Madras High Court
Vayam Gmv Intelligent Transportation ... vs M/S Interlace India Pvt on 25 October, 2021
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
Crl.O.P.No.31361 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.10.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
Crl.O.P.No.31361 of 2014 and
M.P.No.1 of 2014
Vayam GMV Intelligent Transportation Pvt., Ltd.,
Thapar House, 124, Janpath,
New Delhi – 110 001
rep. By its Managing Director
Mr.Juan Antono March Garcia. ... Petitioner
Vs.
M/s Interlace India Pvt., Ltd.,
rep. By Mr.G.Ambalavanan
No.40, Sapthagiri Colony,
Jafferkhanpet,
Chennai- 600083 ... Respondents
Criminal Original Petition is filed under Section 482 Cr.P.C., to call
for the records in Complaint Case No.2726 of 2014 titled M/s Interlace
India Pvt., Ltd., Vs Imatics Technologies Pvt., Ltd., pending before the
court of learned XVIII Metropolitan Magistrate, Saidapet, Chennai and
quash the same.
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Crl.O.P.No.31361 of 2014
For Petitioner : Mr.N.R.Elango, Senior Counsel
for Mr.M.Velmurugan
For Respondents : Mr.K.M.Vijayan, Sr.Counsel for
M/s.K.M.Vijayan Associates
ORDER
The present Criminal Original Petition is filed under Section 482 Cr.P.C., on behalf of the petitioner company by one Shakti Kumar, [who is duly authorized to file the present petition by the Board of the petitioner- company vide Board of resolution dated 18.11.2014] to quash the complaint bearing C.C.No.2726 of 2014 [filed under Sections 417, 418, 420, 406 and 422 read with 34 of the IPC] titled M/s Interlace India Pvt., Ltd., Vs. Imatics Technologies Pvt., Ltd., pending before the learned XVIII Metropolitan Magistrate, Saidapet, Chennai together with the summoning order dated 30.04.2014.
2. Facts of the case as averred by the petitioner :
2.1. A company namely, Ahmedabad Janmarg Limited [hereinafter referred to as 'AJL'] had floated a request for proposal for development, implementation, operation, maintenance of integrated Transit Management System for Bus Rapid Transit System for the city of Ahmedbad (hereinafter 2/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 referred to as 'project'). In consequence, GMV Sistemas SAU, [for brevity 'GMV'] a company, having office at Madrid Spain and Vayam Technologies Limited, [in short 'Vayam'] a company having registered office at Newdelhi, jointly presented a proposal dated 02.04.2010, as a consortium, with Vayam, as a lead member and GMW, as the consortium partner. 'AJL' vide a letter of acceptance dated 21.08.2010 offered to assign the project to the consortium subject to the terms and conditions including the formation of Special Purpose Vehicle [in short 'SPV'] with GMV as a lead partner in such SPV.
2.2. Accordingly, SPV, namely, Vayam GMV Intelligent Transportation Pvt., Limited [hereinafter referred to as 'petitioner'] was formed by and between GMV and Vayam for the execution of the project.
As per the agreement between GMW and Vayam, the work related to the project is to be divided between them, as per their areas of specialisation. Accordingly, the payments received from AJL were to be transferred from one common account to separate accounts maintained by GMV and Vayam in accordance with the job performed by Vayam and GMV respectively. Vayam further sub-contracted a part of its work to third party, viz., Imatics Technologies Pvt., Ltd., [hereinafter referred to as 3/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 'Imatics']/A.1 and the petitioner had not entered into any contract with either the respondent / complainant or Imatics. The payments to Imatics were to be made by Vayam under its contract from its separate account and the petitioner has no connection to the same. Accordingly, Imatics and the respondent / complainant entered into a contract dated 20.01.2011 for the execution of the supply order by the complainant to Imatics and the petitioner was not a party to the business agreement dated 20.01.2011, between Imatics and the Complainant.
2.3. Further, the purported payments were to be made to the complainant / respondent by A.1, in view of the contract dated 20.01.2011 and five cheques bearing no. 749488 dated 02.10.2011 for Rs.6,42,96,791, Cheque No.809794 dated 28.03.2012 for Rs.50,00,000/- Cheque No.80975 dated 29.03.2012 for Rs.75,00,000/- Cheque No.834652 dated 16.05.2012 for Rs.4,82,22,593/- and Cheque No.749489 dated 15.06.2012 for Rs.4,82,22,593/- drawn on Corporation Bank, Chennai were issued by A.1 to A.4 to the complainant / respondent and the same were allegedly dishonoured, for which the complainant had initiated prosecution against accused 1 to 4. Another cheque bearing no.661755 dated 17.08.2012 for Rs.2,00,00,000/- was also issued by A.15 and that there is no allegation 4/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 against the petitioner.
2.4 The respondent filed a detailed complaint before the police on 07.12.2012 narrating all the facts, which form part of the present complaint, but there is no allegation against the petitioner herein and the said complaint does not even mention the name of the petitioner or its Directors as accused persons. Upon failure of the police to register an FIR on the basis of the complaint dated 07.12.2012, the complainant / respondent filed its complaint dated 15.04.2014 before the learned XVIII Metropolitan Magistrate, Saidapet, Chennai and recorded its statement through Authorised representative under Section 200 of the Code of Criminal procedure, on 30.04.2014, the trial court mechanically took the cognizance of the offences and erroneously issued summons to all the accused persons mentioned in the complaint including the petitioner and directed their appearance on 29.05.2014 vide order dated 30.04.2014. The trial court issued fresh summons on 29.05.2014 returnable on 01.07.2014 against the petitioner along with A.12 and A.13, who are Directors of the petitioner, admittedly, they are permanent residents of spain. A.7, 8 and 9 preferred a Crl.O.P.No.23023 of 2014 for quashing the impugned complaint and the court had granted stay of the proceedings of the Trial 5/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 Court vide order dated 26.08.2014.
