, as aforesaid, the learned
Chief Judicial Magistrate, by order dated 16/1/2010
initiated an enquiry, as provided under section 202 of
the Code of Criminal Procedure and report was called.
Since the said order, directing enquiry into the
matter, was running contrary to the directions issued
by the Sessions Judge in the said Criminal Revision
Application, the petitioner filed application below
Exhibit 8 for recalling the said order, and conducting
the enquiry by the Court itself. Thus, by order dated
13/8/2010, the learned Chief Judicial Magistrate,
7 CRI. W.P. 28/2015 - JUDGMENT
Jalgaon was pleased to direct the petitioner to led
evidence before issuance of process. Accordingly, the
petitioner led his evidence before issuing the process
and also examined Mr. Mohanlal Bharwani, the owner of
the shop - Ashok Brandy Center. On consideration of
the material placed on record, the learned Chief
Judicial Magistrate, by order dated 8/3/2011, issued
process against accused nos.1 to 5 for the offences
punishable under section 420, 427 r/w. 34 of the
Indian Penal Code.
. Being aggrieved by the order of issuing
process, the respondent no.2 herein preferred Criminal
Revision Application No. 60 of 2011 before the
Sessions Court, Jalgaon. The learned Sessions Judge,
Jalgaon by impugned judgment and order dated
21/11/2014, allowed the revision application and set
aside the order passed below Exhibit 1 dated 8/3/2011
passed by the learned Chief Judicial Magistrate,
Jalgaon in RCC No. 249 of 2004, to the extent of
criminal revision petitioner/present respondent no.2
and further set aside the issuance of process under
section 427 of the Indian Penal Code against all the
accused persons. The learned Sessions Judge, Jalgaon
8 CRI. W.P. 28/2015 - JUDGMENT
has dismissed the complaint bearing R.C.C. No.429 of
2004 against the respondent no.2 herein. Hence, this
Criminal Writ Petition.
4. Learned counsel for the petitioner submits
that initially, order dated 3/12/2008 passed by the
learned Judicial Magistrate First Class, issuing
process against all the accused was not challenged by
the present respondent no.2 and as such, it was
impermissible for the present respondent no.2 to
challenge the subsequent order of issuance of process
after remand of the matter, by preferring Criminal
Revision Application No.60 of 2011. The learned
Sessions Judge, Jalgaon has not considered this aspect
while disposing of Criminal Revision Application No.60
of 2011. Learned counsel submits that before the
revisional Court, the present respondent no.2 has
placed on record various documents including the board
resolutions, certified copy of the extract from the
Registrar of Companies etc. Learned Sessions Judge
has considered copy of the extract issued by the
Registrar of Companies on 24/8/2005 in respect of M/s.
Herberston Ltd. The learned Sessions Judge has
observed that the said copy of the extract indicates
9 CRI. W.P. 28/2015 - JUDGMENT
that the respondent no.2 was whole time director of
M/s. Herberston Ltd. for the period from 21/12/1992 to
23/3/2005 and as such, he could not have been director
of another company in charge of the affairs during the
said period. Learned counsel submits that the scope
of the enquiry under section 202 of the Code of
Criminal Procedure is extremely limited and the aim of
such enquiry is only to the ascertainment of the truth
or the falsity of the allegations made in the
complaint - (i) on the basis of the material placed by
the complainant; (ii) for the limited purpose of
finding out whether a prima facie case for issue of
process has been made out; and (iii) for deciding the
question purely from the point of view of the
complainant without at all adverting to any defence
that the accused may have.
5. Learned counsel for the petitioner submits
that the learned Sessions Judge has committed grave
error of law by considering the possible defence of
the accused. The defence raised by the respondent
no.2 before the Sessions Judge are factual in nature
and the said factual position is required to be
established on the basis of the acceptable evidence.
10 CRI. W.P. 28/2015 - JUDGMENT
The defences raised on behalf of the accused will have
to be substantiated through cogent evidence and
thereupon, the same will have to be examined on
merits.
