2013 (11) TMI 1750 - HC - Indian Laws

Director's Liability in Absence of Nominee under Cr.P.C.

Urrshila Kerkar Versus Make My Trip (India) Private Ltd.

Urrshila Kerkar Versus Make My Trip (India) Private Ltd. - TMI Issues involved: The petition seeks quashing of a criminal complaint and an impugned order for the offence of defamation against the petitioner, who is the Director of the respondent-accused companies.Judgment Details:1. The petitioner argued that no offence is made out against her as she did not get the alleged defamatory articles published nor made any statements. It was contended that vicarious liability cannot be imposed without attributing a specific role or overt act to the petitioner. 2. The petitioner also pointed out that she was not nominated u/s 305 of Cr.P.C., emphasizing that only a nominated person can be prosecuted. It was asserted that summoning an accused for a criminal offence is a serious matter and the trial court erred in not considering this vital aspect.3. On the contrary, the respondent argued that cognizance is taken of the offence and not the offender, citing relevant legal precedents. It was contended that Section 305 of Cr.P.C. does not bar summoning a principal officer of the accused company.4. The court observed that at the stage of framing notice u/s 251 of Cr.P.C., it is crucial to determine if a prima facie case exists to continue the proceedings. The complaint indicated that the accused companies are prosecuted through a common principal officer or a nominated person u/s 305 of Cr.P.C.5. The court held that the option to nominate a person u/s 305 of Cr.P.C. lies with the respondent-accused companies, and in their absence, prosecution through the petitioner cannot be faulted. The trial court is expected to apply its mind to decide if a prima facie case exists against each accused.6. Citing relevant legal observations, the court emphasized the duty of the trial court to carefully consider the allegations and evidence before proceeding. It was noted that objections regarding jurisdiction should be raised before the trial court, and the court should decide on jurisdiction before proceeding further.7. The court clarified that while summoning orders cannot be recalled, proceedings can be dropped against an accused at the stage of framing notice u/s 251 of Cr.P.C. if a prima facie case is not established.8. The petition was disposed of with liberty for the petitioner to raise her pleas before the trial court. The trial court was directed to pass a reasoned order on the point of notice u/s 251 of Cr.P.C., and the personal appearance of the petitioner was dispensed with until the hearing is concluded, provided she is represented by counsel without seeking adjournment.