Delhi District Court
Imran Haider vs State (Nct Of Delhi) on 25 June, 2020
1
IN THE COURT OF MS NEELOFAR ABIDA PERVEEN
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Decided on: 25.06.2020
Crl. Rev.No.702/2019 of 11.11.2019
Imran Haider,
Director
M/s C. L. Micromed Pvt. Ltd.
T17, Okhla Industrial Area,
PhaseII, New Delhi 20. .... Petitioner
Versus
1. State (NCT of Delhi)
2. Mr. Rakesh Kumar Ahuja
Proprietor of M/s Popular Scientific Corporation,
58, U. B. Jawahar Nagar, Delhi
3. Eschweiler GMBH & Co.
Through its Director
Holzkoppelweg 35, 24118 Kiel,
Germany
.....Respondents
AND
2
Crl. Rev.No.703/2019 of 11.11.2019
Mr. Sayed Fazle Haider
Director
M/s C. L. Micromed Pvt. Ltd.
T17, Okhla Industrial Area,
PhaseII, New Delhi 20. .... Petitioner
Versus
1. State (NCT of Delhi)
2. Mr. Rakesh Kumar Ahuja
Proprietor of M/s Popular Scientific Corporation,
58, U. B. Jawahar Nagar, Delhi
3. Eschweiler GMBH & Co.
Through its Director
Holzkoppelweg 35, 24118 Kiel,
Germany
.....Respondents
AND
Crl. Rev.No.704/2019 of 11.11.2019
Mr. Kamran Haider
Director
M/s C. L. Micromed Pvt. Ltd.
T17, Okhla Industrial Area,
PhaseII, New Delhi 20. .... Petitioner
3
Versus
1. State (NCT of Delhi)
2. Mr. Rakesh Kumar Ahuja
Proprietor of M/s Popular Scientific Corporation,
58, U. B. Jawahar Nagar, Delhi
3. Eschweiler GMBH & Co.
Through its Director
Holzkoppelweg 35, 24118 Kiel,
Germany
.....Respondents
AND
Crl. Rev.No.705/2019 of 11.11.2019
M/s C. L. Micromed Pvt. Ltd.
Through its Director
Mr. Kamran Haider
T17, Okhla Industrial Area,
PhaseII, New Delhi 20. .... Petitioner
Versus
1. State (NCT of Delhi)
4
2. Mr. Rakesh Kumar Ahuja
Proprietor of M/s Popular Scientific Corporation,
58, U. B. Jawahar Nagar, Delhi
3. Eschweiler GMBH & Co.
Through its Director
Holzkoppelweg 35, 24118 Kiel,
Germany
.....Respondents
AND
Crl. Rev.No.706/2019 of 11.11.2019
Ms. Parveen Haider,
Director
M/s C. L. Micromed Pvt. Ltd.
T17, Okhla Industrial Area,
PhaseII, New Delhi 20. .... Petitioner
Versus
1. State (NCT of Delhi)
2. Mr. Rakesh Kumar Ahuja
Proprietor of M/s Popular Scientific Corporation,
58, U. B. Jawahar Nagar, Delhi
5
3. Eschweiler GMBH & Co.
Through its Director
Holzkoppelweg 35, 24118 Kiel,
Germany
.....Respondents
JUDGMENT
This common order shall dispose of above mentioned five criminal revision petitions.
All the five revision petitions are directed against orders dated 01.08.2019 and 10.10.2019 passed by ld. ACMM, (Central), Tis Hazari Courts, Delhi in case No.6136/2017 titled as Rakesh Kumar Ahuja v. Eschweiler GMBH & Co & Ors. vide which Eschweiler Gmbh and Co. through its director as accused no. 1 and C. L. Micromed Pvt. Ltd. company through its director as accused no. 2 have been ordered to be summoned for offences under Section 420/467/468/471/120B IPC, and are hence being taken up together for disposal.
