2013 (11) TMI 1616

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....44 was filed in the Court of learned Chief Judicial Magistrate, Bankura by Assistant Commissioner, Central Excise & Service Tax, Durgapur-IV Division, City Centre, Durgapur, against the petitioner and two others. 3. Learned Magistrate, upon perusal of the petition of complaint issued process against all the accused persons including the petitioner. 4. The petitioners Vikash Jain @ Goel and Ajay Gupta have come up with these applications praying for quashing of the proceeding on the ground that the complaint itself is misconceived and illegal, the Magistrate should not have entertained the same. 5. The gist of the complaint is that M/s SRC Metalicks Private Limited, (Formerly known as M/s VSS Electrocast Private Limit....

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..... They contend that in the complaint petition, all the allegations and aspirations are putforth against the Company itself. The persons shown as accused in the petition of complaint are either Directors or former Directors of the Company. The Company itself has not been impleaded as an accused by the complainant. Company being a juristic person has to be sued by the complainant as the main accused, besides the Directors and former Directors. Since the Company itself has not made an accused, the complaint entertained by the learned Magistrate is not maintainable in law. In support of their contention, Ms. Sanyal and Mr. Bhattacharya, referred to a decision of Apex Court in Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd., reported in (20....

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....ans anybody corporate and includes a firm or other association and individuals; and (b)     "director" in relation to a firm means a partner in the firm." 9. It is contended by them that sub-section (1) of Section 9AA deals with offences by Companies and it says unequivocally that other person 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. 10. No doubt, a bare reading of sub-section (1) of Section 9AA of the Act makes it obligatory on the part of the complaint to make the company as an accused together with the....

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.... persons". He states that it was a mistake on the part of the Magistrate concern who issued process simply going through the front page of the petition of complaint without perusing the entire facts stated in the body of the petition of complaint. Court can, he submits, take cognizance of offence, in such a case against the complainant. 14. I have considered the rival contentions of learned counsel for the parties. There cannot be any room of doubt that without arraigning the company as an accused, the Directors of the company cannot be fastened in a criminal action specially when the allegation and aspiration are attributed to the company itself. I take support of the legal principle propounded by the Apex Court in Aneeta Hada v. G....