6. Learned counsel for the petitioner submits
that the BDA Company Ltd. had launched the scheme for
promotion of its business and the petitioner/original
complainant has satisfied the entire terms and
conditions of the said scheme. Though he was eligible
for the gift, as per the conditions laid down in the
scheme, without any justifiable reason and on the
flimsy grounds, the BDA Company Ltd. has denied the
genuine claim of the complainant. At the stage of
issuance of process, it cannot be stated that the said
scheme was introduced by the Company without
permission/knowledge/consent of its Body Corporate
i.e. the chairman, vice chairman and the directors of
the Company. Learned counsel submits that the
director, chairman and vice chairman are liable for
business of the Company and they cannot escape from
the corporate criminal liability. The
petitioner/complainant has made specific allegations
in paragraph no.7 of the complaint about the role
11 CRI. W.P. 28/2015 - JUDGMENT
played by the respondent no.2. Respondent no.2 herein
passed the remarks with his signature on the
application of the petitioner, to the effect that the
petitioner shall be intimated regarding the winners by
post. Learned counsel submits that prima facie, it
appears from the rejection of the claim of the
petitioner that since inception, the fraudulent
intention was shared by all the accused persons while
introducing the said scheme. Learned counsel submits
that the Magistrate has correctly issued the process,
however, the learned Sessions Judge has exceeded his
revisional jurisdiction and passed improper, illegal
and incorrect order.
7. In order to substantiate his submissions,
learned counsel for the petitioner places reliance on
the following cases :-
(i) Vinod Raghuvanshi V. Ajay Arora and Ors.
AIR 2014 SC (Supp) 1516;
(ii) Smt. Nagawwa Vs. Veeranna Shivalingappa
Konjalgi & Ors. AIR 1976 SC 1947 - 2014 ALL
SCR (O.C.C.) 225;
(iii) Shridhar Vinayak Modgi Vs. Ravindra
Khanderao Hajare & Anr. 2003 ALL MR (Cri)
2210;
12 CRI. W.P. 28/2015 - JUDGMENT
(iv) Anil Saran Vs. State of Bihar and anr.
AIR 1996 SC 204;
(v) Nupur Talwar V. Central Bureau of
Investigation and anr. AIR 2012 SC 1921;
(vi) Aneeta Hada Vs. M/s. Godfather Travels
& Tours Pvt. Ltd. [2012] 3 Supreme 416;
(vii) Helios & Matheson Information
Technology Ltd. & Others Vs. Rajeev Sawhney &
Another [2012] 1 SCC 699;
(viii) Dr. Mrs. Nupur Talwar Vs. C.B.I. Delhi
and anr. [2012] 2 ADJ (SC) 763;
(ix) Nupur Talwar Vs. Central Bureau of
Investigation & Anr. [2012] 4 Supreme 158;
(x) State of Orissa Vs. Debendra Nath Padhi
[2004] (8) Supreme 568;
(xi) Rajesh Bajaj Vs. State NCT of Delhi and
others AIR 1999 SC 1216 (1);
(xii) Globe Motors Ltd. Vs. Mehta Teja Singh
and Company [1983] 0 Supreme (Del) 4772.
8. Learned counsel for respondent no.2 submits
that the petitioner/complainant, who is a practicing
lawyer, has made false statement in the complaint that
he had written letter dated 1/3/2004 to respondent
13 CRI. W.P. 28/2015 - JUDGMENT
no.2, whereas the letter dated 1/3/2004 is addressed
by the petitioner to the General Manager (Marketing),
BDA Company Ltd. The complainant has also falsely
stated in the complaint that the respondent no.2, in
the capacity as chairman of respondent - Company
signed the letters dated 19/2/2004 and 16/3/2004,
whereas the letters clearly show that those letters
were written and sent by a person from the Marketing
Department of the respondent - BDACompany Ltd.
Learned counsel submits that there are no specific
allegations against the present respondent no.2.