1. Petitioners in C. R. No.702/2019, 703/2019, 704/2019 & 706/2019 being one of the directors of the accused no. 2 company C. 6 L. Micromed Pvt. Ltd and petitioner in C. R. No. 705/2019 the company itself through its A. R. who is also the petitioner in C. R. No. 704/2019, impugned the summoning orders on the ground that there is no specific averment in the complaint filed by the respondent no. 2 to the petition/the complainant, as to how and in what manner the petitioners in C. R. No. 702/2019, 703/2019, & 706/2019 were responsible or had a role in the conduct of the business of the accused no.2 company at the relevant time i.e. the commission of the alleged offence by the accused no. 2 company, C. L. Micromed Pvt. Ltd. That there was no material sufficient for summoning of the petitioners as the petitioners in C. R. No.702/2019, 703/2019 & 706/2019 were not the Directors Incharge of the affairs of accused no. 2 nor responsible for the conduct of the business of the accused no. 2 company at the relevant point of time and no specific allegations have been levelled against these petitioners in the complaint. That C. L. Micromed Pvt. Ltd. Accused no. 2 company is involved in the business of importing/ manufacturing/supplying products of the accused no. 1 company. It is a family owned company and though the petitioners in C. R. No. 702/2019, 703/2019 & 706/2019, are the directors, they are not involved in the day to day affairs and operations of the company and the business of 7 the accused no. 2 company is being managed by its Director Mr. Kamran Haider for the last five years. That the petitioners in C. R. No. 702/2019, 703/2019 & 706/2019 are not a party to any of the transactions with respect of which the complaint has been filed which has led to the summoning order impugned. That the complainant as proprietor of Popular Scientific Operation is engaged in the business of supply of medical apparatus/equipment/related products/chemicals/consumables etc. to govt. hospitals firms was appointed by the respondent no. 3/accused no. 1 company as its authorised dealer for electrolyte analyzers and related products for supply of the same to government hospitals in Delhi since 2010 which authorization was terminated by the respondent no. 3 / accused no. 1 company vide termination letter dated 12.07.2016 and the said termination has been challenged by the complainant vide a civil suit for declaration, permanent and mandatory injunction alleging that Eschweiler Gmbh and Co. and C. L. Micromed Pvt. Ltd. were involved in manufacturing of fake products and when he tried to inquire about the alleged spurious products, the agency was illegally terminated by them in connivance with each other and that C. L. Micromed Pvt. Ltd. indulged in duplicity of reagents and consumable by illegally manufacturing spurious and low grade products and supplied them to 8 the government hospital in Delhi. That the present complaint is in fact an arm twisting device for restoration of the authorization in favour of the complainant and a purely civil dispute has been given, with malafide intention and ulterior motives, a criminal colour. That there is no incriminating evidence on record against the petitioners C. R. No. 702/2019, 703/2019 & 706/2019, no factual foundation has been made that would disclose the commission of any offence much less the offences for which summoning order has been issued. That even if all the allegations are taken to be correct on its face value, none of the ingredients of the offences alleged against the petitioners are made out. That from a bare perusal of the complaint, documents and evidence led in presummoning, none of the ingredients of making a false document are per se made out against the petitioner. There is no allegation of tampering of any document or of obtaining a document by deception. It is the own case of the complainant that C. L. Micromed Pvt. Ltd. has been duly authorized by Eschweiler Gmbh and Co. for distributing its products in India. That no alleged forged stickers have been produced on the record. That the petitioners in C. R. No. 702/2019, 703/2019 & 706/2019 were not the Directors incharge of the affairs of C. L. Micromed Pvt. Ltd. and were not responsible for the day to day affairs and conduct of business of the 9 said company and there is no averment in the complaint as to how and in what manner these petitioners were responsible for the day to day conduct of business of C. L. Micromed Pvt. Ltd. That it is for the complainant to make a specific averment in the complaint and it cannot be