Madras High Court
M/S.Dharani Sugar Mills vs Farmer Progressive Sangam on 19 October, 2022
Crl.O.P.No.27506 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.10.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.27506 of 2018
and
Crl.M.P.Nos.15865 of 2018
M/s.Dharani Sugar Mills, Unit-II
Rep. by Chairman, Mr.Palani G.Periasamy,
Karaipoondi Village, Polur Taluk,
T.V.Malai District. .. Petitioner
Vs.
Farmer Progressive Sangam,
Rep. by it's Secretary,
Mr.P.Subarmani, Aged 70 years,
Bahadur Street, Polur Town,
Thiruvannamallai District. .. Respondent
PRAYER : This Criminal Original Petition is filed under Section 482 of
Cr.P.C., to call for the records of Crl.R.C.No.11 of 2015 on the file of the
learned Principal District and Sessions Judge, Thiruvannamalai and to
examine the same and to set aside the order passed in Crl.R.C.No.11 of
2015 on 08.10.2018 and to restore the order passed by the learned Judicial
1/15
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Crl.O.P.No.27506 of 2018
Magistrate, Polur in Crl.M.P.No.1725 of 2015 dated 05.05.2015.
For Petitioner : Mr.J.Elanjchezhian
for Mr.G.Prabhakaran
For Respondent : Mr.Adithya Varadarajan
ORDER
The Petitioner/Accused in C.C.No.96 of 2008 filed CMP.No.1725
of 2015 under Section 305 of Cr.P.C., before the trial Court and the trial
Court allowed the Petition, substituting the Petitioner Mr.Palani
G.Periasamy, Chairman of Sugar Mill by one Mr.Kanthasamy, who is
General Manager. Against the said order the Complainant filed Revision
before the Principal District and Sessions Court, Thiruvannamalai in
Crl.RC.No.11 of 2015, and learned Principal District and Sessions Judge, by
order dated 08.10.2018 set aside the order of substitution made by the trial
Court. Against which the present Petition is filed.
2.The Respondent filed a private complaint against M/s.Dharani
Sugar Mills, Rep. by Chairman, Mr.Palani G.Periasamy. As per the
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direction of the Government of Tamil Nadu, the Director of Sugars by his
letter dated 28.12.1995 stipulated transport tariff charges during the
crushing seasons between 01.02.1995 and 30.09.1996 to be deducted for
metric ton for 20 kms alone. The accused company instead of Rs.20/-
deducted Rs.34/- per metric ton for 20 kms. In pursuant to the above, the
Sugar Mill issued a transport tariff schedule dated 18.07.1996 during the
crushing season year 01.02.1995 to 30.09.1996 decided to deduct at Rs.34/-
per metric ton for 20 kms radius, for rest of the kilometers, the said Sugar
Mill to bear the tariff cost. Contrary to the same, accused deducted the tariff
of Rs.41.50/- per metric ton for 20 kms radius. Hence, misappropriation has
been committed.
2.Initially a police complaint was lodged in Cr.No.321 of 2002,
under Section 409 IPC before the Kalasapakkam Police Station. The case
was referred as mistake of fact and R.C.S. was referred before the Court in
RCS.No.20/05. Having no other option, for the misappropriation committed
by the Sugar Mill, the complainant filed a private complaint and hence the
Petitioner filed a quash Petition in Crl.OP.No.10324 of 2018. This Court by
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Crl.O.P.No.27506 of 2018
order dated 30.10.2014 dismissed the quash Petition. At that time, apart
from other grounds, it was contended by the Petitioner to substitute the
chairman by General Manger. This Court by order dated 30.10.2014
observed that the Petitioner to approach the trial Court for the same.
Thereafter, they approached the trial Court and consequent orders have been
passed.
