# M/s Parthas Textiles & Anr v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 548
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-09
- **Case number:** Application U/S 482. No. 11672 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-parthas-textiles-anr-v-state-of-u-p-anr-52235
- **Pages:** 12

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 420 - Cheating and
dishonestly inducing delivery of property,
The Code of criminal procedure, 1973 -
Section 63 - Service of summons on
corporate bodies and societies, Section
305 - Procedure When corporation or
registered society is an accused - A
company arraigned as accused in a
complaint is served summons through its
Principal Officer or Local Manager (Section
63 Cr.P.C.) - Company can then appoint a
representative to appear in court, who will
be examined on its behalf, the proceeding
before him would be deemed to be the
7 All. M/s Parthas Textiles & Anr. Vs. State of U.P. & Anr.
549
proceeding in the presence of the accused
(Section 305 Cr.P.C.) - Representative
need not seek bail on behalf of company
as
the
company
can
change
its
representative at any stage with court
permission. (Para -22)

(B) The Negotiable instruments Act, 1981
- Section 138 - Dishonour of cheque,
Section 141 - Offences by company -
Under Section 142 N.I. Act or in Section
190
(1)(a)
Cr.P.C.
the
Court
takes
cognizance against any offence, not the
offender. (Para - 9)

(C) The Negotiable instruments Act, 1981
- Conjoint reading of Section 141 N.I. Act,
Section 63 of Cr.P.C. and Section 305
Cr.P.C. - whenever a company is accused
under Section 138 N.I. Act then summons
has to be issued in the name of the
company and service of the same can be
effected by serving it on the Principal
Officer or Local Manager of the Company.
(Para -15)

(D) Bharatiya Nagrik Suraksha Sanhita,
2023 - Section 65 (Section 63 of Cr.P.C.) &
Section 529 (Section 305 of Cr.P.C.) -
BNSS repealed Section 63 of the Cr.P.C.
regarding
service
of
summons
upon
companies,
corporations,
and
firms.
However, Section 529 of the BNSS allows
proceedings,
trials,
or
applications
pending before the commencement date
to continue under the Cr.P.C. provision.
Therefore,
the
court
will
proceed
according to the procedure of Cr.P.C.
under Sections 63 and 305 Cr.P.C.(Para -
26)

Firm was arrayed as an accused - summons was
issued to its partner (applicant no.2) personally
- not a proper service for the firm - because
partner was not impleaded as accused in the
impugned
complaint
-
hence
present
application. (Para - 24)

HELD: - Petition disposed of without hearing
opposing party due to technical nature of issue.
Summoning order as well as non-bailable
warrant quashed. Court below is directed to
pass a fresh summoning order. (Para - 24)
Application u/s 482 Cr.P.C. partly allowed.
(E-7)

List of Cases cited:

## Text

_Characters 0–39,977 of 40,490. This is a partial read: ask again with offset=39977 for what follows._

548 INDIAN LAW REPORTS ALLAHABAD SERIES
of King's Court. Courts are set up under
the Constitution or the laws. All courts in
the jurisdiction of a High Court are
subordinate to it and subject to its control
and supervision under Article 227. Writ
jurisdiction is constitutionally conferred on
all High Courts. Broad principles of writ
jurisdiction followed in England are
applicable to India and a writ of certiorari
lies against patently erroneous or without
jurisdiction
orders
of
Tribunals
or
authorities or courts other than judicial
courts. There are no precedents in India for
High Courts to issue writs to subordinate
courts. Control of working of subordinate
courts in dealing with their judicial orders
is exercised by way of appellate or
revisional
powers
or
power
of
superintendence under Article 227. Orders
of civil court stand on different footing
from the orders of authorities or Tribunals
or courts other than judicial/civil courts.
While appellate or revisional jurisdiction is
regulated
by
statutes,
power
of
superintendence under Article 227 is
constitutional. The expression "inferior
court" is not referable to judicial courts, as
rightly observed in the referring order in
paras 26 and 27 quoted above."

29. From bare perusal of the provisions
of Sections 125 to 128 Cr.P.C. as also the
judgment of the Hon'ble Apex Court in the
case of Radhey Shyam (Supra), I am of the
view that since the order passed by the
Principal Judge, Family Court, granting
interim maintenance to the applicants in a
proceeding under Section 125 Cr.P.C. is a
quasi judicial civil and criminal order, no
application under Section 482 Cr.P.C. either
for quashing the same or for enforcing the
same, is maintainable.

