Calcutta High Court (Appellete Side)
Ajai Kumar Jain & Ors vs The State Of West Bengal & Anr on 4 May, 2016
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
CRR 2522 of 2013
Ajai Kumar Jain & Ors.
-Vs.--
The State of West Bengal & Anr.
For the Petitioners : Mr. S. K. Kapoor
Mr. Sandipan Ganguly
For the State : Mr. Manjit Singh
Mr. Pawan Kr. Gupta
For the Opposite Party No.2: Mr. Himansu Dey
Mr. Amar Kr. Bhaumik
Mr. Sandip Kundu
Heard On : 17.02.2016
C.A.V. On : 17.02.2016
Judgment On : 04.05.2016
SHIVAKANT PRASAD, J.
The petitioners have approached this court praying for quashing of the proceeding of G.R. Case No. 925 of 2008 under Sections 120B/420/468/471 IPC, in connection with Hare Street Police Station Case No. 180 dated 05.4.2008, pending before the learned Metropolitan Magistrate, 5th Court, Calcutta.
Chronological event leading to this case is that on January 18, 2008, opposite party no. 2 filed a complaint under Section 156(3) of the Cr.P.C. before the learned Chief Metropolitan Magistrate, Calcutta alleging offences under Sections 420/467/468/471/120B IPC against Siemens India Ltd., J. Schubert, Harminder Singh and Tata Share Registry Ltd.
None of the petitioners were named or even referred to in that complaint and there was not even a single allegation against any of them to be found therein.
Following the complaint, by order dated January 18, 2008 of the learned Chief Metropolitan Magistrate, Calcutta a case being Hare Street P.S. Case No. 180 dated 05.4.2008 was registered for investigation. On usual investigation on September 9, 2009, the Investigating Officer submitted Final Report True (FRT) describing the case as civil in nature by not charge-sheeting the accused persons namely, Siemens India Limited, Mr. J. Schburt, Managing Director of M/s. Siemens India Limited, Mr. Harmindar Singh full time Director of accused company aforesaid and M/s. Tata Share Registry Limited now known as TSR Darashaw Ltd. against whom specific allegation of fraudulent transaction in conspiracy with each other was alleged with a view to cheat the complainant vide Charge- sheet No. 96/2009 dated 09.9.2009 under Sections 420/467/468/ 471/120B IPC .
On February 17, 2010, the de facto complainant filed a Naraji petition against Final Report seeking reinvestigation. It is submitted by Mr. Kapoor that none of the petitioners were named in the Naraji petition either alleging commission of offence by them.
After reinvestigation, the impugned Charge-sheet No. 458/2012 dated 15.12.2012 under Sections 120B/468/420/471 IPC was filed against Bimala Devi Banka, wife of Madan Gopal Banka as first accused and the petitioners. It is submitted that without specifying even a single ingredient of any of the sections against any of the petitioners but simply alleging that in the Annual Report of the year 2007 of Siemens India Limited, the names of the petitioners appear; and on this basis the petitioners have been arraigned as accused persons in the Charge-sheet without giving any data of materials to connect any of the petitioners with any offences alleged therein.
It is submitted that by Mr. S.K. Kapoor, Senior Counsel for the petitioners that long prior to the filing of the complaint on 17th August, 2006 the wife of the de facto complainant had filed T.S. No. 319 of 2006 in the City Civil Court, Calcutta against Siemens India Limited, Tata Share Registry Limited, National Security Depository Limited and Central Depository Services (India) Limited seeking reliefs with regard to the shares referred to in the complaint. In the said suit, written statements had been filed by the defendants namely, Siemens India Limited and Tata Share Registry Limited but the petitioners were not made parties in that suit. There was not a single allegation in the suit against any of the petitioners on any account whatsoever. The suit anyway presently stands dismissed for default. It is submitted by Mr. Himansu Dey, Ld. Counsel for the opposite party No. 2 that an application under Order 9 Rule 9 of CPC for restoration of the suit is still pending. It is further submitted by Mr. Dey that the order of dismissal of the suit was on 22.3.2013 and the application for restoration was filed on 10.4.2013 well within time.
