# Shekhar Ramamurthy v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 5 ILRA 1902
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-11
- **Case number:** Application u/s 482 No. 7907 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shekhar-ramamurthy-v-state-of-u-p-anr-opp-parties-50292
- **Pages:** 19

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 482 - - Indian Penal Code,
1860 -Sections 406, 420, 467, 468, 471 &
120-B - entire proceeding challengedapplicant
was
mere
director
of
the
company-
appointed
under
Sections
149/150 of the Companies Act, 2013-he
had no role in the alleged transactions-
mandate of Section 305(2) Cr.P.C. not
followed- under Section 482 Cr.P.C. High
Court may examine and take note of the
facts and allegations- to ascertain the
genuineness
of
the
impugned
proceedings-vicarious
liability
may
be
fixed-if the applicant was involved in
alleged transaction at any point of time-
an Officer, Director, Managing Director or
Chairman of the Company can be made an
accused along with the Company- only if
there is sufficient material to prove his
active role coupled with criminal intent-
all
the
contentions
raised
by
the
applicant's counsel relate to disputed
questions of fact-the court below is not
expected to examine and assess in detail
the material placed on record-at stage of
issuing process- quashing of charge sheet,
summoning order and entire proceedings
can also be done only if it does not
disclose any offence or if there is any legal
bar which prohibits the proceedings on its
basis-prayer
for
quashing
refusedapplicant directed to move discharge
application
-application
disposed
of.
(Paras 42,46, 49, 52, 53, 54 and 55)

HELD:
The powers of the High Court to quash criminal
proceedings in exercise of its jurisdiction under
Section 482 Cr.P.C. is well known. The High
Court may not enter into determination of the
disputed questions of fact at the stage of its
exercise of powers under section 482 Cr.P.C,
however, the Court may examine and take note
of the facts and allegations in order to find out
whether the impugned proceedings are in abuse
of the process of the court and law and their
continuance would result in miscarriage of
justice or not. (Para 42)

Thus, an Officer, Director, Managing Director or
Chairman of the Company can be made an
accused along with the Company only if there is
5 All. Shekhar Ramamurthy Vs. State of U.P. & Anr.
1903
sufficient material to prove his active role
coupled with criminal intent. Indian Penal Code
does not contain any provision for vicarious
liability. For Managing Director or Director to be
accused and their implications in the offence
allegedly committed on behalf of the company,
when the accused is a Company, the complaint/
FIR or Charge-sheet must contain requisite
allegations of commission of the offence by such
individual(s). (Para 49)

Thus, this Court is of the view that all the
contentions raised by the applicant's counsel
relate to disputed questions of fact. The court
has also been called upon to adjudge the
testimonial worth of prosecution evidence and
evaluate the same on the basis of various
intricacies of factual details which have been
touched upon by learned counsel. The veracity
and credibility of material furnished on behalf of
the prosecution has been questioned and false
implication has been pleaded. In the process of
invoking its inherent jurisdiction, this court cannot
be persuaded to have a pre trial before the actual
trial begins. The submissions made by the learned
counsel call for adjudication on pure questions of
fact which may be adequately adjudicated upon
only by the trial court and while doing so even the
submissions made on points of law can also be
more appropriately gone into by the trial court in
this case. (Para 52)

The power of High Court is very wide but should
be exercised very cautiously to do real and
substantial justice for which the court alone
exists. Hence the chances of ultimate conviction
is bleak and no useful purpose is likely to be
served by allowing criminal proceedings to be
continue. In S.W. Palankattkar & ors. Vs St.of
Bihar, 2002 (44) ACC 168, it has been held by
the Hon'ble Apex Court that quashing of the
criminal proceedings is an exception than a rule.
The inherent powers

## Text

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1902 INDIAN LAW REPORTS ALLAHABAD SERIES
for the conduct of its business. Thus, in the
opinion of the Court, as on the face of the
record, participation of the applicants is not
found in the day to day functioning of the
Company, hence, on the basis of the version
that the defence would be seen at the time of
evidence, it would be travesty of justice to
drag the persons to face the prosecution who
are no way connected with the issuance of the
cheque or its being dishonour thereof.

24. On the basis of above discussion,
the summoning of the applicants to face trial
under Section 138 of Negotiable Instruments
Act is found to be against the mandate of law
laid down by the Apex Court in above
mentioned judgments.

25. The summoning order dated
25.11.2016 passed by the Upper Nyayalaya
Pratham, Ghaziabad and the judgment dated
22.02.2018 passed by the Additional Session
Judge, Court No.15, Ghaziabad in criminal
revision are quashed.