30.

Consequently,
the
present
application filed by the applicants for
enforcing the order passed by the Family
Court
granting
interim
maintenance
allowance to them is dismissed. The proper
remedy available to the applicants to
approach the Family Court under Section
128 Cr.P.C. before the same court.

31. This judgment is also being
written in Hindi as well as in Sanskrit
languages and the copies of the same shall
also be attached along with this judgment.
----------
(2024) 7 ILRA 548
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 11672 of 2024

M/s Parthas Textiles & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Nikhil Mishra

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section 420 - Cheating and
dishonestly inducing delivery of property,
The Code of criminal procedure, 1973 -
Section 63 - Service of summons on
corporate bodies and societies, Section
305 - Procedure When corporation or
registered society is an accused - A
company arraigned as accused in a
complaint is served summons through its
Principal Officer or Local Manager (Section
63 Cr.P.C.) - Company can then appoint a
representative to appear in court, who will
be examined on its behalf, the proceeding
before him would be deemed to be the
7 All. M/s Parthas Textiles & Anr. Vs. State of U.P. & Anr.
549
proceeding in the presence of the accused
(Section 305 Cr.P.C.) - Representative
need not seek bail on behalf of company
as
the
company
can
change
its
representative at any stage with court
permission. (Para -22)

(B) The Negotiable instruments Act, 1981
- Section 138 - Dishonour of cheque,
Section 141 - Offences by company -
Under Section 142 N.I. Act or in Section
190
(1)(a)
Cr.P.C.
the
Court
takes
cognizance against any offence, not the
offender. (Para - 9)

(C) The Negotiable instruments Act, 1981
- Conjoint reading of Section 141 N.I. Act,
Section 63 of Cr.P.C. and Section 305
Cr.P.C. - whenever a company is accused
under Section 138 N.I. Act then summons
has to be issued in the name of the
company and service of the same can be
effected by serving it on the Principal
Officer or Local Manager of the Company.
(Para -15)

(D) Bharatiya Nagrik Suraksha Sanhita,
2023 - Section 65 (Section 63 of Cr.P.C.) &
Section 529 (Section 305 of Cr.P.C.) -
BNSS repealed Section 63 of the Cr.P.C.
regarding
service
of
summons
upon
companies,
corporations,
and
firms.
However, Section 529 of the BNSS allows
proceedings,
trials,
or
applications
pending before the commencement date
to continue under the Cr.P.C. provision.
Therefore,
the
court
will
proceed
according to the procedure of Cr.P.C.
under Sections 63 and 305 Cr.P.C.(Para -
26)

Firm was arrayed as an accused - summons was
issued to its partner (applicant no.2) personally
- not a proper service for the firm - because
partner was not impleaded as accused in the
impugned
complaint
-
hence
present
application. (Para - 24)

HELD: - Petition disposed of without hearing
opposing party due to technical nature of issue.
Summoning order as well as non-bailable
warrant quashed. Court below is directed to
pass a fresh summoning order. (Para - 24)
Application u/s 482 Cr.P.C. partly allowed.
(E-7)

List of Cases cited:

1. Amarnath Prasad & ors. Vs St. of Bihar &
anr., 1976 Cr.L.J. 1778 (Pat.)

2. Anil D. Ambani & anr. Vs St. of Bihar & anr.,
2006(4) Pat LJR 571

3.
Standard
Chartered
Bank
&
ors.
Vs
Directorate of Enforcement & ors., (2005) 4 SCC
530

4.
Iridium
India
Telecom
Vs
Motorola
Incorporated & ors., 2011 (1) SCC 74

5. Ram Narayan Sharma Vs St. of Assam, 2017
SCC Online Gau 1004

6. Puneet Gupta Vs St., 2013 SCC OnLine Del
208

7. Mannam Venkata Krishna Rao Vs St. of A.P.
represented by Public

8. Prosecutor & ors., 2022 SCC OnLine AP 3027

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
applicants and Sri Rajeev Kumar Singh,
learned AGA for the State.

2. Present application under Section
482 Cr.P.C. has been filed for quashing the
summoning order dated 27.07.2023 as well
as non-bailable warrant dated 08.02.2024,
including the entire criminal proceedings of
Case No.563 of 2023, under Section 138
Negotiable Instrument Act (hereinafter will
be referred to N.I. Act) and Section 420 IPC
in Police Station- Luxa, District- Varanasi
pending in the Additional Court, Varanasi.

