Bombay High Court Judgement On Section 482 of the Code of Criminal Procedure

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.

CRIMINAL APPLICATION (APL) NO. 793 OF 2017

APPLICANT : Mr. Venu Srinivasan,
Chairman and Managing Director,
TVS Motor Company Limited,
At ‘Jayalakshmi Estates’, No. 29,
Haddowes Road, Chennai-600 006
(Tamil Nadu)

VERSUS

NON-APPLICANT : The State of Maharashtra,
At the instance of Shri D. P. Devle,
Inspector of Legal Metrology, Mangrulpir,
Mangrulpir Division, Tahsil Mangrulpir,
District Washim (Maharashtra)

———————————————————————————————-
Shri Sunil V. Manohar, Senior Advocate with Shri A.A. Naik,
Advocate for the applicant.
Shri Vinod A. Thakre, A.P.P. for the non-applicant/State.
———————————————————————————————-

CORAM : V. M. DESHPANDE, J.

DATE : FEBRUARY 12, 2018

ORAL JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally with the consent of the parties.

2. Heard Shri Sunil V. Manohar, the learned senior counsel appearing with Shri Akshay A. Naik, the learned counsel for the 2 APL793.17.odt applicant and Shri Vinod A. Thakre, the learned Additional Public Prosecutor for the non-applicant/State.

3. The Rule is taken up for final hearing in view of the issuance of notice for final disposal by this Court on 22.11.2017 (Coram : A.S.Chandurkar, J.).

4. By the present application under Section 482 of the Code of Criminal Procedure, the applicant is praying for (1) quashing and setting aside the criminal complaint case being Summary Criminal Case No. 64/2013 pending on the file of learned Judicial Magistrate, First Class, Manora ; and (2) setting aside the impugned order of issuance of process dated 08.7.2016 passed by the learned Judicial Magistrate, First Class, Manora in the said criminal complaint case.

5. Shri Manohar, the learned senior counsel for the applicant submits that though, the product “Package of Valve Kit” is manufactured by the Company, the manufacturing company is not prosecuted in a criminal complaint. Further, according to his submission, the complaint viz-a-viz present applicant lacks the 3 APL793.17.odt assertion of material particulars to show that the applicant at the relevant time was in-charge of conduct of business or responsible for day to day affairs of the company. He, therefore, in view of the provisions of sub-clause(ii) of Clause (a) of sub-section 1 of section 49 of The Legal Metrology Act, 2009 (hereinafter referred to as “the Act of 2009” for the sake of brevity) submitted that the complaint cannot proceed against the present applicant. He also submitted that the order impugned, issuing the summons against the applicant, is a non-speaking order and therefore, cannot stand to the scrutiny of law. He relies on the judgment delivered by this Court in Criminal Application No. 1842/1996 (Charandas Vallabhdas Mariwala and others .Vs. State of Maharashtra) (Coram : V.M. Deshpande, J.) and submitted that the complaint be set aside.

6. Per contra, Mr. Thakre, the learned Additional Public Prosecutor for the State would submit that since there is no nomination, as contemplated in sub-section 2 of Section 49 of the Act of 2009, the present applicant is joined as an accused. He relies on a reported decision of this Court in 2016(1) All M.R. 681 in the case of Maruti Suzuki India Limited .vs. State of Maharashtra and others and submitted that the application be dismissed.

7. It would be useful to reproduce herein below the relevant provision of sub-sections (1), (2) and (4) of Section 49 of the Act of 2009 :

“49. Offences by companies and power of court to publish name, place of business, etc., for companies convicted.

(1) Where an offence under this Act has been committed by a company,

(a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as a person responsible); or

(ii) where no person has been nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and

(b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

(2) Any company may, by order in writing, authorise any of its directors to exercise all such powers and take all such steps as may be necessary 5 APL793.17.odt or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Director or the concerned Controller or any legal metrology officer authorised in this behalf by such Controller (hereinafter in this section referred to as the authorised officer) in such form and in such manner as may be prescribed, that it has nominated such director as the person responsible, along with the written consent of such director for being so nominated. Explanation.–

Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.