Respondent no.2 has not made any representation and/or
addressed and/or sent any letter, as he is not
involved in the day-to-day affairs of the respondent -
BDA Company Ltd. There are no allegations in the
complaint that the respondent no.2 had made any
representation to the petitioner nor at the relevant
time, the respondent no.2 was having control over the
management/administration of the Company or that he
was looking after the day-to-day affairs of the
company. It has only alleged in the complaint that
the respondent no.2 had sent letters dated 19/2/2004
and 16/3/2004. In-fact, those letters were sent by a
person from Marketing Department of respondent - BDA
14 CRI. W.P. 28/2015 - JUDGMENT
Company Ltd. Thus, the petitioner/original complainant
has mis-represented the learned Magistrate for
obtaining the impugned order of issuance of process.
There are misleading statements in the complaint filed
by the petitioner, who is a practicing Advocate.
9. Learned counsel for respondent no.2 further
submits that a corporate entity is an artificial
person, who acts through its officers, managing
directors, chairman etc. If such a company commits
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 of conspiracy. However, at the same
time, it is the cardinal principle of the criminal
jurisprudence, that there is no vicarious liability
unless the statute specifically provides so. When the
Company is the offender, vicarious liability of the
directors cannot be imputed automatically. Learned
counsel submits that vicarious liability can be
fastened only by reason of provisions of statute and
not otherwise. So far as the Penal Code, 1860 is
concerned, save and except in some matters, it does
not contemplate any vicarious liability on the part of
15 CRI. W.P. 28/2015 - JUDGMENT
a person. Commission of an offence by raising a legal
fiction or by creating a vicarious liability in terms
of the provisions of the statute, must be expressly
stated. Learned counsel submits that merely because
the respondent no.2 was the then chairman of
respondent - BDA Company Ltd., he cannot be said to
have committed offence, only because he is holding the
said office.
10. Learned counsel for respondent no.2 submits
that the order of the Chief Judicial Magistrate
summoning the respondent no.2 does not reflect that he
has applied his mind to the facts of the case and the
law applicable thereto. The Chief Judicial Magistrate
has not carefully scrutinized the evidence brought on
record and mechanically passed the order of issuance
of process. The learned Sessions Judge, in paragraph
no.9 of the judgment, has rightly observed that the
letter in question is sent on behalf of the accused
no.1, by the Marketing Department and there is nothing
on record to show that it is signed by present
respondent no.2/original accused no.2.
11. Learned counsel for respondent no.2 submits
that the dispute is of civil nature but the
16 CRI. W.P. 28/2015 - JUDGMENT
petitioner, who is a practicing lawyer, with malafide
intention and ulterior motive, has filed criminal
complaint against respondent no.2, without making out
the ingredients of the offences punishable under
section 420, 427 r/w. 34 of the Indian Penal Code, as
alleged in the complaint. The petitioner/original
complainant did not qualify for the prize as per the
terms and conditions of the scheme, set out by the
Marketing Department of the respondent company.
As communicated to him, the petitioner has not taken
recourse to any civil remedy so far and only filed
criminal complaint against the respondent company and
its chairman, vice chairman and other officers with an
ulterior motive. Learned counsel submits that the
ingredients of cheating are not at all attracted in
the present set of allegations. Respondent no.2 was
not knowing the complainant prior to filing of the
complaint and, therefore, it is difficult to accept
that the respondent no.2 had any intention of causing
any wrongful loss to the complainant and wrongful gain
to anyone else. The petitioner/complainant, who is a
practicing lawyer, has only alleged in the complaint
that the respondent no.2 had a culpable intention
right at the time of introducing the said scheme,
17 CRI. W.P. 28/2015 - JUDGMENT
however, except this allegation, there is nothing in
the complaint, to substantiate those allegations.