Mr. Kapoor submits that significantly, in the Title Suit Bimla Banka, accused No. 1 mentioned in the Charge-sheet was deliberately not added as a defendant. It is also contented that there is nothing in the Charge-sheet to show that the petitioners or any of them were with the company in 2005; also there is no specific function related to any of them connecting them with the alleged offences and furthermore, the petitioner no. 1 is no longer working in the company having resigned and quit his employment in 2013; petitioner No. 2 is an independent Director who is a Solicitor and partner of a prominent Firm of Advocates in Bombay and does not perform any executive functions in the company; petitioner No. 3 is a German ex parties who joined the company in January, 2008 and the petitioner no. 4 joined the company in July, 2008.
It is also submitted that there is no case that any of the petitioners had anything to do with the registration of shares or membership of the company. Moreover, the complaint concerns offences supposed to have occurred in 2005.
Mr. Kapoor concludes with the submission that the implication of the petitioners in the charge-sheet for the alleged offence, merely because they are presently connected with the company is absolutely without jurisdiction.
Succinctly stated, the prosecution case is that the de facto complainant who is the authorised representative of his wife Bimala Devi Banka in complaint alleged that 125 equity shares of Siemens Ltd., vide share No. 1839026 to 905025878 under certificate Nos. 56328 all under Folio No. SEB00142 total amount Rs. 20,00,000/- had been fraudulently transacted in the name of one Bimal Devi Banka by the accused persons named in FIR in collusion with each other by manufacturing forged documents using the same as genuine causing wrongful loss to the wife of the de facto complainant. The incident occurred after 12.11.2005 at Siemens Ltd. at 130, Pnlddurug Bukker Marg, Worli, Mumbai- 400 018.
In the course of investigation I.O. seized documents on being produced by officials of Siemens India Ltd., officials of CITI Bank's official of NSDL and by the de facto complainant. It could be learnt that one of the accused namely, Schburt had already resigned who is not an Indian and another accused namely Harmindar Singh had already expired but on the Annual Report 2007 of Siemens India Ltd., the accused persons mentioned in column 11(2), 11(3), 11(4) and 11(5) were holding designation with Siemens at the time of offence alleged revealing a prima facie case under Sections 120B/468/420/471 IPC against them I.O. submitted charge-sheet showing all of them as absconder.
Mr. Kapoor argued that it is settled law that where an offence is alleged to have been committed by a company before any officer of the company can be even named as accused, it must be shown that such person had something to do with the offence. Merely because a person is a Managing Director or a Director of the company or a General Manager or Secretary or lawyer engaged by the company it will not follow that he can be named as an accused.
It is further submitted that sections mentioned in the Charge- sheet being Sections 420/467/468/471/120B of IPC do not provide for vicarious liability and that it is necessary, before a Director or officer of the company is named as accused, that the complaint should show as to how and in what manner the accused was responsible for the conduct of the business of the company and was in some way connected with the offences complained of.
Mr S.K. Kapoor, relied on, the following decisions wherein the aforementioned principle has been enunciated by the Hon'ble Apex Court--
1. S.K. Alagh versus state of Uttar Pradesh and others (2008) 5 Supreme Court cases 662.
2. Maksud Saiyed v. State of Gujarat reported in ( 2008) 5 Supreme Court cases 668.
3. Sharon Michael and others v. State of Tamil Nadu and others (2009) 3 Supreme Court cases 375.
4. Keki Hormusji and others versus Mehervan Rustom Irani and others (2009)6 Supreme Court cases 475.
5. Maharashtra State Electricity Distribution Company Limited and Another Vs. Datar Switchgear Limited and others reported in (2010) 10 Supreme Court Cases 479.
6. Asoke Basak Vs. State of Maharashtra and others reported in (2010) 10 Supreme Court Cases 660.
7. State of NCT of Delhi through Prosecuting Officer, Insecticides, Government of NCT, Delhi Vs. Rajiv Khurana reported in (2010) 11 Supreme Court Cases 469.
