IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 19.6.2009. Coram THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.R.C.No.179 of 2008 Raymond Menezes Petitioner vs. Sengunthar Kaikolar Mahajana Sangam by its President Mr.M.Mannickam, 169 and 170, Kumaran Colony Main Road, Vadapalani, Chennai 600 026. Respondent For petitioner :Mr.N.D.Bahety For respondent : Mr.V.Parthiban for Mr.N.Srinivasan Criminal Revision case filed under sections 397 and 401 of the Code of Criminal Procedure to set aside the order dated 26.12.2007 passed in M.P.No.4122 of 2007 in C.C.No.4616 of 2005 by the learned XVII Metropolitan Magistrate, Saidapet, Chennai discharging the respondent/accused and to take the same on file. ORDER
The revision is directed against the order passed by the learned XVII Metropolitan Magistrate, Saidapet, Chennai discharging the accused from the criminal proceedings invoking the provision under section 245(2) of the Code of Criminal Procedure.
2. The petitioner/complainant has alleged in the complaint as follows:-
The father of the complainant Mr.Nazario Menezes purchased the subject property from K.M.Lakshmanan under a deed of sale dated 11.4.1961. The said Nazario Menezes died on 11.3.1968 leaving behind nine legal representatives including the complainant and his mother, but, his mother died on 31.1.1995. A partition suit was filed in O.S.No.1786 of 2003 on the file of the VI Additional Judge, City Civil Court, Chennai. The complainant’s undivided 1/8 share in the said property was decreed in the judgment and decree dated 30.7.2003 passed in the aforesaid case. The respondent/accused is a Society formed only in the year 2000. It is contended by the accused that the said property was purchased by the Society from the complainant’s father who died long long ago. The encumbrance certificate for the period from 1.6.1998 to 17.4.2003 would disclose that there was nil encumbrance. The accused have forged and fabricated the documents. Therefore, the complainant prays for prosecution of the accused under sections 464, 467, 471 and 474 of the Indian Penal Code.
3. The complainant was examined on his side and Exs.P1 to P22 were marked. The respondent/accused, thereafter, filed a petition under section 245(2) of the Code of Criminal Procedure praying to discharge.
4. In the discharge petition, the accused has contended that no proof was produced to substantiate the allegation found in the complaint. Only after obtaining legal opinion, the Society purchased the property and put up marriage hall for the benefit of the public. Contending that the present complaint has been given only to cause hardship to the Society, the accused prayed for discharge from the criminal prosecution.
5. The Trial Court has observed that the complaint lodged as against the Society, the purchaser of the property without impleading the power of attorney holder, who sold the property to the Society, is not maintainable. No prima facie case was made out to substantiate the allegations found in the complaint. Observing thus, the Trial Court chose to discharge the accused from the criminal prosecution.
6. Learned counsel appearing for the petitioner/complainant would submit that the prosecution initiated against the Society alone is maintainable inasmuch as the complainant was not aware at the time of lodging the complaint the exact role of the power of attorney agent. As per the decision of the Supreme Court, though a Society cannot be imprisoned, it can be imposed with a fine. The non-arraignment of the power of attorney holder, at any rate, is not fatal to the case of the prosecution inasmuch as the court has got power under section 319 of the Code of Criminal Procedure to array an accused during the course of trial of the case. The Trial Court has not seriously adverted to the voluminous material on record in the background of the specific allegation found in the complaint lodged by the complainant, it is submitted.
7. Learned counsel appearing for the respondent would contend that mens rea is required for commission of an offence under the Indian Penal Code. Therefore, the Society, which is not a natural person and is only a juridical person cannot have any mens rea to commit an offence. The power agent was not unfortunately arraigned as one of the accused. The compulsory punishment contemplated under the Indian Penal Code cannot be awarded to the Society which is not a natural person, it is further contended.
8. The averment found in the complaint would disclose prima facie that the subject property was purchased by the accused Society only after the demise of the father of the complainant. The complainant, having adverted to the encumbrance certificate covering the period from 1.6.1998 to 17.4.2003, has alleged in the complaint that there was no encumbrance from the date of the purchase made by his father till 17.4.2003. It is not the case of the accused that the accused Society purchased the property directly from the father of the complainant even when he was alive. Therefore, the complainant has come out with serious allegation of forgery and fabrication of documents and using the said documents as genuine for claiming title to the subject property.
9. Coming to the documents marked on the side of the complainant, the complainant’s father had purchased the property from K.M.Lakshmanan under the sale deed, Ex.P1 dated 11.4.1961. The complainant’s father had passed away on 11.3.1968 as found from Ex.P23. Unfortunately, Ex.P14 Deed of power of attorney has come into existence on 5.6.2000 as though the father of the complainant, who passed away as early as 11.3.1968, executed the Deed of power of attorney. Ex.P15 was marked to show that an agreement of sale was entered into between the power of attorney and the accused. Ex.P19 is the sale deed executed by the power of attorney in favour of the Accused Society on 13.11.2000 even when the legal heirs of the complainant’s father were working out their share in the partition suit laid by them. The aforesaid documents in the background of the specific allegations found in the complaint and the statement of PW1 would show prima facie that the offences of forgery and fabrication of documents and usage of those documents as genuine to claim title have been made out. If such a material available on record remains unrebutted, the case would end in conviction . In such circumstances, the Trial Judge is called upon to dismiss the discharge petition filed by the accused.