12. Learned counsel for the respondent no.2
further submits that there were other purchasers,
whose claim of Santro car under the scheme was
rejected by the Marketing Official of the respondent -
BDA Company Ltd. and being aggrieved with the same,
some of the purchasers had lodged their complaints
before the District Consumer Dispute Redressal Forum,
Jalgaon. The District Consumer Dispute Redressal
Forum, Jalgaon has directed the respondent - BDA
Company Ltd. to give the respective prizes of such
purchasers. Being aggrieved by the said order of the
District Forum, the respondent-company had filed
appeal before the State Consumer Dispute Redressal
Commission, who after hearing both the parties,
allowed the appeal and set aside the order passed by
the District Forum. Being aggrieved by the same, one
of the purchasers preferred an appeal before the
National Consumer Dispute Redressal Forum, New Delhi
and the said appeal came to be dismissed by order
dated 11/2/2010. Learned counsel brought attention of
this Court to Exhibit "R-1" annexed with the
18 CRI. W.P. 28/2015 - JUDGMENT
affidavit-in-reply of the respondent no.2, wherein the
photograph of Mr. Ganesh T. Survadkar, who won the
Santro car and also list of the persons, who won the
various other prizes like washing machine, motorbike,
television and music system is annexed. Learned
counsel submits that so far as respondent no.2 is
concerned, although the allegations made in the
complaint, even if given the face value and taken to
be true in its entirety, do not disclose offence and
it is found to be an abuse of the process of the
Court. If no case is made out against respondent
no.2, there is no point in saying that the respondent
no.2 may avail the remedy of filing an application for
discharge. Learned counsel submits that the learned
Sessions Judge has considered the other grounds raised
by the respondent no.2 alongwith the ground that the
respondent no.2 was the whole time director of M/s.
Herberston Ltd. and he could not have been the
director of the present company. The learned Sessions
Judge, by its impugned judgment and order has
therefore rightly dismissed the complaint against the
respondent no.2. No interference is required.
Criminal Writ Petition is devoid of any merits and is
thus liable to be dismissed.
19 CRI. W.P. 28/2015 - JUDGMENT
13. Learned counsel for respondent no.2, in order
to substantiate his submissions, places reliance in
the following cases :
(i) Hira Lal Hari Lal Bhagwati Vs. CBI, New
Delhi 2003 (5) S.C.C. 257;
(ii) G. Sagar Suri & Anr. V/s. State of U.P.
& Ors. 2000 (2) S.C.C. 636;
(iii) Vir Prakash Sharma V/s Anil Kumar
Agarwal & Anr. 2007 (7) S.C.C. 373;
(iv) Sunil Bharti Mittal Vs. Central Bureau
of Investigation AIR 2015 SC 923;
(v) V.P. Shrivastava V/s. Indian Explosives
Ltd. & Ors. (2010) 10 S.C.C. 361;
(vi) Dalip Kaur & Ors. V/s. Jagnar Singh &
Anr. AIR 2009 S.C. 3191;
(vii) Mohammaed Ibrahim & Ors. V/s. State of
Bihar and Anr. (2009) 8 S.C.C. 751;
(viii) Uma Shankar Gopalika V/s. State of
Bihar and anr. (2005) 10 S.C.C. 336;
(ix) Anil Mahajan V/s. Bhor Industries Ltd. &
Anr. (2005) 10 S.C.C. 228;
20 CRI. W.P. 28/2015 - JUDGMENT
(x) Hari Prasad Chamaria V/s. Bishnu Kumar
Surekha & Ors. (1973) 2 S.C.C. 823;
(xi) Dnyananda Sameer V/s. State of
Maharashtra 2014(3) Bom.C.R. (Cri.) 87;
(xii) Pepsi Foods Limited & Anr. V/s. Special
Judicial Magistrate 1998 (1) Mh.L.J. 599;
(xiii) G. Sagar Suri and Anr. V/s. State of
U.P. and Ors. 2000 S.C.C. (Cri.) 513;
(xiv) Ashok Chaturvedi & Ors. V/s. Shitul H.
Chanchani & Anr. (1998) 7 S.C.C. 698;
(xv) G.A. St. George V/s. Uma Dutt Sharma
AIR 1939 All 602.
