IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20/02/2003
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CRIMINAL ORIGINAL PETITION NO.24471 of 2002
and
CRL.M.P.NO.10202 OF 2002
M/s. Vindia Exports P.Ltd.,
rep. by Director
Dr.A.R.Pradeepkumar,
Chetpet, Chennai 31. .. Petitioner
-Vs-
State rep. by
Deputy Superintendent of
Police, Central Bureau of
Investigation, Banking
Security and Fraud Cell,
Bangalore. .. Respondent
The above Criminal Original Petition has been filed under Section 482
of Cr.P.C as stated therein.
For Petitioner: : Mr.M.Ravindran, S.C.,
for M/s.Lakshmipathy Associates
For Respondent: : Mr.N.Ranganathan, (Spl.P.P.CBI)
:O R D E R
The above Criminal Original Petition has been filed by the petitioner
praying to call for the records in C.C.No.60 of 2000, pending on the file of
the learned X Additional Special Judge for CBI Cases, Chennai and quash the
charge sheet against accused No.5 in C.C.No.60 of 20 00 on the file of the X
Additional Special Judge for CBI Cases, Chennai.
2. In the affidavit filed in support of the Criminal Original
Petition, the petitioner would submit that the respondent has filed a final
report alleging offences punishable u/s 120B, r/w 420, 468 and 471 of I.P.C.
and 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 in C.C.No.60
of 2000 before the Special Judge for CBI Cases, Chennai only against Accused
No.1 to 4 ; that he was not initially arrayed as an accused either in the FIR
or in the charge sheet and the respondent had not alleged any specific overt
or covert act constituting an offence against him; that the respondent CBI
after a full fledged and thorough investigation had submitted its final report
indicating specifically the role played by each accused but has not whispered
even a word about the petitioner in the capacity of a director or otherwise;
that subsequently the Trial Court after taking cognizance against all other
directors summoned him adding him as 5th accused in the case.
3. The petitioner would further submit that he has filed
Crl.M.P.No.28 of 2002 under Section 239 of Cr.P.C. before the Trial Court to
discharge him from the alleged offence and the same was dismissed on 2.8
.2002; that the charge sheet itself admits that Mr.A.R.Rajasekaran is the
Managing Director and the Authorised signatory to operate the Current Account
and had submitted the Application Form for obtaining the credit facilities
from Bank of India, Purasawalkam Branch, Chennai; that the trial Court has
mechanically issued summons to the petitioner without satisfying whether there
is any iota of evidence either oral or documentary against him but had
included him as an Accused since the company was mentioned represented by 3
directors namely accused No.2 and 3 and the petitioner which is highly
arbitrary; that he was not responsible for managing the business of the
company nor was he in-charge of the affairs of the company; that the
respondent had not produced any evidence to show that he was responsible for
the affairs of the company, which is the most essential fact so as to hold him
liable for the acts of the company; that there is absolutely no evidence to
rope him in a case of criminal conspiracy in the absence of any material to
show the meeting of the minds to commit an offence and hence the allegation of
committing an offence punishable u/s 120B is groundless and unsustainable;
that the trial Court has wrongly concluded in Crl.M.P.No.28 of 2002 that the
petitioner as a director of the company would also be liable for the acts done
by the company which is inconsistent and contrary to the legal provisions. On
such averments, petitioner would pray for the relief extracted supra.
4. The learned senior counsel appearing on behalf of the petitioner
besides reiterating the averments of the petition would cite a judgment of the
Honble Supreme Court reported in AIR 1983 SUPREME COURT 67 (MUNICIPAL
CORPORATION OF DELHI v.RAM KISHAN ROHTAGI AND OTHERS) wherein an appeal by
special leave is directed against a judgment of the Delhi High Court, quashing
the proceedings taken against the respondents Nos.1 to 5 arising out of a
complaint which was filed by the Assistant Municipal Prosecutor before the
Court of Metropolitan Magistrate, Delhi against the accused therein for the
alleged commission of offence under Section 7/16 of the Prevention of Food
Adulteration Act who summoned all the respondents for being tried for
violating the provisions of the Act. The Honble Supreme Court following the
judgments reported in AIR 1980 SC 258, AIR 1976 SC 1947 and AIR 1977 SC 17 54
has held:
Proceedings against an accused in the initial stages can be quashed
only if on the face of the complaint or the papers accompanying the same, no
offence is constituted. In other words, the test is that taking the
allegations and the complaint as they are, without adding or subtracting
anything, if no offence is made out then the High Court will be justified in
quashing the proceedings in exercise of its powers under Section 482.