10. The Trial Judge has made a comment that the complainant had not chosen to implicate the power of attorney holder. Firstly, it is found that the role of the power of attorney holder was not at all referred to in the complaint. In fact, the complainant has categorically stated in the complaint that there was no encumbrance in the suit property till the year 2003. The power of attorney alleged to have been executed by the father of the complainant was not reflected in the encumbrance certificate. Therefore, the question of arraigning the power of attorney holder in the complaint itself as one of the accused does not arise for consideration. If the Judicial Magistrate, during the course of taking cognizance of the offence under section 190 of the Code of Criminal Procedure, comes to the decision that a third party also is involved , he can very well take cognizance of the offence as against such persons also. In fact, a duty is cast upon the Judicial Magistrate under Section 190 of the Code of Criminal Procedure to take cognizance of an offence as against all the persons involved in the case. If such a course was not adopted by the Judicial Magistrate, he could very well wait till the evidence is let in by the parties. If he is convinced that sufficient materials are available to arraign any person as an accused alongwith the accused who is facing trial, he can invoke section 319 of the Code of Criminal Procedure and arraign such a person concerned also as an accused. In the considered opinion of this court, the Trial Court has wrongly exercised the power under section 245(2) of the Code of Criminal Procedure to discharge an accused on the ground that the power of attorney holder was not included as one of the accused by the complainant.
11. Section 2 of the Indian Penal Code would read that every person shall be liable to punishment under the Penal Code and not otherwise for every act or omission contrary to the provision thereof. Section 11 of the Indian Penal Code defines the word ‘person’ so as to include any Company or Association or Body of Persons whether incorporated or not. Though the definition is not exhaustive, it includes artificial and juridical person as a whole. The definition of the expression “person” is in pari materia with the definition of the same expression in General Clauses Act also.
12. The cumulative reading of sections 2 and 11 of the Indian Penal Code would indicate that a person, whether natural or juridical, is liable to be punished if he or it is found guilty. The Supreme Court has held in STANDARD CHARTERED BANK v. DIRECTORATE OF ENFORCEMENT (2005 AIR SCW 2829) as follows:-
“36. Therefore, as regards corporate criminal liability, there is no doubt that a corporation or company could be prosecuted for any offence punishable under law, whether it is coming under the strict liability or under absolute liability…
55. …. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment. Here, the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to commonsense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes.”
As regards awarding custodial sentence to the Company or Society, the Supreme Court, in the aforesaid decision, observes as follows:-
“61. … If the custodial sentence is the only punishment prescribed for the offence, this plea is acceptable, but when the custodial sentence and fine are the prescribed mode of punishment, the court can impose the sentence of fine on a company which is found guilty as the sentence of imprisonment is impossible to be carried out. It is an acceptable legal maxim that law does not compel a man to do that which cannot possibly be performed (impotentia excusat legem). ….
63. … As the company cannot be sentenced to imprisonment, the court cannot impose that punishment, but when imprisonment and fine is the prescribed punishment the court can impose the punishment of fine which could be enforced against the company. Such a discretion is to be read into the Section so far as the juristic person is concerned.”
13. The Supreme Court has held in the above ratio that a Company or a Society or an Association can be prosecuted for the offences, either minor or major, contemplated under the Indian Penal Code and can also be punished with fine and not with custodial sentence.
14. As regards the question whether a Corporation or a Society or an Association could be attributed with requisite mens rea to prove the guilt, no opinion was expressed by the Supreme Court in the aforesaid judgment. Coming to the case on hand, the Trial Judge will have to decide after the trial was over whether an offence requires the establishment of mens rea and whether such mens rea was established to prove the offence concerned. Therefore, in the discharge application, the question as to whether the Society can have a mens rea to prove the guilt as against it does not arise, as the scheme of the Indian Penal Code contemplates punishing the Society also considering it as a person who would be lawfully prosecuted.
15. In view of the above facts and circumstances, the court finds that the Trial Court has misdirected itself and has come to a wrong decision that the non-arraignment of the power of attorney holder is fatal to the prosecution launched by the complainant. The submission made at this stage of revision before this court by the learned counsel appearing for the respondent/accused that the Sangam cannot be prosecuted as it cannot have mens rea and it also cannot be convicted to undergo imprisonment do not have any leg to stand upon in the light of the aforesaid decision of the Supreme Court.
16. Therefore, finding that a patent illegality has been committed by the Trial Judge, the order passed by the Trial Judge in M.P.No.4122 of 2007 discharging the accused is set aside and the Trial Judge is directed to take up the case in C.C.No.4616 of 2005 on file and proceed with the case in accordance with law. Both parties shall appear on 30.6.2009. As the case in C.C.No.4616 of 2005 is pending for the past about 3-1/2 years, the Trial Judge is directed to dispose of the matter as expeditiously as possible. The revision stands allowed.
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