Bombay High Court
Bharat C.Ghosalia vs The State Of Maharashtra And Anr on 10 January, 2025
2025:BHC-AS:1469
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2125 OF 2004
1. Reliance Infocomm Limited
having its address at Thane Belapur Road,
Kopar Kairane, Navi Mumbai
2. Reliance Communications Infrastructure
Limited, having its address at Thane Belapur
Road, Kopar Kairane, Navi Mumbai
3. Reliance Industries Limited
having its Registered Office at 3rd Floor,
Maker Chamber IV, 222, Nariman Point,
Mumbai through the Legal Officer
Shri. Gyanendra Upadhay,
residing at 307, Dhinbar Palace Kohinoor
Bhayander East.
4. Mukesh D. Ambani
having its Office at 3rd Floor,
Maker Chambers IV, 222, Nariman Point,
Mumbai - 400 021.
5. Anil D. Ambani
having his Office at
3rd Floor, Maker Chambers IV,
222, Nariman Point, Mumbai - 400 021.
6. Vinod M. Ambani
having his Office at 3rd Floor, Maker Chambers IV,
222, Nariman Point, Mumbai - 400 021.
7. Dilip V. Dherai
having its office at NKM International House,
5th Floor, 178, Backbay Reclamation,
Bhulabhai Chinai Road, Mumbai.
8. Satyapal Jain
having its office at 807, Embassy Centre,
Nariman Point, Mumbai ..... Petitioners
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P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc
Vs.
1. State of Maharashtra
2. Dinesh N. Kotecha
having his address at Ground Floor,
Jay Bharat Flour Mill Building,
302, Maulana Azad Road (Duncan Road),
Mumbai - 400 004. ..... Respondents
WITH
CRIMINAL WRIT PETITION NO.2268 OF 2004
Bharat C. Ghosalia
having his office at NKM International
House, 5th Floor, 178, Backbay Reclamation,
Bhulabhai Chinai Road,
Mumbai ..... Petitioner
Vs.
1. State of Maharashtra
2. Dinesh N. Kotecha
having his address at Ground Floor,
Jay Bharat Flour Mill Building,
302, Maulana Azad Road (Duncan Road),
Mumbai - 400 004. ..... Respondents
Mr. Amit Desai, Sr. Counsel a/w. Mr. Gopalakrishna Shenoy,
Mr. Ganesh Bhujbal and Mr. Gaurav Thakur i/b. M/s. A.S.
Dayal and Associates for the Petitioner.
Ms. R.V. Newton, APP for the State.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 13th DECEMBER, 2024.
PRONOUNCED ON : 10th JANUARY, 2025.
JUDGMENT :-
. Present Petitions filed under Section 482 of Cr.P.C. seeking to quash and set-aside the impugned Order of issuing 2/11 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:02 ::: P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc summons/process passed on 19th August 2004, by the 4th Court of the learned Additional Chief Metropolitan Magistrate, Girgaon, Mumbai in Complaint Case No.154/SW/2004 and to quash the said case.
2) Heard Mr. Amit Desai, learned Senior Counsel for the Petitioners and Ms. R.V. Newton, learned APP for the State. Perused the record.
3) Record indicates that rule was granted on 26 th April, 2005. The Respondent No.2 resisted the Petitions by filing affidavit in reply and the Advocate for the Respondent waived service of Rule. Hence, the Petitions were directed to be listed for final hearing. On 10 th December 2024, this Court heard Mr. Desai and Ms. Newton. But none appeared for Respondent No.2 on that date. However, the Petitions stood over to 13th December 2024 as a last chance of hearing to Respondent No.2, despite which none appeared for Respondent No.2 to avail the hearing opportunity.
4) The said Complaint Case No.154/SW/2004 has been filed by the Respondent No.2 against total 21 accused, alleging the offences punishable under Sections 420, 463, 467, 499 and 500 of the Indian Penal Code. Petitioners in WP/2125/2004 are the original Accused Nos.1, 2, 3, 4, 10, 5, 20 and 21 and the Petitioner in WP/2268/2004 is the original Accused No.19.