2.5 The trial court erroneously took cognizance of offences alleged without applying its mind to enquire prima facie whether any such offence is even made out and as a consequence thereof, erroneously summoned the petitioner among other accused persons. The trial court proceeded to summon the petitioner and its officers without conducting enquiry / investigation as mandated under Section 202 of the Code of Criminal Procedure, 1973 and the petitioner was not located within the territorial jurisdiction of the trial court. That apart, no offence under Sections 417, 418, 420, 422 r/w Section 34 of the IPC is even prima facie made out much less against the petitioner since it has not played any role in the alleged transaction and no offence under Section 406 r/w Section 34 can be attributed to the petitioner, since there has been no 'entrustment' of property by the respondent.
2.6 The respondent / complainant in its complaint dated 07.12.2012 before the police does not whisper any allegation / grievance whatsoever against the petitioner. When the police refused to take any action on the complaint dated 07.12.2012, the respondent / complainant has maliciously implicated the petitioner in the impugned complaint despite being aware of the fact that it had not played any role in the alleged transaction. When 6/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 there is no explanation offered by the respondent as to how the petitioner has been implicated in the impugned complaint , when the earlier complaint dated 07.02.2012 did not even mention the petitioner as an accused. Being aggrieved by the complaint dated 15.04.2014 together with the summoning order dated 30.04.2014, the petitioner is before this Court.
3. Submissions made on behalf of petitioner:
3.1. The learned senior counsel appearing for the petitioner submitted that the allegations made in the complaint even if they are taken at their face value and accepted in their entirety, the same does not prima facie constitute any offence or make out even a prima facie case against the petitioner and thus the present complaint is liable to be quashed. The impugned complaint no.2726/2014 is an abuse of the process of the court and fails to disclose commission of any offence alleged therein, much less by the petitioner herein and hence to be dismissed.
3.2. The learned senior counsel for the petitioner also submits that the impugned order taking cognizance and consequent summoning suffer from complete non-application of mind and is therefore bad in law, perverse, arbitrary and illegal. The trial court mechanically took 7/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 cognizance of offence and erroneously issued summons to the petitioner and its officers. The trial court failed to appreciate that the complaint does not assign any role to the petitioner in the alleged commission of offences as is evident from a bare perusal of the impugned complaint.
3.3. The learned senior counsel for the petitioner contends that the trial court has proceeded to summon the petitioner without conducting any enquiry / investigation as mandated under Section 202 of the Code of Criminal Procedure, as admittedly, the petitioner was not located within the territorial jurisdiction of the trial court. Further the trial court failed to appreciate that the contract dated 20.01.2011 was not between the respondent and the petitioner but between the respondent / complainant and Imatics.
3.4. The learned senior counsel for the petitioner had presented a brief note on enquiry under Section 202 Cr.P.C., by way of a document and referred to the various Judgments of Hon'ble Apex Court as well as the Judment of the High Court of Bombay and represented that the learned Magistrate failed to comply with Section 202 of Cr.P.C., 3.5. The learned senior counsel for the petitioner also contends that 8/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 the trial court failed to appreciate that not even a single allegation has been made against the petitioner either in the complaint or in the statement recorded in the examination conducted under Section 200 of the Code of Criminal Procedure, 1973. The trial court failed to follow the ratio of catena of Judgments of the Hon'ble Supreme Court that a Magistrate, before summoning an accused, has to examine the nature of allegations made in the complaint and the evidence, both oral and documentary in support thereof, and determine whether the same would be sufficient for the trial court to proceed against the accused so summoned, thereby pleaded to grant the prayer sought for in the present petition.
4. Citations referred by the petitioner :
The learned senior counsel appearing for the petitioner in support of his contentions has relied on the following Judgments of the Hon'ble Supreme Court:-
1. (2000) 2 SCC 636 : 2000 SCC (Cri) 513 [Sagar Suri Vs. State of U.P.
2. (2004) 7 SCC 338 [Adalat Parasad Vs. Roopalal Jindal]
3. (2004) 13 SCC 324 (Subramanium Sethuraman Vs. State of 9/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 Maharashtra)
4. (2005) 10 SCC 228 : (2006) 1SCC (Cri) 746 (Anil Mahajan Vs. Bhor Industries Ltd.,)
5. (2005) 10 SCC 336 (Uma Shankar Gopika Vs. State of Bihar)
6. (2006) 6 SCC 736 : (2006) 3 SCC (Crl) 188 (Indian Oil Corpn., Vs. NEPC India Limited)
7. (2008) 13 SCC 678 (Suryalakshmi Cotton Mills Ltd., Vs. Rajvir Industries Ltd.,)
8. (2010) 10 SCC 361 (V.P.Shrivastava Vs. Indian Explosives Ltd.,)
9. (2013) 2 SCC 435 (Udai Shankar Awasthi Vs. State of U.P.)
