Delhi District Court
M/S. Eco Terran Projects Pvt.Ltd vs M/S. Shree Cement Ltd on 23 August, 2012
Page 1 of 8
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ03 (EAST) KARKARDOOMA COURTS, DELHI
CR No.47/12 & 48/12
M/s. Eco Terran Projects Pvt.Ltd.
Through its Managing Directors
Sh. S.K.Jain
44A, Global House, Sector5,
Rajinder Nagar,
Shahibabad, Ghaziabad201005. Revisionist
Versus
M/s. Shree Cement Ltd.
118,Hans Bhawan,
1, Bahadur Shah Zafar Marg,
New Delhi110002.
Through its authorised representative
Sh. A.K.Talwar Respondent
ORDER
1. By this order I shall dispose of two revision petitions filed by the petitioner through it Managing Director Sh. S.K.Jain seeking setting aside of the order dated 07.05.11, 15.11.11, 03.03.12 and 08.06.12 passed by the Ld Cr.(R)No. 47/12 & 48/12 M/s. Eco Terren Projects Vs. M/s. Shree Cement Ltd. Page 2 of 8 Magistrate in the complaint case filed by the respondent. It is stated that the order of summoning is bad in law as the complaint filed, by the incorporated company (respondent), has not been signed by a duly authorized person, and there is no valid memorandum signed by the Board of Directors of the respondent company in favour of the signatory of the complaint. The petitioner further says that no summons were served upon the petitioner company or its Managing Director, no warrants were also attempted on the Managing Director; the Trial Court, however issued a process U/s.82 of Code of Criminal Procedure (Cr.P.C) against the accused in violation of procedure laid down for service of summons. The application to drop the process and the proceedings was also dismissed by the Trial Court without any assigning any reason. Reply was not filed by the respondent. Arguments were heard.
Authorization
2. Ld counsel for the petitioner argued that since the respondent is an incorporated company the complaint ought to have been filed by a person duly authorized by the Board of Directors or the Power of Attorney in favour of the signatory should have been signed by a person so authorized by the Board of Directors. Ld counsel for the respondent argued that the authorization could be filed at a later stage and it has been filed. Cr.(R)No. 47/12 & 48/12 M/s. Eco Terren Projects Vs. M/s. Shree Cement Ltd. Page 3 of 8
3. Hon'ble Supreme Court in "M/s MMTC Ltd. and anr. vs M/s Medchi Chemicals and Pharma (p) Ltd and anr., 2002Cr.L.J.266 had held as under:
".......Merely because complaint is signed and presented by a person, who is neither as authorized agent nor a person empowered under the Articles of Association or by any resolution of the Board to do so is no ground to quash the complaint. .... .Thus, even presuming, that initially there was no authority , still the company can , at any stage, rectify the defect"
In view of the Judgment of Hon'ble Apex Court the complaint cannot be dismissed merely on the ground of it having not been filed by a duly authorized person. In fact the company can at a later stage, as has been done already in the instant matter, authorize a person to lawfully represent it in the Court. There is no merit in the ground taken by the petitioner, and no infirmity in the order of summoning.
Service of Summons
4. Ld. Counsel for the petitioner has argued that the order dt. 03.03.12 declaring the accused a PO was passed without following due procedure of law. He argued that section 65 of Cr.P.C says that if the service of summons cannot be ensured by the exercise of due diligence as per provisions of Cr.(R)No. 47/12 & 48/12 M/s. Eco Terren Projects Vs. M/s. Shree Cement Ltd. Page 4 of 8
section 64, summons can be presumed to have been duly served after affixation of one of duplicates of the summons to conspicuous part of the house or homestead of the accused. He argued that there was no exercise of due diligence as no summons were affixed outside the house of the accused. He argued that summons as per section 64 of Cr.P.C are required to be served on an adult male of the family, the record however shows that no adult male member of the family was handed over the summons as per the requirement of law. He argued that after the BWs were received back unexecuted, process U/s.82 Cr.P.C was directed straightway without first issuing NBWs. He argued that in the report of summons at one place, Kavita Jain has been shown as the wife of appellant (on 17.10.11)while in other report (on summons dt. 25.12.11), she is referred to as sister inlaw of the appellant.