(3) …….

(4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to the neglect on the part of, any director, manager, secretary or other officer, not being a person nominated under sub-section (2), such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

6 APL793.17.odt

8. Section 49 of the Act of 2009 deals with the offence by the company and the powers of the Court to publish name and place of business etc. for companies convicted.

9. As per sub-section 2 of Section 49 of the Act, it is for the company to nominate or authorize any person by order in writing with all such powers and to take all such steps as necessary and expedient to prevent the commission by the company of any offence under this Act.

If a person is nominated under sub-Section 2 of Section 49 of the Act, then under sub-clause (i) of Clause (a) of sub-section (1) of Section 49, such person so nominated has to be held in-charge of and responsible to the company for the conduct of the business of the said company. Where no person has been nominated, every person, who at the time of the offence was committed, was in-charge of and was responsible to the company for the conduct of the business of the company, are responsible as per sub-clause (ii) of Clause (a) of Sub-section (1) of Section 49 of the Act of 2009.

10. A copy of the complaint is placed on record and it is at Annexure-G at page nos.43 to 47 in the compilation of the present 7 APL793.17.odt application.

11. The complaint is lodged in the Court of learned Judicial Magistrate, First Class, Manora, which was registered as Summary Criminal Case No. 64/2013 by complainant Shri D. P. Devade, who is the Inspector of Legal Metrology Division, appointed under Section 14(1) of Legal Metrology Act, 2009. His power to lodge the complaint are not in dispute.

12. According to the complaint, on 05.9.2012, the complainant took inspection at M/s Soham Automobiles, situated at Mangrulpir Road, Sambhaji Nagar, Manora, District Washim. That time, he noticed a product namely Package of Valve Kit kept for sale, on which M.R.P. was not printed as per Rule and therefore, there was violation of Section 18(1) of the Legal Metrology Act, 2009 read with Rules 6(1), 2(m) of Legal Metrology (Package Commodity) Rules, 2011, punishable under Section 38(1) of the Act of 2009. The complainant sent notice under Proforma ‘A’ to the company on 10.9.2012 and ultimately on 21.2.2013 he filed the complaint.

13. The cause title of the complaint reads as under :

COMPLAINT In the Court of Hon. J.M.F.C., Manora,

1. Name of the Shri D. P. Devade complainant and his O/o Inspector of Legal Metrology, address Chandak Building, Dargah Road, Mangrulpir Division, Mangrulpir, Tq. Mangrulpir, Dist. Washim

2. Names and Shri Venu Shrinivasan (M.D.) and other addresses of the of M/s TVS Motor Company Ltd. accused. Regd. Office : Jayalakshmi Estates, 5th floor, 8, Haddows Road, Chennai – 600 006.

Ph. No. 91043447 270059 E-mail : customercarepasrts@tvsmotorco. in.

Home Address :

Shri Venu Srinivasan, 03, Adyar Club Gate Road, R.A. Puram, Chennai, Pin. 600 028, T.N. (India)

14. Thus, from the cause title, it is clear that the complaint is lodged against the present applicant alone and though it stated “and others of M/s TVS Motor Company Ltd.”, the said TVS Motor Co. Ltd. is not made an accused nor the ‘others’ are specified as accused.

15. From the complaint itself, it is clear that the product in question is manufactured by the company as it could be seen from 9 APL793.17.odt the following averments made in paragraph 6 of the complaint, the relevant are produced herein below :

“6. Particular of offence : During General inspection on dated 05.9.2012 at M/s Soham Automobiles, Mangrulpir Road, Sambhaji Nagar, in front of Shivneri Servo Petrol Pump, Manora, Tq. Manora, Dist. Washim, Package of Valve Kit was kept for sale, manufactured by accused company, on which, M.R.P. was not printed as per Rule. Hence, violation of Section 18(1) of Legal Metrology Act, 2009 read with Rule 6(1), 2(m) of Legal Metrology (Package Commodity) Rules, 2011 punishable under Section 38(1). Hence, this office sent Proforma ‘A’ notice to said accused company on 10.09.2012 and accused company wanted the permission to inspect the seized package. This office gave the permission to physical inspection to accused company.”