3.The specific case of the Respondent/Complainant is that the
Sugar Mill committed the offence of misappropriation. Further it is not in
dispute that the Sugar Mill was managed by professionals and technocrats,
who are assigned specific duties and responsibilities. The Petitioner being a
Chairman of the said company and other companies, involved in various
businesses. As a Chairman, he would chair the board meetings and other
extraordinary meetings, otherwise he has nothing to do with from the day to-
day affair of the company. Operation of the Sugar Mill was exclusively with
General Manager and other officers. In view of the same, he had filed
Petition under Section 305 Cr.P.C., before the trial Court.
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Crl.O.P.No.27506 of 2018
4.The trial Court by well reasoned order considering all these
aspects allowed the substitution Petition. Thereafter, the
Respondent/Complainant filed a revision and the Sessions Court, set aside
the order of the trial Court, for the reason that there was a delay in filing the
substitution Petition. Calender Case is of the year 2008 and the substitution
Petition filed in the year 2015. Further observing that the Petitioner has
been functioning as Chairman right from the inception of the company. In
view of the same, this substitution Petition cannot be considered.
5.Learned counsel for the Petitioner further submitted that it is not
in dispute that accused is a company and the Petitioner represents company
as Chairman, in his representative capacity as per Section 305 Cr.P.C., at
any point of time, representative of the company can substituted. The
learned counsel for the Petitioner relied upon the judgment passed by this
Court in Crl.O.P.No.1256 of 2003 and referred to paragraphs 7, 8, 9 and 10,
which reads as follows:
“7. It is the further contention of the learned counsel
for the petitioner that the right to appoint a representative to
represent the company (firm) in a criminal trial or inquiry is
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Crl.O.P.No.27506 of 2018
conferred on the company/firm under Section 305 of the Code
of Criminal procedure and the prosecution cannot have
anything to say that the company should appoint a person to
represent it in the inquiry or trial. It is the further contention
of the learned counsel for the plaintiff that the right given to
the Company/firm under Sub-clause (2) of Section 305 Cr.P.C
cannot be interpreted to mean a corresponding right
available to the prosecution to name a person to be the
representative of the company or firm and compel him to
represent the company/firm in the enquiry.
8. The above said contention raised by the learned
counsel for the petitioner is clearly tenable and the same has
to be countenanced. What sub-section (2) of Section 305
Cr.P.C says is that where a Corporation (Firm in this case) 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(Firm in this case). The
term used is "may" and not "shall" meaning that it is a right
available to the Corporation/firm to appoint a representative
to defend it in a criminal trial or inquiry. If the Corporation
or Firm does not come forward to appoint a representative,
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Crl.O.P.No.27506 of 2018
the same doesn't mean that the prosecution can compel
anybody to represent the Company (Firm). This shall be
quite obvious if the entire Section 305 Cr.P.C is considered.
For better appreciation the entire Section 305 Cr.P.C is
reproduced hereunder:
"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 persons 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.
(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.
(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
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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."
9. According to Sub-clause (3) of Section 305
Cr.P.C., if a representative of a Corporation/Company (Firm)
appears on behalf of the Company, then a requirement of the
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 the same
shall be done in the presence of the representative or read,
stated or explained to the representative. It also proceeds to
state that any requirement for the examination of the accused
shall be construed as a requirement of examination of such
representative. Sub-section (3) contemplates voluntary
appearance of a representative of the Company/Firm. It does
not mean that anybody can be compelled by the prosecution
or the Court to represent the company/firm. Then a question
will arise as to what shall happen to the prosecution if
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nobody is appointed by the company/firm or nobody appears
as a representative of the company/firm in the trial or inquiry
in the criminal case before the Court. The answer is found in
Sub-clause (4) which reads as follows:
"4. Where a representative of a corporation does not
appear, any such requirement as is referred to in sub-
section (3) shall not apply."