4.1) In the Complaint, the Respondent No.2 alleged that the 3/11 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:02 ::: P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc Accused Nos.1 and 2 are service providers in Reliance telephones and the Accused No.3 issues bills and collecting its dues for the services provided by the Accused Nos.1 and 2. Accused Nos.4 to 15 are the Board of Directors of Accused No.3 who are responsible for day to day affairs of Accused No.3. Accused Nos.16 to 21 are the Board of Directors of Accused No.1 who are responsible for day to day affairs of Accused No.1. It is stated that, the Respondent No.2 had not filed any Application to obtain two telephone connections i.e., 022-34393318 and 022-34393267 in his name and at his said address. However, the Respondent No.2 was charged with following statements/bills towards consuming telephonic services in relation to the aforesaid telephone numbers.
Details of bills of telephone number 022-34393267 :-
Statement No. Date Statement Period Amount
250072584166 18-12-2003 01-12-2002 to 17-12-2003 6,347/-
2500114176970 18-01-2004 18-12-2003 to 17-01-2004 6,816/-
250182184109 18-02-2004 18-01-2004 to 17-02-2004 7,285/-
250250092460 18-03-2004 18-02-2004 to 17-03-2004 23,069/-
250308828800 18-04-2004 18-03-2004 to 17-04-2004 30,955/-
250378592428 18-05-2004 18-04-2004 to 17-05-2004 33,182/-
Details of bills of telephone number 022-34393318 :-
Statement No. Date Statement Period Amount
250072583148 18-12-2003 01-12-2002 to 17-12-2003 3,627/-
250114176672 18-01-2004 18-12-2003 to 17-01-2004 4,096/-
250182183983 18-02-2004 18-01-2004 to 17-02-2004 4,565/-,
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250250092162 18-03-2004 18-02-2004 to 17-03-2004 5,148/-
250308828502 18-04-2004 18-03-2004 to 17-04-2004 5,772/-
250378592061 18-05-2004 18-04-2004 to 17-05-2004 6,412/-
5) On receipts of the first bills, the Respondent No.2
complained in writing to VP Road Police Station on 26/12/2003, that by providing wrong information some unknown person has obtained the said telephone connection mentioning the name of Respondent No.2 as the subscriber. Meanwhile, the Respondent No.2 addressed letters to the accused Companies and its retail outlet and informed the said fact to the Companies with a request to take necessary action against the guilty and immediately cancel the telephone connections, failing which he would take the legal action. However, the Petitioners failed and neglected to take any action in that regard. Therefore, again the Respondent filed a written complaint with the VP Road Police Station on 25/02/2004. However, the telephone bills were issued as above. It is stated that on 07/06/2004 two persons namely Mr. Jadhav and Mr. More came to the office of Respondent No.2. At that time two staff members were present in the office and other offices were open. However, said two persons in loud voice demanded for payment of the said bills amount. When Respondent No.2 resisted by claiming that, he is not the subscriber of the said phones, said Mr. Jadhav and Mr. More in loud tone threatened the Respondent No.2 5/11 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:02 ::: P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc that their master is a big person and they can do anything to him and his family. Thus, the two caused physical and mental harm to the Respondent No.2 and defamed him in public view. Therefore, by a notice dated 08/06/2004, the Respondent No.2 called upon the accused to immediately withdraw the aforesaid bills and stop doing criminal acts. However, neither the accused responded the notice nor took legal action in the matter. Instead, two more bills were issued in June 2004.
6) In view of the said complaint, the learned Magistrate recorded the verification statement of Respondent No.2 and then proceeded to pass the Order of issue process/summons under Section 384 r/w. 34 of I.P.C. against the Petitioners. According to the Petitioners, the entire complaint is misconceived and cannot stand against them. Hence, these Petitions.
7) Mr. Amit Desai, learned Senior Counsel for the Petitioners submitted that, the offence punishable under Section 384 of I.P.C. for which the process has been issued, was neither alleged against the Petitioners nor made out from the text of the complaint. However, by way of the impugned Order, the learned Magistrate directed to issue the process for the said offence of Section 384 of IPC. He submitted that, the Accused Nos.4 to 21 are mainly the Board of Directors of the Accused Nos.1 to 3-Companies. But the concept of vicarious 6/11 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:02 ::: P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc liability does not apply to criminal law except when the statute provided for the same. This aspect is also ignored in this case by the learned Magistrate before issuing the process. Therefore, the impugned Order as well as the aforesaid complaint are liable to be quashed and set-aside.