14. It appears from the record that the order
passed by the learned Judicial Magistrate First Class
dated 3/12/2008 in RCC No.249 of 2004, thereby issuing
process against all the accused, came to be challenged
by the respondent no.6 herein alone, by filing
Criminal Revision Application No.17 of 2009. The
learned Sessions Judge, Jalgaon, by judgment and order
dated 21/12/2009 partly allowed the said Revision
Application and further set aside the order of
issuance of process in its entirety. The learned
Sessions Judge has further directed the Magistrate to
21 CRI. W.P. 28/2015 - JUDGMENT
hold enquiry into the matter in accordance with the
provisions of section 202 of the Cr.P.C. and,
thereafter, to proceed further with the matter in
accordance with law. After considering the facts and
circumstances and by consent of the parties, the
learned Sessions Judge has directed that the complaint
shall be dealt with by the Chief Judicial Magistrate
himself. In view of the above directions, the learned
Chief Judicial Magistrate proceeded to hold enquiry
himself and directed the complainant to lead the
evidence before the issuance of process, vide order
dated 13/8/2010 passed below Exhibit 8. Accordingly,
the complainant examined himself and one witness
namely, Mohanlal Bharwani, the wine shop owner. The
learned Chief Judicial Magistrate, by reasoned order
dated 8/3/2011 issued the process against all the
accused persons under section 420, 427 r/w. 34 of the
Indian Penal Code. Against this order, the present
respondent no.2 alone preferred Criminal Revision
Application No.60 of 2011.
15. The learned Sessions Judge, by order dated
21/12/2009 passed in Criminal Revision Application No.
17 of 2009, set aside the order of issuance of process
22 CRI. W.P. 28/2015 - JUDGMENT
passed by the Magistrate in its entirety and further
gave certain directions including the direction to the
Chief Judicial Magistrate, to deal with the case
himself. In view of this, even though, the initial
order passed by the Magistrate dated 3/12/2008 was not
challenged by the present respondent no.2, the learned
Sessions Judge has quashed and set aside the entire
order of issuance of process passed by the Magistrate.
The learned Chief Judicial Magistrate has undertaken a
fresh enquiry as directed and accordingly passed a
reasoned order of issuance of process. Thus, the
Criminal Revision Application No. 60 of 2011 preferred
by the respondent no.2 against the said order passed
by the learned Chief Judicial Magistrate dated
8/3/2011, is maintainable. I do not find any
substance in the submissions made by learned counsel
for the petitioner, in this regard.
16. On careful perusal of the judgment and order
passed by the learned Sessions Judge in Criminal
Revision Application No. 60 of 2011, it appears that
the present respondent no.2 has placed on record
certain documents first time before the revisional
Court. The learned Sessions Judge, in paragraph no.9
23 CRI. W.P. 28/2015 - JUDGMENT
of the judgment has given reference to those documents
particularly, certified copy of the extract from the
Registrar of Companies, issued on 24/8/2005 in respect
of a Company named and styled as M/s. Herberston Ltd.
The learned Sessions Judge has observed that on
perusal of the said extract, it appears that for the
period of 21/12/1992 to 23/3/2005, the respondent no.2
herein was the whole time director of M/s Herberston
Ltd. The learned Sessions Judge has observed that in
such circumstances, if the respondent no.2 herein was
the whole time director of the said company, he could
not have been the director of the respondent - BDA
Company Ltd.
17. It is well settled that at the stage of
issuing process, the Magistrate is mainly concerned
with the allegations made in the complaint or the
evidence led in support of the same and he is only to
be prima facie satisfied, as to whether there are
sufficient grounds for proceeding against the accused.
It is not the province of the Magistrate, to enter
into the detail discussion of the merits or de-merits
of the case nor can the High Court go into this matter
in its revisional jurisdiction, which is very limited
24 CRI. W.P. 28/2015 - JUDGMENT
one. The scope of enquiry under section 202 of the
Code of Criminal Procedure is extremely limited i.e.
only to the ascertainment of the truth or the falsity
of the allegations made in the complaint - (i) on the
basis of the material placed by the complainant; (ii)
for the limited purpose of finding out whether a prima
facie case for issue of process has been made out; and
(iii) for deciding the question purely from the point
of view of the complainant without at all adverting to
any defence that the accused may have. The
correctness of the order whereby cognizance has been
taken by the Magistrate unless it is perverse or based
on no material, should be sparingly interferred with.