presumed that every director of the company is its principal officer and involved in day to day affairs/conduct of the company. That unless it is stated in the complaint that a director was incharge of the affairs of the company, a director cannot be held liable for the offences committed by a company in the absence of specific averments as to how the concerned director was responsible for the conduct of the business of the company. That CW3 produced the documents i.e. letter dated 18.07.2017 that clearly demonstrated that Eschweiler Gmbh and Co. was having a manufacturing unit in India under the name and style of Eschweiler Micromed India Pvt. Ltd. And some of the items were being manufactured in India under a joint venture. Further Ex CW3/A (colly), and particularly letter dated 12.12.2017 clearly mentions that some reagents were being manufactured in India with their respective prices. That vide Ex CW5/C, letter dated 16.09.2016 Eschweiler Gmbh and Co. had clarified about the joint venture firm. The goods supplied therefore cannot be said to be fake /spurious goods. That none of the hospitals 10 had filed any complaint for cheating or forgery. No evidence has been led to show that petitioners committed any offence of duplicity of reagents or printing of any duplicate stickers as has been falsely alleged in the complaint. The complainant also failed to show that any of the goods supplied by the respondent no. 2 were ever rejected by any hospital or any complaint was filed against the complainant by the hospital or any payment was stopped by any hospital in respect of the items supplied on the ground that the goods were defective or duplicate, spurious or substandard. The documents in respect of rejection of goods from the hospital pertained to M/s Kuber Inc. and not the petitioner and M/s Kuber Inc. is not a party in the complaint. M/s Kuber Inc. has also not filed any complaint against the petitioner or against any official or against the C. L. Micromed company and none of the hospitals has taken any criminal or civil action against M/s Kuber Inc. That in the absence of any specific averments in the complaint against the petitioners a presumption as to culpable mental state cannot be attributed to the petitioners without a prima facie case having been made out against the petitioners. It is only when the complainant failed to get any relief from the civil court that the complainant in order to harass and extort money from the petitioners has filed the present complaint. That C. L. Micromed being the 11 manufacturer of the goods has no reason to collude and conspire for manufacture of spurious products of their own brand. That the documents annexed by the complainant relate to a time period subsequent to the termination of the authorization certificate in favour of the petitioner and pertains to the another dealer M/s Kuber Inc. who is not party to the complaint. It has not been shown as to in what manner respondent no. 2 has been cheated by the petitioner. That the allegations are only bald assertions with no material evidence to substantiate the same. That there is no material to show that the products manufactured by the joint venture are fake spurious or of low grade quality.
2. It is contended on behalf of respondent no. 2, on the other hand, that the Petitioners have conveniently concealed material facts which lead to an inevitable conclusion that the petitioners have not come to the court with clean hands. That the Respondent No. 2 herein is the whistleblower who brought to light the unauthorised and illegal practices being carried out by the Petitioners along with the Respondent no. 3. That the Respondent No. 3 is the manufacturer of life saving medical equipment in Germany and it was represented to Respondent 2 by Respondent 3 that these lifesaving medical 12 equipments were being imported from Germany and thereafter were supplied to Government Hospitals in India as German made equipment. However, the documents itself establish that the Petitioners and Respondent no. 3 were fraudulently manufacturing the said equipment in India and were supplying the same to government hospitals as foreign manufactured equipment, thereby charging higher rates for the same. That the documents on record show how the petitioners and Respondent 3 were cheating the public exchequer. The rate lists are given in Euros along with custom duty, air transport, custom charges and exchange rate, though the goods were being admittedly manufactured in India and were being sold in Euros as per the same rate list that the German