26. The application under Section 482
Cr.P.C. is, hereby, allowed.
----------
(2023) 5 ILRA 1902
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.05.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application u/s 482 No. 7907 of 2022

Shekhar Ramamurthy ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Purnendu Chakravarty, Pranjal Jain

Counsel for the Opp. Parties:
G.A., Nilish Anand, Radhika Singh
Criminal Law - Criminal Procedure Code,
1973 - Section 482 - - Indian Penal Code,
1860 -Sections 406, 420, 467, 468, 471 &
120-B - entire proceeding challengedapplicant
was
mere
director
of
the
company-
appointed
under
Sections
149/150 of the Companies Act, 2013-he
had no role in the alleged transactions-
mandate of Section 305(2) Cr.P.C. not
followed- under Section 482 Cr.P.C. High
Court may examine and take note of the
facts and allegations- to ascertain the
genuineness
of
the
impugned
proceedings-vicarious
liability
may
be
fixed-if the applicant was involved in
alleged transaction at any point of time-
an Officer, Director, Managing Director or
Chairman of the Company can be made an
accused along with the Company- only if
there is sufficient material to prove his
active role coupled with criminal intent-
all
the
contentions
raised
by
the
applicant's counsel relate to disputed
questions of fact-the court below is not
expected to examine and assess in detail
the material placed on record-at stage of
issuing process- quashing of charge sheet,
summoning order and entire proceedings
can also be done only if it does not
disclose any offence or if there is any legal
bar which prohibits the proceedings on its
basis-prayer
for
quashing
refusedapplicant directed to move discharge
application
-application
disposed
of.
(Paras 42,46, 49, 52, 53, 54 and 55)

HELD:
The powers of the High Court to quash criminal
proceedings in exercise of its jurisdiction under
Section 482 Cr.P.C. is well known. The High
Court may not enter into determination of the
disputed questions of fact at the stage of its
exercise of powers under section 482 Cr.P.C,
however, the Court may examine and take note
of the facts and allegations in order to find out
whether the impugned proceedings are in abuse
of the process of the court and law and their
continuance would result in miscarriage of
justice or not. (Para 42)

Thus, an Officer, Director, Managing Director or
Chairman of the Company can be made an
accused along with the Company only if there is
5 All. Shekhar Ramamurthy Vs. State of U.P. & Anr.
1903
sufficient material to prove his active role
coupled with criminal intent. Indian Penal Code
does not contain any provision for vicarious
liability. For Managing Director or Director to be
accused and their implications in the offence
allegedly committed on behalf of the company,
when the accused is a Company, the complaint/
FIR or Charge-sheet must contain requisite
allegations of commission of the offence by such
individual(s). (Para 49)

Thus, this Court is of the view that all the
contentions raised by the applicant's counsel
relate to disputed questions of fact. The court
has also been called upon to adjudge the
testimonial worth of prosecution evidence and
evaluate the same on the basis of various
intricacies of factual details which have been
touched upon by learned counsel. The veracity
and credibility of material furnished on behalf of
the prosecution has been questioned and false
implication has been pleaded. In the process of
invoking its inherent jurisdiction, this court cannot
be persuaded to have a pre trial before the actual
trial begins. The submissions made by the learned
counsel call for adjudication on pure questions of
fact which may be adequately adjudicated upon
only by the trial court and while doing so even the
submissions made on points of law can also be
more appropriately gone into by the trial court in
this case. (Para 52)

The power of High Court is very wide but should
be exercised very cautiously to do real and
substantial justice for which the court alone
exists. Hence the chances of ultimate conviction
is bleak and no useful purpose is likely to be
served by allowing criminal proceedings to be
continue. In S.W. Palankattkar & ors. Vs St.of
Bihar, 2002 (44) ACC 168, it has been held by
the Hon'ble Apex Court that quashing of the
criminal proceedings is an exception than a rule.
The inherent powers of the High Court under
Section 482 Cr.P.C itself envisages three
circumstances
under
which
the
inherent
jurisdiction may be exercised:-(i) to give effect
an order under the Code; (ii) to prevent abuse
of the process of the court; (iii) to otherwise
secure the ends of justice. (Para 54)

In absence of any of the grounds recognized by
the Apex Court which might justify the quashing
of summoning order dated 17.10.2022 or
consequential proceedings, the prayer for
quashing the same is refused, as I do not see
any abuse of the courts process either. The
court below has been vested with sufficient
powers to discharge the accused even before
the stage to frame the charges comes, if for
reasons to be recorded it considers the charge
to be groundless. (Para 55)

Application disposed of. (E-14)

List of Cases cited:

1. S.M.S. Pharmaceuticals Ltd Vs Neeta Bhalla
(2005) 8 SCC 89

2. Ch. Bhajan Lal Vs St.of Har. 1992 Supp (1)
SCC 335

3. Syed Wasif Hussain Rizvi Vs Hasan Raza Khan
& ors.: 2016 SCC OnLine All 175

4. Mathu Karuppan Vs Parithi Ilamvazhuthi
(2011) 6 SCC 496

5. Amit Ahuja Vs Gian Prakash Bhambri : 2010
SCC Online P & H 4856

6. Ramveer Upadhyay Vs St.of U.P. 2022 SCC
OnlIne SC 484

7. Sunita Palita Vs Panchami Stone Quarry in
(2022) 10 SCC 152

8. Ramjas Foundations Vs U.O.I.: (2010) 14 SCC
38

9. Ranjit Singh Vs St.of Punj. : (1998) 7 SCC
149

10. Raj Kishore Prasad Vs St.of Bihar : (1996) 4
SCC 495

11. Kishun Singh Vs St.of Bihar : (1993)2 SCC
16

12. Pepsi Foods Ltd. Vs Special Judicial
Magistrate, (1998) 5 SCC 749

13. Sunil Bharti Mittal Vs CBI, (2015) 4 SCC 609

14. Shiv Kumar Jatia Vs St.of NCT of Delhi :
(2019) 17 SCC 193
1904 INDIAN LAW REPORTS ALLAHABAD SERIES
15. Kishori Singh & ors.Vs St.of Bihar & anr.:
(2004) 13 SCC 11

16. M/s. India Carat Pvt. Ltd. Vs St.of Karn. &
anr.: (1989) 2 SCC 132

17. Abhinandan Jha Vs Dinesh Mishra : AIR
1968 SC 117

18. H.S. Bains Vs St.(UT of Chandigarh) : (1980)
4 SCC 631

19. R.P. Kapoor Vs St.of Pun., AIR 1960 S.C. 866

20. St.of Haryana Vs Bhajanlal, 1992 SCC
(Crl.)426

21. St.of Bihar Vs P.P. Sharma, 1992 SCC
(Crl.)192

22. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., (Para-10) 2005 SCC (Cri.)283

23. S.W. Palankattkar & ors. Vs St.of Bihar, 2002
(44) ACC 168

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Satish Chandra Mishra,
the learned Senior Advocate assisted by
Shri
Purnendu Chakravarty
and
Ms.
Soumya Chaturvedi, the learned counsel
for the applicant, Shri Anurag Verma, the
learned A.G.A. for the State-opposite party
No. 1, Shri Prashant Chandra, the learned
Senior Advocate assisted by Ms. Radhika
Singh and Shri Nilish Anand, the learned
counsel for the opposite party No. 2.

2. The present application under
section 428 Cr. P.C. has been filed by the
applicant-Shekhar Ramamurthy, seeking
following prayer:-

"Wherefore it is most respectfully
prayed that in the aforesaid facts and
circumstances the application preferred
under section 482 Cr.P.C. may kindly be
allowed and the quashment of Order dated
17.10.2022 alongwith all consequential
proceedings and effects arising out of FIR
no. 260/2018 U/s 406, 420, 467, 468, 471
and 120-B of IPC P.S. - Hussain Ganj,
District Lucknow, pending before the court
of ACJM - III may kindly be quashed along
with all consequential proceedings in
respect of the applicant in the interest of
justice."

3. Learned Counsel for the applicant
submits that the facts of the case, in brief,
are that the United Breweries Limited
(hereinafter referred to as "UBL") is a
company registered under the provisions of
Companies Act, 1956, having its registered
office at U.B. Tower V.B. City 24, Vittal
Mallya Road, Bangalure, Karnataka. The
Company is engaged in manufacturing and
sale of beer and other alcoholic beverages
in India and worldwide.

4. That the applicant was working
with UBL as Managing Director and a First
Information
Report
was
lodged
on
16.09.2018 by the informant Shri Sanjeev
Jaiswal
wherein
certain
allegations
regarding some business disputes were
made against three persons, namely, Akhil
Sarda, Himanshu Tewari and Arvind Padhi.
During the course of time applicant ceased
to be a Director of the aforesaid company
w.e.f. 31.07.2020 upon his superannuation
and the information about his leaving the
company was filed with the Ministry of
Corporate Affairs in Form DIR-12 as
required under the Companies Act, 2013.

5. As per the contents of the FIR
lodged on a complaint moved by opposite
party No. 2 at Police Station Husainganj,
Lucknow, on 15.9.2018 and as per the case
setup the complainant placed an order for
three trucks of Beer on 07.09.2018 and on
11.09.2018 through e-mail to Akhil Sharda,
5 All. Shekhar Ramamurthy Vs. State of U.P. & Anr.
1905
Branch Manager (Sales) Uttar Pradesh and
Uttarakhand and made payment of Rs.
65,66,152/-
on
7.9.2018
and
Rs.
27,32,750/- on 11.9.2018, total amount of
Rs. 92,98,902/- by his banker, Federal
Bank Limited, Cantt. Road Lucknow.
Despite making of payment for three trucks
of Beer, Akhil Sarda did not ensure the
supply of the ordered Beer, nor any proper
reply was given by him. The complainant
was apprehensive that three employees
named in the FIR had no intention to
supply the ordered Beer and they wanted to
misappropriate the amount paid by the
complainant and as per Excise Rules, the
supply was to be made within 72 hours of
the order.

