Patna High Court
Sunil Bharti Mittal vs The State Of Bihar on 2 February, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.318 of 2019
Arising Out of PS. Case No.-1974 Year-2018 Thana- PATNA COMPLAINT CASE District-
Patna
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Sunil Bharti Mittal, Son of Shri Satpal Mittal Resident of 19, Amrita Shergil
Marg, P.S.- Lodhi Colony,Dist- New Delhi.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Amit Vikram, Son of Sri Suresh Chandra Sinha EMP ID B0022129, House
No. 326, Behind S.B.I. R.B. Nagar Branch, Nirmala Community Hall,
Saraswati Apartment Lane, P.O. and P.S. Shastri Nagar, Town and District-
Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Chitranjan Sinha, Sr. Advocate
Mr. Rajesh Ranjan, Advocate
Ms. Kanika, Advocate
For the State : Mr. Jai Narain Thakur, APP
For the O.P. No. 2 : Mr. Rajesh Kr. Verma, Advocate
Mr. Shashank Chandra, Advocate
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
ORAL JUDGMENT
Date : 02-02-2024
1. An order, dated 25th of January, 2019, passed in
Complaint Case No. 1974 C of 2018, by the learned Additional
Chief Judicial Magistrate-III, Patna, taking cognizance of offence
under Sections 468/471/120B of the Indian Penal Code, is
challenged by the petitioner, who happens to be Accused No. 1 of
the aforesaid Complaint Case.
2. This is the case of the complainant / Opposite
Party No. 2, herein, that he was employed as Manager, Band-I in
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the CSD Department of Bharti Airtel Limited since 12 th of
September, 2006. As part of work of employment, the complainant
had to send samples of Customer Acquisition Forms (hereinafter
referred to as the ('CAFs') for verification to the TERM Cell for
auditing and compliance. While working as such, the complainant
found that huge malpractices were going on by the concerned
officers in course of manufacturing such samples. It is alleged that
the complainant was forced to do such activities on being directed
by the Accused Nos. 1 to 4. When he resisted fabrication and
forgery of documents in relation to the CAFs, the accused persons
started to put illegal pressure on him to do such malpractices and
on his refusal, he was terminated from his service. It is alleged that
the Opposite Party No. 2 deliberately suppressed relevant
Circulars issued by the Department of Telecommunication,
Government of India and suppressing the said circulars, misguided
the Trial Court to take cognizance of offence against the accused
persons.
3. It is the case of the petitioner, who happens to be
the Chairman of M/s Bharti Airtel Ltd., a private limited company,
engaged in Cellular Telecommunication business in India that the
said company has been granted license by the Department of
Telecommunication, Government of India to provide
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telecommunication services throughout the country. The services
provided by the company is regulated under the Indian Telegraph
Act. More particularly, the company has been issued license to
Private Telecommunication Services for the entire country. The
Department of Telecommunication, Government of India provided
license to the company for telecommunication services in Bihar
Telecom Circle comprising the States of Bihar and Jharkhand. As
the Chairman of the company, the petitioner is responsible for
determining corporate strategy and development, leadership and
governance and policy developments on a global scale. Day to day
work of the company are looked after by the Directors, including
the Managing Directors and CEOs. The complainant/ Opposite
Party No. 2 was employed with the company in Customer Service
Department. Due to change in the Government's circular, business
strategy and the market, the post held by the complainant became
redundant and he was terminated from his service on due process
of law. He applied to the company for retention, but his prayer was
rejected by the company. Then only, he started to make false and
frivolous allegations against the company. The witnesses on behalf
of the complainant, whose initial statement was recorded by the
learned Magistrate on solemn affirmation, were also terminated
and voluntarily resigned.
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4. It is submitted on behalf of the petitioner that the
CAFs are verified by an expert body, i.e., TERM Cells.
5. The Hon'ble Supreme Court in Avishek Goneka
vs. Union of India & Anr., Writ Petition (Civil) No. 285 of 2010,
by its judgment dated 27th of April, 2012, clearly delineated
regulatory norms to be followed by the Telephone Regulatory of
India (TRI).
6. The Hon'ble Supreme issued detailed guidelines
regarding verification of CAFs, issuance of Sim Cards etc., on the
basis of which the company has been working. It is also directed
by the Hon'ble Supreme Court that, if any irregularity or illegality
is detected by way of fabrication and forgery of CAFs and
issuance of Sim Cards, the TERM Cell shall lodge complaint/FIR
against licencee and imposed penalty in case any forgery is found
in CAFs.
7. Thus, it is contended on behalf of the petitioner
that TERM Cell is the competent authority to lodge any complaint
with regard to the forgery in respect of the CAFs.
8. The complainant has no authority to make any
such complaint in view of the aforesaid decision of the Hon'ble
Supreme Court. The petitioner has also mentioned series of
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decisions in his petition of complaint which shall be taken into
consideration at an appropriate stage, if necessary.