manufactured goods were being sold. That the custom duty and transportation charges (from Germany to India) are added to the cost of goods manufactured in India which itself shows the malafide and fraudulent intention to cheat government hospitals, on behalf of Petitioners and Respondent 3. That the Petitioners are hand in glove with Respondent no. 3 in producing fake/spurious products and supplying them to the government hospitals in India. That the Respondent no. 3 under the garb of manufacturing lifesaving medical equipment is actually manufacturing lifethreatening medical equipment of low 13 grade quality knowing full well that many innocent lives are being put in danger. That even the price list supplied to Respondent no. 2 as well as to the Government Hospitals by the Petitioners and Respondent no. 3 were priced in Euros so as to misrepresent that the said equipment are being manufactured in Germany and imported to India. That the Petitioners and Respondent no. 3 even added Air Freight charges plus Insurance at 3% along with custom duty at 28.85% to the price of the equipment, thereby fraudulently indicating that the said items were imported from Germany. That the Respondent no. 3 does not have the requisite approvals and licenses which have to obtained prior to manufacturing medical equipment in India from the relevant statutory authority. That manufacturing of medical devices and equipment is governed by the World Health Organization guidelines. That as soon as Respondent no. 2 got to know about the fraud being played by the Petitioners in active connivance with Respondent no. 3 on the innocent public at large as well as the government hospitals, the Respondent No. 2 raised an alarm against the same, pursuant to which, Respondent no. 3 illegally terminated the authorisation of Respondent no. 2 on 12.07.2016 with immediate effect and the same was done unilaterally on the basis of extraneous and irrelevant factors while the real reason was that the 14 Respondent 2 agency was terminated being a whistleblower. That Respondent no.2's agency was terminated with immediate effect without even settling the accounts and this conduct of Respondent 3 and the petitioners, in connivance with each other, conclusively proves the fact that respondent 2 agency was terminated illegally due to the fact that he turned whistleblower. That Respondent 3 has filed several Proprietary certificates at Government hospitals through the Petitioners. That a propriety certificate is given specifically in circumstances wherein only one manufacturer is acceptable and the proprietary certificate states that Respondent no. 3 is the sole manufacturer of required goods in Germany and the said goods are manufactured in Germany. That Respondent 3 is declaring to government hospitals through this proprietary certificate that they are manufacturing all goods in Germany. That Respondent no. 2 filed suit for declaration, permanent and mandatory injunction along with damages against the illegal termination which is pending adjudication before the ADJ, Saket District Court. That immediately after terminating the agency of Respondent no. 2, the Petitioners along with Respondent No. 3 started cleaning up their act which is clearly evident from their subsequent conduct.
153. Oral arguments were heard at length. Written submissions were also filed. TCR was summoned and is perused.
4. Perusal of the complaint reflects that complainant alleges commission of offences under Section 406/409/420/467/468/328/120B IPC on a set of allegations that the complainant as proprietor of M/s Popular Scientific Corporation is in the business of government supply of medicinal apparatus, equipments, products, related chemicals, reagents, consumables etc. acting as authorized agent of Eschweiler Gmbh and Co. (accused no.
1) since 2010 which is a company incorporated in accordance with the laws of Germany having its office at Kiel Germany and is engaged in the manufacturing of electrolyte analyzer, blood gas analyzer alongwith reagents, consumables and spare parts generally used in ICU and other related units of the hospitals and C. L. Micromed Pvt.
Ltd. (accused no. 2), is engaged in the business of import and resell and supply of the products being manufactured by Eschweiler Gmbh and Co. in various hospitals across India and acts as the sole selling agent of Eschweiler Gmbh and Co. The complainant used to procure reagents/chemicals, related consumables and spare parts from accused no. 2 who always represented that they imported the said 16 items from accused no. 1.