3. Contention of learned counsel for
the applicants is that as per the complaint
550 INDIAN LAW REPORTS ALLAHABAD SERIES
itself, the cheque was issued on behalf of
firm M/s Partha Textiles and the applicant
No.2 is one of the partners of that firm but
only the firm was impleaded as accused in
the complaint. He further contended that in
the complaint all the allegations were made
against applicant no.1 (firm) itself, and no
allegation was made against the present
applicant, but the learned Magistrate issued
a summons to the present applicant
personally instead of issuing summons to
the accused firm. It is further submitted that
once the applicant no.2 was not impleaded
as accused to vicariously liable him as a
partner of the firm (applicant no.1), then
issuance of summons against him in a
personal capacity is absolutely erroneous.

4. In support of his contention,
learned counsel for the applicants has relied
upon the judgement of Patna High Court in
Amarnath Prasad and others vs State of
Bihar and another; 1976 Cr.L.J. 1778
(Pat.), in which the Single Judge of Patna
High Court observed that if the firm is
impleaded as a party, then the notice ought
to be issued in the name of a firm, not in
the name of a partner unless they are
specifically made reliable. In another
judgement of Patna High Court in Anil D.
Ambani and another vs State of Bihar
and another; 2006(4) Pat LJR 571, Single
Judge of Patna High Court observed that
when the prosecution is against a corporate
body or juristic person, then summons
ought to be issued to a juristic person, not
in the name of the Director or Partner.

5. Learned counsel for the applicants
also submitted that prosecution of a juristic
person is not barred. It can be prosecuted, but
only a fine can be imposed instead of
punishing imprisonment. In support of his
contention, he has also relied upon the
judgement of Apex Court in the case of
Standard Chartered Bank and others vs
Directorate of Enforcement and others
(2005) 4 SCC 530. He relied on paragraphs
nos. 29, 30, 31, and 32, which are being
quoted hereinbelow;

29.
The
contention
of
the
appellants is that when an offence is
punishable with imprisonment and fine, the
Court is not left with any discretion to impose
any one of them and consequently the
company being a juristic person cannot be
prosecuted for the offence for which custodial
sentence is the mandatory punishment. 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). This principle can be found in
Bennion Statutory Interpretation, 4th Edn. at
p. 969. All civilized systems of law import the
principle that lex non cogit ad impossibilia;
As Patterson, J. said "the law compels no
impossibility". Bennion discussing about
legal impossibility at states that: If an
enactment requires what is legally impossible
it will be presumed that Parliament intended
it to be modified so as to remove the
impossibility element." This Court applied the
doctrine of impossibility of performance (lex
non cogit ad impossibilia) in numerous cases
(State of Rajasthan v. Shamsher Singh [1985
Supp SCC 416 : 1985 SCC (Cri) 421] and
Special Reference No. 1 of 2002, In re
[(2002) 8 SCC 237] ).

30. As the company cannot be
sentenced to imprisonment, the Court has
to resort to punishment of imposition of fine
7 All. M/s Parthas Textiles & Anr. Vs. State of U.P. & Anr.
551
which is also a prescribed punishment. As
per the scheme of various enactments and
also the Penal Code, 1860, mandatory
custodial sentence is prescribed for graver
offences. If the appellants plea is accepted,
no company or corporate bodies could be
prosecuted for the graver offences whereas
they could be prosecuted for minor offences
as the sentence prescribed therein is
custodial sentence or fine. We do not think
that the intention of the legislature is to
give complete immunity from prosecution
to the corporate bodies for these grave
offences. The offences mentioned under
Section 56(1) of the FERA Act, 1973,
namely, those under Section 13; clause (a)
of sub-section (1) of Section 18; Section 18A; clause (a) of sub-section (1) of Section
19; sub-section (2) of Section 44, for which
the minimum sentence of six months
imprisonment is prescribed, are serious
offences and if committed would have
serious financial consequences affecting
the economy of the country. All those
offences could be committed by company or
corporate bodies. We do not think that the
legislative intent is not to prosecute the
companies for these serious offences, if
these offences involve the amount or value
of more than Rs one lakh, and that they
could be prosecuted only when the offences
involve an amount or value less than Rs.
one lakh.

