Bombay High Court
Reliance Infocomm Limited And Ors vs The State Of Maharashtra And Anr on 10 January, 2025
2025:BHC-AS:1469
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2125 OF 2004
1. Reliance Infocomm Limited
having its address at Thane Belapur Road,
Kopar Kairane, Navi Mumbai
2. Reliance Communications Infrastructure
Limited, having its address at Thane Belapur
Road, Kopar Kairane, Navi Mumbai
3. Reliance Industries Limited
having its Registered Office at 3rd Floor,
Maker Chamber IV, 222, Nariman Point,
Mumbai through the Legal Officer
Shri. Gyanendra Upadhay,
residing at 307, Dhinbar Palace Kohinoor
Bhayander East.
4. Mukesh D. Ambani
having its Office at 3rd Floor,
Maker Chambers IV, 222, Nariman Point,
Mumbai - 400 021.
5. Anil D. Ambani
having his Office at
3rd Floor, Maker Chambers IV,
222, Nariman Point, Mumbai - 400 021.
6. Vinod M. Ambani
having his Office at 3rd Floor, Maker Chambers IV,
222, Nariman Point, Mumbai - 400 021.
7. Dilip V. Dherai
having its office at NKM International House,
5th Floor, 178, Backbay Reclamation,
Bhulabhai Chinai Road, Mumbai.
8. Satyapal Jain
having its office at 807, Embassy Centre,
Nariman Point, Mumbai ..... Petitioners
1/11
::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:01 :::
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
Vs.
1. State of Maharashtra
2. Dinesh N. Kotecha
having his address at Ground Floor,
Jay Bharat Flour Mill Building,
302, Maulana Azad Road (Duncan Road),
Mumbai - 400 004. ..... Respondents
WITH
CRIMINAL WRIT PETITION NO.2268 OF 2004
Bharat C. Ghosalia
having his office at NKM International
House, 5th Floor, 178, Backbay Reclamation,
Bhulabhai Chinai Road,
Mumbai ..... Petitioner
Vs.
1. State of Maharashtra
2. Dinesh N. Kotecha
having his address at Ground Floor,
Jay Bharat Flour Mill Building,
302, Maulana Azad Road (Duncan Road),
Mumbai - 400 004. ..... Respondents
Mr. Amit Desai, Sr. Counsel a/w. Mr. Gopalakrishna Shenoy,
Mr. Ganesh Bhujbal and Mr. Gaurav Thakur i/b. M/s. A.S.
Dayal and Associates for the Petitioner.
Ms. R.V. Newton, APP for the State.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 13th DECEMBER, 2024.
PRONOUNCED ON : 10th JANUARY, 2025.
JUDGMENT :
-
. Present Petitions filed under Section 482 of Cr.P.C.
seeking to quash and set-aside the impugned Order of issuing
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
summons/process passed on 19th August 2004, by the 4th Court of the
learned Additional Chief Metropolitan Magistrate, Girgaon, Mumbai
in Complaint Case No.154/SW/2004 and to quash the said case.
2) Heard Mr. Amit Desai, learned Senior Counsel for the
Petitioners and Ms. R.V. Newton, learned APP for the State. Perused
the record.
3) Record indicates that rule was granted on 26 th April, 2005.
The Respondent No.2 resisted the Petitions by filing affidavit in reply
and the Advocate for the Respondent waived service of Rule. Hence,
the Petitions were directed to be listed for final hearing. On 10 th
December 2024, this Court heard Mr. Desai and Ms. Newton. But
none appeared for Respondent No.2 on that date. However, the
Petitions stood over to 13th December 2024 as a last chance of hearing
to Respondent No.2, despite which none appeared for Respondent
No.2 to avail the hearing opportunity.
4) The said Complaint Case No.154/SW/2004 has been filed
by the Respondent No.2 against total 21 accused, alleging the offences
punishable under Sections 420, 463, 467, 499 and 500 of the Indian
Penal Code. Petitioners in WP/2125/2004 are the original Accused
Nos.1, 2, 3, 4, 10, 5, 20 and 21 and the Petitioner in WP/2268/2004 is
the original Accused No.19.