Besides the said two companies i.e. Eschweiler Gmbh and Co. & C. L. Micromed Pvt. Ltd. as accused no. 1 and 2, the four Directors of accused no. 2 company are arraigned as accused 2a to 2d and the General Manager of accused no. 2 separately as accused no. 3 alleging that the Directors and the General Manager are responsible for the day to day affairs of the accused no. 2 and are personally liable for the acts and omission of the accused no. 2 company as downloaded from the website of the Ministry of Corporate Affairs and that accused no. 2 company acting through accused 2a - 2d and accused no. 3 always represented that reagents and chemical and related consumable are proprietary items being manufactured in Germany by accused no. 1 which were being imported by them in India and sold across the country through accused no. 2. For every procurement, the accused no. 2 acting through accused no. 2a - 2d and accused no. 3 used to issue invoices bearing the endorsement "manufactured by Eschweiler Gmbh and Co., K. G., Germany". That the complainant was reappointed as agent of the accused no. 1 company vide its proprietary certificate dated 07.04.2016 valid till 31.03.2017. That during the tenure of its subsisting agency the complainant came to know that all the accused persons being 17 Directors of the accused no. 2 company and accused no. 3 in connivance with each other and other unknown persons were indulging in duplicity of reagents and consumables purported to have been manufactured by accused no. 1 by manufacturing low grade/ spurious products by illegally manufacturing them through the process of reverse engineering in Delhi and further selling those spurious and fake products to the complainant as well as supplying the same to government hospitals by putting forged stickers of accused no. 1 after getting such stickers printed in Delhi while claiming such reagents to be genuine products manufactured and imported from accused no. 1 company. Upon further inquiry, it also came to be revealed that though the supply of the reagents and consumables by the accused no. 2 had increased manifold in the preceding three years there was continuous decline in import being made by accused no. 1 from accused no. 2 of such reagents and consumables. The complainant confronted the accused and sought an explanation but the accused no. 2 represented through accused no. 2a - 2d and accused no. 3 kept on postponing the issue on one pretext or the other and accused no. 1 company and accused no. 2 colluded with each other and vide letter dated 12.07.2016 unilaterally and illegally terminated the annual proprietary certificate 18 of the complainant with immediate effect upon extraneous factors without settlement of accounts and without affording any opportunity to the complainant which was challenged by the complainant by way of a civil suit which is still pending. That through various ITR disclosures it has further come to the knowledge of the complainant that supplies of Eschweiler reagents and consumable made by accused no. 2 represented through accused no. 2a - 2d and accused no. 3 have been rejected by some of the government hospitals on the ground that such chemicals and reagents were being manufactured indigenously and were not manufactured in Germany. The accused has also submitted one document dated 16.09.2016 with the concerned hospitals thereby claiming that all such Eschweiler reagents and consumables were being manufactured by them in collaboration with each other in India since 2015 and they are now locally present in India. That even the price list of the reagents and consumables is submitted in Euros alongwith prevailing conversion rates claiming custom duty, air freight, insurance and other incidental charges required for the purpose of import of such proprietary reagents and chemicals and that indented goods are manufactured by accused no. 1 Eschweiler Gmbh and Co., Germany. Even though the accused were admittedly locally present in India and 19 reagents chemicals and consumables were allegedly being manufactured in India itself. The accused submitted documents before the concerned hospitals that such indigenously made reagents/chemicals and consumable were products being manufactured in Germany and are imported therefrom. That in order to cause undue gain unto themselves they intentionally claimed such goods to have been manufactured and imported from Germany through various forged and fabricated documents even though they have prior knowledge of the fact that such goods are manufactured in India itself and also sold such indigenously made reagents/chemical and consumable through the complainant claiming them to be genuine produced being manufactured in Germany. That the complainant also apprehends that no statutory permission and licenses have been procured for indigenously manufacturing of such reagents and consumables. That the accused have conspired to manufactured and sell fake medical supplies and have cheated the complainant by misrepresenting him about manufacturing of such products in Germany and inducing him to believe such misrepresentation that such products were being manufactured in Germany by accused no. 1 and thereafter were being imported by accused no. 2 on the basis of forged and fabricated invoices wherein 20 it has explicitly been mentioned that such supplies were manufactured in Germany. That the accused by manufacturing selling and trading in fake / spurious / counterfeit medical supplies and applying fake stickers on the reagents / chemicals and consumables and by selling spurious supplies to govt. hospitals and public have not only cheated the complainant and committed breach of trust reposed in them by the complainant but have caused substantial wrongful loss to the public exchequer and have gained wrongfully and indulged in forgery of valuable security. Complainant had made a police complaint with PS Roop Nagar on 06.02.2017 but the police officials failed to initiate any action against the accused. Though the complainant was informed that the complaint has been successfully registered.