6. The opposite party No. 2 placed a
demand order for two trucks load of Beer
through e-mail, total 2360 cases to the
company on 07.09.2018. This e-mail was
also
sent
to
the
Assistant
Excise
Commissioner Web Distillery, Aligarh. As
the next two days, i.e., Saturday and Sunday
were holidays, the process for supply of goods
for which order was placed by the opposite
party party No. 2 was initiated on 10.9.2018. In
pursuance of the indent/ demand order dated
07.09.2018 placed by opposite party No. 2, the
Company directed its transporter Sical Logistics
Limited to arrange vehicles for delivery of
goods from its godown located at Noida to the
Licensee at Lucknow. The transport permit
(Form FL-36) was issued by the concerned
Excise Officer on 11.9.2018 for supply of Beer
by 13.09.2018. The consignment of Beer was
dispatched on 11.9.2018 for delivery to the
Licensee at Lucknow after payment of excise
duty in advance through transporter of the
company by Truck Nos.UP32 HN 3209 and
UP32 FN 8048.

7. The aforesaid two trucks had to
reach the destination on 13.9.2018. And on
13.9.2018, location of both the trucks was
tracked through GPS upto the outer limit of
the Lucknow city, which was near about
one and a half kilometre from the hotel
Ramada Palace of opposite party No. 2 and,
thereafter, the GPS device of both trucks
lost contact with GPS Tracker Agency,
namely, QTS Solutions Private Limited
after 11.41 hours on 13.09.2018. QTS
Solutions Private Limited sent a message
through e-mail on 14.9.2018 at 4.15 PM of
one Mr. Dharam Chand, Depot In-charge
of the company.

8. It is further submitted that Ashok
Kumar Jaiswal, who manages the business
of opposite party No. 2, also runs Hotel
Ramada, Near Bani Junabganj, Banthara,
Lucknow, which is located at a distance of
1.5 kilometres from the place from where
the trucks loaded with Beer went missing
and which is specifically the same place
from where the GPS fitted in the trucks
stopped giving the track of the two trucks
on 13.09.2018.

9. The Depot In-charge also informed
to the officers of the company as well as
the transporter, Sical Logistics Limited
about the loss of trucks. The officers of the
company also inquired about the trucks'
location from opposite party No. 2 through
telephone, but opposite party No. 2
informed the company that the trucks had
not yet reached the designated place i.e. 18,
Station Road, Lucknow.

10. It was further submitted that the
trucks loaded with Beer from the Depot of
the company going missing, was brought to
the notice of the District Excise Officer,
who directed the company on 14.9.2018 to
lodge the FIR at Police Station Badalpur,
Gautam
Budh
Nagar.
When
the
whereabouts of the trucks were not known,
1906 INDIAN LAW REPORTS ALLAHABAD SERIES
on 21.9.2018 the company requested
consent of the licensee, opposite party No.
2, through e-mail for re-supply of Beer
against the order dated 07.09.2018 as the
consent was required for issuance of
transport permit (FL-36) afresh. The
consent for re-supply was given by
opposite party No. 2 through e-mail on
22.9.2018. The licensee also informed the
company that criminal proceedings have
already been initiated at Police Station
Husainganj, Lucknow with regard to non
supply of Beer and civil proceedings would
be initiated for the losses suffered. After
consent was given by the licensee on
22.09.2018, fresh Form FL-36 was issued
by the concerned Excise Officer on
22.09.2018 itself and Beer was supplied on
22.09.2018
against
the
order
dated
07.09.2018 after payment of excise duty in
advance
through
transporter
of
the
company. The supply of goods/ Beer were
delivered at the address of the licensee at
Lucknow on 24.09.2018, which were
accepted
by
the
licensee,
however,
acknowledgement was not given by the
licensee even after receipt of the goods. As
the licensee did not acknowledge the
delivery of goods, the drivers of the trucks
contacted Excise Department and the
Excise Inspector was deputed to verify the
delivery of beer. The concerned Excise
Officer inspected the location of the
licensee and submitted his report dated
27.9.2018 that Beer ordered was duly
received by the licensee at his premises.

11. It was further submitted that the
licensee had also placed another order
dated 11.09.2018 at 8:30 PM through email for delivery of 1180 cases of Beer at
Varanasi.
Since
the
vehicles
of
transportation of Beer to Varanasi could
not be arranged and the transport Form FL36 could not be issued, the licensee on
15.09.2018 modified its original order
dated
11.09.2018
through
e-mail
instructing that the ordered beer be
delivered at Lucknow instead of Varanasi.
After
receipt
of
revised
order
on
15.09.2018 with changed location, the
vehicle was arranged and Form FL-36 was
issued by the concerned Excise Officer on
17.09.2018
and
on
the
same
day,
consignment of beer was dispatched after
payment of excise duty in advance through
transporter of the company, namely,
Buland
Logistic
Limited
by
Truck
No.UP81 BT 5285 from Aligarh to
Lucknow and the consignment of beer was
delivered and received by the licensee on
19.09.2018. It is stated that the goods were
duly delivered as per the orders dated
07.09.2018 and 11.09.2018.