8. Thermax Limited and others Vs. K. M. Johny and others reported in (2011) 13 Supreme Court Cases 412.
9. GHCL Employee Stock Option Trust Vs. Central Bureau of Investigation reported in 2013(4) SCC 609.
10. Sunil Bharti Mittal Vs. Central Bureau of Investigation reported in 2015(4) SCC 609.
In case of S.K. Alagh versus state of Uttar Pradesh and others (2008) 5 Supreme Court cases 662 the sort question for consideration was as to whether the complaint petition, even if given face value and taken to be correct in its entirety, disclosed an offence as against the appellant under section 406 of the penal code. This was a case where the complainant wholesale dealer of the company, after termination of dealership by the company, sent demand drafts to the company for supply of goods. The proprietor of the dealer firm filed a complaint before Chief Judicial Magistrate alleging commission of offence under section 406 IPC by the company and its MD on the ground that company with mala fide intention neither supplied the goods nor returned the money. On the contrary, the stand taken by the company was that bank draft was returned to the complainant and its payment was received.
On the above set of facts the Hon'ble Apex Court held that complaint petition even assuming to be correct in its entirety, did not disclose an offence under section 406 against the appellant. Vicarious liability cannot be cast on appellant MD for alleged offence committed by the company. If and when a statute contemplates creation of such a legal fiction, it provides a specifically therefore. In absence of any provision laid down under the statute, a director of a company or any employee cannot be held to be vicariously liable for any offence committed by the company itself. Relying on a decision of Maksud Saiyed v. State of Gujarat reported in (2008) 5 Supreme Court cases 668 where in it has been observed that whereas a person in charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company along with the company but even a case falling under section 406 of the penal code vicarious liability has been held to be not extendable to the directors or officers of the company.
In Maksud case (Supra), it was held that allegations contained in the complaint petition, as noticed by the Magistrate, may give rise to tortious liability on the part of the Bank. Principal allegations were made against the Bank. Who had acted on behalf of the Bank was not disclosed in the complaint. The bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute.
In Sharon Michael and others v. State of Tamil Nadu and others (2009) 3 Supreme Court cases 375, indisputably the complainant was the producer of garments. The buyer is a German company. Rightly or wrongly, the buyer refused to accept the goods, inter alia, on the premise that the same were defective and sub- standard. It is assumed that the appellant company was assured payment for such supplies. Even if that be so, it would be a del credere agent. It's liability is, therefore, a civil liability. The allegations contained in the FIR did not reveal that any misrepresentation was made at the time of formation of the contract. The goods were to be supplied by the complainant. They were presumably required to meet the requirements of buyer. In this fact situation, it was held that there is nothing to show that the appellants who held different positions in the appellant company made any representation in their personal capacities and, thus, they cannot be made vicariously liable only because they are employees of the company.
In Keki Hormusji Gharda and others versus Mehervan Rustom Irani and others (2009) 6 Supreme Court cases 475, the appellants were Managing Director and Directors of a limited company which owned a Villa. The villa was acquired by first respondent. The appellants took decision on behalf of the company to get the access road leading to Villa repaired through a contractor. First respondent was opposed to this decision and therefore when repair work was started by spraying tar on the road, he went to police with the complaint that appellants and other persons who were involved in repair of road should be stopped from doing this Police authorities too instructed appellants to stop work but they did not stop, and proceeded with repair of access road. First respondent initiated criminal proceedings against the appellants under sections 339 and 341 IPC on allegation that first respondent and his family members were obstructed due to alleged illegal repair of road. In this fact situation critically analysing the provision of section 339 and 341 IPC, Hon'ble Apex Court held that the facts disclosed does not connote direct physical restraint. Repair of road might have caused some inconvenience but does not amount to physical obstruction to the complainant hence no offence was committed under sections 339 and 341 of the Penal code and further held that office bearers like Directors of a limited company are not personally liable for commission of an offence under penal code . The Penal Code, 1860 save and except in some matters does not contemplate any vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director of the Directors of the company, thus, cannot be said to have committed an offence only because they are holders of office.