5. Ld. Counsel for the respondent on the other hand argued that the petitioner has been trying to delay the proceedings. He chose not to appear pursuant to summons, warrants and even after execution of process U/s. 82 Cr.P.C. He seeks dismissal of petition with cost.
6. Arguments heard. Record perused.
7. The argument of Ld counsel that adult male member was required to be Cr.(R)No. 47/12 & 48/12 M/s. Eco Terren Projects Vs. M/s. Shree Cement Ltd. Page 5 of 8
served is not valid as in the case of appellant section 63 & not section 64 is applicable. Nevertheless, it needs to be considered if the summons were served as per the relevant provisions of section 63 of Cr.P.C.
8. Chapter 6 of Code of Criminal Procedure which deals with service of summons has laid down procedure for service of summons on corporate bodies and societies. The section is reproduced hereunder:......
" 63.Service of summons on corporate bodies and societies.Service of summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation or by letter sent by registered post, addressed to the chief officer of the corporation in India, in such case the service shall be deemed, to have been effected when the letter would have arrived in ordinary course of post."
9. The requirement of law is to send a letter addressed to the chief officer by registered post. The registered post letter can be deemed as served at such time in which it would arrive at the address in due course of post. This presumption of service where the summons is sent by registered post, can be raised if the acknowledgment of service is not received back. The Court can Cr.(R)No. 47/12 & 48/12 M/s. Eco Terren Projects Vs. M/s. Shree Cement Ltd. Page 6 of 8 under such circumstance presume service after expiry of such period, as would have taken in reaching of the letter to the addressee in ordinary course of post.
10. In instant matter the summons were sent by way of registered post, but were received back by the Court unserved with report that premises was found locked. The postman had visited the office thrice before returning the registered post letter.
11. There could not be, under these circumstances, a presumption that the summons would have reached the accused in due course of post. They were apparently not served.
12. The court having failed in its endeavour to get the accused served as per the procedure laid down under section 63 of Cr.P.C. had to follow the next step as laid down under Chapter 6 i.e. section 65.
" 65. Procedure when service cannot be effected as before provided.If service cannot by the exercise of due diligence, be effected as provided in section 62, section 63, section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or Cr.(R)No. 47/12 & 48/12 M/s. Eco Terren Projects Vs. M/s. Shree Cement Ltd. Page 7 of 8
homestead in which the person summoned ordinarily resides; and thereupon the court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper."
13. Section 65 lays down that if the service cannot be effected despite exercise of due diligence as provided U/s. 63, the serving officer should affix the duplicate on the conspicuous part of the house, in which such person ordinarily resides, which in the case of the accused would have been the official address mentioned in the petition. If the serving officer had not followed the procedure as per law, the Court should have passed order for the compliance of provisions of section 65 of Cr.P.C. The service upon the accused could have been presumed as valid service only after compliance of section 65 and the warrants as per part B of chapter 6 could have been issued only after the service was complete as per the provisions laid down in part A of this chapter.
14. Apparently the procedure has not been followed. All the orders passed later on, were on the basis of presumption of service, which was not legally effectuated. The post summoning orders dt. 07.05.11, 22.09.11, 15.11.11, 03.03.12 and 08.06.12 in Crl.(R) No. 47/12 dt. 05.08.11, 22.09.11, 15.11.11, Cr.(R)No. 47/12 & 48/12 M/s. Eco Terren Projects Vs. M/s. Shree Cement Ltd. Page 8 of 8 03.03.12 and 08.06.12 in Crl. (R) No.48/12 are set aside. Accused is directed to put appearance before the concerned Trial Court on 29.08.12. TCR be sent back. Revision file be consigned to record room. Announced in the open court on 23.08.12 (ANURADHA SHUKLA BHARDWAJ) ASJ03, (EAST) KKD COURTS, DELHI/23.08.12 Cr.(R)No. 47/12 & 48/12 M/s. Eco Terren Projects Vs. M/s. Shree Cement Ltd.