16. Thus, from the aforesaid, it is clear that the product in question is manufactured by the company. Under the Act of 2009, a company can be prosecuted for any contravention of the Act or various Rules made thereunder. Therefore, it was obligatory on the part of the complainant to join the company as an accused. This non-joinder of the company as accused itself is fatal for the complainant.

17. Be that as it may. The complaint is totally silent in respect of the role of the present applicant. Further, the law in that behalf is well crystalized by the Hon’ble Apex Court in the case of Pepsico India Holdings Private Limited .vs. Food Inspector and another, reported in (2011) 1 SCC 176, more particulary in paragraph 50 of the said reported judgment. The said Supreme Court case was relating to the offence under Food Adulteration Act, 1954. The provisions of the Food Adulteration Act and the present Act of 2009 in respect of the offence by the companies are pari materia. In Pepsico India Holdings Pvt. Ltd.’s case cited supra, the Hon’ble Apex Court has observed that it is well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day to day management or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company.

18. In addition to the aforesaid observations of the Hon’ble Apex Court, in the present case, the Company itself is not before the Court. The complaint is totally silent and is lacking from the material particulars so also the basic averment that the present applicant was in-charge of or was responsible person for conduct of the business of the said company. Therefore, the complaint, in view of the law laid down by the Hon’ble Courts and in Charandas Vallabhdas Mariwala’s case, cited supra, is required to be set aside.

19. So far as the Division Bench judgment of this Court in Maruti Suzuki India Ltd.’s case, relied on by the learned Additional Public Prosecutor for the State is concerned, the said case is distinguishable on the facts itself. In the said case, in spite of the authorization was given in sub-section 2 of Section 49 of the Act, all the Directors were joined as accused persons and therefore, while interpreting Section 49 of the Act of 2009, the Division Bench of this Court found that all the Directors need not be joined as the accused persons. However, in my view, the said judgment cannot come to the rescue of the learned Additional Public Prosecutor for the simple reason that in the present case, though, there is no nomination from the Company as contemplated under sub-section 2 of Section 49 of 12 APL793.17.odt the Act, at the same time the complaint is conspicuously silent in respect that the present applicant was in-charge of and was responsible for day to day business of the company. Therefore, sub- clause (ii) of Clause (a) of sub-section (1) of Section 49 of the Act cannot be pressed into service.

20. Further, the order of issuance of process is dated 08.7.2016. It reads as under :

O Issue summons to accused.

Sd/-

J.M.F.C, 08.07.16

21. Summoning of an accused in a criminal case is a very serious matter. The order impugned, in my view, shows that it is passed in most mechanical manner. The law in that behalf is well settled in Pepsi Foods Ltd. and another .vs. Special Judicial Magistrate and others, reported in (1998) 5 SCC 749 and in particular paragraph 28, which reads as under :

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to 13 APL793.17.odt support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicite answers to find out the truthfullness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

22. The order impugned completely fails to show what weighed in the mind of the learned Magistrate to issue process against the applicant. In that view of the matter, I am of the view that the applicant has made out a case in his favour. Consequently, I pass the following order :

ORDER

(i) The Criminal Application is allowed.

(ii) The impugned order dated 08.7.2016, passed by the learned Judicial Magistrate, First Class, Manora in Summary Criminal Case No. 64/2013, is hereby set aside.

(iii) The proceedings of Summary Criminal Case No. 64/2013, pending on the file of learned Judicial Magistrate, First Class, Manora are hereby quashed and set aside.

(iv) With this, the criminal application is allowed and disposed of. Rule is made absolute. No costs.

JUDGE Diwale

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