10.(2013) 2 SCC 488 (National Bank of Oman Vs. Barakara Abdul Aziz)
11.(2014) 14 SCC 638 (Vijay Dhnuka Vs. Najima Mamtaj)
12.(2016) 1 SCC 348 (International Advance Reaserch Center Vs. Nimra Cerglass Technics (P) Ltd.,)
13. 2019 SCC Online SC 682 (Birla Corporation Ltd., Vs. Adventz Investment and Holdings Limited and others)
14. (1986) 1 SCC 264 [Life Insurance Corporation of India Vs. Escorts Limited & Ors.
15.Manu/OR/0511/2010 [Hiralal Gupta Vs. Republic of India]
16. (2015) 12 SCC 420 [Mehmood UI Rehman Vs. Khazir Mohammed 10/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 Tunda
17.(2012) 10 SCC 517 [Manharibhai Muljibhai Kakadia Vs. Shaileshbhai Mohanbhai Patel
18. 2019 SCC Online 1717 [Amruta Ajay Mane Vs. Ramesh Dhodiba Mane and others]
19.Manu/TN/3829/2017 [S.R.Srinivasan Vs. State]
5. Brief Facts of the case as alleged by the Respondent :
5.1 The respondent is the defacto complainant in C.C.No.2726 of 2014 on the file of learned XVIII Metropolitan Magistrate, Chennai for the offence under Sections 417,418,420, 406 and 422 r/w 34 of IPC. The accused 7, 8 and 9 have already filed quash application in Crl.O.P.No.23023 of 2014 and after hearing the counsel appeared therein, this Court had passed the order as follows:-
“4. However, in view of the order that this Court proposes to pass, the appearance of the respondents are not necessary. In view of the limited relief sought for by the petitioner, without going into the merits of the issue, this Court grants liberty to the petitioner to file discharge petition, and on the filing of the such petition, the learned XVIII Metropolitan Magistrate, Chennai is directed to take up the case and pass appropriate orders as expeditiously as possible on the discharge petition. 11/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014
5. Taking into consideration the request as made by the learned counsel for the petitioner, the appearance of the petitioners before the trial court is dispensed with. However, this order will not stand on the way of the Trial court to insist for the appearance of the petitioners for receiving the copies under Section 207 of Cr.P.C., framing of charges, questioning under Section 313 of Cr.P., and Judgment and as and when the trial court feels it necessary..” 5.2 A.7, is the Managing director of A.11, petitioner-company and the complaint is filed on the bundled cause of action and there are specific allegations against all the accused persons, more specifically A.7 and A.11 attended the meeting and active participant in the crime. Further, the present application is to be disposed of in terms of Crl.O.P.No.23023 of 2014. Even in the present quash application, the petitioner accepts that the petitioner-company is formed for the execution of specific project and there is no denial by the petitioner to the respondent complaint that after receiving the product of the respondent, the petitioner supplied to the authority. Subsequently, the petitioner company encashed the said properties and failed to pay the respondent herein as per the arrangement made. The First Information, which is given under Section 156 Cr.P.C., cannot be taken for deciding the present and the requirements for filing the 12/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 complaint under Section 156 Cr.P.C., is different from complaint under Section 200 Cr.P.C., The complaint was filed under Section 200 Cr.P.C., and after inquiring into the complaint under Section 202, the learned magistrate passed an order on 30.04.2014, which is as follows:-
“Complainant present. Sworn statement recorded. Heard, prima facie case made out against A.1 to A.17 under Sections 417, 418, 420, 406, 422 r/w 34 IPC. Taken on file. Issue summons to A.1 to A.17. Call on 29.05.2014” 5.3. The principle behind Section 202 Cr.P.C., proceedings is that to eliminate the false complaint and in the present case, the petitioner-
company is formed by A.5 company for the specific project and it is needless to state that A.7 is the Managing Director of the petitioner- company. In addition to the same, the petitioner company executed standing instructions for the operation of accounts and also issued concerned letters. Moreover, the office of both the companies are in the same premises and majority managed by the similar set of persons. In such event, the petitioner cannot aver two set of facts for the quash applications and it is relevant that the other application was dismissed. In fact there is no pleading to the effect what was the prejudice caused even in case section 202 Cr.P.C., procedure was not followed by the learned 13/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 Magistrate.
5.4. The learned senior counsel for the respondent submits that the question of maintainability can be raised at any stage including in the stage of appeal. It is not disputed position of law that the procedure under Sections 200, 202 and 204 Cr.P.C., should not be done on the same day. The order of the learned Magistrate is the consolidated order which satisfies the requirements under Sections 200, 202 and 204 Cr.P.C., 5.5. The present application is liable to be dismissed as per the orders of this Court in similar issue in Crl.O.P.No.12676 of 2012 dated 11.11.2014 and it is relevant to state that the respondent cited only one witness who is also enquired by the learned Magistrate and established the case by the documents, which was exchanged between the accused and the petitioner. Further, it is a clear case of cheating, which was established by the documents and the same was also not denied. The petitioner in connivance with the other accused, tactfully, by using the banking system as a tool cheated the respondent. Moreover, the petitioner by giving false hope to the respondent guaranteed through standing instructions had induced the respondent to spend huge amount towards material supply 14/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 and services for the project, thereafter, the petitioner willfully defaulted and misappropriated the amount due to the respondent towards the material supply and services rendered by the respondent herein by causing wrongful loss to the respondent. Hence such a malicious scientific fraud of the petitioner misusing the banking mechanism would shake the fundamental faith on the banking system adversely affecting the industrial growth, hence the same to be viewed seriously.
