Karnataka High Court
Sri Ajay Kharbanda vs Central Bureau Of Investigation on 9 February, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL REVISION PETITION NO. 818 OF 2017
BETWEEN:
Sri. Ajay Kharbanda,
S/o Sri. Sudershan Kumar,
Aged about 46 years,
Director, M/s. Greentex Mining
Industries Limited, 307,
Prestige Penta, Brigade Road,
Bengaluru, R/at No.111,
Embassy Habitat, Palace Road,
Bengaluru-560001.
....Petitioner
(By Sri. Murthy D Naik-Advocate)
AND:
Central Bureau of Investigation,
Anti Corruption Branch,
Bellary Road, Bengaluru-560032.
...Respondent
(By Sri.P.Prasanna Kumar-Spl.P.P.)
This Criminal Revision Petition is filed Under
Section 397 R/W 401 of CR.P.C., praying to set aside
the order dated 17.04.2017 passed in
Spl.C.C.No.6/2014 on the file of the 46 Addl. City Civil
th
2
and S.J., and Special Judge for CBI Cases, Bengaluru
(CCH-47) Annexure-A.
This criminal revision petition coming on for
Admission this day, the court passed the following:-
ORDER
Heard the learned counsel for the petitioner and the learned Special Public Prosecutor for respondent.
2. It is seen from the records that the petitioner is arraigned as accused No.16 by way of supplementary charge sheet filed by respondent-CBI dated 31.08.2015. The learned counsel brought to the notice of this Court that in the additional charge sheet, there is a specific mention that, the Company under which the petitioner was working as a Managing Director has committed offences punishable under Section 120-B R/w 379, 409, 420, 434, 447, 467, 468, 471 of IPC and under Section 13(2) R/w 13(1) (c) and (d) of the Prevention of Corruption Act, 1988.
3. It is seen from the record that petitioner/accused No.16 has filed an application for his 3 discharge under Section 227 of Cr.P.C. Though the learned trial Judge has taken pains to write a detailed judgment while ordering to frame charges against accused No.16 but failed to look into the legal point involved in this case. There is no whisper with regard to said legal point raised by the learned counsel that without making the Company against which the allegations are made as party, no person on behalf of Company can be individually made as a party.
4. It is seen from the additional charge sheet which is at page No.200 filed along with the objection statement filed by the CBI wherein it is narrated that M/s. Greentex Mining Industries Limited to which Sri.Ajay Kharabanda-Accused No.16 is the Managing Director, has entered into criminal conspiracy with other accused persons to transport the illegally excavated Iron Ore from different mines/plots of Bellary District during the period from 01.01.2009 to 31.05.2010; that the aforesaid accused had entered into 4 a criminal conspiracy for illegal procurement and sale of iron ore and to transport the same to Belekeri port by using fake permits by not paying Royalty and Forest Development Taxes to the Government and thereby caused wrongful loss to the government exchequer and to have corresponding wrongful gain for themselves. It is also stated that, during the course of investigation, it is disclosed that, accused No.16, Managing Director, M/s. Greentex Mining Industries Limited, in conspiracy with other accused persons, had supplied 11756.180 MT of iron ore to M/s. ILC Industries Limited-Accused No.15 during the period from 01.01.2009 to 31.05.2010. Out of the said quantity, 3934.75 MT of iron ore is illegal and without permits. Accused No.16 had procured the said illegal iron ore from Bellary District and transported to Belekeri port without permits and supplied to M/s. ILC Industries Limited-Accused No.15. 5
5. Therefore all the above said allegations made against accused No.16 points out he has done all those acts for and on behalf of M/s. Greentex Mining Industries Limited which is a registered Company. Therefore, it is crystal clear that without making the Company as an accused, the Managing Director has been made as a party.
6. In this context, it is worth to mention here a decision reported in (2015) 12 Supreme Court Cases 781 between Sharad Kumar Sanghi Vs. Sangita Rane wherein Apex Court has observed that that :
"Though the allegations are against the Company, the Company has not been made as a party and, therefore, the allegations are restricted to the Managing Director. The allegations are vague and in fact, the same are principally leveled against the Company. There is no specific allegation against the Managing Director. When a Company has not been arrayed as a party, no proceeding can be initiated against it even 6 where vicarious liability is fastened under certain statues. When a complainant intends to rope in a Managing Director or any officer of a Company, it is essential to make requisite allegation to constitute the vicarious liability", for that, the Company has to be made as a party.
7. Under the above said facts and circumstances and in view of the law laid down in the aforesaid decision, it is crystal clear that, without making the Company as an accused, accused No.16 (Managing Director) individually cannot be prosecuted. Under the above said circumstances, accused No.16 is necessarily to be discharged. However, it is made clear that it does not debar the respondent to take appropriate action at the right point of time against the Company as well as Managing Director, if law provides. Hence, I proceed to pass the following:
ORDER
i) Petition is allowed.7
ii) The order passed by the XLVI Addl.
City Civil and Sessions Judge and Spl.
Judge for CBI Cases, Bengaluru dated 17.04.2017 in rejecting the application of the petitioner is hereby set aside. Consequently the application filed by the petitioner (A.16) under Section 227 of Cr.P.C. is hereby allowed and the petitioner is discharged. In view of discharge of the petitioner (A16), the bail and surety bonds executed by him and his surety are hereby cancelled. If any cash security is furnished by the Petitioner (A.16), the same is ordered to be refunded to him.
Sd/-
JUDGE JS