4.1) In the Complaint, the Respondent No.2 alleged that the
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
Accused Nos.1 and 2 are service providers in Reliance telephones and
the Accused No.3 issues bills and collecting its dues for the services
provided by the Accused Nos.1 and 2. Accused Nos.4 to 15 are the
Board of Directors of Accused No.3 who are responsible for day to day
affairs of Accused No.3. Accused Nos.16 to 21 are the Board of
Directors of Accused No.1 who are responsible for day to day affairs of
Accused No.1. It is stated that, the Respondent No.2 had not filed any
Application to obtain two telephone connections i.e., 022-34393318
and 022-34393267 in his name and at his said address. However, the
Respondent No.2 was charged with following statements/bills
towards consuming telephonic services in relation to the aforesaid
telephone numbers.
Details of bills of telephone number 022-34393267 :-
Statement No. Date Statement Period Amount
250072584166 18-12-2003 01-12-2002 to 17-12-2003 6,347/-
2500114176970 18-01-2004 18-12-2003 to 17-01-2004 6,816/-
250182184109 18-02-2004 18-01-2004 to 17-02-2004 7,285/-
250250092460 18-03-2004 18-02-2004 to 17-03-2004 23,069/-
250308828800 18-04-2004 18-03-2004 to 17-04-2004 30,955/-
250378592428 18-05-2004 18-04-2004 to 17-05-2004 33,182/-
Details of bills of telephone number 022-34393318 :-
Statement No. Date Statement Period Amount
250072583148 18-12-2003 01-12-2002 to 17-12-2003 3,627/-
250114176672 18-01-2004 18-12-2003 to 17-01-2004 4,096/-
250182183983 18-02-2004 18-01-2004 to 17-02-2004 4,565/-,
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
250250092162 18-03-2004 18-02-2004 to 17-03-2004 5,148/-
250308828502 18-04-2004 18-03-2004 to 17-04-2004 5,772/-
250378592061 18-05-2004 18-04-2004 to 17-05-2004 6,412/-
5) On receipts of the first bills, the Respondent No.2
complained in writing to VP Road Police Station on 26/12/2003, that
by providing wrong information some unknown person has obtained
the said telephone connection mentioning the name of Respondent
No.2 as the subscriber. Meanwhile, the Respondent No.2 addressed
letters to the accused Companies and its retail outlet and informed
the said fact to the Companies with a request to take necessary action
against the guilty and immediately cancel the telephone connections,
failing which he would take the legal action. However, the Petitioners
failed and neglected to take any action in that regard. Therefore,
again the Respondent filed a written complaint with the VP Road
Police Station on 25/02/2004. However, the telephone bills were
issued as above. It is stated that on 07/06/2004 two persons namely
Mr. Jadhav and Mr. More came to the office of Respondent No.2. At
that time two staff members were present in the office and other
offices were open. However, said two persons in loud voice demanded
for payment of the said bills amount. When Respondent No.2 resisted
by claiming that, he is not the subscriber of the said phones, said Mr.
Jadhav and Mr. More in loud tone threatened the Respondent No.2
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
that their master is a big person and they can do anything to him and
his family. Thus, the two caused physical and mental harm to the
Respondent No.2 and defamed him in public view. Therefore, by a
notice dated 08/06/2004, the Respondent No.2 called upon the
accused to immediately withdraw the aforesaid bills and stop doing
criminal acts. However, neither the accused responded the notice nor
took legal action in the matter. Instead, two more bills were issued in
June 2004.
6) In view of the said complaint, the learned Magistrate
recorded the verification statement of Respondent No.2 and then
proceeded to pass the Order of issue process/summons under Section
384 r/w. 34 of I.P.C. against the Petitioners. According to the
Petitioners, the entire complaint is misconceived and cannot stand
against them. Hence, these Petitions.
7) Mr. Amit Desai, learned Senior Counsel for the Petitioners
submitted that, the offence punishable under Section 384 of I.P.C. for
which the process has been issued, was neither alleged against the
Petitioners nor made out from the text of the complaint. However, by
way of the impugned Order, the learned Magistrate directed to issue
the process for the said offence of Section 384 of IPC. He submitted
that, the Accused Nos.4 to 21 are mainly the Board of Directors of
the Accused Nos.1 to 3-Companies. But the concept of vicarious
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
liability does not apply to criminal law except when the statute
provided for the same. This aspect is also ignored in this case by the
learned Magistrate before issuing the process. Therefore, the
impugned Order as well as the aforesaid complaint are liable to be
quashed and set-aside.
8) Ms. Newton, the learned APP, on the other hand, opposed
the Petitions strongly and submitted that, there is sufficient material
against the Petitioners which clearly show that they have committed
the offence of Section 384 of I.P.C., through their employees.