5. The complainant has examined himself in presummoning evidence and has tendered the master data in respect of C. L. Micromed Pvt. Ltd. as Mark A and list of Directors as Mark B, Ex CW1/A (colly) is the invoices, 10 in number, raised by C. L. Micromed Pvt. Ltd. in favour of the proprietorship concern of the complainant, letter dated 09.09.2016 alongwith annexures, an internal communication pertaining to Jag Parvesh Chandra Hospital as Mark C, certificate issued by accused no. 1 dated 16.09.2016 as 21 Mark D, letter dated 24.08.2016 addressed to the complainant as Mark E, Mark F is the information received from the public information officer under RTI Act, complaint dated 06.02.2017 addressed to the SHO PS Roop Nagar as Ex CW1/B besides this complainant in presummoning evidence examined witness from Jag Pravesh Chandra Hospital for production of original of the authorization certificate dated 13.07.2017 submitted by M/s Kuber Incorporated, retail invoice submitted by M/s Kuber Incorporated dated 30.08.2016, two challans and letter dated 09.06.2016 which were exhibited Ex CW2/A to Ex CW2/D. Complainant also examined witness from Deen Dayal Hospital, Delhi who produced the record regarding supplies of the reagents and consumables of Eschweiler, gas analyzer by C. L. Micromed including quotation, agency certificate, proprietary certificate, rate certificate, order copy to justify the rates, all exhibited as Ex CW3/A (colly), agency certificate dated 24.07.2017 as Ex CW3/B and letter dated 18.07.2017 as Ex CW3/C. CW4 is witness examined from GTB Hospital who produced the records pertaining to supplies made on behalf of Eschweiler Gmbh and Co. by C. L. Micromed Pvt. Ltd. And M/s Kuber Inc. and tendered invoice dated 12.02.2016 alongwith challan, quotation as Ex CW4/A, Pricelist in respect of various items for the year 2015 as 22 Ex CW4/D, authorization certificate dated 12.07.2016 as Ex CW4/E, pricelist for the year 2016 as Ex CW4/F, disclosure made by the department as Ex CW4/G, declaration of Euro payment as Ex CW4/H and letter dated 0708.10.2016 rejecting the goods on the grounds that the goods were manufactured in India not in Germany as Ex CW4/R. CW5 is the witness examined from Bhagwan Mahavir Hospital and has produced the authorization certificate dated 12.07.2016 Ex CW5/A, disclosure dated 17.08.2016 made in accordance with GFR Rules as Ex CW5/B, email dated 16.09.2016 on behalf of accused no. 1 as Ex CW5/C, corrigendum dated 05.09.2016 as Ex CW5/D, invoice dated 12.10.2016 as Ex CW5/E. On the basis of such material i.e. statements on oath and documents produced on the record, it is Eschweiler Gmbh and Co. through its Director as accused no. 1 and C. L. Micromed Pvt. Ltd. Through its Director as accused no. 2 that are summoned for the offences punishable under Section 420/467/468/471/120B IPC.
