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TMI Blog2010 (10) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... on 34 of the Indian Penal Code, 1860 (for short "the IPC"). 3. Shorn of unnecessary details, the facts, material for adjudication of the issue arising in this appeal may be stated thus : Appellant No. 1, viz., Maharashtra State Electricity Distribution Co. Ltd. ; constituted in terms of the provisions of the Electricity Act, 2003, is the successor in interest of Maharashtra State Electricity Board (for short "MSEB") and appellant No. 2 is its chairman. Respondent No. 1 is an incorporated company, viz., M/s. Datar Switchgear Ltd., and respondents Nos. 2 and 3, senior officials of respondent No. 1, are the complainants and respondents Nos. 4 to 7 are the co-accused. 4. Pursuant to various contracts entered into between respondent No. 1 and MSEB in the year 1993-94 for installation of "Low Tension Load Management Systems" (for short "LTLMS"), MSEB issued a work order on March 27, 1997, whereby respondent No. 1 was required to install at various locations and lease out 47,987 LTLMS to MSEB for a period of 10 years at a monthly rent of Rs. 825 for the first six years, and about Rs. 650 per month for the remaining four years. 5. Clause 8.1 of the said contract stipulated that respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the sections-in-charge. With a view that the sub-divisions, divisions and circles of the respondents are not able to find out the same, the claimants failed and neglected to send copies of the commissioning reports as provided in clause 8.0(d), thereby making it impossible for the officers mentioned in clause (e) thereof to depute representatives to inspect the commissioned objects in the circle. The claimants thus obtained payments from the dates mentioned in the said reports fraudulently by misrepresentation of the facts . . ." 9. The arbitral tribunal passed the final award on June 18, 2004, whereby it directed MSEB to pay Rs. 185,97,86,399 as damages to respondent No. 1, and pay interest at the rate of 10 per cent. per annum on the sum of Rs. 179,15,87,009. The award contained the following observations suggesting that the MSEB had introduced certain fabricated documents as evidence : "As regards the commissioning reports produced by the respondents at exhibits C-64 and C-74, the claimants submitted, and with considerable merit that the respondents had indulged in tampering the commissioning reports produced on the record. The submission is correct." 10. On the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as contended that in order to launch prosecution against the officers of a company, the complainant must make specific averments as to the role played by each of the officials accused in the complaint. In order to buttress the contention, learned counsel placed reliance on the decisions of this court in N. K. Wahi v. Shekhar Singh [2007] 137 Comp Cas 939 ; 9 SCC 481, Sharon Michael v. State of Tamil Nadu [2009] 3 SCC 375, S.K. Alagh v. State of Uttar Pradesh [2008] 142 Comp Cas 228 ; 5 SCC 662 and Maksud Saiyed v. State of Gujarat [2007] 140 Comp Cas 590 ; [2008] 5 SCC 668. 15. Mr. Ashok Desai, learned senior counsel appearing for respondents Nos. 1 and 2, on the other hand, while emphasising that power under section 482 of the Code is to be exercised sparingly and with circumspection, argued that in the instant case, in the light of the averments in the complaint, a prima facie case is made out against the appellants and, therefore, the High Court was fully justified in declining to exercise its jurisdiction under the said provision. In the written submissions filed on behalf of the respondents reliance is placed on the decisions of this court in Sunita Jain v. Pawan Kumar Jain [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of justice and to prevent the abuse of the process of the court. Where the allegations in the first information report or the complaint taken at its face value and accepted in their entirety do not constitute the offence alleged, the High Court would be justified in invoking its powers under section 482 of the Code to quash the criminal proceedings (see : R.P. Kapur v. State of Punjab AIR 1960 SC 866 and Rupan Deol Bajaj v. Kanwar Pal Singh Gill [1995] 6 SCC 194). 20. In Som Mittal (supra), a three judge Bench of this court, while holding that the power under section 482 of the Code to quash criminal proceedings should be used sparingly, and with circumspection in the "rarest of rare cases", observed that : "When the words 'rarest of rare cases' are used after the words 'sparingly and with circumspection' while describing the scope of section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hand, complainant No. 1 brought on record their copy of the commissioning report pertaining to Shirpur section in Dhule Circle as exhibit C-74 which had no such endorsement as is found on the face of exhibit C-74. It is the case of complainant No. 1 that the accused with common criminal intent caused the impugned endorsement 'not installed in presence' to be superscribed on exhibit C-64 after it was duly signed by the representative of complainant No.1 and the section in charge of MSEB so as to convey the impression that complainant No. 1's representative had accepted the fact alleged in the said endorsement. The said falsification and fabrication of the record was brought to the notice of the learned arbitrators in the arbitration proceedings and the learned arbitrators observed in their award dated June 18, 2004, as under : . . . The complainants say and submit that the learned arbitrators have thus held that the said endorsement was fabricated and was admittedly tendered in evidence by accused No. 1 acting under the control and management of accused Nos. 2, 3, 4 and 5. Accused No. 6 was particularly responsible for the conduct of the MSEBs officers in the Shirpur section whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said 'to fabricate false evidence'. 199. False statement made in declaration which is by law receivable as evidence. - Whoever, in any declaration made or subscribed by him, which declaration any court of justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence." 26. It is plain that for constituting an offence under section 192 of the IPC, the following ingredients must be satisfied : (i)Causing any circumstance to exist, or making any false entry in any book or record or making any document containing a false statement. (ii)Doing one of the above acts with the intention that it may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rates that it was the chief engineer who was made responsible for looking after the interest of appellant No. 1 in those proceedings. In this regard, it would be useful to advert to the observations made by a three judge Bench of this court in S.M.S. Pharmaceuticals (supra) : "There is no universal rule that a director of a company is in charge of its everyday affairs. We have discussed about the position of a director in a company in order to illustrate the point that there is no magic as such in a particular word, be it director, manager or secretary. It all depends upon respective roles assigned to the officers in a company. A company may have managers or secretaries for different departments, which means, it may have more than one manager or secretary." 29. It is trite law that wherever by a legal fiction the principle of vicarious liability is attracted and a person who is otherwise not personally involved in the commission of an offence is made liable for the same, it has to be specifically provided in the statute concerned. In our opinion, neither section 192 of the IPC nor section 199 of the IPC, incorporate the principle of vicarious liability, and therefore, it was incu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, of the opinion, that it is not a fit case for the exercise of power under section 482 of the Code, in favour of appellant No. 1. 33. We shall now examine whether appellant No. 2 could be made liable for the aforementioned offences by operation of section 34 of the IPC. It is trite that section 34 of the IPC does not constitute a substantive offence, and is merely in the nature of a rule of evidence, and liability is fastened on a person who may have not been directly involved in the commission of the offence on the basis of a pre-arranged plan between that person and the persons who actually committed the offence. In order to attract section 34 of the IPC, the following ingredients must be established : "(i)there was common intention in the sense of a pre-arranged plan ; (ii)the person sought to be so held liable had participated in some manner in the act constituting the offence." (see : Chandrakant Murgyappa Umrani v. State of Maharashtra [1998] SCC (Cri.) 698, Hamlet alias Sasi v. State of Kerala [2003] 10 SCC 108 and Surendra Chauhan v. State of MP [2000] 4 SCC 110). 34. It is manifest that common intention refers to a prior concert or meeting of minds, and though, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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