Therefore, the impugned Order cannot be rated as illegal. Insofar as
the affidavit-in-reply is concerned, the Respondent No.2 has mainly
reiterated what he has narrated in the complaint.
9) Admittedly, the offence under Section 384 of I.P.C., was
not alleged against the Petitioners in the subject complaint. Said
Section 384 reads as under :-
"384. Punishment for extortion.--Whoever commits
extortion shall be punished with imprisonment of either
description for a term which may extend to three years, or
with fine, or with both."
10) Considering the text of the complaint and the impugned
Order, it appears that the learned Magistrate directed to issue
process/summons under Section 384 of I.P.C. mainly for the reason
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
that two persons i.e., Mr. Jadhav and Mr. More went to the office of
the Respondent No.2 and demanded the said bills amount. But when
the Respondent took the exception, the duo allegedly threatened
him that their master is a big person and he can do anything to him
and his family. However, there is no whisper in the complaint as to
how Petitioners were responsible for the said act of Mr. Jadhav and
Mr. More. It is not the case that Petitioners had instructed said Mr.
Jadhav and Mr. More to go to the Respondent No.2 and demand the
bills amount by threatening him as above. Moreover, there is no
material on record showing that Mr. Jadhav and Mr. More were
indeed the employees of the Petitioners. There is nothing to point out
that the Petitioners were directly responsible for issuing the aforesaid
telephone connections in the name of the Respondent No.2 and
charge him with the said bills amount. The complaint mentions that
the Accused Nos.4 to 21 are are responsible for day to day affairs of
the accused companies. Nevertheless, no allegation has been made as
against any of the Petitioner that they had anything to deal with
personally either in discharge of their statutory or official duties. In
the backdrop, in my opinion, absolutely there are no ingredients in
the complaint to make out the offence of Section 384 read with 34 of
I.P.C. as against the Petitioners.
11) Considering the narration in the complaint, mainly, the
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
grievance of the Respondent No.2 was against the accused companies
i.e., Accused Nos.1 to 3. Admittedly, the rest of Petitioners were
Directors of the accused companies. Therefore, the said Petitioners
cannot be held vicariously liable for the alleged offence of Section 384
of I.P.C. In this context, a useful reference can be made to the
decision in S.K. Alagh v/s. State of Uttar Pradesh and Others 1,
wherein the Hon'ble Supreme Court in paragraph 19 has held that, "...
. If and when a statute contemplates creation of such a legal fiction, it
provides specifically therefor. In absence of any provision laid down
under the statute, a Director of a company or an employee cannot be
held to be vicariously liable for any offence committed by the
company itself." In the another cited decision between Maksud Sayed
v/s. State of Gujarat and Other2 also it has been held that, vicarious
liability of the Managing Director and Director would arise provided
any provision exists in that behalf in the statute.
12) In the case of Maksud Sayed (supra), the Hon'ble
Supreme Court in paragraph 15 referred the decision in Pepsi Foods
Ltd. v/s. Special Judicial Magistrate and Other3, wherein in
paragraph 28, the Apex Court held as under :-
"28. Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion as
1. (2008) 5 SCC 662.
2. (2008) 5 SCC 668.
3. (1998) 5 SCC 749.
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
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 a silent spectator at the time of
recording of preliminary evidence before summoning of
the accused. The Magistrate has to carefully scrutinise 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."
12.1) Considering the impugned Order it appears that the
learned Magistrate has failed to consider the aforesaid principle,
which ultimately resulted in passing of the impugned Order.
13) Conspectus of the aforesaid discussion is that, there is no
material on record to hold that the Petitioners are liable for the
commission of the alleged offence of Section 384 r/w. 34 of the I.P.C.
However, the learned Magistrate issued the process for the said
offence against the Petitioners, which is erroneous and also illegal. As
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
a result, both the Petitions deserves to be allowed. Hence, following
Order :-
-ORDER-
1) The impugned Order passed on 19th August, 2004
passed by the 4th Court of the learned Additional Chief
Metropolitan Magistrate, Girgaon, Mumbai in Complaint
Case No.154/SW/2004 thereby directing to issue
summons/process against the Petitioners for the offence
punishable under Section 384 r/w. 34 of I.P.C. and the
said Complaint Case No.154/SW/2004, are quashed the
set-aside.
2) Petitions are allowed in aforesaid terms. Rule is
made absolute.
PREETI (SHYAM C. CHANDAK, J.)
HEERO
JAYANI