ARGUMENTS
OF
LEARNED
COUNSEL FOR THE APPLICANT

12. Shri Satish Chandra Mishra,
learned Senior Advocate representing the
applicant has submitted that there is no
evidence available on record to show any
involvement of the applicant in the alleged
offence. The criminal liability cannot be
fixed only on the allegation that the
accused was the Director of the company at
the time of alleged incident without
disclosing any role played by such a person
in the entire transaction, which form part of
the offence and subject matter of the FIR
and the chargesheet. He has further
submitted that the impugned proceedings
against the applicant are nothing but a sheer
abuse of process of law and are manifestly
unjust and illegal. The investigation has
also
been
closed,
and
no
further
investigation is pending in the offence and
the continuation of proceedings against the
applicant would result only in his further
harassment for alleged offences, which are
5 All. Shekhar Ramamurthy Vs. State of U.P. & Anr.
1907
not made out against him inasmuch as there
is no evidence indicating his involvement
in any manner for commission of alleged
offences.

13. Learned Senior Counsel for the
applicant further submits that pursuant to
the FIR (case crime no. 260/2018, P.S.
Husaain Ganj, Lucknow) the Investigating
Officer had filed a charge sheet dated
10.02.2019 against four accused persons
namely (i) Akhil Sarda, (ii) Himanshu
Tewari, (iii) Arvind Padhai and (iv) United
Breweries Limited. Thereafter cognizance
on the said chargesheet was taken by the
court below vide order dated 13.02.2019 to
issue process against the then Managing
Director Shekhar Ramamurthy vide order
dated 13.02.2019 and there is no any
whisper about his name in the aforesaid
chargesheet and the order.

14. It was further submitted that
Subsequently the investigation proceeded
further and one more charge sheet No. 03
was filed by the Investigating Officer
against nine Directors and Company
Secretary of the Company. The court below
vide order dated 03.04.2019 had taken
cognizance on the said supplementary
chargesheet, thereafter the investigation
remained continued and a final chargesheet
No. 04 dated 27.06.2019 was filed before
the court below, whereupon cognizance
was taken on 04.07.2019 by the court
below. In the final chargesheet in the
cloumn of the name of the accused at Serial
No. 4 only the name of the company, i.e.,
United
Breweries
Limited,
has
been
mentioned and the name of the applicant
Shekhar Ramamurthy, Managing Director,
has not been mentioned in any of the
chargesheet.
Thus
entire
proceedings
initiated against the applicant is sheer abuse
of process of law.

15. It was further argued that in the
impugned summoning order dated 17-102022 it has been mentioned by the court
below that earlier vide order dated
25.03.2019 non bailable warrants were
issued against all the accused persons. The
order sheet of this case reveals that the
chargesheet was filed on 10.02.2019 and
cognizance was taken on 13.02.2019 only
against the company UBL and other three
individual persons, namely (i) Akhil Sarda,
(ii) Himanshu Tewari, (iii) Arvind Padhai.
It is argued that the name of the applicant
was not mentioned in the summoning order
and summons were issued to other persons
fixing the next date for appearance for
05.03.2019. Subsequently, on 15.03.2019
case was called out and service report on
the summons was submitted to the court,
thereafter,
bailable
warrants
for
Rs.
10,000/-
were
issued
against
three
individuals and UBL as a Company by the
court below. Neither the summons nor the
bailable warrants were issued against
present applicant Shekhar Ramamurthy and
the processes were only issued against the
Company. Subsequently, the date was fixed
for 25.03.2019 as indicated in the order
sheet as it has been mentioned that
Vakalatnama for the accused was filed.
Thereafter, non bailable warrants were
issued against three individuals and UBL as
a Company vide order dated 25.03.2019.

16. It is further submitted by Senior
Advocate Shri Satish Chandra Mishra that
from perusal of the aforementioned order
sheet it is apparent that non bailable
warrants were issued only in respect of
aforesaid three persons who were named in
the FIR and charge sheeted. The non
bailable warrant cannot be issued against a
juristic person which in this case is the
company UBL. No otherwise meaning
could be deciphered from these order
1908 INDIAN LAW REPORTS ALLAHABAD SERIES
sheets that at any point of time the court
below had issued any kind of process
including non bailable warrant against the
applicant-Shekhar Ramamurthy at any
point of time.

17. It is further submitted that the
learned court below in the impugned
summoning
order
has
mechanically
followed the earlier order dated 25.03.2019
without going into the details of the
material available on record that in
previous order sheets which clearly indicate
that no process have ever been initiated
against the present applicant and neither he
is an accused in the individual capacity.

