Delhi District Court
Hitachi Payment Services Private Ltd vs The State on 11 October, 2019
IN THE COURT OF MS NEELOFAR ABIDA PERVEEN
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Date of institution: 12.03.2019
Decided on: 11.10.2019
Crl. Revision No. 160/2019
Hitachi Payment Services Private Ltd.
1st Floor, Marwah Towers,
Plot No. 25, Udyog Vihar, Phase4,
Gurugram122015, Haryana
Through its AR Hayat Ali. .... Petitioner
Versus
1. The State,
Through The Commissioner of Police,
Police Head Quarters,
I. P. Estate, New Delhi.
2. Sh. Rajesh Kumar (complainant)
S/o Sh. Raj Pal,
R/o H. No. 38, Gali No.3,
Ibrahim pur, Delhi. .....Respondents
C. R. No. 160/2019 Hitachi Payment Services Pvt. Ltd. Page 1
JUDGMENT
1. The present revision petition under Section 397 CrPC impugnes order dated 12.11.2018, whereby Officer Incharge of the Gurgaon Office of Hitachi Payments Services Pvt. Ltd. has been summoned and order dated 18.02.2019 whereby reply has been called upon to be filed by the petitioner passed by the Court of Sh. Harpreet Singh Jaspal, Ld. MM09, (Central) Tis Hazari Court, Delhi in case FIR No. 664/2014
2. FIR No. 664/14 is registered for commission of offences under section 304A IPC, at PS Burari against the Authorized Representative, Hitachi Payment Service Pvt. Ltd.Gururgram, Haryana, on the statement of Rajesh Kumar, the security Guard at the ATM Gali no.19,A2, West Sant Nagar, Burari, Delhi that at around 6.20 PM cash van had arrived at the ATM. There were 4 persons in the cash van, one gunman, one driver and two persons for deposit of the cash in the ATM who went inside the ATM for filling up the cash in the machine, and he alongwiht the gunman were outside the ATM. The gunman reclined to support his back against the shutter of the ATM , when he got electrocuted as there was current in the shutter, was removed to the hospital in the same C. R. No. 160/2019 Hitachi Payment Services Pvt. Ltd. Page 2 van and was declared as brought dead. The deceased is identified as Durga Prasad.
It came to light in the course of investigation that the maintenece of the said sbi atm was being carried out by Prizm Payment Service Pvt. Ltd. and Scientific Security Management Service Pvt. Ltd. Notice under section 91/160 CrPC was issued to both the companies to disclose as to who is the person responsible for the fatal accident. In its reply to the notice. Scientific Security Management Services Pvt. Ltd. disclosed that Prizm Payment Service Pvt. Ltd. had placed the order for setting up of the said ATM and it had handed over the ATM to Prizm Payment Service Pvt. Ltd. on 17.8.2013 after setting up the same on 21.6.2013 and it is henceforth Prizm Payment Service Pvt. Ltd. responsible for all matters in connection therewith. Prizm Payment Service Pvt. Ltd. (Now Hitachi Payment Service Pvt. Ltd.) first sought to hold Scientific Security Management Services Pvt. Ltd. responsible but when enquired about the maintenance of the ATM, admitted that the maintenance of the ATM is under them and hence as per the investigation conducted by the IO Prizm Payment Services Pvt. Ltd. was responsible for the death of the gunman Durg Pal and accordingly the challan is presented against Rakesh Singh , the AR of Hitachi Payment Service Pvt. Ltd.
3. Cognizance is taken upon the police report and summons are issued against the accused. In the course of consideration on C. R. No. 160/2019 Hitachi Payment Services Pvt. Ltd. Page 3 charge, as the accused had also filed an appliation for discahrged, it came to light that Rakesh Singh was only the AR fro legal matters and not responsible for looking after the maintenance of the ATM, upon which vide order dated 12.11.2018, the Officer Incharge of teh Company is summoned and vide order dated 18.02.2018 called upon to file reply.
