Bhagwan Dass Sharma vs Vijay Kumar Jain

R.L. Anand, J.—Bhagwan Dass Sharma, the petitioner, has filed the present petition u/s 482 of the Criminal Procedure Code, 1973, for the quashment of the complaint, annexure P-1, and the summoning order, annexure P-2, and further proceedings arising out of the same, as being wrong, illegal, and an abuse of the process of law.

The complaint, annexure P-l, was filed by Vijay Kumar Jain, alleging himself to be the sole proprietor of V. P. Oswal Hosiery Factory, B. IV-633 (old) B. V-233 (new), Wait Ganj/Chowk Saidan, Ludhiana and Rajdhani Interstate Transport Company Regd. having its registered office at 4128, Second Floor, Naya Bazar, Delhi, and against one of its branch offices at Iqbal Ganj, Ludhiana. The title of the complaint would show that the complainant, Vijay Kumar Jain, was not certain as to who was the managing director, director, secretary, principal officer or any other officer in charge of the affairs of the company at Ludhiana. The allegations need not be quoted of the complaint which was filed under Sections 406 and 420 of the Indian Penal Code, but suffice it to mention that, vide order dated September 15, 1995, the learned Magistrate after recording the preliminary evidence came to the conclusion that there are grounds to presume that both the respondents have committed an offence punishable under Sections 406 and 420 of the Indian Penal Code, and both the respondents through its local booking clerk/transport operator/any other person responsible for the conduct of the business and management of the company were summoned.

The pleadings of the parties further show that ultimately summons could not be served and on the basis of the report the booking clerk, Bhagwan Dass, had refused to accept the summons on behalf of the company, and bailable warrants were issued in accordance with the provisions of law. Aggrieved by the orders summoning the petitioner, the present petition has been filed.

I have heard Shri A. S. Kalra, advocate, on behalf of the petitioner and Shri Sunil Chadha, advocate, on behalf of the respondents.

In my opinion, the present petition is liable to succeed on the short ground that Bhagwan Dass, petitioner, has not been arrayed as party to the complaint/proceeding. The complainant, Vijay Kumar Jain, when he filed the complaint was himself not certain as to who was the managing director/director or in charge of the affairs of the branch under accused No. 1. Accused No. 1 is a legal entity and was supposed to be sued through its managing director, director or such nominee or the principal officer, etc. Nobody has been sued by name for accused No. 1. It has not been shown before me that Bhagwan Dass, the present petitioner is connected with the affairs of accused No. 1. According to learned counsel for the petitioner, he is simply an employee of the company and as such he could not be summoned. It has been categorically stated by learned counsel for the petitioner that the petitioner is neither a principal officer nor managing director or director of the said company and being a simple employee he could not be arrayed as an accused in order to receive the sentence for the company. Learned counsel for the respondent has also not been able to convince this court that the petitioner was holding any responsible post or that he is the nominee of the company. Merely because that the petitioner is a booking clerk on behalf of the company at the Ludhiana branch is not enough to prosecute him unless the complaint was filed against him in his individual capacity. This is not the case of the complainant. According to the complainant, the goods were entrusted to Rajdhani Interstate Transport Company Registered, Ludhiana. In the opinion of this court the complainant could only proceed against the company through its managing director/director/secretary or principal officer.

In this view of the matter, the order dated November 6, 1995, is hereby quashed wherein the learned magistrate has ordered to issue bailable warrants of arrest against the petitioner. So far as the complaint, annexure P-1, and orders dated September 15, 1995, annexure P-2, are concerned they will remain on record. Directions are given to the learned Judicial Magistrate, Ludhiana, to execute the summoning order dated September 15, 1995, in terms of my observations referred to above and the complainant can supply the names of the managing director/ director/secretary or any other principal officer of the company.

The petition is partly allowed as stated above.

Order dasti on payment.