9. At the stage of admission of the instant Revision,
the following issues are raised for determination:-
(i) Whether the impugned order, dated 25th of
January, 2019 is sustainable in the light of the decision of the
Hon'ble Supreme Court in Avishek Goneka (supra);
(ii) Whether the petitioner can be arraigned as an
accused in his capacity as a Chairman without impleading Bharti
Airtel Ltd; and
(iii) Whether there was sufficient material before the
learned Magistrate to take cognizance of offence and issuance of
process against the petitioner under Sections 468/471/120B of the
IPC.
10. It is submitted by the learned Senior Advocate for
the petitioner, at the outset, that the Accused No. 1/petitioner has
been implicated as an accused in the above-mentioned complaint
case as Chairman of Bharti Airtel Ltd. However, the complainant
did not implead Bharti Airtel Ltd., the company, as an accused in
the said complaint case. A Chairman of the company in his official
capacity cannot be impleaded without company being made an
accused. The company is the principal accused and if, at all, it is
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seen that the Chairman of company looks after day to day works of
the company, he may be held vicariously liable. It cannot be held
that as the petitioner represents directing mind and will of the
company, as state of mind, was state of mind of the company and,
therefore, acts of the company, could be attributed and imputed to
the petitioner. Such proposition would run contrary to the principle
of vicariously liability, detaining circumstances under which
Directors of the company can be held liable.
11. In support of his contention, he refers to a
decision of the Hon'ble Supreme Court in the case of Sunil Bharti
Mittal vs. Central Bureau of Investigation, reported in AIR 2015
SC 923. On the same point, he also refers to another decision of
the Hon'ble Supreme Court in the case of Maharashtra State
Electricity Distribution Co. Lt. Vs. Datar Switchgear Ltd. & Ors.,
reported in (2010) 10 SCC 479.
12. Referring to the decision of the Hon'ble Supreme
Court in the case of R. Kalyani Vs. Janak C. Mehta & Ors.,
reported in (2009) 1 SCC 516, learned Senior Advocate for the
petitioner submits that allegation of preparation of CAFs by
forging some documents cannot be attributed to the accused. On
the contrary, specific case of the complainant is that as local
Manager it was his duty to send CAFs to TERM Cell. If any
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forgery or manufacturing of false document happened, it took
place at the end of the local office at Patna. The Chairman of the
company did not manufacture those documents. The complainant
is absolutely silent as to how the sample CAFs were prepared and
by whom. In the absence of such prima facie evidence, it is not
proper for the Trial Court to take cognizance of offence against the
petitioner.
13. The learned Advocate for the Opposite Party No.
2, on the other hand, submits that the allegation made by the
complainant should be viewed in a bigger prospective by way of
creating forged CAFs license and lacks of SIM Cards issued in the
names of fictitious persons are available in the market. Those SIM
Cards may be a source of various criminal activities including
terrorist activities or offence like waging war against the State. The
Opposite Party No. 2 tried to stop the said malpractices and when
he raised the issue, he was terminated. The matter requires to be
thoroughly inquired and tried. It may also be a fact that highest
authority of Bharti Airtel Ltd. is involved in such forgery and
manufacturing of false documents.
14. Having heard the learned Senior Advocate for the
petitioner and the learned Advocate for the opposite parties and on
careful perusal of the revisional application as well as the
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decisions made by the Hon'ble Supreme Court, it is ascertained
that forgery in relation to the CAFs is directed to be looked into by
TERM Cell and TERM Cell is the only authority who can inspect
and file complaint if false documents are created and forgery is
done in connection with CAFs. The complainant is not the
authorized person to make such complaint. Moreover, this Court
is not unmindful to note that in case of commission of any offence,
done by a company, the company is the principal accused. Other
persons, who are responsible for the day to day affairs of the
company, are in the second category. Without prosecuting the
company, the person in second category, i.e., the Chairman, cannot
be prosecuted.
15. In support of my submission, the decisions of the
Hon'ble Supreme Court in Raghu Lakshminarayanan vs. Fine
Tubes, reported in (2007) 5 SCC 103 and Aneeta Hada vs.
Godfather Travels & Tours (P) Ltd., reported in (2012) 5 SCC
661, may be taken into consideration.
16. For the reasons stated above, I have no other
alternative but to hold that the learned Magistrate committed gross
illegality in taking cognizance of offence under Sections
468/461/120
B of the IPC against the petitioner and the order of
taking cognizance against the petitioner is quashed and set aside.
Patna High Court CR. REV. No.318 of 2019 dt.02-02-2024
17. The instant Revision is accordingly allowed on
contest.
(Bibek Chaudhuri, J)
skm/uttam/-
AFR/NAFR NAFR
CAV DATE 10.01.2024
Uploading Date 02.02.2024
Transmission Date 02.02.2024