5.6. The only technical ground of non-compliance of section 202 Cr.P.C., proceedings was also not supported by any material and against the facts. At any event, the present petition to quash the petition is devoid of merits against the materials and also against the settled principles of this Court and Hon'ble Supreme Court.
6. Submissions made on behalf of the respondent:
6.1. The learned senior counsel for the respondent emphatically submits that especially Section 305 of Cr.P.C., deals with the procedure for appointing representative and in the present case the said procedure was not followed. The petitioner without filing the authorization simply filed the quash application and after the objection was raised, the petitioner filed the document dated 30.07.2017 on 07.07.2021, even then, not followed 15/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 Section 305(5) of Cr.P.C., 6.2. The learned senior counsel appearing for the respondent represented a plea that approximately 16 Crores was cheated by A.1 to A.17 and the document No.6, which is the amended business agreement have condition in Section2-price and payment terms (iii) and (v) have condition that the upstream customers of Imatics which are M/s Vayam Technologies Limited and M/s Vayam GMW Intelligent Transportation private limited should ensure direct flow of revenue by issuing standing instruction. Only based on the said assurance, the project was accepted by the complainant and the product was supplied. A.5 and A.11, company had also issued consent letter dated 20.01.2011 respectively, which are annexed in the document nos.2 and 5. The written transaction also reflects the importance of the said concern and accordingly, A.5 and A.11 confirmed the issue of standing instructions dated 18.05.2011 and 27.02.2012. The said documents were also filed along with the complaint as document no.3 and 13 in addition to the same, A.5 and A.11 company attended the compromise meeting held on 13.02.2012 and the terms agreed in the compromise meeting was fulfilled by A.11 company by providing new standing instruction dated 27.02.2012. After receiving 16/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 payment of Rs.12 Crores, the standing instruction are withdrawn without the knowledge of the complainant and thereby offence is attracted under Section 417, 418, 420 and 422 r/w Section 34 of IPC, thereby pleaded to dismiss the quash petition.
7. Judgments / Orders referred by the learned counsel for the respondent:
1. The Judgment in Crl.A.Nos.678-681 of 2014 dated 27.03.2014 by the Hon'ble Supreme Court of India
2. The order passed by this Court in Crl.O.P.No.12676 of 2012 dated 11.11.2014
3. The Order passed by this Court in Crl.O.P.No.1328 of 2017 dated 29.01.2019.
4. The order passed by this Court in Crl.O.P.No.23023 of 2014 dated 12.02.2020.
8. Reply submitted on behalf of the Petitioner to the Respondent's 17/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 contention:
8.1. The respondent contended that the instant petition preferred by the petitioner is not maintainable, as the petitioner-company claimed to be represented by Mr.Shakti Kumar through a board resolution dated 18.11.2014, has not placed on record a single document in support of its claim. In response, the petitioner submitted for the purpose of filing the present quash petition, Mr.Shakti kumar was authorised by a board resolution dated 18.11.2014.
8.2. The respondent submitted that the Board of Resolution dated 18.11.2014 has been signed by J.S.Chhabra, who himself is arrayed as an accused (A.7) in the complaint filed by the respondent before the Magistrate and Chhabra in his individual capacity had preferred a quash petition, which was withdrawn on 12.02.2020, therefore the present petition cannot be maintained. To justify the same, the petitioner contends that the petitioner-company was incorporated under the Companies Act, 1956 as an independent and legal personality distinct from the individuals who are its members. Reliance is placed on the decision of Hon'ble Supreme Court in Life Insurance Corporation of India Vs. Escorts Limited & Ors. (1986) 1 SCC 264, therefore, it would be legally incorrect to contend that 18/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 J.S.Chhabra is the principal, and the petitioner-company is a representative of Mr.Chhabra and any action taken by Chhabra in his individual capacity has any bearing on the company.
8.3. The respondent also contended that the petitioner has not complied with the requirement of Section 305 of Cr.P.C., before preferring this quash petition and the Board Resolution dated 18.11.2014 filed along with the petition is not specific to the requirements of Sub-Section (5) of Section 305. In response, by referring to the said section, the petitioner contended that Section 305 of Cr.P.C., applies only to the proceedings conducted before the Trial Court and not to the proceedings of this Court.
8.4. The respondent admitted that the compliance of Section 202 of Cr.P.C., is mandatory, however, on facts, the respondent contended that the Magistrate in his cryptic impugned order has complied with the requirements of Section 202 of Cr.P.C., in support of his arguments, the respondent relied on the decision of Hon'ble Supreme Court in Vijay Dhanuka etc., Vs. Najima Mamtaj etc., in Crl.A.Nos.678-681 of 2014 dated 27.03.2014 to contend that mere examination of the complainant at stage of Section 200 is sufficient compliance of the requirements of Section 19/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 202 of Cr.P.C., Contradicting the same, the petitioner contended that the (i) said submission of the respondent is devoid of any merit and the reliance on the decision of Vijay Dhanuka(Supra) is also misplaced, as the case is differentiable on facts. (ii) Further, contended that the mandatory inquiry under Section 202 of Cr.P.C., is distinct from the examination of the complainant and witness by the Magistrate under Section 200 of Cr.P.C., and placed reliance on the Judgment of Hon'ble Supreme Court in Mehmood ULRehman Vs. Khazir Mohammad Tunda reported in (2015) 12 SCC 420 and Manharibhai Muljibhai Kakadia Vs. Shaileshbhai Mohanbhai Patel reported in (2012) 10 SCC 517. (iii) Also, the petitioner contended that the reflection of an inquiry conducted by the magistrate should have been in the summoning order and reliance is placed on the decision of High Court of Bombay in Amruta Ajay Mane Vs. Ramesh Dhodiba Mane and Others reported in 2019, SCC Online Bom 1717.