31. 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. Of course, the
Court cannot exercise the same discretion
as regards a natural person. Then the
Court would not be passing the sentence in
accordance with law. As regards company,
the Court can always impose a sentence of
fine and the sentence of imprisonment can
be ignored as it is impossible to be carried
out in respect of a company. This appears
to be the intention of the legislature and we
find no difficulty in construing the statute in
such a way. We do not think that there is a
blanket immunity for any company from
any prosecution for serious offences merely
because the prosecution would ultimately
entail
a
sentence
of
mandatory
imprisonment. The corporate bodies, such
as a firm or company undertake a series of
activities that affect the life, liberty and
property of the citizens. Large-scale
financial irregularities are done by various
corporations. The corporate vehicle now
occupies such a large portion of the
industrial, commercial and sociological
sectors that amenability of the corporation
to a criminal law is essential to have a
peaceful society with stable economy.

32. We hold that there is no
immunity
to
the
companies
from
prosecution
merely
because
the
prosecution is in respect of offences for
which
the
punishment
prescribed
is
mandatory imprisonment (sic and fine). We
overrule the views expressed by the
majority in Velliappa Textiles [(2003) 11
SCC 405 : 2004 SCC (Cri) 1214] on this
point
and
answer
the
reference
accordingly. Various other contentions
have been urged in all appeals, including
this appeal, they be posted for hearing
before an appropriate Bench."

6. Learned AGA submitted that as per
Section 63 Cr.P.C. when the summons has
been served on the Principal or Chief
Executive Officer of the company or
corporate body then it will be deemed
sufficient service. Therefore, there is no
552 INDIAN LAW REPORTS ALLAHABAD SERIES
illegality in the impugned summoning
order.

7. After hearing the submissions of
learned counsel for the applicants as well as
learned AGA, the sole question arises, if a
cheque is issued on behalf of a registered
firm, and on bouncing, the same, it failed to
pay the cheque amount despite receiving
the demand notice, then in the complaint
filed under Section 138 N.I. Act against the
firm, whether a summons is required to be
issued to the firm or its partner.

8. From the perusal of the complaint,
it is clear that only the firm namely, M/S
Partha Textiles has been arraigned as
accused through its partner Praveen Raj
Rajendran
and
demand
notice
after
bouncing the cheque was also sent to firm
M/s Partha Textiles (applicant no.1). On
bouncing the cheque issued on behalf of a
registered firm, primary liability is of the
firm, and its partner can also be liable
vicarious, but in the present case, the
partner (applicant no.2) was not implicated
as accused along with the firm.

9. Under Section 142 N.I. Act or in
Section 190 (1)(a) Cr.P.C. the Court takes
cognizance against any offence, not the
offender. But the summons is issued
against the offender by the Court to inform
him/it about the charges which he or it
requires to be replied. The summons format
has been given in Form 1 of the second
schedule.

10. As per Section 141 of N.I. Act, if
the offence under Section 138 N.I. Act is
committed by a company/firm; then it shall
be prosecuted, but Director/ Partner can
also be vicariously liable for punishment
along with the company if they are
responsible for the conduct of the business
of the company or offence has been
committed with the consent or connivance
of any Director/ Partner or other Officers of
the company. Section 141 N.I. Act is being
quoted hereinbelow;

"141. Offences by companies.-
(1) If the person committing an offence
under Section 138 is a company, every
person who, at the time the offence was
committed, was in charge of, and was
responsible to the company for the conduct
of the business of the company, as well as
the company, shall be deemed to be guilty
of the offence and shall be liable to be
proceeded
against
and
punished
accordingly:

Provided that nothing contained
in this sub-section shall render any person
liable to punishment if he proves that the
offence
was
committed
without
his
knowledge, or that he had exercised all due
diligence to prevent the commission of such
offence. [Provided further that where a
person is nominated as a Director of a
company by virtue of his holding any office
or employment in the Central Government
or State Government or a financial
corporation owned or controlled by the
Central
Government
or
the
State
Government, as the case may be, he shall
not be liable for prosecution under this
chapter.

(2)
Notwithstanding
anything
contained in sub-section (1), where any
offence under this Act has been committed
by a company, and it is proved that the
offence has been committed with the
consent or connivance of, or is attributable
to any neglect on the part of any director,
manager, secretary or other Officer of the
company,
such
Director,
manager,
secretary or other Officer shall also be
deemed to be guilty of that offence and
7 All. M/s Parthas Textiles & Anr. Vs. State of U.P. & Anr.
553
shall be liable to be proceeded against and
punished accordingly.