In Maharashtra State Electricity Distribution Company Limited and Another Vs. Datar Switchgear Limited and others reported in (2010) 10 Supreme Court Cases 479, it has been observed at paragraph 30 thus--
"30. It is trite law that wherever by a legal fiction the principle of vicarious liability is attracted and a person who is otherwise not personally involved in the commission of an offence is made liable for the same, it has to be specifically provided in the statute concerned. In our opinion, neither Section 192 IPC nor Section 199 IPC incorporate the principle of vicarious liability, and therefore, it was incumbent on the complainant to specifically aver the role of each of the accused in the complaint...."
Adverting to paragraph 36 of the cited decision, Mr. Kapoor fortified his argument with the submission that the contents of the application under Section 156 (3) Cr.P.C. forwarded to the Officer-in- Charge, Harestreet Police Station on the basis of which specific criminal case was started does not even mention the names of the present petitioners. There is not even an allegation indicating participation of the petitioners in the commission of crime as alleged by the prosecution likewise in the case cited above wherein it has been observed by the Hon'ble Apex Court that the only averment made against appellant no. 2 in the complaint was that appellant no. 1 i.e. MSEB was acting under the control and management of the appellant no. 2 along with other accused person and appellant no. 2 happened to be Chairman of the MSEB but it is a settled proposition of law that one cannot draw a presumption that a Chairman of a company is responsible for all Acts committed by or on behalf of the company.
I am unable to agree with the contention put forth by Mr. Kapoor as a whole, because it is equally a settled law that an FIR is not an encyclopaedia and none mention of the names of the accused is not fatal to the prosecution. FIR is not a substantive piece of evidence it is only for the purpose of corroboration or contradiction by its matter.
In case of Asoke Basak Vs. State of Maharashtra and others reported in (2010) 10 Supreme Court Cases 660, the appellant was the Chairman of the MSEB and the respondent no. 2 company had entered into various contracts with MSEB for installation of low tension load management system. Respondent nos. 3 & 4 were the senior officials of respondent no. 2 and respondent no. 1 was the State of Maharashtra whereas respondent no. 5 was one of the co-accused. The respondent no. 2 has deposited on amount of Rs.5 lakhs with MSEB as security deposit in lieu of bank guarantee to be used for tenders to be filed by respondent no. 2 from time to time in the future. The dispute arose between the electricity board when respondent no. 2 informed MSEB that they were no longer interested in participating in any tenders and sought for immediate refund of Rs. 5 lakhs, but the Chief Engineer of the board informed him that the said deposit amount had been adjusted by the Board against the dues payable to respondent no. 2 to MSEB. After such communication a complaint was lodged alleging commission of offence under Section 405 and 409 read with Section 34 IPC against senior officials including Chairman of MSEB. On this facts and circumstances, the Hon'ble Apex Court was pleased to hold that there was nothing in the complaint which might even remotely suggest that complainant had entrusted any property to appellant or that appellant had dominion over said money and finding no prima facie case of offence punishable under Section 409 read with Section 405 in aid of Section 34 IPC was pleased to quash the complaint.
In State of NCT of Delhi through Prosecuting Officer, Insecticides, Government of NCT, Delhi Vs. Rajiv Khurana reported in (2010) 11 Supreme Court Cases 469, it was observed thus at paragraph 17.
"17. The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of the company's business. Every Director need not be and is not in charge of the business of the company. If that is the position with regard to a Director, it is needless to emphasise that in the case of non- Director officers, it is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable."
Accordingly, it was held that in absence of such clear averments in respect of the respondent accused being in-charge of and responsible for conduct of business and no role having been specifically attributed to the respondent accused in commission of offence alleged, the accused cannot be compelled to face criminal trial.