18. It is further submitted that after
filing of the chargesheet and after taking
cognizance vide order dated 13.02.2019,
the informant Sanjeev Jaiswal, opposite
party no. 2 had filed an application dated
07.03.2019 for issuance of bailable warrant
against
the
then
Managing
Director
namely, Shekhar Ramamurthy, whereupon
the learned court below passed the order on
the application itself to the effect that
Investigating Officer shall be present on the
date fixed and also directed him to file his
reply, and the application was fixed for
25.03.2019
and
on
the
same
date
07.03.2019 the Investigating Officer also
moved an application before the learned
court below submitting therein that vide
order dated i.e., 07.03.2019 the learned
court below has included UBL as an
accused
through
Managing
Director,
Shekhar Ramamurthy in place of the name
of Director and for rest of its shareholders/
Directors a supplementary chargesheet
shall
be
filed
as
investigation
was
continued.

19. It was further submitted that
thereafter the name of applicant has been
inserted in handwriting in the chargesheet
No. 2 but the same is not available in the
certified copy of the said chargesheet
issued on 20.02.2019. The certified copy
was applied vide Folio No. 77(urgent)
dated 20.02.2019 and the same was issued
on the same day. This certified copy was
filed before this Court by the other named
accused persons including the company as
a party as Annexure No. 01 to the Crl.
Misc. Application U/s 482 Cr.P.C. No.
2005 of 2019, Akhil Sharda and others Vs.
State of U.P. and others and the aforesaid
application U/s 482 Cr.P.C. No. 2005 of
2019 was allowed by a coordinate Bench of
this Court vide order dated 06.03.2020.
Subsequently, the State of U.P. and the
complainant had challenged separately the
aforesaid order dated 06.03.2020 before the
Hon'ble Supreme Court by filing their
respective SLP(Crl) No. 5577 of 2020 and
SLP (Crl) 5899 of 220 and the Hon'ble
Supreme Court vide order dated 11.7.2022
restored the proceedings initiated against
three accused persons and the Company,
while setting aside the order dated
06.03.2020 passed by this Court with
certain directions. The opposite parties
namely, State of U.P. and the informant,
never argued or intimated the Hon'ble High
Court that the name of applicant has been
inserted in handwriting at any subsequent
date or if the name has been inserted/
included then when the said order was
passed
by
the
learned
court
below
regarding inclusion of the name of
applicant as an accused along with the
company. Even though the name of the
applicant was not arrayed as party by the
state or the informant before the Hon'ble
Supreme Court in the aforesaid SLP's.

20. Learned Senior Counsel for the
applicant
further
submits
that
upto
25.03.2019 neither cognizance was taken
5 All. Shekhar Ramamurthy Vs. State of U.P. & Anr.
1909
against the applicant nor any non bailable
warrant was issued against the applicant
and the non bailable warrant dated
25.03.2019 was issued only against three
individuals and the Company and not
against the present applicant.

21. It was further argued by the
learned counsel for the applicant that the
name of applicant was neither in the FIR
nor in the chargesheet but his name came
into light only after an application moved
on behalf of Investigating Officer before
the court concerned after which the learned
court below without due process of law
inserted the name of applicant and issued
process
vide
impugned
order
dated
17.10.2022.

22. It was further stated that on the
application moved on behalf of Company
under Section 305 Cr.P.C., the learned
court below issued non bailable warrant
and thus has caused a manifest illegality on
the ground that it is the prerogative of the
company to appoint its representative/
authorized person under section 305 Cr.
P.C. for participation in the criminal
prosecution for and on behalf of the
company and the said person would be
representative of the said company.

23. It was further argued by the learned
counsel for the applicant that the learned trial
court has no power for naming any particular
person with name and designation for
prosecution on behalf of company. It is
settled principle of law that whenever a
company is named in any prosecution then as
per the provisions of Section 305(2) Cr. P.C.
the company may appoint a representative for
the purpose of inquiry or trial and such
appointment need not be under the seal of
corporation and the counsel has placed the
provision of Section 305 Cr.P.C. which is
reproduced here in below:-

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 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.
1910 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.

24. Learned counsel for the applicant
further stated that a Director of a company
who was not in charge or responsible for
the conduct of business of the company at
the relevant time, will not be liable under
those provisions. As held by Hon'ble
Supreme Court in S.M.S. Pharmaceuticals
Ltd Vs Neeta Bhalla (2005) 8 SCC 89,
relevant portion is quoted below:

"Section 141 of the Act does not say
that a Director of a Company shall
automatically be vicariously liable for
commission of an offence on behalf of the
Company. What is necessary is that
sufficient averments should be made to
show that the person who is sought to be
proceeded against on the premise of his
being vicariously liable for commission of
an offence by the Company must be
incharge and shall also be responsible to
the Company for the conduct of its
business".

25. That learned counsel for the
applicant further submits that liability
depends on the role one plays in the affairs
of a company and not on designation or
status alone and was pleased to refer the
judgment passed by the Apex Court in the
case of a S.M.S. Pharmaceuticals Ltd Vs
Neeta Bhalla(Supra).