8.5. By way of reply, learned senior counsel for the petitioner submitted that if this Court is not inclined to set aside the impugned criminal proceedings dated 30.04.2014, this Court shall issue a direction to the learned Magistrate to issue notice to the petitioner and upon hearing their grievances, shall decide the case in accordance with law. 20/49
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9. Heard the learned senior counsel on either side and perused all the documents filed on record.
10. It is brought to the notice of this Court that earlier, when the present petition was admitted on 27.11.2014, this Court had granted stay of the proceedings only by taking note of the submission of the learned senior counsel for the petitioner that the petitioners / A.7 to 9 were granted stay in Crl.O.P.No.23023 of 2014. On 12.02.2020, the said petition was disposed of in the light of the submission made by the learned counsel for the petitioner, wherein it is stated that “...there are arguable points available in this case, it would suffice, if this Court issues direction to the Trial Court to expedite the trial and complete the same as early as possible. He would further submit that the appearance of the petitioners before the Trial Court may be dispensed with and would further submit that the petitioners are ready to appear as and when necessary.”
11. It is pertinent to point that the learned senior counsel for the respondent contended that the instant petition preferred by the petitioner is not maintainable, as the petitioner-company claimed to be represented by Mr.Shakti Kumar through a board resolution dated 18.11.2014, has not 21/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 placed on record a single document in support of its claim. The respondent submitted that the Board Resolution dated 18.11.2014 has been signed by J.S.Chhabra, who himself is arrayed as an accused (A.7) in the complaint filed by the respondent before the Magistrate and Chhabra in his individual capacity had preferred a quash petition, which was withdrawn on 12.02.2020, therefore the present petition cannot be maintained.
12. This Court is not in agreement with the said submission of the learned senior counsel for the respondent, in view of the fact that the board resolution has been passed by the petitioner-company authorising Mr.Sakthikumar to file / institute / defend / compromise / withdraw all legal proceedings (Civil & Criminal) of any nature, for and on behalf of the company before all / any court and no contra evidence has been produced that the said resolution is not in existence or the same was cancelled. Hence the said Board Resolution passed by circulation on 18.11.2014 stands good and the maintainability of the present petition is upheld.
13. In the present proceedings, this Court is not concerned with the issue as to whether impugned complaint make out a case for offence under the aforesaid provisions of the IPC. Since the learned Magistrate has 22/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 issued the summons for all the accused A.1 to A.17, this Court proceeds with the assumption that prima facie case is made out. The question is as to whether the learned Magistrate has adopted correct procedure while issuing summons to the petitioner. The basic facts which need to be specified for deciding this issue is that the petitioner – company is arrayed as A.11 and that the petitioner – company and the managing director are not the residents of Tamilnadu and are outside his jurisdiction.
14. Having regard to these facts, this Court proceeds to examine the matter in the light of the provisions of Section 202, Cr.P.C.
15. The settled / admitted position in law is that in those cases where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, it is mandatory on the part of the Magistrate to conduct an enquiry or investigation before issuing the summons. Section 202 of the Cr.P.C. was amended in the year by the Code of Criminal Procedure (Amendment) Act, 2005, with effect from 22nd June, 2006 by adding the words 'and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction'. There is a vital purpose or objective behind this amendment, namely, to wipe off the 23/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 false complaints against such persons residing at a far off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation on the Magistrate to conduct enquiry or direct investigation before issuing the summons, so that false complaints are filtered and rejected. The aforesaid purpose is specifically mentioned in the note appended to the Bill proposing the said amendment. The essence and purpose of this amendment has been captured by the Hon'ble Apex Court in Vijay Dhanuka Vs. Najima Mamtaj [C.A.Nos.678-681 of 2014 arising out of SLP (Crl.) 5090-5093 of 2013 dated 27.03.2014 in the following words:
“11. Section 202 of the Code, inter alia, contemplates postponement of the issue of the process “in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” and thereafter to either inquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit. In the face of it, what needs our determination is as to whether in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, inquiry is mandatory or not.
12. The words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6- 24/49
http://www.judis.nic.in Crl.O.P.No.31361 of 2014 2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far off places in order to harass them. The note for the amendment reads as follows:
“False complaints are filed against persons residing at far off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.” The use of the expression “shall” prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we (2014) 14 SCC 638 find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints.
Hence, in our opinion, the use of the expression “shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.” 25/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014
16) For this reason, the amended provision casts an obligation on the Magistrate to apply his mind carefully and satisfy himself that the allegations in the complaint, when considered along with the statements recorded or the enquiry conducted thereon, would prima facie constitute the offence for which the complaint is filed. This requirement is emphasised by the Hon'ble Apex Court in a recent judgment Mehmood Ul Rehman Vs. Khazir Mohammad Tunda in Criminal Appeal No. 1347 of 2010 dated 31.03.2015 in the following words:
“20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter.