Explanation.-For the purposes
of this section, - (a) means any body
corporate and includes a firm or other
association of individuals; and (b) director,
in relation to a firm, means a partner in the
firm.

11. It is clear from Section 138 N.I.
Act that if the offence is committed by the
company/firm, it shall be prosecuted and
punished accordingly. But the company,
being a juristic person, cannot be awarded
punishment of sentence but can be
punished only with a fine, as observed in
the case of Standard Chartered Bank and
others (supra).

12. Chapter VI of the Cr.P.C.
provides the process for compelling the
appearance of the accused. As per Section
63 Cr.P.C, if the summons is issued to a
corporate body or a registered society, then
its service may be effected by serving the
summons on its Secretary, Local Manager
or
other
Principal
Officer
of
the
Corporation or by a letter through a
registered post addressed to the Chief
Officer of the Corporation. Section 63 of
Cr.P.C. is being quoted hereinbelow;

"63. Service of summons on
corporate bodies and societies- Service of a
summons on a corporation may be effected
by serving it on the secretary, local
manager or other principal Officer of the
corporation, or by letter sent by registered
post, addressed to the Chief Officer of the
corporation in India, in which case the
service shall be deemed to have been
effected when the letter would arrive in the
ordinary course of post. Explanation.-In
this
section,
means
an
incorporated
company or other body corporate and
includes a society registered under the
Societies Registration Act, 1860."

13. From the perusal of Section 63 of
Cr.P.C., it is clear that if the offence was
committed by a company/firm, then a
summons can be issued to the company or
firm, but service of summons may be
effected through its Local Manager or other
Principal
Officer
of
the
company.
Therefore, the service of summons on
corporate bodies may be made at its
registered office or by serving its Local
Manager
or
other
Principal
Officer.
Therefore, the issuance of summons to the
body corporate is necessary, though service
may be effected by any mode as mentioned
in Section 63 of Cr.P.C.

14. When the summons is served on
the corporate body, then Section 305
Cr.P.C. provides further procedure. Section
305 (2) of Cr.P.C. provides that the accused
corporation may appoint a representative
for inquiry or trial in a criminal proceeding
against the body corporate. When the
corporate
body/society
appoints
a
representative, then all the proceedings will
be done in the presence of representative
and representative will also be examined on
behalf of the accused company. For ready
reference, Section 305 Cr.P.C. is quoted
hereinunder;

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
society
registered under the Societies registration
Act, 1860 (21 of 1860).

(2) Where a corporation is the
accused person or one of the accused
persons in an inquiry or trial, it may
appoint a representative for the purpose of
554 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 sub-section
(3) shall not apply.

(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 appointed
as the representative of the corporation for
the purposes 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.

15. Therefore, from the conjoint
reading of Section 141 N.I. Act, Section
63 of Cr.P.C. and Section 305 Cr.P.C., it
is explicit that whenever a company is
accused under Section 138 N.I. Act then
summons has to be issued in the name of
the company and service of the same can
be effected by serving it on the Principal
Officer or Local Manager of the
Company.

16. Hon'ble Apex Court in the case of
Iridium India Telecom vs Motorola
Incorporated and others; 2011 (1) SCC
74 observed that the corporation is virtually
in the same position as any individual, and
criminal liability of the corporation would
arise when an offence is committed in
relation to the business of the corporation
by a person or body of persons in control of
its affair. Paragraph nos. 61, 63 and 66 of
the Iridium India Telecom (supra) case
are being quoted hereinbelow;

"61. A company may in many
ways be likened to a human body. They
have a brain and a nerve centre which
controls what they do. They also have
hands which hold the tools and act in
accordance with directions from the centre.
Some of the people in the company are
mere servants and agents who are nothing
more than hands to do the work and cannot
be said to represent the mind or will.
Others are directors and managers who
represent the directing mind and will of the
company, and control what they do. The
state of mind of these managers is the state
of mind of the company and is treated by
the law as such. So you will find that in
cases where the law requires personal fault
as a condition of liability in tort, the fault
of the manager will be the personal fault of
the company. That is made clear in Lord
Haldane's speech in Lennard Carrying Co.
Ltd. v. Asiatic Petroleum Co. Ltd. [1915
AC 705 : (1914-15) All ER Rep 280 (HL)]
(AC at pp. 713, 714). So also, in criminal
law, in cases where the law requires a
guilty mind as a condition of a criminal
7 All. M/s Parthas Textiles & Anr. Vs. State of U.P. & Anr.
555
offence, the guilty mind of the directors or
the managers will render the company
themselves guilty.