8) Ms. Newton, the learned APP, on the other hand, opposed the Petitions strongly and submitted that, there is sufficient material against the Petitioners which clearly show that they have committed the offence of Section 384 of I.P.C., through their employees. Therefore, the impugned Order cannot be rated as illegal. Insofar as the affidavit-in-reply is concerned, the Respondent No.2 has mainly reiterated what he has narrated in the complaint.
9) Admittedly, the offence under Section 384 of I.P.C., was not alleged against the Petitioners in the subject complaint. Said Section 384 reads as under :-
"384. Punishment for extortion.--Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
10) Considering the text of the complaint and the impugned Order, it appears that the learned Magistrate directed to issue process/summons under Section 384 of I.P.C. mainly for the reason 7/11 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:02 ::: P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc that two persons i.e., Mr. Jadhav and Mr. More went to the office of the Respondent No.2 and demanded the said bills amount. But when the Respondent took the exception, the duo allegedly threatened him that their master is a big person and he can do anything to him and his family. However, there is no whisper in the complaint as to how Petitioners were responsible for the said act of Mr. Jadhav and Mr. More. It is not the case that Petitioners had instructed said Mr. Jadhav and Mr. More to go to the Respondent No.2 and demand the bills amount by threatening him as above. Moreover, there is no material on record showing that Mr. Jadhav and Mr. More were indeed the employees of the Petitioners. There is nothing to point out that the Petitioners were directly responsible for issuing the aforesaid telephone connections in the name of the Respondent No.2 and charge him with the said bills amount. The complaint mentions that the Accused Nos.4 to 21 are are responsible for day to day affairs of the accused companies. Nevertheless, no allegation has been made as against any of the Petitioner that they had anything to deal with personally either in discharge of their statutory or official duties. In the backdrop, in my opinion, absolutely there are no ingredients in the complaint to make out the offence of Section 384 read with 34 of I.P.C. as against the Petitioners.
11) Considering the narration in the complaint, mainly, the 8/11 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:02 ::: P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc grievance of the Respondent No.2 was against the accused companies i.e., Accused Nos.1 to 3. Admittedly, the rest of Petitioners were Directors of the accused companies. Therefore, the said Petitioners cannot be held vicariously liable for the alleged offence of Section 384 of I.P.C. In this context, a useful reference can be made to the decision in S.K. Alagh v/s. State of Uttar Pradesh and Others 1, wherein the Hon'ble Supreme Court in paragraph 19 has held that, "... . If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself." In the another cited decision between Maksud Sayed v/s. State of Gujarat and Other2 also it has been held that, vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute.
12) In the case of Maksud Sayed (supra), the Hon'ble Supreme Court in paragraph 15 referred the decision in Pepsi Foods Ltd. v/s. Special Judicial Magistrate and Other3, wherein in paragraph 28, the Apex Court held as under :-
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as
1. (2008) 5 SCC 662.
2. (2008) 5 SCC 668.
3. (1998) 5 SCC 749.9/11 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:02 :::
P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc 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. The 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 the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
12.1) Considering the impugned Order it appears that the learned Magistrate has failed to consider the aforesaid principle, which ultimately resulted in passing of the impugned Order.
13) Conspectus of the aforesaid discussion is that, there is no material on record to hold that the Petitioners are liable for the commission of the alleged offence of Section 384 r/w. 34 of the I.P.C. However, the learned Magistrate issued the process for the said offence against the Petitioners, which is erroneous and also illegal. As 10/11 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:02 ::: P.H. Jayani 904 WP2125.2004 WITH 2268.2004.doc a result, both the Petitions deserves to be allowed. Hence, following Order :-
-ORDER-
1) The impugned Order passed on 19th August, 2004 passed by the 4th Court of the learned Additional Chief Metropolitan Magistrate, Girgaon, Mumbai in Complaint Case No.154/SW/2004 thereby directing to issue summons/process against the Petitioners for the offence punishable under Section 384 r/w. 34 of I.P.C. and the said Complaint Case No.154/SW/2004, are quashed the set-aside.
2) Petitions are allowed in aforesaid terms. Rule is made absolute.
PREETI (SHYAM C. CHANDAK, J.) HEERO JAYANI Digitally signed by PREETI HEERO JAYANI Date: 2025.01.14 14:02:55 +0530 11/11 ::: Uploaded on - 14/01/2025 ::: Downloaded on - 18/01/2025 06:43:02 :::