22. The steps taken by the Magistrate under Section 190(1)(
a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter 26/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable (2016) 1 SCC (Cri) 124 before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.” 27/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014
17. That apart, with regard to dealing of a complaint, Three Judges Bench of Hon'ble Supreme Court [Devarapalli Lakshminarayana Reddy V. Narayana Reddy, (1976) 3 SCC 252] at Paragraph No.17 among other things held as follows:-
Chapter XV relates to `Complaints to Magistrates'. Section 200 thereof provides for examination of the complainant and the witnesses on oath. Section 201 provides for the procedure which a Magistrate who is not competent to take cognizance has to follow. Section 202 provides for postponement of issue of process. He may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether there is sufficient ground for proceeding.
18. The requirement of conducting enquiry or directing investigation before issuing process is, therefore, not an empty formality. What kind of 'enquiry' is needed under this provision has also been explained in Vijay Dhanuka case, afore mentioned supra.
28/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014
19. Before parting with the case, this Court would like deal with the Judgments referred by the learned senior counsel for the petitioner as well as the learned counsel for the respondent.
The Citations referred by Petitioner:
(i). (2000) 2 SCC 636 : 2000 SCC (Cri) 513 [Sagar Suri Vs. State of U.P. To substantiate that the family members of the Managing Director of a company cannot be roped into a criminal complaint without their role or participation, the said decision is not applicable to the present case because, the petitioner – company is arrayed as A.11 in the complaint.
(ii) (2004) 7 SCC 338 [Adalat Parasad Vs. Roopalal Jindal] In this said case, after issuance of summons, the accused approached the High Court and the accused was directed to approach the trial court, thereafter, the learned Magistrate has recalled the summons, which was issued earlier, as against the same, the aggrieved party preferred a petition before the Hon'ble Supreme Court and the said court held that for recalling an erroneous order of issuance of process, no specific provision of Law is required, thereby upheld the decision of the High Court in remitting the matter to the trial court. In the present case, 29/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 after issuance of summons, the petitioner has approached this Court and this Court is also in agreement with the said decision.
(iii) (2004) 13 SCC 324 (Subramanium Sethuraman Vs. State of Maharashtra) To substantiate that the issuance of process cannot be reviewed, reconsidered or recalled by the Magistrate and the only remedy available to an aggrieved accused is the remedy under Section 482 Cr.P.C., In the present case, the petitioner has availed such remedy and approached this Court.
(iv) (2005) 10 SCC 228 : (2006) 1SCC (Cri) 746 (Anil Mahajan Vs. Bhor Industries Ltd.,) The said decision is not applicable to the present case, in view of the fact that the complaint therein pertains to a civil case due to breach of contract and no criminal case is attracted, in the present case there are as many as 17 accused and several transaction took place and the same are to be looked into.
(v) (2005) 10 SCC 336 (Uma Shankar Gopika Vs. State of Bihar) 30/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 In the said case, upon receiving the complaint, Magistrate has directed the police to investigate and the police has filed the FIR, seeking to quash the said FIR, the appellant therein approached the High Court and the High Court dismissed the same. The aggrieved party approached the Hon'ble Supreme Court and the said Court quashed the proceedings stating that the complaint does not disclose any offence of IPC. The same does not apply to the present case because upon receiving the complaint, the magistrate has not directed the police to investigate the matter, but issued summons on his own.
(vi) (2006) 6 SCC 736 : (2006) 3 SCC (Crl) 188 (Indian Oil Corpn., Vs. NEPC India Limited) In the said case the High Court has quashed the criminal complaint and the Hon'ble Supreme Court held that the allegations in the complaints are sufficient to constitute offences under Sections 415 and 425 IPC and the appeals are allowed in-part and the learned Magistrate was directed to proceed with the matter.
(vii) (2008) 13 SCC 678 (Suryalakshmi Cotton Mills Ltd., Vs. Rajvir 31/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 Industries Ltd.,) This case pertains to issuance of blank cheques and the learned senior counsel for the petitioner in order to state that Section 420 IPC does not attract in the absence of fraudulent act at the inception stage, has referred to this decision, but the facts are not identical as that of the present case in hand.
(viii) (2010) 10 SCC 361 (V.P.Shrivastava Vs. Indian Explosives Ltd.,) In this case, the complainant therein engaged in the business of industrial explosives, Ammonium nitrate; being well aware that the FCIC, being a sick company by way of Board Resolution in the year 1992, the complainant entered into a contract in the year 2001, hence the complaint and subsequent proceedings were quashed by the Hon'ble Supreme Court, but in the present case, there is no sick company, hence the same cannot be considered.
(ix) (2013) 2 SCC 435 (Udai Shankar Awasthi Vs. State of U.P.) In this case, in the agreement between the complainant and the opposite party, there is a Arbitration Clause. Initially a complaint was filed 32/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 the same was dismissed, another complaint was filed and in the said complaint, police has filed a report as 'Mistake of Fact' and yet another complaint was filed and the same was taken cognizance, hence the proceedings in the said complaint was quashed. But in the present case, no action was taken by the police and thereafter a private complaint was filed and the learned Magistrate has issued summons, hence the same does not apply to the present case.
(x) (2013) 2 SCC 488 (National Bank of Oman Vs. Barakara Abdul Aziz) In this case, the High Court has quashed the complaint on the ground that amended Section 202 of Cr.P.C, has not been complied with.
However, the Hon'ble Supreme Court has stated that the view taken by the High Court is correct, however, directed the learned Magistrate to pass appropriate orders on the complaint. The said decision by the Hon'ble Supreme Court squarely applies to the case on hand.