63. From the above, it becomes
evident that a corporation is virtually in the
same position as any individual and may be
convicted of common law as well as
statutory offences including those requiring
mens rea. The criminal liability of a
corporation would arise when an offence is
committed in relation to the business of the
corporation by a person or body of persons
in
control
of
its
affairs.
In
such
circumstances, it would be necessary to
ascertain that the degree and control of the
person or body of persons is so intense that
a corporation may be said to think and act
through the person or the body of persons.
The position of law on this issue in Canada
is almost the same. Mens rea is attributed
to corporations on the principle of the
company.

66. These observations leave no
manner
of
doubt
that
a
company/corporation
cannot
escape
liability for a criminal offence merely
because the punishment prescribed is that
of imprisonment and fine. We are of the
considered opinion that in view of the
aforesaid judgment of this Court, the
conclusion reached by the High Court that
the
respondent
could
not
have
the
necessary mens rea is clearly erroneous."

17. Guwahati High Court in the case
of Ram Narayan Sharma vs State of
Assam; 2017 SCC Online Gau 1004 has
also considered the issue of process against
the corporate body and observed that in a
criminal case, the Court can issue process
against corporate body in the manner as
provided
under
Section
63
Cr.P.C.
Paragraph 13 of the Ram Naresh Sharma
(supra) case is quoted as under;

"13. It is a settled law, as on
date, that a corporation can be prosecuted
also for crimes requiring mens rea. In the
case of Iridium India Telecom Ltd. v.
Motorola Inc., (2011) 1 SCC 74, the
Hon'ble Supreme Court has held that a
corporation is virtually in the same
position as any individual and may be
convicted of common law as well as
statutory
offences,
including
those
requiring mens rea. The criminal liability
of a corporation would arise when an
offence is committed in relation to the
business of the corporation by a person or
body of persons in control of its affairs. In
such circumstances, it would be necessary
to ascertain that the degree and control of
the person or body of persons is so intense
that a corporation may be said to think and
act through the person or the body of
persons. The Hon'ble Supreme Court
further held that mens rea is attributed to
corporations on the principle of the alter
ego company."

18. Delhi High Court in the case of
Puneet Gupta vs State; 2013 SCC
OnLine Del 208 again considered the issue
of process against the corporate body and
observed that the summons to the company
can be issued through its Principal Officer,
and if there is nobody to represent the
company, then the Director could not be
summoned to appear on behalf of the
company itself. Paragraph 10 of the Puneet
Gupta (supra) case is quoted as under;

"10. Thus, it would be seen that a
company can be represented through a
representative appointed for this purpose.
Sub-section
(3)
says
that
where
a
representative of a company appears, any
requirement of this Code that anything
shall be done in the presence of the
accused,
shall
be
construed
as
a
556 INDIAN LAW REPORTS ALLAHABAD SERIES
requirement that, that thing shall be done
in presence of the representative. Subsection(4) says that if the representative of
the corporation does not appear, the
requirement as referred in sub-section (3)
shall not apply. Thus, simply because there
was nobody to represent the company, the
directors could not have been summoned to
appear as accused. The right course to be
adopted was to issue summons to the
company through its principal Officer and
it is for the company to decide as to
through whom it is to be represented. Thus,
simply on the ground that the company was
not being represented, its 10 of 14 directors
who are the Petitioners herein could not have
been
summoned
to
face
prosecution.
Moreover, Section 20A of the Act could not
have been used by the learned MM to issue
the summons to the two directors for the
reason that it is only a manufacturer,
distributor or a dealer of the sampled food
article who has not been prosecuted earlier
and where it transpires during the trial that
the said manufacturer, distributor or dealer
has not been prosecuted that the Court may
take cognizance against him as if the
prosecution had been instituted against him.

