Pranav Kumar Sharma And Anr vs The State Of Maharashtra
2021 Latest Caselaw 12097 Bom

                                                                                  wp-2388-2021.doc




                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION

                                          WRIT PETITION NO.2388 OF 2021

                   Pranav Kumar Sharma and Another                         ...Petitioners
                              vs.
                   The State of Maharashtra and Others                     ...Respondents
VISHAL
SUBHASH            Mr. Aabad Ponda, Senior Advocate a/w. Mr. Sagar Naik i/b. Mr.
PAREKAR            Akshay Gosavi, for the Petitioners.
                   Mr. H.S. Venegaonkar, for Respondent No. 2-CBI.
Digitally signed
by VISHAL
                   Mr. K.V. Saste, APP for the Respondent-State.
SUBHASH
PAREKAR
Date: 2021.08.30
11:02:08 +0530                        JUDGMENT RESERVED ON :           25th AUGUST, 2021
                                      JUDGMENT PRONOUNCED ON : 30th AUGUST, 2021
                                                     ---------------

JUDGMENT : (Per N.J.Jamadar, J.)

1. Rule. Rule made returnable forthwith and, with the

consent of the counsels for the parties, heard fnally.

2. The petitioners, who are the Directors of the Update

Marketings Private Limited, which is arraigned as an accused

No. 10 in Special Case No. 770 of 2020 on the fle of learned

Special Judge (CBI Court), Pune lodged at the instance of

respondent No. 2 - CBI have invoked the writ and inherent

jurisdiction of this Court to quash their impleadment as the

representatives of accused No. 10 company in the chargesheet

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lodged by the respondent No. 2 arising out of First Information

Report bearing RC No. 10(A)/2019- CBI Pune.

3. In the light of the limited nature of controversy, which the

petition presents, it would be superfuous to note the factual

backdrop which led to lodging of the said prosecution except to

record that the accused No. 10 company and the co-accused

allegedly caused wrongful loss of Rs. 73 Crores to Andhra Bank

and corresponding wrongful gain to themselves and in the

process allegedly committed the offences of criminal conspiracy,

cheating, forgery, forgery for the purpose of cheating, using false

documents as genuine and criminal misconduct punishable

under section 120B read with 420, 467, 468 and 471 of the

Indian Penal Code, 1860 (the Penal Code) and section 13(2) read

with 13(1)(d) of Prevention of Corruption Act, 1988.

4. In the chargesheet, accused No. 10 has been arrayed as

under:

(i) Name Update Marketings Private Ltd. (A-10) Represented by Shri Pranav Kumar Sharma, Director, Shri Siddhesh Kumar Sharma, Director.

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5. The petitioners take exception to their impleadment as the

representative of accused No. 10 Update Marketings Private Ltd.

6. We have heard Mr. Abaad Ponda, learned senior counsel

for the petitioners, and Mr. Venegaonkar, the learned special

counsel for respondent No. 2-CBI.

7. With the assistance of the learned counsels, we have

perused the material on record.

8. The thrust of the submission of Mr. Ponda was that the

petitioners who are the Directors of accused No. 10 'Update

Marketings Private Ltd.' have no grievance about the

impleadment of the said company as an accused. The

petitioners, according to Mr. Ponda, however, could not have

been per force made to represent the accused No. 10. Had it

been a question of mere representation of a corporate body

through a human agency the petitioners still would have no

grievance but the learned Special Judge by an order dated 15 th

February, 2021, directed the petitioners to execute bail bonds as

if the petitioners were arraigned as accused in their individual

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capacity. The said course in the face of the provisions contained

in section 305 of the Code of Criminal Procedure, 1973 (the

Code) cannot be said to be in consonance with law.

9. Mr. Ponda, would further urge that in the case at hand,

accused No. 10 had in fact appointed Mrs. Gopal Sharma to

represent it at the trial and the learned Special Judge had even

permitted the appearance of the accused No. 10 company

through the said Mr. Gopal Sharma, yet, the petitioners continue

to be dragged into the proceedings as if they are the accused in

their individual capacity.

10. We have perused the order passed by the learned Special

Judge on the application (Exhibit 20) whereby the application of

accused No. 10 to appear through its above named

representative came to be allowed. We have also perused the

order dated 15th February, 2021 whereby and whereunder the

petitioners were directed to be released on bail on executing bail

bonds and furnishing sureties. The said situation, from the

perusal of the report under 173 of the Code, appears to have

been driven by the fact that while impleading accused No. 10, it

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was shown to have been represented by the petitioners-Directors

thereof.

11. We fnd considerable substance in the submission of Mr.

Ponda that such per force impleadment of the representative,

which, for all intent and purpose, partakes the character of

arraigning such representative as an accused in individual

capacity, is not legally sustainable.

12. Section 305(2) and 305(3) of the Code, reads as under:

Sec.305(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.

Sec.305(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.

13. On a plain reading of section 305(2) of the Code, it

becomes evident that it empowers a corporate entity, which is

arraigned as an accused, to appoint a representative for the

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purpose of inquiry or trial. Indisputably, where a corporate

entity is impleaded as an accused, of necessity, it is required to

be represented through a human agency. Section 305(2) thus

authorizes the corporation to appoint a representative for the

purpose of inquiry or trial. Sub section (3) further provides that

the requirement of presence, explanation to and examination of

the corporation shall be deemed to have been complied with the

presence of, explanation to and examination of such

representative.

14. In all fairness, Mr. Venegaonkar, did not dispute the legal

position. Mr. Venegaonkar, however, submitted that in the facts

of the instant case, during the proceeding in the Special Case

No. 770 of 2020 a situation may arise where the complicity of

the petitioners in their individual capacity may turn out to be a

fact in issue. An apprehension was thus expressed by Mr.

Venegaonkar that an order passed by this Court in this petition

that the impleadment of the petitioners as the representatives of

accused No. 10 company is not legally sustainable may be

construed as complete exoneration of the petitioners from the

liability for the criminal acts for which the petitioners may be

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otherwise liable to be prosecuted.

15. We do not fnd that the apprehension is well founded. At

this juncture, neither there is any occasion nor this Court

professes to delve into the aspect of complicity of the petitioners

in their individual capacity for the alleged offences. The

controversy revolves around the legality and correctness of the

process of their impleadment per force, as representative of

accused No. 10 company. Nonetheless to allay the apprehension,

we deem it appropriate to clarify the position by recording that

there are adequate provisions in the Code which take care of a

contingency where the persons who are not sent up for trial

initially, can be impleaded as an accused, provided a case is

made out for the same. We observe no more.

16. For the foregoing reasons, the petition deserves to be

allowed. Hence, the following order.

                                        ORDER

i]       The petition stands allowed.

ii]      The impleadment of the petitioners as representative of



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Accused No. 10 'Update Marketings Private Limited' stands

quashed and set aside.

iii] The accused No. 10 company shall, in terms of the order

passed by the learned Special Judge on the Application (Exhibit

20) dated 2nd February, 2021, be represented by Gopal

Ramkishor Sharma for the purpose of inquiry and trial.

iv] The order dated 15th February, 2021 directing the

petitioners to execute the bail bonds and furnish surety also

stands quashed and set aside.

v] The bail bonds, if furnished, stand cancelled and sureties,

if any, stand discharged.

vi] Rule made absolute in aforesaid terms.

         (N.J. JAMADAR, J.)                               (S.S. SHINDE, J.)




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