Madras High Court
M/S. Arihant Foundations And ... vs State Rep. By on 31 August, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.08.2021
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Crl.R.C.No.519 of 2021
M/s. Arihant Foundations and Housing Ltd.,
Rep. by its Managing Director
Kamal Lunavath .. Petitioner/Petitioner/Accused No.4
Vs.
State rep. by
The Additional Superintendent of Police,
CBI, ACB, Chennai. ..
Respondent
Prayer: Criminal Original Petition filed under Section 397 r/w Sec.401 of
Cr.P.C., to call for the records pertaining to the order, dated 12.08.2021
made in Crl.M.P.No.4263 of 2021 in C.C.No.29/2006 on the file of XIV
Additional Special Court of CBI Cases, Chennai and set aside the same.
For Petitioner .. Mr.B.Kumar, Senior Counsel
For Respondent .. Mr.K.Srinivasan
Special Public Prosecutor
(Central Bureau of Investigation)
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2
ORDER
This Criminal Revision Petition has been filed questioning the order,
dated 12.08.2021 in Crl.M.P.No.4263 of 2021 in C.C.No.29 of 2006, now
pending on the file of XIV Additional Special Judge for CBI cases at
Chennai.
2. Crl.M.P.No.4263 of 2021 had been filed by the 4th accused / M/s.
Arihant Foundations and Housing Ltd., represented by its Managing
Director, Mr.Kamal Lunavath, having office at No.183, Poonamallee High
Road, Kilpauk, Chennai - 600010, taking advantage of Section 305 of the
Code of Criminal Procedure, seeking permission for substitution of afore
named Managing Director by the Liaison Officer of the said company,
Mr.S.Selvakumar to represent the company.
3. The said application came up for consideration before the learned
Judge, presiding over the XIV Additional Special Judge for CBI cases, on
12.08.2021 and by order of even date, the application was dismissed.
Primarily,the learned Judge has been swerved by the fact that the Calendar
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Case was of the year 2006. The case is now posted for framing of charges on
01.09.2021. Just prior to that hearing date, this particular petition has been
filed and the learned Judge probably felt that the said application had been
filed with an intention to frustrate further progress of the Calendar Case and
to derail the commencement of the trial and to postpone the questioning of
the accused on the charges.
4. Heard Mr.B.Kumar, learned Senior Counsel, on behalf of the
revision petitioner and also Mr.K.Srinivasan, learned Special Public
Prosecutor, on behalf of the respondent/Additional Superintendent of Police,
CBI, ACB, Chennai.
5. Though Mr.K.Srinivasan, Special Public Prosecutor requests time
for filing counter, in view of the fact that the Calendar Case of the year
2006, the matter is posted for framing of charges tomorrow / 01.09.2021, I
proceed further after hearing the learned Senior Counsel on behalf the
petitioner and the learned Special Public Prosecutor on behalf of the
respondent.
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6. Both the learned Senior Counsel and the learned Special Public
Prosecutor took me through Section 305 of Cr.P.C., and it would only be
advantageous, since the entire facts surrounds the interpretation the said
provision, that Section 305 of Cr.P.C., is extracted in its entirety.
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 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
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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 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.
7. The only issue that weighs in the mind of the Court is if, the
charges are to be framed in the presence of the Managing Director, Kamal
Lunavath and thereafter this Court, on further hearing of the present revision
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petition, takes a decision to actually allow the revision petition and
thereafter, permit substitution of the said Managing Director by the Liaison
Officer, S.Selvakumar, then, whether, further proceeding of the trial could
be, on that reason be frustrated by the accused, taking advantage of the fact
that the said S.Selvakumar, was not present at the time of framing of
charges, had actually not answered the charges and therefore, the Company
cannot be bound either on his answers on questioning under Section 313
(1)(b) of Cr.P.C or on the further aspects on conclusion of trial.
8. However, both Mr.B.Kumar, learned Senior Counsel for the
revision petitioner and Mr.K.Srinivasan, learned Special Public Prosecutor
stated that, the said apprehension might not be the case, since the
representation under Section 305 of Cr.P.C is only on behalf of the company
and it is the said company, which is the accused and the individual is not
arrayed independently as an accused. It is informed to me that the
transaction alleged by the CBI inviting registration of the First Information
Report and after further investigation, filing of final report, was actually
conducted by the Managing Director, who was at that time incharge of the
day to day operations of the 4th accused/company and who was the father of
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the Managing Director, Kamal Lunavath and who had unfortunately
expired, who could therefore not be arrayed as an accused in the Calendar
Case.
9. It is therefore stated that both the Managing Director, now shown,
and the Liaison Officer, both have limited knowledge about the transactions
and therefore, substitution will not be prejudicial to the interests of the
prosecution.
10. Having considered the arguments put forth by the either side, in
order to move the case forward, it would only be appropriate to interfere
with the order passed in Crl.M.P.No.4263 of 2021 and direct the 4th
accused/M/s. Arihant Foundations and Housing Ltd., be represented by by
its Liaison Officer, S.Selvakumar. I make it clear that the said S.Selvakumar
should continue to represent the company from the point of framing charges
till the final judgment is pronounced and at no point of time can the 4th
respondent/company take refugee behind the ground that they have been
wrongly represented or misrepresented by S.Selvakumar, during the course
of the trial. The statements by S.Selvakumar would be directly binding on
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the said Company and they would naturally be bound by such statements.
11. With the above said observations, I would allow the Revision
Petition and direct the learned XIV Additional Special Judge for CBI cases,
Chennai to order substitution in so far as the 4th accused to be represented
by the Liaison Officer, S.Selvakumar, instead of the Managing Director,
Kamal Lunavath.
12. I am also informed that even earlier, at the time of application for
discharge had been filed and had been declined by this Court, a direction
had been given to try the case expeditiously, since the Calendar Case, is of
the year 2006.
13. After framing of charges, whenever the learned Judge commences
trial, the learned Judge may conduct the trial on a day to day basis. I know
that it may not be practicably possible, therefore, even if it is not practicably
possible, the learned Judge may grant only a maximum of three working
days in between any two adjournments and grant not more than two
adjournments for the very same reason. Therefore, the learned Judge may
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commence trial after getting the convenience of both the prosecution and
accused and thereafter, list out the order in which the witnesses are to be
examined and conduct the course of trial proceed.
31.08.2021
Index:Yes/No
Internet:Yes/No
smv / grs
Note:- The Registry is directed to forward the operative portion of this order
by wire to the XIV Additional Special Judge for CBI Cases, Chennai,
forthwith so that that the framing of charges could be proceeded tomorrow
(01.09.2021) in the presence of S.Selvakumar, Liaison Officer.
To,
The Additional Superintendent of Police,
CBI, ACB, Chennai.
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C.V.KARTHIKEYAN,J
smv/grs
Crl.R.C.No.519 of 2021
31.08.2021
http://www.judis.nic.in