Whatever defence the accused may have, can only be
enquired into at the trial. There may be a situation,
wherein the defences raised by the accused are
factually unassailable and the same are not
controvertible, it would demolish the foundation of
the case raised by the prosecution. The Magistrate
may examine such a defence even at the stage of taking
cognizance and/or issuing process, however, the
defences raised by the accused if factual in nature,
it cannot be said that those defences are unassailable
and also not controvertible.
25 CRI. W.P. 28/2015 - JUDGMENT
18. Learned counsel for the petitioner has placed
reliance in the following cases :
(i) Vinod Raghuvanshi V. Ajay Arora and Ors.
AIR 2014 SC (Supp) 1516;
(ii) Smt. Nagawwa Vs. Veeranna Shivalingappa
Konjalgi & Ors. AIR 1976 SC 1947 - 2014 ALL
SCR (O.C.C.) 225;
(iii) ig Helios & Matheson Information
Technology Ltd. & Others Vs. Rajeev Sawhney &
Another [2012] 1 SCC 699;
(iv) Dr. Mrs. Nupur Talwar Vs. C.B.I. Delhi
and anr. [2012] 2 ADJ (SC) 763;
(v) Nupur Talwar V. Central Bureau of
Investigation and anr. AIR 2012 SC 1921;
(vi) State of Orissa Vs. Debendra Nath Padhi
[2004] (8) Supreme 568;
(vii) Anil Saran Vs. State of Bihar and anr.
AIR 1996 SC 204;
(viii) Nupur Talwar Vs. Central Bureau of
Investigation & Anr. [2012] 4 Supreme 158.
26 CRI. W.P. 28/2015 - JUDGMENT
On careful perusal of the observations made by the
learned Sessions Judge in paragraph no.9 of the
impugned judgment and the ratio laid down in the above
cited cases, it appears that the learned Sessions
Judge has exceeded his limits and considered the
probable defences of the accused (respondent no.2
herein), while exercising the revisional jurisdiction.
The learned Sessions Judge has committed grave error
while considering the documents first time produced in
the revision. Though by referring certain extract,
the respondent no.2 herein has raised certain defence,
the same is factual in nature. It cannot be said that
the said defence raised by the respondent no.2 herein
is unassailable and also can not be controverted. The
learned Sessions Judge should have avoided himself to
enter into such factual controversy, based on certain
assertions. Defence raised by the respondent no.2
herein before the Sessions Judge, is required to be
established by acceptable and cogent evidence and
thereupon, the same will have to be examined on
merits. However, in paragraph no.9 of the impugned
judgment, the learned Sessions Judge has also
considered some other grounds. The learned Sessions
27 CRI. W.P. 28/2015 - JUDGMENT
Judge has observed that except the allegations in the
complaint that respondent no.2 herein signed the
letter sent to the complainant for and on behalf of
the accused no.1, there is nothing on record against
the respondent no.2 herein. The learned Sessions
Judge has further observed that if the said letter is
perused, it appears that it is signed on behalf of the
accused no.1, by the Marketing Department.
19. It has alleged in the complaint that the
petitioner/complainant had addressed letter dated
1/3/2004 to the respondent no.2 herein. On perusal of
the said letter dated 1/3/2004, which is annexed to
the complaint, it appears that the
petitioner/complainant had addressed the said letter
to the General Manager (Marketing), BDA Company Ltd.,
Mumbai. It has also alleged in the complaint that the
respondent no.2 herein had sent letter dated 19/2/2004
by post. However, on perusal of the said letter dated
19/2/2004, it appears that the said letter has been
issued by the Marketing Department for BDA Company
Ltd. and it was not written or signed by the
respondent no.2 herein. Furthermore, on perusal of
the letter dated 16/3/2014, it appears that the said
28 CRI. W.P. 28/2015 - JUDGMENT
letter was issued by the Marketing Department of the
respondent - BDA Company Ltd. addressed to the
petitioner/complainant. On perusal of certain reminder
letters issued by the petitioner/complainant, it
appears that the said letters have been addressed to
the General Manager, Marketing Department of the
respondent - BDA Company Ltd. In absence of any prima
facie evidence about the involvement of the respondent
no.2 herein in the alleged crime, or any
representation on his part in the entire process of
managing of the scheme and the decision taken with
regard to the winner in the said scheme, the question
arises whether the respondent no.2 herein, being the
chairman of the respondent - Company and in that
capacity alone, is criminally liable?
