G. Jhansi And Another vs State Of Telangana
2022 Latest Caselaw 6143 Tel

               HON'BLE SRI JUSTICE K.SURENDER

              CRIMINAL PETITION No.2997 OF 2022
ORDER:

1. The petitioners, who are arrayed as A6 and A7 in CC

No.796 of 2016 before the XIV Additional Chief Metropolitan

Magistrate, Hyderabad, which case is filed for the offence

under Sections 403, 406, 418, 420, 506 r/w 34 of IPC, filed

this petition to set aside the orders passed in Criminal

Revision Petition No.72 of 2021 on the file of the Metropolitan

Sessions Judge, Hyderabad, dated 09.12.2021.

2. Briefly stated the facts are that the 2nd respondent has

filed criminal complaint aggrieved by the non registration of a

plot by A-1/M/s.Prasad Homes Private Limited, situated at 4th

floor, Surabhi Lotus, beside Image Hospital, Ameerpet,

Hyderabad, after taking the amount for plot No.586. Since

there was no plot in the site as promised, complaint was filed.

Police investigated and charge sheet was laid against A1 to

A7. A1 is the company, A2 to A5 are the directors, A6 and

A7/petitioners are also shown as part of A1 Company.

3. Learned counsel appearing for the petitioners would

submit that these petitioners have nothing to do with the

selling of plots by A1 Company. Though none of the witnesses

have stated anything against the petitioners, police have

implicated them only on the basis of the confessional

statement of A5.

4. Counsel further submits that the Learned Magistrate by

order dated 06.04.2021, dismissed the discharge application

of these petitioners on the ground that A5 during the course of

investigation confessed the involvement of A6 and

A7/petitioners. Having perused the confessional statement of

A5, the learned Magistrate noted that these petitioners were

directly involved in the case. Except confession, there is no

other evidence on record. He further submits that the amount

which was taken and due to be paid by the defacto

complainant was already paid in the civil court, which is not

disputed.

5. On revision, learned Sessions Judge confirmed the order

of the learned Magistrate and declined to discharge the

petitioners stating that documents have been collected from

the Registrar of Companies, which reflect that these

petitioners were directors in the said company. For the said

reason, since the confession of co-accused and also the

documents were collected from the Registrar of Companies

point towards involvement of these petitioners, learned

Sessions Judge declined the prayer of these petitioners and

confirmed the order of the learned Magistrate, dismissing the

petition seeking discharge. The judgment in Criminal Revision

Petition No.72 of 2021, dated 09.12.2021 is now questioned.

6. Having perused the entire record, the basis for arraying

these petitioners as accused is that the documents were

collected from the Registrar of Companies by the investigating

agency showing the names of these petitioners. Secondly, the

confession of A5, who is the co-accused was taken into

consideration to array these petitioners as accused.

7. In IPC offences, the employees or directors of the

company cannot be made vicariously liable for the offences

committed by the company. There has to be specific role

attributed to the persons who form part of the company and

alter-ego of the company, to be arrayed as an accused. There

should be either oral or documentary evidence to say that

such persons were responsible for the day to day affairs of the

company and also how the said persons were complicit in the

offence that has been alleged against the company.

8. In the present case, except stating that the documents

received from the ROC reflect the names of these petitioners,

none of the witnesses have spoken anything about these

petitioners. There is no interaction by any of the witnesses

with these petitioners and further the passbooks were issued

to the defacto complainant was not signed by these petitioners

nor it is the case of the defacto complainant that he has met

these petitioners at any point of time with regard to the

purchase of the plot.

9. The only other evidence apart from the documents from

the ROC is the confession of co-accused. The confession

cannot be made basis to prosecute an accused. There should

be corroborating evidence that has been placed on record to

the confession made. In the present case, except the

confession of the co-accused-A5, there is no other evidence to

remotely suggest that these petitioners were in any way

responsible for selling of the plot to the defacto complainant.

As held by the Hon'ble Supreme Court in the case of

Dipakbhai Jagdishchandra Patel v. State of Gujarat1, Court

cannot frame charge on the basis of alleged confession of co-

accused unless corroborated by other evidence which has

been placed on record by the investigating agency. In the said

circumstances, the only basis for prosecuting these petitioners

is the confession, which cannot even form the basis to frame a

charge. The documents from the ROC reflecting that they were

part of the company, cannot be made basis to make these

petitioners vicariously liable.

10. In the said circumstances, the impugned order dated

09.12.2021 in Criminal Revision Petition No.72 of 2021 is set

aside and the proceedings against the petitioners in CC

(2019) 16 Supreme Court Cases 547

No.796 of 2016 on the file of XIV Additional Chief Metropolitan

Magistrate, Hyderabad are hereby quashed.

11. Accordingly, the Criminal Petition is allowed.

__________________ K.SURENDER, J Date: 24.11.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL PETITOIN No.2997 OF 2022

Date: 24.11.2022.

kvs