5. In consideration of the facts pleaded by the petitioner, having
regard to the materials placed on record and upon hearing the learned counsel
for both, it comes to be seen that the judgment cited by the learned counsel
for the petitioner squarely applies to the case in hand since the petitioner
in this case is only a director of the company and that his name does not find
place in the F.I.R and in the charge sheet as well. After a thorough
investigation having been held by the respondent the charge sheet has been
laid against 4 accused of whom the petitioner Dr.A.R.Pradeep Kumar S/o
A.R.Rajasekaran is not one and a careful perusal of the charge sheet in the
whole narration of the offences specifically committed by each and every one
of the accused named in the lengthy charge sheet ranging to 8 pages, only
those accused named in the accused column as accused No. 1 to 4 have been
charged for the commission of the offence offering specific reasons to the act
of each and every one of the accused named in the charge sheet. But in a
peculiar manner while concluding, for no reason assigned, the I.O. has also
made a mention of the name of the petitioner Dr.Pradeep Kumar in the following
manner:-
By their above acts, Sh.A.R.Rajasekaran (A2), Sh.Madhusudanan (A3)
have committed offences punishable U/s.420, 468, 471 I.P.C. M/s. Vindia
Exports (P) Ltd., (A4) represented by its three directors, A2, A3 and
Dr.Pradeep Kumar committed an offence punishable U/s 420 I.P.C. and
Sh.R.Krishnamoorthy (A1) has committed offences punishable U/s 13 (2) r/w
13(1) (d) of PC Act, 1988.
6. It is only the manner in which the name of the petitioner Dr.
Pradeep Kumar which has been brought into the charge along with two others as
though the three directors committed offence punishable under Section 420 of
the I.P.C. without having brought his name in the relevant accused column nor
specifying as to what is the specific offences committed on the part of the
petitioner without which simply his name cannot be inserted into the
concluding paragraph just for the simple reason that he was also a director of
the company.
7. Further more, the trial Court taking advantage of this insertion
of the name of the petitioner as one of the directors in the concluding
paragraph of the charge sheet while framing charges has made the petitioner
Dr.Pradeep Kumar as the 5th accused therein and has sent the summons for his
appearance before the lower Court and therefore, the petitioner filed a
petition in Crl.M.P.No.28 of 2002 under Section 239 of Cr.P.C. before the
Special Judge for CBI Cases praying for the discharge of the petitioner.
8. The learned senior counsel appearing on behalf of the petitioner
would wonder as to how and what procedure the trial Court has adopted to
implicate the petitioner as the 5th accused consequent to which it has issued
summons to the petitioner to appear before him. The learned senior counsel
would exhort that the trial Court is not bound by the charge sheet laid by the
police and it could frame the charges of its own based on the ingredients and
the materials made available in the whole of the case of the prosecution and
since there is nothing put-forth to implicate the petitioner from the whole of
investigation nor even showing him as an accused in the charge sheet, just for
the simple reason that he also acted as the director of the company he has
been falsely shown at the last paragraph of the charge sheet filed by the
respondent police as though he too committed an offence under section 420 of
the I.P.C. absolutely without assigning any reason for having brought his
name in the manner that it has been broughtforth in the concluding paragraph
of the charge sheet laid by the police which is nothing but erroneous and the
trial Court having been misguided by such erroneous inclusion of the name of
the petitioner should not have made him as accused No.5 and sent summons to
him.
9. The learned senior counsel would further submit that in these
circumstances, unless by means of following the procedures established under
Section 319 of Cr.P.C. within the meaning of Section 3 of the Evidence Act
relating to the facts in issue, under no other provision of law the trial
Court has any option to include any one as the accused and therefore, what the
trial Court did to include the name of the accused as the 5th accused is
nothing but arbitrary and in violation of the procedures established by law
and the same should not only be discredited but set aside as well.
10. In consideration of the facts pleaded, having regard to the
materials placed on record and upon hearing the learned senior counsel for the
petitioner and the learned Central Government Standing Counsel representing
the respondent, this Court is of the view that neither the name of the
petitioner having been mentioned in the accused column by the charge sheet
laid by the respondent nor having brought-forth anything as to how the
commission of an offence under Section 420 has been done by the petitioner
simply mentioning his name as one of the directors of the company and
therefore concluding that he too committed an offence punishable under section
420 of I.P.C. in the charge sheet laid by the respondent, without any
material placed on record to the effect of the role of the petitioner in the
whole of the case of the prosecution specifying the criminal act perpetrated
on the part of the petitioner so as to attract Section 420 of the I.P.C and
without following the procedures established by law under Section 319 of
Cr.P.C. since the trial Court has come forward to name the petitioner as the
5th accused for himself being tried for an offence punishable under Section
420 of I.P.C. has committed an error apparent on the face of the records
connected to the whole of the case and since the same being a legal error the
act of the trial Court in the inclusion of the name of the petitioner
Dr.A.R.Pradeep Kumar further dismissing the petition filed on the part of the
petitioner, are nothing but acts erroneous in law and hence the following
order:
In result,
(i) the above Criminal Original Petition succeeds and the same is
allowed;
(ii) the order dated 2.8.2002 made in Crl.M.P.No.28 of 2002 by the
Court of X Additional Special Judge for CBI Cases, Chennai is set aside;
gr.
V.KANAGARAJ,J
(iii) the inclusion of the petitioner Dr.A.R.Pradeep Kumar as the 5 th
accused in C.C.No.60 of 2000 on the file of the Court of X Additional Special
Judge for CBI Cases, Chennai is quashed.
(iv) Consequently, Crl.M.No.10202 of 2003 is closed.
Index:Yes
Internet:Yes
gr.
To
1. Deputy Superintendent of Police, Central Bureau of Investigation, Banking
Security and Fraud Cell, Bangalore.
2. The Additional Special Judge for CBI Cases, Chennai.
3. The Public Prosecutor, High Court, Madras.