In Thermax Limited and others Vs. K. M. Johny and others reported in (2011) 13 Supreme Court Cases 412, it has been held thus--
"For proceedings under Section 156(3) Cr.P.C., the complaint must disclosed relevant material ingredients of Sections 405, 406, 420 read with Section 34 IPC. If there is a flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. If there is huge delay and in order to avoid the period of limitation, it cannot be resorted to as a criminal proceeding."
In this context, Mr. Kapoor submitted that prior to lodgement of the criminal charge against the petitioners, the defacto complainant opposite party no. 2 had filed T. S. No. 319 of 2006 in the City Civil Court at Calcutta against Siemens India Ltd., Tata Share Registry Limited, National Security Depository Limited and Central Depository Services (India) Limited seeking reliefs with regard to the shares in which suit the defendants namely Siemens India Limited and Tata Share Registry Limited had filed written statements denying all particular materials made in the plaint which was dismissed for default as no steps were taken by the opposite party no. 2.
Mr. Himansu Dey, learned Counsel for the de facto complainant submitted that an application under Order 9, Rule 9 of Code of Civil Procedure has been filed for restoration of the suit which is still pending. On the contrary, Mr. Kapoor submitted that the de facto complainant opposite party has been trying to circumvent the jurisdiction of the civil Court for the reason that de facto complainant allowed his suit to be dismissed for default with a view to settle the dispute by taking recourse to criminal prosecution of the petitioners.
In GHCL Employee Stock Option Trust Vs. Central Bureau of Investigation reported in 2013(4) SCC 505, It has been observed in paragraph 12 as follows--
"12. From a bare perusal of the complaint and the allegations made therein, we do not find in any of the paragraphs that the complainant has made specific allegations against Respondents 2 to 7. In Para 2 of the complaint, it is alleged that Respondents 2 to 6 are looking after the day-to-day affairs of the Company. With whom the complainant or its authorised representative interacted has also not been specified. Although in Para 11 of the complaint it is alleged that the complainant on numerous occasions met Accused 2 to 7 and requested to refund the amount, but again the complainant has not made specific allegation about the date of meeting and whether it was an individual meeting or collective meeting. Similarly, in Para 17 of the complaint, there is no allegation that a particular Director or Managing Director fabricated the debit note. In the entire complaint there are bald and vague allegations against Respondents 2 to 7."
In Sunil Bharti Mittal Vs. Central Bureau of Investigation reported in 2015(4) SCC 609, it has been held that--
"if the person or group of persons who control the affairs of the company commit an offence as well as they are "alter ego" of the company. In the present case, however, this principle is applied in an exactly reverse scenario. Here, company is the accused person and the Special Magistrate has observed in the impugned order that since the appellants represent the directing mind and will of each company, their state of mind is the state of mind of company and, therefore, on this premise, acts of the company are attributed and imputed to the appellants. It is difficult to accept it as the correct principle of law. As demonstrated hereinafter, this proposition would run contrary to the principle of vicarious liability detailing the circumstances under which a Director of a company can be held liable".
Observation as made in paragraph 42 is noteworthy in this context which is as follows--
"42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving means rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so."
In K. V. Kamath V. Pradip Kr. Sureka and others reported in 2010(2) CHN 681, a Co-ordinate Bench of this Court held that the offences under Section 384/392/120B/427/500/504 of IPC cannot be levelled against the company which is juristic entity. The description of the petitioner as representative of the bank, so as to compel him to answer the charge is not permissible and neither the company can be made and accused nor the petitioner who is said to be the representative of the company by relying on the landmark decision in S. K. Alagh v. State of UP, 2008(2) SCC 686.
