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Madhya Pradesh High Court · body

2014 DIGILAW 144 (MP)

KUMAR MANGLAM v. STATE OF M. P.

2014-01-29

P.K.JAISWAL

body2014
ORDER : P.K. JAISWAL, J. 1. Heard by consent. By this application under Section 482 of the Cr.P.C. the applicants are praying for the following reliefs: (a) this petition may kindly be allowed and (b) the Criminal Case bearing No. 7155/2011 and proceedings thereunder pending before Special Judicial Magistrate (Prevention of Food Adulteration) Act, Indore District against the applicants may kindly be quashed and (c) any other relief which this Hon'ble Court deems fit may kindly be provided to the applicants in the interest of justice. Brief facts of the case are that the complainant Shri R.M. Jaiswal, Food Inspector, Municipal Corporation, Indore purchased some packets of Mongenis Muffins (Tutti Fruity) on 3.3.2010 from Mega Mart, Indore under the provisions of Prevention of Food Adulteration Act, 1954. At the time of alleged sale of above food article, Shri Vikas Jain S/o. Shri Ashok Kumar Jain was present in the shop. The non-applicant took out the sample of the food article and sent it to public analyst, Municipal Corporation, Indore for examination and as per public analyst report, the article was found to be "Misbranded". 2. The prosecution lodged a criminal complaint before the learned Special Judicial Magistrate. (Prevention of Food Adulteration Act,) Indore for prosecution of applicants and other co-accused persons under the above-mentioned offences. 3. The learned Magistrate, upon institution of complaint, registered a criminal case bearing No. 7155/2011 and took cognizance of the complaint and issued bailable warrant against the applicants vide order dated 18.4.2011 for their presence before the learned Judicial Magistrate. 4. Being aggrieved of the initiation of criminal prosecution against the applicants, the applicants preferred this application for quashment of the above criminal prosecution on the ground that there is no allegation in the complaint itself so as to justify the implication of the present applicants and initiation of criminal prosecution. 5. It is also alleged that the applicants were not the directors of the respective companies as alleged at the time of offence, therefore, they cannot be implicated on the basis of vicarious liability. The applicant No. 1 submitted his resignation on 13.3.2008, the applicant No. 2 submitted his resignation on 17.7.2008 and the applicant No. 3 submitted his resignation on 22.4.2008 and since then, they are not the directors of the company Aditya Birla Retail Limited. 6. The applicant No. 1 submitted his resignation on 13.3.2008, the applicant No. 2 submitted his resignation on 17.7.2008 and the applicant No. 3 submitted his resignation on 22.4.2008 and since then, they are not the directors of the company Aditya Birla Retail Limited. 6. Considering the aforesaid, this Court vide order dated 30.9.2011 issued notices to the non-applicants on merit as well as on (I.A. No. 6027/2011) an application for grant of stay and also stayed the operation of order dated 18.4.2011 passed against the present applicants. 7. The notices were duly served to the non-applicants on 14.11.2011. On 22.11.2011, they engaged Shri Bhuwan Deshmukh, Advocate on their behalf. No reply to the main application nor any reply to the stay application was filed nor any affidavit was filed to controvert the facts mentioned in the application and certified copies of the documents annexed therein. 8. Learned Senior Counsel for the applicants submits that all the three applicants have submitted their resignations on 13.3.2008, 17.7.2008 and 22.4.2008 and their resignations have been accepted w.e.f. 13.3.2008, 17.7.2008 and 22.4.2008 respectively. 9. In support of the aforesaid, he drew my attention to the certified copy of Form 32 under the provisions of Companies Act, 1956 and submitted that on the date when the complaint was lodged or on 3.3.2010 when some packets of Mongenis Muffins ((sic) Fruity) was purchased by the complainant, the present applicants were not the directors of the respective company, they cannot be vicariously liable for the alleged offence because it is no where that the present applicants were in-charge of day-today affairs or conduct of the business or they were responsible for day-to-day affairs or conduct of the business, which is not only essential but absolute mandatory fact to be mentioned in the complaint so as to implicate the present applicants with the aid of Section 17 of the Prevention of Food Adulteration Act, 1954. He submits that the present applicants were neither in the charge of or responsible for conduct of the business (Mega Mart) in terms of Section 17 of Prevention of Food Adulteration Act, 1954. 10. He submits that the present applicants were neither in the charge of or responsible for conduct of the business (Mega Mart) in terms of Section 17 of Prevention of Food Adulteration Act, 1954. 10. He further submitted that the alleged food article was neither seized nor purchased in the presence, of the present applicants nor it was shown in the complaint that there was any consent or connivance of the applicants to sell such food article and thus, they cannot be prosecuted and implication of the present applicants is illegal and baseless as neither the present applicants were manufacturer of the food article nor they were selling the food article. 11. The learned Magistrate, without application of mind and without making effort to see that any prima-facie case being made out against the applicants, committed a gross error in taking cognizance against the present applicants, which amounts to abuse of process of the Court. 12. In support of the aforesaid arguments, he placed reliance on the decisions in the matter of Harshendra Kumar D. Vs. Rebatilata Koley Etc., AIR 2011 SC 1090 ; Central Bank of India Vs. Asian Global Ltd. and Others, AIR 2010 SC 2835 ; Peppsico India Holdings Pvt. Ltd. v. Food Inspector and Another 2011 AIR SCW 341; Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, AIR 1998 SC 128 and G. Sagar Suri and Another Vs. State of U.P. and Others, AIR 2000 SC 754 . 13. With the aforesaid, he prayed that the criminal case bearing No. 7155/2011 and criminal proceedings, which is pending against the present applicants before the Special Judicial Magistrate, (Prevention of Food Adulteration) Act, Indore, be quashed. 