Delhi High Court
Raghunandan Prasad & Ors. vs The State on 14 January, 2013
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% CRL. M.C. 1287/2010
+ Date of Decision: 14th January, 2013
# RAGHUNANDAN PRASAD & ORS. ....Petitioners
! Through: Mr. Rahul Tyagi, Advocate
Versus
$ THE STATE ....Respondent
Through: Mr. M.N. Dudeja, APP for the State
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
ORDER
P.K.BHASIN, J.
By way of this petition under Section 482 of the Code of Criminal
Procedure, 1973 and Article 227 of the Constitution of India the
petitioners seek quashing of the criminal complaint no.49/10 filed
against them and some others under Sections 7/16 of the Prevention of
Food Adulteration Act, 1954(„the Act of 1954‟ in short) as well as the
order dated 2nd March, 2010 passed by the learned Additional Chief
Metropolitan Magistrate, New Delhi whereby they were summoned as
accused for these offences.
2. The two petitioners were sought to be prosecuted by the Food
Adulteration Department on the averment that they were the directors of
the Company by the name of M/s RJP Restaurants and Hotels Pvt. Ltd.
(hereinafter to be referred as „the Company‟), which was made the main
accused in the complaint for the commission of the offences mentioned
above, and as such they were in-charge of the affairs of the Company
and so also liable to be punished for those offences. From this
averment made in the complaint it is clear that the petitioners were
sought to be made liable for the offences allegedly committed by the
Company only because of their being its Directors and not because they
were actually in charge of the affairs of the Company.
3. Learned Additional Public Prosecutor had while accepting the
legal position that directors of a Company can be made vicariously
liable for any offence committed by the Company only if they were at
the time of commission of the offence in charge of the affairs of the
Company submitted that since the petitioners were the directors of their
Company and as such were deemed to be in charge of the affairs and
management of the Company and it would be for them to show during
the trial that they were not participating in the management and affairs
of their Company and someone else was doing that and, therefore, they
could be rightly prosecuted with the aid of Section 17 of the Act of
1954 and no fault could be found with the impugned order of the
learned Magistrate summoning them as accused for the commission of
the offences by the Company under the Act of 1954. It was also
submitted that though there was a third lady director also of the
Company but she was not made an accused by the complainant since
she was found to be sick and confined to bed.
4. In my view this petition deserves to be allowed in view of the
judgment of the Hon‟ble Supreme Court in the case of " S.M.S.
Pharmaceuticals Ltd. Vs Neeta Bhalla & anr.", (2005) 8 Supreme Court
Cases 89 wherein, while considering the provisions of Section 141 of
the Negotiable Instruments Act,1881 which are similar to Section 17 of
the Act of 1954, it was held that a director cannot be deemed to be in
charge of the affairs of a Company simply because of his being a
director and unless it is pleaded in the complaint that the particular
director sought to be prosecuted was in fact in charge of the affairs of
the Company, which had allegedly committed some offence, he could
not be prosecuted merely on the averment in the complaint that he was
a director and as such in charge of the affairs of the company, as is the
only averment against the two petitioners herein in the complaint.
Learned APP did not bring to my notice any subsequent judgement of
the Supreme Court taking a view contrary to the view taken in S. M. S.
Pharmaceuticals case(supra).
5. This petition is, therefore allowed and the criminal complaint
no.49/2010 qua the two petitioners as also the impugned order
summoning them as accused are quashed.
P.K. BHASIN, J
JANUARY 14, 2013