(xi) (2016) 1 SCC 348 (International Advance Reaserch Center Vs. 33/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 Nimra Cerglass Technics (P) Ltd.,) In this case, there is a technology transfer agreement and since there is a breach of said agreement, a complaint was laid before the Magistrate and thereafter, the learned Magistrate has directed the police to investigate the matter and the police has filed a final report stating that the dispute is of civil in nature and the Hon'ble Supreme court upon hearing and perusing the documents on record held that dispute appears to be civil in nature and the criminal proceedings are quashed. But in the present case, no action was taken by the police and thereafter a private complaint was filed and the learned Magistrate has issued summons, hence the same does not apply to the present case.
(xii) 2019 SCC Online SC 682 (Birla Corporation Ltd., Vs. Adventz Investment and Holdings Limited and others) In this case on a complaint lodged by the complaint for theft of their company's confidential documents as many as 54 documents, the learned Magistrate has taken cognizance against the respondents 1 to 16 therein for commission of offence under Sections 380, 411 and 120-B IPC, since there are no averments in the complaint nor in the statement of complainant or the witness as to when and how the theft was committed, 34/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 the order of the Magistrate was set aside and further held that use of documents by the respondents in the judicial proceedings is to substantiate their case and such use of documents in the litigations pending between the parties would not amount to theft. In the present case, learned Magistrate has held that prima facie offence made out, hence the same does not apply to the present case and there is no such theft in the present case.
(xiii). (1986) 1 SCC 264 [Life Insurance Corporation of India Vs. Escorts Limited & Ors.
This case is not relevant to the present case on hand in view of the fact that the Foreign Exchange Regulation Act and permission of Reserve Bank of India are dealt with and in the said case, the same are absent.
(xiv) Manu/OR/0511/2010 [Hiralal Gupta Vs. Republic of India] In this case, the petitioner therein was appointed as representative of the Company under Section 305(2) Cr.P.C., he filed a petition before the trial Court for exempting him to go on bail and the application was rejected. The High Court of Orissa held that the provision has been enacted to overcome practical difficulties in trial of a corporation and the parliament 35/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 have not used the word accused to describe the representative of the company, moreover, the question of bail arises only when any person is an accused and thereby observed that there is no necessity for the petitioner to apply for bail. In the present case no person has applied for bail and the said decision does not apply to the present case.
(xvi) (2015) 12 SCC 420 [Mehmood UI Rehman Vs. Khazir Mohammed Tunda In this case, the Hon'ble Supreme Court held that there was no indication in the order of Magistrate regarding application of mind by him in taking cognizance and issuing process to accused and hence order of the Magistrate which was affirmed by the High Court was set aside. Further, the matter was remitted to Magistrate for fresh consideration and further action, if required, was directed to be taken in accordance with Law. This case squarely applies to the present case on hand.
(xvii) (2012) 10 SCC 517 [Manharibhai Muljibhai Kakadia Vs. Shaileshbhai Mohanbhai Patel The facts of this case pertains to preplanned conspiracy, creating forged documents and the complainant lodged a complaint, the Chief 36/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 Judicial Magistrate, directed the enquiry to be made by the police and ordered to submit a report within a period of 30 days therefrom. The investigating officer opined that the disputes between the parties were of civil in nature and no offence was made out. The magistrate accepted the report and that order was challenged by the complainant before the Gujarat High Court and the parties were also sought to implead them. On 05.08.2005, the learned Single Judge of the Gujarat High Court dismissed the application. As against the same, appeal has been filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court set aside the Impugned order 05.08.2005 and remanded the matter to the High Court. But in the present case, no person have sought to implead them as parties and the Magistrate has issued summons directly by observing that prima facie offence has made out, hence above said case does not apply to the present case on hand.
(xviii) 2019 SCC Online 1717 [Amruta Ajay Mane Vs. Ramesh Dhodiba Mane and others] The dispute relates to matrimonial dispute and on the complaint lodged by the complainant, learned Magistrate had issued process the Hon'ble Supreme Court had set aside the said process and given liberty to approach the concerned court afresh for redressal. The present case on 37/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 hand does not relate to matrimonial dispute and in this case, there are number of transactions and various documents also to be looked into, hence the same does not apply to the present case.
(xix) Manu/TN/3829/2017 [S.R.Srinivasan Vs. State] In this case, earlier, the case was split up and the trial court took all steps to issue summons repeatedly and hence revision was dismissed, the said case does not apply to the present case on hand, in view of the fact that the case was not split up and the summons were issued once, challenging the same, the parties are before this Court. The Citations referred by the Respondent:
(i) The Judgment in Crl.A.Nos.678-681 of 2014 dated 27.03.2014 by the Hon'ble Supreme Court of India.
In this case, learned Magistrate has issued summons to the parties by examining the complainant and two witnesses and hence the Hon'ble Supreme Court has observed that the order of the learned magistrate is correct, but in the present case, no witnesses were examined, hence the same does not apply to the present case on hand.
(ii) The order passed by this Court in Crl.O.P.No.12676 of 2012 dated 11.11.2014 In the said case, the learned Magistrate on going through the sworn 38/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 statement of the complaint as well as by postponing the process for six months, has taken the complaint on file, in the case on hand, the learned Magistrate has issued summons and failed to postpone the issue, hence the present case does not apply to the present case on hand.
(iii) The Order passed by this Court in Crl.O.P.No.1328 of 2017 dated 29.01.2019.