4. Order is assailed on the ground that the matter was listed for arguments on charge on 12.11.2018 and an application under Section 239 CrPC was also filed on behalf of the accused seeking discharge and that the Ld. Trial Court has no power to issue notice or direct filing of a reply while examining question of charge. That there is no procedure envisaged under CrPC for summoning of any person other than the accused for consideration on charge. That the petitioner has already filed the reply before the IO in pursuance of the notice under Section 91 CrPC and furnished the requisite information. That at the stage of farming of charge, in terms of Section 239 CrPC, Court is only to consider the police record, document sent with it and may examine the witnesses and is only to hear the prosecution and the accused and upon such material, if the charge agaisnt the accused is found groundless, accused is entitled to be discharged, however, there is no procedure for summoning of any person or entity or call for reply for the purposes of consideration on charge. That Ld. Trial Court is not empowered to summon anyone while considering the issue of discharged as C. R. No. 160/2019 Hitachi Payment Services Pvt. Ltd. Page 4 envisaged in Section 239/240 CrPC. Ld. Counsel for the petitioner has relied upon the following judgments:
1. M. P. Sharma and Ors. v. Satish Chandra AIR 1954 Supreme Court 300,
2. Subedar v. State AIR 1957 Allahabad 396,
3. Smt. Selvi & Ors. v. State of Karnataka AIR 2010 Supreme Court 1974,
4. Onkar Nath Mishra v. State 2007 Law Suit (SC) 1359,
5. R. Narayanan v. State (Govt. Of NCT of Delhi) 2019 Law Suit (Del) 9.
5. Arguments heard. Record perused.
6. At first brush, the contention of the ld. Counsel for the petitioner does seem attractive for at the time of consideration on charge, it is material available on record that is to be assessed for ascertaining the strong suspicion requisite for a prima facie case and a mini trial by summoning third parties is not mandated under the procedure established by law, at the stage of framing of charge, however, in the facts and circumstances of the present case as addressed by me above, the contention is hollow and specious for the chargesheet in the present case is presented arraigning Hitachi C. R. No. 160/2019 Hitachi Payment Services Pvt. Ltd. Page 5 payment Service Pvt. Ltd. through its AR and Rakesh Singh is named and summoned not in his personal capacity but as the AR of Hitachi payment Service Pvt. Ltd.
The procedure to be followed where coorporation or registered society is an accused, is laid down under Section 305 CrPC, which provides as under: "305. Procedure when corporation or registered society is an accused - (1) In this section, "corporation" means an incorporated company or other body corporate, and includes a soceity registered under the Societies Registration Act, 1860.
(2) Where a corporation is the accused person or one of teh accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the corporation.
(3) Where a representative of a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall be examined.
(4) Where a representative of a corporation does not appear, any such requirement as is referred to in subsection (3) shall not ap ply.
(5) Where a statement in writing purporting to be signed by the managing director of the corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the statement has been C. R. No. 160/2019 Hitachi Payment Services Pvt. Ltd. Page 6 appointed as the representative of the corporation for the purpose of this section, is filed, the Court shall, unless the contrary is proved, presume that such person has been so appointed.
(6) If a question arises as to whether any person, appearing as the representative of a corporation in an inquiry or trial before a Court is or is not such representative, the question shall be determined by the Court."
7. The charge sheet is presented arraigning Hitachi payment Service Pvt. Ltd. and Rakesh Singh is named and summoned not in his personal capacity but as the AR of Hitachi payment Service Pvt. Ltd., however, when Rakesh Singh appeared in his capacity of AR of the company he denounced all his responsibility. In terms of Sub Section 6 of Section 305 CrPC, it is for the ld. Trial Court to determine the question whether Rakesh Singh would be the AR of the company for the purpose of the present case or not. Further in terms of SubSection 5, it is the Managing director of the Corporation or any other person responsible for managing the affairs of the corporation that is to make statement in writing about the appointment of the representative of the company for the purpose of Section 305 CrPC. Therefore, summoning of the Officer Inchage of Gurgaon office, Hitachi payment Service Pvt. Ltd. is an exercise of the jurisdiction vested under Section 305 CrPC. The judgments relied upon are clearly distinguishable on facts as none relates to exercise of jurisdiction under Section 305 CrPC. The ld. Trial Court when it is disputed before it as to whether the person nominated C. R. No. 160/2019 Hitachi Payment Services Pvt. Ltd. Page 7 and appearing as AR would be the AR of the corporation or not is vested with all necessary powers to hold an enquiry on the aspect by summoning the officer Incharge of the corporation and calling for the written reply. There is therefore no illegality or irreuglarity in the impugned order and therefore no interference is called for by this Court. The present revision petition is dismissed.
8. Trial Court record be returned alongwith copy of this judgment. File of revision petition be consigned to Record Room.
9. Petitioner to appear before the Court on 19.10.2019.
Announced in the open Court on this 11th day of October, 2019 (Neelofer Abida Perveen) Additional Sessions Judge : (Central) Tis Hazari Court:Delhi C. R. No. 160/2019 Hitachi Payment Services Pvt. Ltd. Page 8