Mr. Dey, learned Counsel for the de facto complainant relied on a decision of Medichl Chemicals & Pharma (P) Ltd. V. Biological E. Ltd. and others reported in 2000 Supreme Court Cases (Cri) 615, wherein the principle postulated is that the complaint has to be examined as a whole without going into merits of the allegations made therein. If a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, Court should not quash the complaint but if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. Court's approach should, however, be very circumspect, cautious and careful. Mere fact that the offence was committed during the course of a commercial transaction by itself not sufficient to quash the complaint. For quashing the complaint, Court has to see whether on offence under Section 120B, 418,415 and 420 read with Section 34 IPC has been committed by respondent in the course of a contractual transaction alleged. It was held thus;
"Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge- sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgement of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it do not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. To exercise powers under Section 482 of the Code, the complaint in its entirety will have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint. The truth or falsity of the allegations would not be gone into by the Court at this earliest stage. Whether or not the allegations in the complaint were true is to be decided on the basis of the evidence led at the trial. So the question is: Can it be said that the allegations in the complaint do not make out any case against the accused nor do they disclose the ingredients of an offence alleged against the accused or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the accused?"
In the above cited case the Hon'ble Apex Court relying on a decision in Trisuns Chemical Industry v. Rajesh Agarwal reported in (1999) 8 SCC 686 observed at paragraph 9 in the following lines--
"9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal."
I have respectfully gone through the decision cited above, ratio decidendi is not well-nigh within the facts and circumstances of the instant case because the names of the petitioners is not mentioned in the complaint itself. I am fully aware of the settled proposition of law that while exercising the inherent power, this Court is called upon to see as to whether continuation of the proceeding would be a total abuse of the process of Court.
Mr. Dey, also relied on a decision of Soma Chakravarty v. State through CBI reported in (2007) 2 Supreme Court Cases (Cri) 514, wherein the Hon'ble Apex Court held that--
"The settle legal position is that if on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply is judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Whether in fact, the accused committed the offence, can only be decided in the trial".
It has also been observed that charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge.
This was a case of offence punishable under Sections 420, 468, 471 read with Section 120B and under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 for fraud and misappropriation of huge amount of Government money levelled against the accused persons for having dishonestly processed and verified fake bills to cause undue pecuniary advantage to herself, though the appellant was not assigned any duty to process or sign the bills in question, which the employee did so in respect of the bills which were not sanctioned and approved by the competent authority. The said bills were also not entered in bill register and no file had been opened in respect thereof and file numbers written on fictitious bills were fake. In this facts situations the Hon'ble Apex Court held that there was existence of material on record to show a prima facie case against the appellant warranting framing of charge against her. Therefore, I am of the view that though the principle applies but the decision is distinguishable from the instant case.
Mr. Dey also relied on a decision of Indu Jain v. State of Madhya Pradesh and others reported in (2009) 3 Supreme Court Cases (Cri) 996, wherein it is held that at the stage of framing of charge, the court is not required to go into the details of the investigation but to only arrive at a prima facie finding on the materials made available as to whether a charge could be sustained as recommended in the charge-sheet. The holding of a mini trial at the time of framing of charge is deprecated.
Thus, it reflects that a general guidelines has been enunciated for the trial Court for its adherence in the matter of faming of charge in Criminal Case because, the trial only starts with the framing of charge but the decision cited above is not applicable in the instant case.
In Gunmala Sales Private Ltd. v. Anu Mehta reported in (2015) 1 C Cr LR (SC) 445, wherein some directors of a company approached another company for financial assistance which was given. After due date of repayment, cheques were issued which were returned by bank for insufficient fund. After statutory notice, complaints were filed. Cognizance was taken. A revision was filed by the directors before High Court. Holding that there is no material evidence that the directors were responsible for conduct and day to day business of company and having control over fund of company except the bald assertion in the complaint, High Court quashed the complaint.
The point for consideration before the Hon'ble Apex Court was whether quashing of complaint under Sections 138/141, Negotiable Instruments Act by High Court under Section 482, Criminal Procedure Code was justified in law. This was answered by holding that if a petition is filed under Section 482 of the Code for quashing of such a complaint by the Director, the High Court may, in the facts of a particular case, on an overall reading of the complaint, refuse to quash the complaint because the complaint contains the basic averment which is sufficient to make out a case against the Director.
This decision is also not apposite to the facts and circumstances of the case and is distinguishable.
I have respectfully gone through the above cited decisions pressed in service by respective parties. I am in respectful consideration of them and of the view that ratio of decision in some of the cases relied on by the rival parties are not within the facts and circumstances of the instant case.