20. In the case of Sunil Bharti Mittal V/s.
Central Bureau of Investigation (cited supra), relied
upon by learned counsel for respondent no.2, in
paragraph nos.35 to 38 and paragraph no.39 (excluding
case-laws discussed in the said paragraph), the
Supreme Court has made the following observations :-
35. It is abundantly clear from the above that
the principle which is laid down is to the
29 CRI. W.P. 28/2015 - JUDGMENT
effect that the criminal intent of the "alter
ego" of the company, that is the personal group
of persons that guide the business of the
company, would be imputed to the
company/corporation. The legal proposition that
is laid down in the aforesaid judgment is that
if the person or group of persons who control
the affairs of the company commit an offence
with a criminal intent, their criminality can
be imputed to the company as well as they are
"alter ego" of the company.
36. In the present case, however, this
principle is applied in an exactly reverse
scenario. Here, company is the accused person
and the learned Special Magistrate has observed
in the impugned order that since the appellants
represent the directing mind and will of each
company, their state of mind is the state of
mind of the company and, therefore, on this
premise, acts of the company is attributed and
imputed to the Appellants. It is difficult to
accept it as the correct principle of law.
As demonstrated hereinafter, this proposition
would run contrary to the principle of
vicarious liability detailing the circumstances
under which a direction of a company can be
held liable.
(iii) Circumstances when Director/Person in
charge of the affairs of the company can also
30 CRI. W.P. 28/2015 - JUDGMENT
be prosecuted, when the company is an accused
person:
37. 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. However, at the same time, it is
the cardinal principle of criminal
jurisprudence that there is no vicarious
liability unless the statute specifically
provides so.
38. Thus, an individual who has perpetrated
the commission of an offence on behalf of a
company can be made 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 in those cases where the statutory regime
itself attracts the doctrine of vicarious
liability, by specifically incorporating such a
provision.
39. When the company is the offendor,
vicarious liability of the Directors cannot be
31 CRI. W.P. 28/2015 - JUDGMENT
imputed automatically, in the absence of any
statutory provision to this effect. One such
example is Section 141 of the Negotiable
Instruments Act, 1881. In Aneeta Hada (supra),
the Court noted 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,
therefore, because of statutory intendment
making it a deeming fiction. Here also, the
principle of "alter ego", was applied only in
one direction namely where a group of persons
that guide the business had criminal 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. This
very principle is elaborated in various other
judgments. We have already taken note of
Maharashtra State Electricity Distribution
Company Ltd. (supra) and S.K. Alagh (supra)."
The Supreme Court by referring various decisions on
this point, observed that there is no concept of
vicarious liability under the Penal law, unless the
32 CRI. W.P. 28/2015 - JUDGMENT
said statute covers the same within its ambit.
Vicarious liability can be fastened only by reason of
statute and not otherwise. It has also observed by
the Supreme Court that the Penal Code, 1860, save and
except in some matters, does not contemplate any
vicarious liability on the part of a person.
21. In the instant case, even prima facie, the
evidence is lacking about any role coupled with
criminal intent on the part of the respondent no.2
herein.
22. It is settled law that for proving the
offence of cheating, complainant is required to show
that accused had fraudulent or dishonest intention at
the time of making promise or representation and on
failure to keep promise subsequently, such deceptive
intention right at the beginning cannot be presumed.
23. Learned counsel for respondent no.2 submits
that there are no allegations in the complaint
indicating expressly or impliedly any intentional
deception or fraudulent/dishonest intention on the
part of the respondent no.2 herein from the time of
inception of the said scheme. Learned counsel has
33 CRI. W.P. 28/2015 - JUDGMENT
also submitted that respondent no.2 herein could not
be attributed any mens rea for not declaring the
petitioner/complainant as the winner under the said
scheme launched by the respondent - BDA Company Ltd.