14. On the other hand, learned counsel for the non-applicant placed reliance to the provisions of Section 244 and 245 of the Cr.P.C. and submitted that the application under Section 482 of the Cr.P.C. can be filed. 15. In reply, learned Senior Counsel drew my attention to the decision in the matter of Pepsi Foods (supra) and submitted that the present application is very much maintainable. The objection raised by the learned counsel for the non-applicant is absurd and has no force. 16. I have heard the arguments of the learned counsel for the parties and perused the documents, which are part of the application. 17. The objection raised by the learned counsel for the non-applicant is absurd and has no force. 16. I have heard the arguments of the learned counsel for the parties and perused the documents, which are part of the application. 17. The relevant paragraphs of the complaint by which the present applicants are implicated reads as under: 18. The Apex Court in the case of Harshendra Kumar (supra) has held the following: A director of company whose resignation has been accepted by the company and that has been duly notified to the Registrar of Companies cannot be made accountable and fastened with liability for anything done by the company after the acceptance of his resignation. The words every person who, at the time of offence was committed, occurring in Section 141(1) are not without significance and these words indicate that criminal liability of a director must be determined on the date the offence is alleged to have been committed. Thus, the prosecution launched for dishonour of cheque against director of company who have already resigned from Directorship of offending company before date of commission of offence and fact of his resignation had been duly notified to Registrar of Companies, is liable to the quashed. It is true that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of Criminal P.C. in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. That, however, does not mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, material relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of Criminal P.C. in such a matter for promotion of justice or to prevent, injustice or abuse of process, the High Court, may look into the material which have significant bearing on the matter at prima facie stage. Criminal prosecution is a serious matter, it affects the liberty of a person. Criminal prosecution is a serious matter, it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. The refusal to take in controverted fact of resignation of director which is reflected not only in resolution of offending company but is also duly notified to Registrar of Companies for launching prosecution against directors under Section 138/ 141, there has to be a specific allegation in complaint in regard to part played by them in transaction in question. Allegations have to be clear and unambiguous showing that directors were in-charge of and responsible for business of company. 19. In the present case, there is no such averment that the directors were responsible and liable for the acts of the company, no specific allegation was made against any of them and there is no dispute that much prior to the filing of the complaint or on the date of occurrence, all the three directors, who are the present applicants have submitted their resignation and the same was duly accepted. 20. In the case of Pepsico (supra), the Apex Court has held that mere bald statement that a person was a director of company against which certain allegations had been made, is not sufficient to make such director liable in the absence of any specific allegation regarding his role in management of company. 21. In view of the law laid down by the Apex Court in the case of Pepsi Foods (supra), the present application is maintainable even otherwise, there is no bar. The application filed under Section 482 of the Cr.P.C. is very much maintainable. The facts mentioned in the application and the relevant part of the complaint, which has been reproduced herein above in the preceding paragraphs has not been disputed by the learned counsel for the non-applicant. The applicants have filed certified copies of Form 32 under the Companies Act, 1956 and thus, there is nothing to disbelieve the averments made in the application even, when the same has not been controverted by the non-applicant by filing a reply or affidavit. 22. The applicants have filed certified copies of Form 32 under the Companies Act, 1956 and thus, there is nothing to disbelieve the averments made in the application even, when the same has not been controverted by the non-applicant by filing a reply or affidavit. 22. The Apex Court in the matter of Pepsi Foods (supra) has held that no doubt the Magistrate can discharge the applicants at any stage of the trial if he considers the charge to be groundless, but that does not mean that the applications cannot approach the High Court under Section 482 of Cr.P.C. of the Code and Article 227 of the Constitution to have the proceeding quashed against them when the complaint does not make out any case against them and still they must undergo the agony of a criminal trial. 23. The lodging/registration of criminal complaint against the present applicants at that relevant point of time when they were not the directors of the company in question, amounts to misuse of judicial process and due process of law. 24. It is true that if a learned Magistrate takes cognizance of an offence, issues process without there being any allegation against the present applicants or any material implicating the applicants, the order of the Magistrate can be vitiated by invoking Section 482 of the Cr.P.C. 25. Admittedly, except the fact that the applicants are the directors of the company in question, no other material has been disclosed in the complaint to make out a case against the applicants that they had been in-charge of the affairs of the company and were responsible for its action. In absence of any specific charge against the applicants, the complaint against the present applicants is liable to be quashed and the present applicants are liable to be discharged. For the reasons stated above, I am of the view that the proceeding against the applicants in criminal case No. 7155/2011 pending before the Judicial Magistrate is liable to be quashed and is, accordingly, quashed. I, accordingly, allow the application filed by the present applicants and quash the prosecution of the applicants.