Karnataka High Court
M/S Optival Health Solutions Pvt. And ... vs The State Through on 26 October, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF OCTOBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL PETITION NO.201157/2017
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 Avinash A Uploankar, Advocate)
2
And:
The State of Karnataka
By Drugs Inspector-4,
Gulbarga Circle,
Gulbarga-585 309.
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
This Criminal Petition is filed Under Section 482 of
Cr.P.C. praying to set aside the order dated 30.10.2012
passed by the learned Prl. District and Sessions Judge at
Raichur in Crl. Rev. Petition No.63/2011.
This petition coming on for final hearing this day, the
court made the following:
ORDER
This criminal petition is filed under Section 482 of Cr.P.C. by the petitioners are seeking for quash the proceedings in C.C.No.3596/2016 and also set aside the order passed by the learned Principal Sessions Judge, at Kalaburagi in Criminal Revision Petition No.189/2017 dated 23.09.2017 pending on the file of I Addl. Civil Judge and JMFC at Kalaburagi.
2. The brief facts of the case as per the complaint are that; on 10.3.2010, a complaint given by 3 one Smt. Karuna Devi the respondent-Drugs Inspector came to be registered for the offences punishable under Sections 18A, 18B, 22(1) (cca) and 18(a) (vi) R/w Rules 65(9) (a) of the Drugs and Cosmetics Act, 1940 and Rules thereunder punishable under Sections 27(d), 28 and 28A of Drugs and Cosmetics Act, 1940 and Rules there under. It is seen that the complaint was filed under Section 473 of Cr.P.C. against 12 and another Accused No.1 is the company, accused No.2 is the director of the accused No.1 company and accused No.3 is the employee in the accused No.1 company. It is alleged that the respondent conducted a test purchase along with two panch witnesses at the petitioners' Medplus 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. Thus 4 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 made allegation that the petitioners were selling the medicine without any prescription of the medical practitioner. The petitioner was informed the same and forwarded to the higher authorities. Thereafter, the respondent-police filed a complaint before 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.
3. Heard the arguments of the learned Addl. SPP appearing for respondent-State. 5
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 'Medplus' and the accused No-1 is a Joint Stock Company incorporated under the Companies Act, 1950. The accused No.1-company is having various branches throughout India and having various shops in Gulbarga by providing effective services to the public.
5. The learned counsel for petitioner submits that the learned counsel for the petitioners relied the following citations of this court i.e. Crl. Petition. No.15263/2011 and connected matters dated 19.11.2011 is confirmed by the Apex Court urged 6 Special Leave to Appeal (Crl.) Nos.7743-7747/2013 dated 04.08.2017. Hence, prayed for quashing the proceedings.
6. In the case first the matter was referred, the learned JMFC after receiving the private complaint has referred it for investigation under Section 156(3) of Cr.P.C. and it was not an order of taking cognizance under Section 190 of Cr.P.C. Section 190 of Cr.P.C. reads thus:
"190.Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;7
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
7. Thus, the passed by the I Addl. Civil Judge and JMFC at Kalaburagi is irregular and against the accepted principles of law. The concept of vicarious liability cannot be clamped on petitioners 1 and 2. Basically a joint stock company is an artificial person having perpetual succession and a common seal. It possesses juristic personality. Thus, a separate entity. However, in legal proceedings, company needs to be represented by authorized officers of the company. But the offence involved in the present case, the Company 8 as stated in the cause title at Sl.No.1 and petitioner No.2, the defined status cannot be prosecuted.
8. Keeping in view of the above said facts and circumstances of the case, I pass the following;
ORDER The Criminal Petition filed under Section 482 of Cr.P.C. is allowed and proceedings in C.C.No.3596/ 2016 pending on the file of I Addl. Civil Judge and JMFC at Kalaburagi are quashed and the order passed by the learned Principal Sessions Judge, at Kalaburagi in Criminal Revision Petition No.189/2017 dated 23.09.2017 is set aside. However, this order does not apply to accused No.3 in C.C.No.3596/2016 pending on the file of I Addl. Civil Judge and JMFC at Kalaburagi.
Sd/-
JUDGE JSM