19. The Andhra Pradesh High Court
in the case of Mannam Venkata Krishna
Rao vs State of A.P. represented by
Public Prosecutor and others; 2022 SCC
OnLine AP 3027 again considered the
issue and observed that Section 63 permits
the issuance of summons to a company
through its Principal Officer, then, after
receiving a summons, it is for the company
to appoint any representative to appear on
behalf of the company. Para no. 7 and 8 of
the Mannam Venkata Krishna Rao
(supra) case are being quoted hereinunder;

"7. The above provision permits
service of summons on a company by
serving the said summons on any of the
principal
officers
of
the
company
mentioned in the Section 63. However, the
manner in which the company is to be
represented before a court, after service of
summons, is contained in section 305 of the
criminal procedure code, which reads as
follows:

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
society
registered under the Societies Registration
Act, 1860 (21 of 1860).

(2) Where a corporation is the
accused person or one of the 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 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 sub-section
(3) shall not apply.

(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
7 All. M/s Parthas Textiles & Anr. Vs. State of U.P. & Anr.
557
corporation to the effect that the person
named in the statement has been appointed
as the representative of the corporation for
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.

8. A reading of the above
provision would make it clear that, after
receipt of the notice, it would be open to
the company to decide whether the person
named in the notice would continue to
represent the company or not. It would also
be open to the person named as the
company's representative to decline to
represent the company. In both situations,
applications may be made before the trial
Court under Section 305 Cr. P.C., to
remove the name of the person who is
arrayed
as
the
accused
company's
representative. This view is fortified by the
judgment of the Hon'ble High Court at
Bombay, dated 14.01.2020, in Criminal
Writ Petition No. 4942 of 2019, in the case
of Sanjeev S. Malhotra v. the State of
Maharashtra."

20. It is also relevant to mention here
that the corresponding provision to Section
63 of Cr.P.C. in Bhartiya Nagarik Suraksha
Sanhita, 2023 (in short ' the BNSS') is
Section 65. Section 65 of the BNSS also
prescribes that summons of a company or
corporation may be served through the
Director apart from the Manager, Secretary
and other Officers of the company. In
Section 63 Cr.P.C. word "Director" was
missing. Similarly, Section 65 of the BNSS
also provides if the letter containing the
summons for the company is sent through
the registered post addressed to the
Director, Manager or other Officer of the
company or corporation in India that will
also be deemed to be served but in Section
63 of Cr.P.C. summons sent through a
letter by registered post addressed to Chief
Officer of the Corporation in India was
deemed to be served. Therefore, in place of
the Officer of the Corporation in India as
mentioned in Section 63 Cr.P.C., Director,
Manager, Secretary or other Officer of the
company or corporation in India has been
replaced by Section 65 of the BNSS. Apart
from this, in Section 63 of Cr.P.C. only
company
or
other
corporate
body,
including
registered
society,
was
mentioned, but in the corresponding
Section of the BNSS, the firm or other
associations
of
individuals
are
also
mentioned. Section 65 of the BNSS is
being quoted as under;

"65(1) Service of summons on
corporate bodies, firms, and socialise.- (1)
Service of a summons on a company or
corporation may be effected by serving it
on the Director, Manager, Secretary or
other
Officer
of
the
company
or
corporation, or by letter sent by registered
post addressed to the Director, Manager,
Secretary or other Officer of the company
or corporation in India, in which case the
service shall be deemed to have been
effected when the letter would arrive in the
ordinary course of post. Explanation.-In
this section, "company" means a body
corporate and "corporation" means an
incorporated company or other body
corporate registered under the Companies
Act, 2013 or a society registered under the
Societies Registration Act, 1860.

(2) Service of a summons on a
firm or other association of individuals
may be effected by serving it on any
partner of such firm or association, or by
558 INDIAN LAW REPORTS ALLAHABAD SERIES
letter sent by registered post addressed to
such partner, in which case the service
shall be deemed to have been effected when
the letter would arrive in the ordinary
course of post."

21. From the perusal of above Section
65 of the BNSS, it is clear that service of
summons upon a company, corporation
registered society, firm or other association
of other individuals may be effected by
serving on Director, Manager, Secretary or
other
Officer
of
the
company
or
corporation in India or partner of the firm
or association.

22. From the above analysis, it is
clear that if a company is arraigned as
accused in a complaint, then summons
ought to be issued to the company
through its Principal Officer or Local
Manager as mentioned in Section 63
Cr.P.C and after service of summons
upon the company, as per Section 63
Cr.P.C., the company can appoint any of
his representatives as per Section 305
Cr.P.C. and when the representative of
the company appears before the court,
the proceeding before him would be
deemed to be the proceeding in the
presence
of
the
accused
and
representative will be examined on
behalf of the company. Representative of
the company is not required to seek bail
on behalf of the company as the
company can change its representative at
any stage of proceeding with the
permission of the Court concerned.