24. In the following cases, referred supra and
relied upon by the learned counsel for respondent
no.2, the applicability of section 420 of the Indian
Penal Code is discussed and held that
fraudulent/dishonest intention at the time of promise
or representation, is necessary :-
(i) Hira Lal Hari Lal Bhagwati Vs. CBI, New
Delhi 2003 (5) S.C.C. 257;
(ii) G. Sagar Suri & Anr. V/s. State of U.P.
& Ors. 2000 (2) S.C.C. 636;
(iii) Vir Prakash Sharma V/s Anil Kumar
Agarwal & Anr. 2007 (7) S.C.C. 373;
(iv) V.P. Shrivastava V/s. Indian Explosives
Ltd. & Ors. (2010) 10 S.C.C. 361;
(v) Dalip Kaur & Ors. V/s Jagnar Singh &
Anr. AIR 2009 S.C. 3191;
(vi) Uma Shankar Gopalika V/s State of Bihar
and anr. (2005) 10 S.C.C. 336;
34 CRI. W.P. 28/2015 - JUDGMENT
(vii) Anil Mahajan V/s. Bhor Industries Ltd.
& Anr. (2005) 10 S.C.C. 228;
(viii) Hari Prasad Chamaria V/s. Bishnu Kumar
Surekha & Ors. (1973) 2 S.C.C. 823;
(ix) G. Sagar Suri and Anr. V/s. State of
U.P. and Ors. 2000 S.C.C. (Cri.) 513;
25. On careful perusal of the complaint and the
allegations made therein, it appears that the
petitioner/complainant, though was a practicing
Advocate, without any direct involvement on the part
of the respondent no.2 in the alleged process of
managing of the scheme and the further decision
regarding the winner of the said scheme, made
allegations against the respondent no.2 herein. It
further appears that the petitioner/complainant has
impleaded respondent no.2 herein, as an accused no.2
only for the reason that he is the Chairman of the
respondent - BDA Company Ltd. The allegations in the
complaint are restricted to the extent of commission
of the offences punishable under the Penal Code, 1860.
It is well settled that the vicarious liability can be
fastened only by reason of a statute and not
otherwise. Respondent no.2 herein cannot be said to
35 CRI. W.P. 28/2015 - JUDGMENT
have committed offence punishable under section 420 of
the Indian Penal Code merely because he is the
Chairman of the respondent - BDA Company Ltd. Section
420 of the Indian Penal Code does not contemplate any
vicarious liability on the part of a person.
26. In Pepsi Foods Ltd. Vs. Special Judicial
Magistrate (1998) 5 SCC 749, in paragraph no.28 of the
judgment, the Supreme Court has made the following
observations:-
"28. Summoning of an accused in a
criminal case is a serious matter.
Criminal law cannot be set into motion as
a matter of course. It is not that the
complainant has to bring only two
witnesses to support his allegations in
the complaint to have the criminal law
set into motion. The order of the
Magistrate summoning the accused must
reflect that he has applied his mind to
the facts of the case and the law
applicable thereto. He has to examine the
nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and would
that be sufficient for the complainant to
succeed in bringing charge home to the
accused. It is not that the Magistrate is
36 CRI. W.P. 28/2015 - JUDGMENT
a silent spectator at the time of
recording of preliminary evidence before
summoning of the accused. The magistrate
has to carefully scrutinize the evidence
brought on record and may even himself
put questions to the complainant and his
witnesses to elicit answers to find out
the truthfulness of the allegations or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused."
27.
In the given set of allegations, whether the
ingredients of section 420 of the I.P. Code stands
attracted or not, it would not be appropriate to make
any observations since the other accused persons are
to face the trial, however, suffice to say that there
are no sufficient grounds to proceed against the
respondent no.2 herein. Though the learned Sessions
Judge has considered certain documents produced for
the first time in the revision pending before him, the
learned Sessions Judge has also considered the other
grounds and rightly passed the impugned order so far
as the present respondent no.2 is concerned.
37 CRI. W.P. 28/2015 - JUDGMENT
28. In view of the above discussion, no
interference is required. Hence, the following
order :-
ORDER
I) Criminal Writ Petition is hereby dismissed.
II) Rule stands discharged.
[V.K. JADHAV]
JUDGE
arp/