In the said case, learned magistrate has issued summons based on the police report, which opined that there are materials to establish commission of an offence of criminal trespass and there are sufficient grounds through documentary and oral statement of the defacto complainant, hence this Court has dismissed the quash petition filed by the parties, but in this case, police personnel was not directed to investigate the matter and the learned Magistrate has passed a cryptic order, while issuing summons, hence the same cannot be dealt with.
20. On a perusal of the summoning order dated 30.04.2014, this Court is of the opinion that it does not reflect any such inquiry. It is no doubt true, that the learned Magistrate had passed the order after reading the 39/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 complaint, verification of sworn statement of complainant and after perusing the copies of documents filed on record as many as 14 documents, the operative portion reads as under:
“Complainant present. Sworn statement recorded. Heard, Prima facie case made out against A.1 to 17 u/s. 417, 418, 420, 406, 422 r/w 34 IPC. Taken on file. Issue summons to A1 to 17. Call on 29.05.2014.”
21. Insofar as, the petitioner is concerned there is no enquiry of the nature enumerated in Section 202, Cr.P.C. The Learned Magistrate did not look into the matter keeping in view the provisions of Section 202, Cr.P.C., It is made clear that this Court is not suggesting that the petitioner cannot be proceeded with at all only because of absence of their names in the earlier complaint. What is emphasised is that the petitioner being outside the territorial jurisdiction of the concerned Magistrate, the Magistrate was required to apply his mind on these aspects while passing summoning orders.
22. It is a settled proposition of law that a pure legal issue can be raised at any stage of proceedings, more so, when it pertains to the 40/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 jurisdiction of the matter as per the ratio laid down in National Textile Corpn. Ltd. Vs. Nareshkumar Badrikumar Jagad [(2011) 12 SCC 695].
23. It is pertinent to point out that in the Judgment of Hon'ble Supreme Court in [Pepsi Foods Ltd. & Anr Vs. Special Judicial Magistrate & Ors] dated 04.11.1997, among other things it is held as under:
“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 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 scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of 41/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
No doubt the magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. it was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants, If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the magistrate as well, as the magistrate will not give any different conclusion on an application filed under section 245 of the code. The High Court says that the appellants could very well appear before the court and move an application under Section 42/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. if we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegation. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi". The complaint does not shoe what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No.3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short, the "Fruit Order"), It is not disputed that the beverage in the question is a "fruit product" within the meaning of clause (2)(b) of the Fruit Order 43/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 and that for the manufacture thereof certain licence is required. The fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, making and labeling of containers of fruit products. One of such requirement is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacture to be displayed on the top or neck of the bottle. The licence number of manufacturer shall also be exhibited prominently on the side label on such bottle [clause (8)(1)(b)]. Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in The Hamdard Dawakhana (WAKF) Delhi & Anr. vs. The Union of India & Ors. [AIR 1965 SC 1167 = (1965) 2 SCR 192], an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted 44/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 above, the first appellant was the manufacturer thereof.
It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against the. it is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it.
24. That apart, in the order passed by this Court in M/S.Nissan Motors Vs S.Giri Prasad on 17 July, 2013 in Crl.O.P.No.20088 of 2013 and Crl.M.P.Nos.2 & 3 of 2011 at Paragraph Nos.22 to 24, it is observed as follows:-
“22.There is no overtact against the 2nd and 3rd petitioners. In the absence of any specific allegations the 2nd and 3rd petitioners cannot be prosecuted. In the case of Pepsi 45/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 foods limited and another Versus Special Judicial Magistrate and others reported in (1998) 5 SCC 749 has held as follows:-
“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 application thereto. He has to examine the nature of allegations made in the compliant 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.”
23.The respondent must prove that the accused has made any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person. In this case the 2nd and 3rd petitioners have not made any such imputation.
24.The Hon'ble Apex Court and this Court in several cases held that the summoning of an accused in a criminal case is a serious matter and the summoning order must reflect about application of mind to the facts of the case and the law applicable thereto. In this case, the learned XVIII Metropolitan Magistrate, Saidapet did not even record as to what are the materials perused upon which cognizance has been taken.
Strangely, the learned Magistrate has simply ordered to issue summons to the accused.” 46/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014
25. This Court would like to record that though Mr. N.R.Elango, learned senior counsel for the petitioner had refuted the arguments founded on Section 202 of Cr.P.C., even he had submitted that in case, this Court is satisfied that mandatory requirement of Section 202 is not fulfilled by the learned Magistrate before issuing the summons, this Court can direct the Magistrate to do so.
26. For the aforesaid reasons and in the light of decision of Hon'ble Apex Court as well as this Court, the present Criminal Original Petition is disposed of by quashing the summons alone dated 30th April, 2014 in respect of the petitioner and the authorised representative of the petitioner- company with a direction to the learned Magistrate to take up the matter afresh for the petitioner and the authorised representative of the petitioner- company and pass necessary orders as are permissible in law, after following the procedure contained in Section 202, Cr.P.C. Consequently, connected miscellaneous petition is closed.
25.10.2021 Index : Yes/No; Internet : Yes/No Speaking /Non-Speaking Order ssd To 47/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014
1. The learned XVIII Metropolitan Magistrate, Saidapet, Chennai
2. The Public Prosecutor, High Court, Madras V.BHAVANI SUBBAROYAN, J., ssd 48/49 http://www.judis.nic.in Crl.O.P.No.31361 of 2014 Crl.O.P.No.31361 of 2014 and M.P.No.1 of 2014 25.10.2021 49/49 http://www.judis.nic.in