6. It is alleged by the complainant and emerges as a largely admitted position from the contentions raised on behalf of the several petitioners that the reagents /chemicals /consumables manufactured by a Germany based company i.e. Eschweiler Gmbh and Co. (accused no.1) are imported into India exclusively by its authorized agent and 23 sole distributor C. L. Micromed Pvt. Ltd. (accused no. 2) and are further sold in India by the accused no. 2 either acting on its own or through agents appointed by the accused no. 1 under a authorization certificate, the complainant being so authorized vide such authorization certificates since 2010 which authorization certificate was unilaterally terminated by accused no. 1 on 12.07.2016. The allegation against accused no. 2 is that the company was selling reagents/chemical/ consumables, the proprietary products of accused no. 1 company, in India on the representation that the said products were manufactured by the accused no. 1 company in Germany and were imported into India by accused no. 2 company whereas some of these products had been manufactured not in Germany but in India by a joint venture enterprise of accused no. 1 and accused no. 2. Further that even for the products which were manufactured in India under a joint venture, the accused were collecting the sale price in Euros after applying the prevailing conversion rates and also imposing import duty, freight charges etc. thereby incurring wrongful gain to themselves and occasioning wrongful loss to the purchasers. The complainant has placed on record invoices containing the statement that the products thereunder are manufactured in Germany, produced rate list in respect of the products, and rejection 24 letters issued by certain government hospitals in respect of the products of accused no. 1 company which were sold under invoices containing the statement that the products are manufactured in Germany, on the ground that the products are not manufactured in Germany. It is immaterial whether accused no. 2 was selling those products upon such representations through the complainant or through M/s Kuber Incorporated acting as the autthorized dealer of accused no. 1 company it is not in dispute that the accused no. 2 is the sole distributor of the products of accused no. 1 across India acting through one or the other agent appointed by accused no. 1.
7. The allegation supported with documents is that the products manufactured in India are being represented by the accused in connivance with each other to be products manufactured in Germany and charged as products manufactured in Germany and imported into India from Germany. It is contended by the petitioners that certain reagents and chemicals were being manufactured in India by way of joint venture firm under the name and style of Eschweiler Gmbh and Co. and the accused no 1 had certified that it has a manufacturing unit in India and therefore the reagents/chemicals manufactured in India under joint venture cannot 25 be said to be illegal or spurious or were of low grade quality or fake. I have gone through the certificate issued by the accused no.1 company which is a declaration to the effect that from 2015 a joint venture firm has been established with C. L. Micromed Pvt. Ltd. In the name of Eschweiler Micromed pvt. Ltd. for manufacturing of certain proprietary reagents which are to be used in blood gas and electrolyte analyzers, established under the Indian Companies Act complying all regulatory approvals taxation, quality requirement excise requirements to manufacture and market the said items in India in order to meet with faster supply of the proprietary items to satisfy growing market need and is an affirmation that Eschweiler Gmbh and Co. K. G. is now locally present in India through Eschweiler Micromed Pvt. Ltd. The Ld. Counsel for the petitioners has also drawn the attention of the Court to one such invoice where the distinction was duly reflected as to what products were imported from Germany and what products were made in India by the joint venture company. Pertinently, however, there are also invoices projecting and insinuating that all the articles sold thereby are manufactured in Germany and imported from Germany and the complainant has also brought on record the rejection of the same articles by the concerned hospitals on the ground that the same were 26 not manufactured in Germany, contrary to the representation made in the invoice.
8. The joint venture is certified to be established from 2015 and the invoices in connection with which goods came to be rejected belong to the year 2016. Though the invoices do not pertain to the complainant but to the authorized dealer of the accused no. 1 appointed after termination of the certificate in favour of the complainant, however it is significant to note that the articles under the invoice were supplied by the accused no. 2 company as the sole distributor of accused no. 1 company. In the pricelist circulated there is no such distinction alluded to even though since 2015 certain reagents / chemicals were being produced indigenously by the joint venture. The manufacturing of the reagents/chemicals by the joint venture may not be illegal and products sold may not be spurious / low grade in any manner, however, the question remains that why were the products which were being manufactured under the lawful joint venture in India were shown to have been manufactured in Germany which subsequently came to be rejected as articles not manufactured in Germany by the end user, the hospitals.
27Even if the complainant had an axe to grind and nursed a grievance against the accused companies, the allegations in the complaint disclose the commission of cognizable offences and there is ample material brought on record by the complainant, locus being not necessarily a vital component and consideration for proceeding against the accused for commission of cognizable offences. It is also immaterial that the complainant has initiated civil proceedings challenging the termination of his agency, criminal proceedings are independent and can very well be coextensive.