23. Service of summons upon the
company can be made as per the mode
provided under Section 144 N.I. Act, which
provides that service of summons can be
made on accused by speed post or courier
service approved by the Court, where he
carries on business or personally works for
gain. Therefore, there is no requirement to
send a summons to the registered office of
the company or firm. It can be served to its
local manager, who carries on with the
business of the corporate body.

24. In the present case, though the
Firm (M/S Partha Textiles) was arrayed as
an accused, but a summons was issued to
its partner (applicant no.2) personally,
which is not a proper service for the firm
because the partner was not impleaded as
accused in the impugned complaint. As the
issue is purely technical, therefore, this
petition is being finally disposed of without
hearing the opposite party no.2.

25. In view of the above, the
summoning order dated 27.07.2023 as well
as non-bailable warrant dated 08.02.2024
issued against applicant no.2 is hereby
quashed, and the Court below is directed to
pass fresh summoning order in the light of
the observation made hereinabove within
one month from the date of receiving a
copy of this order.

26. It is also apposite to mention that though
on commencement of the BNSS, the provision of
Cr.P.C. has been repealed and Section 65 of the
BNSS has come into force in place of Section 63
of Cr.P.C. regarding service of summons upon a
company, corporation and firm, but Section 529
of the BNSS provides, proceeding, trial or
application
pending
before
the
date
of
commencement of the BNSS will continue as per
the provision of Cr.P.C. Therefore, in the present
case despite the repeal of Cr.P.C. by the BNSS,
the court below will proceed in accordance with
the procedure of Cr.P.C. as mentioned under
Sections 63 and 305 Cr.P.C.

27. With the aforesaid observation,
the present application is partly allowed.
7 All. Jagdish Prasad & Anr. Vs. State of U.P. & Anr.
559

28. Let a copy of this order be
communicated to the Additional Court
Varanasi.
----------
(2024) 7 ILRA 559
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482. No. 11772 of 2024

Jagdish Prasad & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Amit Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Constitution of India, 1950
- Article 226 - Food Safety & Standards
Act, 2006 - Sections 3(1) (i), 3(1)(zk),
3(1)(zz), 19, 59, 92 & 92(1) (h) - Food
Safety
&
Standards
(Food
Products
Standards and Food Additives) Regulation,
2011 - Regulation - 2.2.1(7), 2.2.2(2),
2.2.2(6),
2.2.2(7),
2.2.2(8),
2.2.2(9),
2.2.2(10), 2.3.4, 2.3.55 - Cigarette and
other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade
and Commerce, Production, Supply and
Distribution) Act, 2003 - Sections 7, 10,
11, 14, 16 & 20 - Application U/s 482 -
challenging the summoning order as well as N/B
Warrant - Applicants have valid license for
manufacturing Sugandhit supari (betel nut)
under the Act, 2006 - A sample of supari
recovered from the applicants contained tobacco
as an additive for organo leptic purpose which is
violation of Act, 2006 - applicants taken plea
that, as the Supari is a tobacco product, its sale
and manufacturing will be covered by the
COTPA Act, 2003 therefore proceedings under
Act, 2006 is illegal - Court finds that, from the
conjoint reading of provisions of both Act, 2006
& Regulation, 2011, betel nut or Supari is a
primary food product, hence Supari would come
within the category of food and not the tobacco
- mixing of tobacco in any food item including
the betel nut or Supari is prohibited as per the
Regulation, 2011 and same would be punishable
under the Act, 2006 - invocation of the COTPA
Act, 2003 in the present case does not apply -
resulting present application fails and having no
merit - dismissed. (Para - 20, 23, 28, 30)

Application Dismissed. (E-11)

List of Cases cited:

1. Application U/s 482 No. 9147/2023 (Manish
Gupta Vs State of UP & anr.),

2. St. of U.P. & anr. Vs Synthetics and
Chemicals Ltd. & anr.(1991 Vol. 4 SCC 139),

3. Roger Shashoua & ors.Vs Mukesh Sharma &
ors.(2017 vol. 14 SCC 722),

4. V. Kishan Rao Vs Nikhil Super Speciality
Hospital & anr.(2010 vol. 5 SCC 513).

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
applicants and Sri Rajeev Kr. Singh,
learned A.G.A. for the State.

2.