Therefore, it is abundantly clear that if process was properly
served on the Corporation/Company/firm and the
corporation/company (firm) does not enter appearance
through a representative, then the requirement that certain
things are to be done in the presence of the accused, like
framing of charges and examination of witnesses in the
presence of the accused shall not be applicable. Similarly, the
requirement of examination of the accused also shall not be
applicable. The only circumstance under which the Court can
decide whether a person is or is not a representative of the
Corporation/company/society/firm is when a person appears
as representative of such body and a question arises as to
whether such a person is or is not such a representative. Then
only the question shall be determined by the Court.
10. As per Sub-clause (3) of the Section 305 Cr.P.C,
which reads as follows:-
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Crl.O.P.No.27506 of 2018
"(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."
The power conferred on the Court is to decide whether a
person who appears as a representative of the company/firm
is or is not a representative of the company or firm. The said
power cannot be stretched further to say that the Court has
power to direct any person, which it considers to be a
representative of the company, to appear on behalf of the
company.”
In view of the same, order passed by learned Principal District and Sessions
Judge, Thiruvannamalai, to be set aside.
6.Mr.Adithya Varadarajan, learned counsel for the Respondent
submitted that the Petitioner is the Chairman of the company and he had
held several meetings with the respondent/complainant. The
members/farmers of the Respondent Sangam were assured by the Petitioner
as Chairman, that the Sugar Mill would be operated transparently and
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Crl.O.P.No.27506 of 2018
farmers would be paid for the produce of Sugar cane without delay.
Contrary to the assurance given, Sugar Mill deducted the amount due for
farmers and misappropriated the same. For which the complaint has been
lodged with the Kalasapakkam Police Station. The police failed to take any
action. Thereafter, the complainant approached this Court, after direction of
this Court, case registered, investigation commenced. Thereafter, final
report filed as mistake of fact. The Petitioner filed protest petition and
private complaint filed against the Sugar Mill's Chairman, who is a well
known powerful, personality who earlier filed a quash Petition kept the
quash petition pending for years, from 2008 to 2014. Thereafter, now by
filing this Petition successfully stalled the trial for another seven years. The
only intention of the Respondent is that the misappropriated amount to be
recovered and farmers to be benefited, which is due to them.
7.Considering the submissions made by the learned counsels and
on perusal of the materials, this Court finds that the order passed by this
trial Court is proper. As per Section 305 of Cr.P.C, representative of the
company or firm can be substituted at any stage, of course, following the
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Crl.O.P.No.27506 of 2018
procedure. In this case, it has been done so. The lower Appellate Court set
aside the order of the trial Court, for the reason citing delay which is not
proper. Admittedly, the Chairman Periyasamy is only a representative of the
Accused Sugar Mill Company. The company alone is prosecuted.
8.In view of the same, this Court setaside the order passed in
Crl.R.C.No.11 of 2015 on 08.10.2018, by learned Principal District and
Sessions Judge, Thiruvannamalai, and thereby restoring the order passed by
the learned Judicial Magistrate, Polur in Crl.M.P.No.1725 of 2015 dated
05.05.2015
9.In fine, this Petition is allowed. Consequently, connected
Miscellaneous Petition is closed. The case is pending from the year 2008,
without any progress and only six witnesses to be examined. In view of the
same, the trial Court is directed to conduct the trial as expeditiously as
possible, on day to-day basis, if required and complete the trial within a
period of four months from the date of receipt of a copy of this order.
19.10.2022
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sai
Index: Yes/No
Internet: Yes/No
Speaking order/Non-speaking order
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Crl.O.P.No.27506 of 2018
To
1.The learned Principal District and Sessions Judge,
Thiruvannamalai.
2.The learned Judicial Magistrate, Polur.
3.The Public Prosecutor,
High Court of Madras.
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Crl.O.P.No.27506 of 2018
M.NIRMAL KUMAR, J.
sai
Crl.O.P.No.27506 of 2018
and
Crl.M.P.Nos.15865 of 2018
19.10.2022
https://www.mhc.tn.gov.in/judis