26. Learned counsel for the applicant
has vehemently submitted that in the facts
and circumstances of the case and after
having satisfied that the ingredients of
Sections 406, 420 IPC are not made out
agaisnt the applicant and the case falls
within the parameters laid down by this
Hon'ble Court in the case of Ch. Bhajan
Lalv.State of Haryana1992 Supp (1)
SCC 335 which are required to be
considered while quashing the criminal
proceedings. He further argued that from
the material available on record it is
apparent that the applicant is not involved
in the day-to-day affairs of the company or
in running of the company, thus, he prays
that it is a fit case for quashing of the
impugned order dated 17.10.2022 and all
the consequential proceedings of the case
so far as the present applicant is concerned.

27. Per contra, Shri Anurag Verma,
the
learned
Additional
Government
Advocate for the State-opposite party No. 1
has submitted that learned court below has
not committed any error or illegality in
issuing non bailable warrant order dated
17.10.2022 against the applicant including
other accused persons and the present
application s liable to be dismissed as all
the Factial aspects has been argued.

ARGUMENTS
OF
LEARNED
COUNSEL FOR RESPONDENT No. 2

28. Sri Prashant Chandra, learned
Senior Advocate assisted by Ms. Radhika
Singh, learned counsel for the complainant/
opposite no. 2 raised preliminary objection
by stating that the present application under
Section 482 Cr. P.C. is not maintainable as
once the Hon'ble Supreme Court has
already quashed the order of Hon'ble High
Court and restored the charge sheet filed by
the Investigating Officer and directed the
court below to proceed in the case.

29.

Learned
Counsel
for
the
complainant/ opposite party No. 2 further
stated that there are material concealment
of facts on behalf of the applicant and the
5 All. Shekhar Ramamurthy Vs. State of U.P. & Anr.
1911
applicant has not came with clean hands
before this Hon'ble Court and first non
bailable
warrant
issued
against
the
applicant on 25.03.2019 is not challenged
in this instant application under Section
482 Cr.P.C.

30.

Learned
counsel
for
the
complainant/ opposite party No. 2 further
stated that the present application under
section 482 Cr.P.C. has been filed by the
applicant but the affidavit in support
thereof is made by his attorney which is not
maintainable. Learned Counsel for the opp.
party No. 2 also repudiated the remaining
submissions made by the counsel for the
applicant and prays that the present
application filed by the applicant be
dismissed.

31.
Learned
Counsel
for
the
complainant / opposite party No. 2 has
relied on the judgment of this Hon'ble
Court in Syed Wasif Hussain Rizvi Vs
Hasan Raza Khan and 6 Others: 2016
SCC OnLine All 175, and placed reliance
on para-25 of the judgment wherein this
Court has observed as under:

25. Having held so, we must, at the
same time, emphasize the necessity of
observing adequate safeguards where a
writ petition is filed through the holder of a
power of attorney. These safeguards should
necessarily include the following:

(1) The power of attorney by which the
donor authorises the donee, must be
brought on the record and must be filed
together with the petition/application;

(2) The affidavit which is executed by
the holder of a power of attorney must
contain a statement that the donor is alive
and specify the reasons for the inability of
the donor to remain present before the
Court to swear the affidavit; and

(3) The donee must be confined to
those acts which he is authorised by the
power of attorney to discharge.

32. The learned counsel for the
complainant / opposite party No. 2 further
argued that under the Rules of the Court,
under Chapter IV, the person swearing the
affidavit in support of any application or
affidavit has to state with precision and
sufficient particularity details about himself
and he must also be aware of the facts
deposed to in the affidavit filed by him.
Inconsistent affidavits filed in a casual
manner and not bringing true and correct
facts on the record can be treated to be false
affidavits.
The
person
swearing
the
affidavit is consequently rendered liable for
criminal contempt. As this Hon'ble Court
decides cases on the basis of evidence
brought on record by way of affidavit, and
filing false affidavits is a serious matter and
calls for stringent punishment. It would be
a greater disaster that if the fountain of
Justice is allowed to be poisoned by anyone
resorting to filing of false affidavit or
giving a false statement and fabricating
false evidence in court of law. Further it
was submitted that in the case of Mathu
Karuppan Vs Parithi Ilamvazhuthi (2011)
6 SCC 496, the Hon'ble Apex Court held
that filing a false affidavit should be
effectively curbed with a strong hands.

33. It was further argued by learned
counsel for the complainant/ opposite party
No. 2 that no person, howsoever, high in
hierarchy, has a right to impede the course
of justice and to ridicule the dignity and
majesty of this Hon'ble Court and repeated
filing of false affidavits call for stringent
punishment in order to ensure that such
nefarious activities are nipped in the bud
and dignity and majesty of this Hon'ble
1912 INDIAN LAW REPORTS ALLAHABAD SERIES
Court is not subjected to ridicule and
jeopardy.