Bestowing upon an anxious consideration of the complaint, the charge-sheet and other materials on lower Court record together with extenuating circumstances emerging therefrom and also relying on the principle of law as held in the aforesaid cited decisions, I am persuaded to agree with the proposition that where there is prima facie case of offence against the accused emanating from the materials on record, framing of charges no doubt is permissible, as the proof of the offence lies with the prosecution to be judged on the basis of the evidence to be adduced by the prosecution at the trial.
I find from the statement of the de facto complainant recorded under Section 161 Cr.P.C. and material collected under the seizure list and the complaint petition itself that there are averment to this effect that the complainant's wife had all along been holding the said shares of Siemens India Limited for a long time and has not parted with the possession of the said share certificates. The complainant's wife forwarded such certificates to the accused no. 4 named in the complaint through depository participant Union Bank of India for transformation into electronic form and as such the question on transferring the shares from complainant's wife folio to such any other unauthorized persons account by the accused No. 4 does not and cannot arise at all according to the rules and regulations of SEBI causing wrongful loss to the complainant's wife for no fault of her own. The complainant's wife has or had no such Demat Account with Citi Bank N.A. as wrongfully alleged and during the said illegal process fraudulently and wrongfully committed forgery of the signature of the wife of complainant and obtained the benefit by causing wrongful loss to the complainant's wife. That the accused no. 4 however has not informed the aforesaid fact of fraud and forgery straightway to the complainant's wife and thus avoided her and wrongfully concealed the said fact of illegal transfer of her shares to the shareholder i.e. the complainant's wife.
Nevertheless, in the instant case I find on bare perusal of the complaint, charge-sheet and materials on record that there appears no allegation averred therein against the petitioners namely Darius C. Shroff a Non-Executive Independent Director, Sunil Dass Mathur, presently the Executive Director and Chief Financial Officer of Siemens Ltd. but there does appear a prima facie case of offence having been committed by Mr. Ajai Jain, Ex-employee of Siemens Limited who allegedly resigned in 2013 to avoid prosecution because he was the Vice-President legal and company Secretary during the relevant period in 1992 having full control over the day to day business of the company and against Dr. Armin Bruck , the then Accounts Manager of Siemens India Limited in the year 1992 who is presently Managing Director and Chief Executive Officer of the said company in charge of day to day business, although, from series of decisions, relied on by Mr. Kapoor, it may be concluded that it is now a clenched position of law that the Managing Director or Directors or Secretary or officials of a company cannot be said to have committed an offence only because they are holders of office in the company as there is no universal rule that a Director of a company is in charge of its everyday affairs in absence of specific pleading in the complaint about the role played by a Chairman, Managing Director, Director, Secretary of the company and its officials in charge of day to day affairs of the company and their responsibilities in the commission of offence alleged therein.
Ergo, the charge-sheet No. 458 dated 15.12.2012 under Sections 120B/420/468/471 of IPC in connection with Hare Street Police Station Case No. 180 dated 05.4.2008 in GR case No. 925 of 2008 pending before the learned Metropolitan Magistrate, 5th Court, Calcutta is liable to be quashed qua the petitioners namely petitioner No. 2 and petitioner No. 4 only. However, such criminal proceeding shall continue against the accused namely Bimala Devi Banka, Ajai Kumar Jain, petitioner No. 1 and Dr. Armin Bruck, petitioner No. 3 with this rider that the officials of the Siemens India Limited, Tata Share Registry Limited, National Security Depository Limited and Central Depository Services (India) Limited and their concerned departments dealing with transfer of such shares are also responsible for unearthing the truth about the alleged transfer of share of rightful shareholder to fictitious person and to produce relevant documents and registers showing the manner of disposal of shares in the fake name of one Bimala Devi Banka and to depose before the trial Court in the hour of need in the interest of justice.
In the context above, this revisional application is allowed in part.
Let a copy of this order together with the lower Court record be sent to the learned Court below to proceed with the trial of the case.
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)