Karnataka High Court
M/S Optival Health Solutions Pvt Ltd vs The State Of Karnataka on 25 April, 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.9833/2016
Between:
1. M/s. Optival Health Solutions Pvt. Ltd.
Shop No.1-103/1, and 1-103/2,
Ground Floor, Narayana Enclave,
SVP Chowk, Gulbarga-585309,
Represented by its Director
2. Sri. P. Srinivasan
Son of Sriram,
Aged about 45 Years,
Director of M/s. Medplus
(A Unit of Optival Health Solution Pvt. Ltd.)
Shop No.1-103/1, and 1-103/2,
Ground Floor, Narayana Enclave,
SVP Chowk, Gulbarga-585309.
Residing at H.No.17-1-391/T/126,
Singareni Colony,
Saraswathi Nagar,
Saidabad,
Hyderabad.
... Petitioners
(By Sri Akki Manjunath Gouda K., Advocate-Absent)
And:
The State of Karnataka
By Drugs Inspector-4,
Gulbarga Circle,
Gulbarga-585 309.
... Respondent
(Sri Prakash Yeli, Addl. SPP)
2
This Criminal Petition is filed under Section 482 of Cr.P.C.,
praying to quash the entire proceedings in C.C.No.3596/2016
which is pending on the file of I Addl. Judicial Magistrate First
Class at Kalaburagi against the petitioners and to pass such other
relief/s as this Court deems fit in the circumstances of the case.
This petition coming on for admission this day, the Court
made the following:-
ORDER
This petition is filed by the petitioners-accused No.1 and 2 under Sec.482 of Cr.P.C,, praying to quash the entire proceedings in C.C.No.3596/2016, pending on the file of I Addl. JMFC Court, Kalaburagi, registered for the offences punishable under Sections 18A, 18B, 22(1) (cca) and 18(a) (vi) read with Rules 65 (9) (a) of the Drugs and Cosmetics Act, 1940 and Rules thereunder punishable under Section 27(d), 28 and 28A of Drugs and Cosmetics Act, 1940 and rules thereunder.
2. The brief facts of the case as per the complaint are that; on 10.3.2010, a complaint was came to be registered on the basis of the complaint given by one Sri. Prabhu Dhoolappa before the respondent-Drugs Inspector. It is 3 alleged that the respondent conducted a test purchase along with two panch witnesses at the petitioners' Mediplus shop. During the test purchase, the respondent handed over a chit containing the name of four drugs and rupees 100/- currency note bearing marked as ' * ' to one bogus punter among two witnesses by name Vijay Kumar H, Bangane, then accused No.3 sold the drugs to the bogus punter and issued the cash bill and confirmed for having sold the drugs to the bogus punter mentioned in the chit without prescription of the registered medical practitioner by issuing necessary cash bills for the same. The respondent has made allegation that the petitioners were selling the medicine without any prescription of the medical practitioner. Hence, the respondent informed the same and forwarded to the higher authorities. Thereafter, the respondent-police filed a private complaint before the I Addl. JMFC Court, Kalaburagi, and same is registered as C.C.No.3596/2016. As such, the petitioners have approached this court for quashing the proceedings.
4
3. Heard the arguments of the learned Addl. SPP appearing for respondent-State.
4. The main grounds urged by the learned counsel for the petitioners are that; the respondent-Drugs Inspector filed a false complaint against them. He would further contend that accused No.1-company is a registered company carrying out the business in the field of Chemist and Druggist and other products under the trade name of 'Mediplus' and the accused No-1 is a registered company under the Companies Act. The accused No.1-company is having various branches throughout India and having various shops in Gulbarga by providing effective services to the public. It is serving the people and the customers on discount basis. He would further contend that the petitioners are nothing to do with the alleged offences charged against them. The persons who are having ill will against the company, have instigated the respondent to lodge a false complaint to tarnish the name of accused No.1 company. He would further contend that 5 there is no direct allegations made against the petitioners in entire complaint and there is inordinate delay in conducting investigation by the concerned authority. He would further contend that there are no overt acts and there is no clear indication about the role played by the Directors of the said company. As such, there is no prima facie material to show that the petitioners have committed the alleged offence. As such, prayed for quashing the proceedings.
5. On the contrary, learned Addl. SPP appearing for the respondent-State has vehemently contended that there is prima facie material as against the petitioners-accused. The petitioners have sold the drugs without there being any prescription from the registered medical practitioner and same is considered to be grave violation of the rules framed thereunder. He would further contend that the record indicates that the petitioners have sold drugs without any valid prescription by the registered medical practitioner. The petitioners will be having an alternative remedy to file 6 application before the concerned jurisdictional court for getting them discharge if there is no material. When there is an alternative efficacious remedy is available, then under such circumstance, power conferred under Section 482 of Cr.P.C. cannot be exercised and the petition deserves to be dismissed. On these grounds, he prayed for dismissal of the same.
6. Though sufficient time has been granted by adjourning this case on day-to-day basis, the learned counsel for the petitioners has not turned up and has not put forth his argument. By going through the records as the criminal petition cannot be dismissed for default only it has to be heard and decided on merits, as such, the petition has been taken up for final disposal and after hearing the learned Addl. SPP, the petition is disposed of on merits.
7. By going through the records, main contention of the learned counsel for the petitioners is that the petitioner No.1 company is the main accused and the respondents have 7 not followed the provisions of Sec. 34 of the Companies Act and as such they cannot prosecute the Directors and other persons of the company. He would further contend that what role has been played by the Director is also not forthcoming in the complaint. For the purpose of brevity, proviso to Section 34 of the Companies Act, is extracted as under;
" Section 34: Criminal liability for mis-statements in prospectus- Where a prospectus, issued, circulated or distributed under this Chapter, includes any statement which is untrue or misleading in form or context in which it is included or where any inclusion or omission of any matter is likely to mislead, every person who authorities the issue of such prospectus shall be liable under section 447:
Provided that nothing in this section shall apply to a person if he proves that such statement or omission was immaterial or that he had reasonable grounds to believe, and did up to the time of issue of the prospectus believe, that the statement was true or the inclusion or omission was necessary.
8. By going through the proviso to Section 34 of the Companies Act, if any offence is committed by a company, every person who at the time of the commission of offence was in-charge and was responsible to the company for the 8 conduct of the business of the company as well as the company shall be deemed to be guilty of the offences and shall be liable to be prosecuted. The proviso to the said Act provides that accused can prove that the offence was committed without his knowledge, and he has exercised all due diligence to prevent the commission of such offences, but it is a matter which has to be adjudicated and proved at the time of trial. Whether there is any conveyance or not, that is also a matter of fact and it has to be established as contemplated under the law when the prosecution leads its evidence. At this juncture, now it cannot be held that the Director was not having any knowledge or that he has used all due diligence to prevent the commission of such offence. All these matter requires to be considered in detail and has to be given a finding in this behalf. Though the learned counsel for the petitioners' has raised a question of law, but it is not only question of law, but it is mixed question of fact and law. As such, it has to be decided at the time of trial. 9
9. Keeping in view the above said facts and circumstances of the case, I am of the considered opinion that the petition is devoid of merits and it deserves to be dismissed.
Since, sufficient opportunity has been given to the petitioners, but in spite of that, after filing of the petition they have wasted the valuable time of the court without being represented, as such, exemplary cost of Rs.10,000/- has been imposed.
Sd/-
JUDGE BL