9. There is a specific statement made in the invoice, under which the reagents / chemicals / consumables were sold to the hospitals that the products sold under the invoice are all manufactured in Germany whereas the hospital, the end users rejected the products as not manufactured in Germany and the said invoice is generated by M/s Kuber Inc. as an agent of the accused no. 1 company in respect of goods supplied by accused no. 2 company as it is only accused no. 2 company that is authorized to import and thereafter distribute the products of accused no. 1 company.
At this stage, the Court is only required to satisfy itself that there exists sufficient grounds to proceed further in the matter.
28The material before the ld. Trial Court on a prima facie is required to demonstrate the commission of a cognizable offence. The complaint is required to disclose all necessary facts constituting the offence. There should be sufficient material on record for the Court to arrive at a satisfaction that the allegations deserve summoning of the accused to proceed further in the matter. At this stage, it is neither required nor desirable for the Trial Court to record a satisfaction that the material would be sufficient to bring home a conviction. The complainant has levelled specific allegations and produced record in support thereof, that the accused in connivance with each other are incurring wrongful gain to themselves by selling products of accused no. 1 in India projecting the same to be manufactured in Germany by accused no. 1 and imported into India by accused no. 2 whereas some of those products were manufactured in India by accused no. 1 & 2 through a joint venture established of accused no. 1 & 2 by asking for and collecting same rates as applicable to products manufactured in Germany in Euros with import charges and other consequential charges and causing wrongful loss to the purchasers of the said products.
10. The accused no. 2 company is summoned through its 29 Directors and the petitioners in C. R. No. 702/2019, 703/2019, 704/2019 & 706/2019 are the several directors of the accused no. 2 company, petitioner in C. R. No. 704/2019 being the AR of the accused no. 2 company and the complainant in para no. 4 of the complaint has specifically alleged that these petitioners are responsbile for the day to day functioning of the accused no. 2 company personally liable for the acts and omissions of the accused company and that the accused no. 2 company acting through its directors and General Manager had always represented to the complainant that such reagents / chemicals and consumables are proprietary items manufactured in Germany by accused no. 1 and imported by them in India and sold across India through accused no. 2 acting through accused no. 2a to 2d, the Directors and its General Manager. The complainant has also filed the master data from the website of the Ministry of Corporate Affairs. Therefore, there was sufficient material before the Ld. Trial Court for proceedings against the Eschweiler Gmbh and Co. for offences under Section 420/467/468/471/120B IPC Where a criminal proceedings are initiated against a corporation as one of the accused, the procedure to be followed by the Court is laid under Section 305 of CrPC which is reproduced 30 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.
(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 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 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, 31 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 any inquiry or trial before a Court is or is not such representative, the question shall be determined by the Court.
11. Needless to say that as it is C. L. Micromed Pvt. Ltd. Through its Directors that is summoned as accused no. 2 and none of the Directors of accused no. 2 company is summoned in his or her personal capacity, the procedure envisaged towards the appointment of the representative for the purpose of the trial to represent the company is to be adopted in the course of the trial, so far as appearance on behalf of the company on every date of hearing is concerned and for the purpose as included in Sub Section (3) of Section 305 CrPC.
12. In view of the above and with such observation, present revision petitions impugning orders dated 01.08.2019 and 10.10.2019 passed by Ld. ACMM, Central, Tis Hazari Courts, in complaint case no. 6136/2017 stand dismissed.
32The original judgment shall form part of C. R. No. 702/2019 and copies be placed on the record of C. R. No. 703/2019, 704/2019, 705/2019 & 706/2019 decided vide the common judgment.
13. Trial Court record be returned alongwith copy of this judgment. File of revision petition be consigned to Record Room Announced in the open Court on this 25th day of June, 2020 (Neelofer Abida Perveen) Additional Sessions Judge : (Central) Tis Hazari Court:Delhi