34. It was further argued by learned
counsel for the complainant/ opposite party
No. 2 that the applicant has indulged in
clever drafting by twisting material facts.
Beside concealing relevant facts germane
to the matters in issue, even vital material
facts and documents have not been brought
on record with due deliberation and the
criminal cases initiated against the other
accused
including
the
applicant
are
interconnected and part of main conspiracy.

35.

Learned
counsel
for
the
complainant / opposite party No. 2 has
further placed reliance upon the judgment
in the case of Amit Ahuja Vs. Gian
Prakash Bhambri : 2010 SCC Online P
& H 4856, and relied on paras-6 to 9,
wherein it has been observed as under:

"6. On the other hand, the counsel for
the respondent submitted that petition
under Section 482 Cr.P.C. filed by the
petitioner, through his attorney, is not
maintainable. She also repudiated the
remaining submissions, made by the
counsel for the petitioner.

7.
After
giving
my
thoughtful
consideration to the rival contentions raised
by the Counsel for the parties, in my
considered opinion, the petition is liable to
be dismissed, being not maintainable, for
the reasons, to be recorded, hereinafter.
Admittedly, the aforesaid complaint, was
filed against the petitioner and his copetitioners, in the Courts, at India. There is
no dispute about the factum, that Amit
Ahuja, petitioner, is residing in Dubai. In
Janata Dal v. H.S. Chaudhary, JT 1991 (3)
SC 497 it was held, as under:-

"Even if there are million questions of
law to be deeply gone into and examined in
a criminal case registered against specific
accused persons, it is for them and they
alone to raise all such questions and
challenge the proceedings initiated against
them at the appropriate time before the
proper forum and not for third parties
under the garb of public interest litigants.
It was further held that the petitioner in
that case (H.S. Chaudhary) had no locus
standi
to
invoke
the
extraordinary
jurisdiction of the High Court, under
Section 482 Cr.P.C. for quashing the FIR
and all other proceedings arising therefrom
on the plea of preventing the abuse of
process of the Court. In the above
mentioned case the accused persons were
alive and were capable of defending
themselves and protecting their interests
and it was also not shown that the
petitioner Mr. H.S. Chaudhary had any
particular or special interest in the accused
persons."

(8) In Simranjit Singh Mann v.
Union of India: 2 AIR 1993 SC 280, the
Apex Court, held as under:-

"Ordinarily,
the
aggrieved
party
which is affected by any order has the right
to seek redress by questioning the legal
validity or correctness of the order, unless
such party is a minor, an insane person or
is suffering from any other disability which
in law recognized as sufficient to permit
any other person e.g. next friend, to move
the Court on his behalf. It was also held
that if a guardian or a next friend initiates
proceedings for and on behalf of such a
disabled aggrieved party, it is, in effect,
proceedings
initiated
by
the
party
aggrieved and not by a total stranger, who
has no direct personal stake, in the
outcome thereof. In the above mentioned
case, a leader of a political party
approached the Supreme Court under
Article 32 of the Constitution of India,
challenging the conviction and sentence of
5 All. Shekhar Ramamurthy Vs. State of U.P. & Anr.
1913
the assassins of Gen. Vaidya. The two
convicts were alive but did not file any
appeal against the conviction and sentence.
The Apex Court held that the petitioner, in
that case, had locus standi to invoke the
jurisdiction under Article 32 of the
Constitution."
(9) The plain reading of ratio of law as laid
down in the aforesaid cases, clearly goes to
reveal that it is only the accused person,
against whom a criminal case has been
registered or a criminal complaint, has
been filed, can file a petition under Section
482 Cr.P.C. in the High Court, for
quashing the complaint, the summoning
order and/ or the subsequent proceedings,
if any, and no third person can fight a
proxy war on his behalf under the garb of
public interest litigant. The aggrieved
party, which is affected by an order, is
required to seek redress of its grievance, by
questioning
the
legal
validity
or
correctness of the same. It is another thing,
if the aggrieved party, is suffering from
some disability, i.e., unless such party is a
minor, or an insane person, or is suffering
from any other disability, which, in law, is
recognized as sufficient to permit any other
person, e.g., next friend, to move the Court,
on his behalf. On behalf of minor, or insane
person, a guardian or a next friend,
initiates proceedings, so as to challenge the
legality and validity of the order, passed
against him, to seek redressal of the
grievance, as under law, such a person
having disability, cannot be said to be
competent, to file a petition, except through
next friend or guardian. In the instant case,
there is nothing on the record, that Amit
Ahuja, petitioner, is suffering from any
disability, recognized by the provisions, of
law. He is an accused, in the aforesaid
complaint. It is he, who is aggrieved
against the complaint and the summoning
order. It is he, who can challenge the same,
on any ground which may be available to
him, under the provisions of law. If, in
criminal cases, until and unless a person, is
allowed to fight the proxy war, then the
very purpose of criminal justice system,
shall be defeated. In the event, the Courts,
would be mushroomed, by public interest
litigants.