TaxTMI 
TaxTMI 
2022 (9) TMI 1666
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....tan Magistrate & MACT, Bengaluru allowing the application filed by the petitioner under Section 319 of the CrPC. 2. Facts adumbrated are as follows:- The petitioner/complainant claims to be a leading name in the manufacture of sheet metal fabricated products and transformer tanks for overseas and domestic market to meet specific needs of customers and claims to have spread all over the world. The petitioner and one R.N.Banerji and Son entered into a Memorandum of Understanding ('MoU' for short) on 2-02-2006, in terms of which R.N.Banerji and Son were appointed as marketing associates of the petitioner and were required to market and install resistant doors-'System Schroders' door and clean room and duct door manufactured by the complainant. It is the claim of the petitioner that in terms of MoU, R.N.Banerji and Son became responsible for marketing, promotion, after service installation etc. Subsequent to signing of MoU, one Mr. Jolly Banerji began placing purchase orders in the name of 'RNB Design Arc Systems' ('RNB' for short) and due to the long standing business relationship between the petitioner and R.N.Banerji and Son, the petitioner clai....
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....re the learned Magistrate under Section 319 of the CrPC to include Mrs. Rupa Banerji as an accused in the case at hand. The learned Magistrate accepting the application filed by the petitioner passed an order on 8-02-2021 directing Mrs. Rupa Banerji and one P.K.Majumdar to be impleaded as accused along with the accused Company, by allowing the applications filed under Section 142 of the Act and Section 319 of the CrPC. 7. Mrs. Rupa Banerji who was directed to be arrayed has tossed the said order before the learned Sessions Judge in Criminal Revision Petition No. 98 of 2021. The learned Sessions Judge by his order dated 28-02-2022 sets aside the order passed by the learned Magistrate permitting arraigning of Mrs. Rupa Banerji as an accused along with P.K.Majumdar. Setting aside of the order of the learned Magistrate is what drives the petitioner to this Court in the subject petition. 8. Heard Sri Nitin Prasad, learned counsel appearing for the petitioner and Sri Dhyan Chinnappa, learned senior counsel appearing along with Sri Nischal Dev.B.R., for the respondent. 9. The learned counsel representing the petitioner would contend that throughout the business transaction from 2....
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.... along with the Company and the order of the learned Sessions Judge in Criminal Revision Petition in setting aside the said order are tenable in law?" 12. The afore-narrated facts are not in dispute. The relationship of business between the parties is not in dispute. In the year 2006 R.N.Banerji and Son entered into a MoU with the petitioner for generation of business. It is in furtherance of the said business which went on years, cheques were given by the proprietorship concern. A legal notice was caused upon the proprietorship concern on 1-08-2016. The notice was replied by the proprietorship concern on 12-08-2016. A perusal at the notice would indicate that the notice was sent to the proprietorship concern and replied by the proprietorship concern. The narration in the notice or reply thereto would not indicate that on behalf of an individual that the notice is sent or an individual has replied to the said notice. It was to a proprietorship concern and from the proprietorship concern to the petitioner/complainant. Legal proceedings were instituted by the petitioner against the firm invoking Section 200 of the Cr.P.C. The proceedings go on before the concerned Court. The reply....
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....cused firm. Mrs. Rupa Banerji calls this in question by filing a revision petition in Criminal Revision Petition No. 98 of 2021. The revisional Court-Court of Sessions, after noticing the facts and the purport of Section 319 of the Cr.P.C. upturns the order passed by the learned Magistrate permitting impleadment of Mrs. Rupa Banerji as one of the accused by his order dated 28-02-2022. The reasons rendered by the learned Sessions Judge are found at paragraph 49 of the said order and it reads as follows: "49. But on overall appreciation of the facts and legal position, the said reason assigned by the complainant is not sufficient on many grounds as firstly the accused proprietorship concern is not a company. There is difference between the proprietorship concern and Company. The complainant cannot take shelter under Section 141 of N.I.Act to launch prosecution against accused No. 2 and 3. So also, the very important fact is that there is no allegation or explanation in the complaint against the accused No. 2 and 3 which is one of the requirements to launch prosecution. Apart from that the complainant cannot bypass the ingredients of Section 138 of N.I.Act. Since there is no ....
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.... offence upon which the inquiry or trial was commenced." Section 319 of the Cr.P.C. gives a right to the prosecution/complainant to seek any other parties to be arrayed as accused in a proceeding, if during the course of evidence if it emerges that those parties will also have to be tried for the offence. But, this power to summon those persons who are not named in the charge sheet or given up in charge sheet in the case at hand while taking cognizance, is an extraordinary power which should be used in extraordinary circumstances. The circumstance in the case at hand is not where the accused are being tried for offences under the IPC. The accused are sought to be tried for offences punishable under Section 138 of the Act. The purpose of Section 319 of the Cr.P.C. has been considered by the Apex Court in several judgments, a few of them are relied on by the learned counsel for the petitioner. I deem it appropriate to notice the ones that are germane to the facts of the case at hand. A Five Judge Bench of the Apex Court in the case of HARDEEP SINGH V. STATE OF PUNJAB AND OTHERS (2014)3 SCC 92 has delineated the power under Section 319 of the Cr.P.C. Paragraphs 6 and 7 are the issu....
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....eferred to as "the Evidence Act") comes before the court. There does not seem to be any restriction in the provisions of Section 319 CrPC so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the trial (sic or) for the purpose of Section 319 CrPC, if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 CrPC acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 CrPC is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in ....
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....that any person not being the accused has committed the offence, he could be tried together with other accused. 15. The High Court of Delhi in the case of SARABJIT SINGH V. STATE OF NCT OF DELHI & OTHERS Crl.M.C.2856/2015 & Crl.M.A.10176/2015 decided on 8-10-2018 Sarabjit Singh (supra) considering this issue has held as follows: "8. In the complaint, reference was made to the company as an accused. It appears that under some confusion, inadvertently the name of the company was omitted from the array of accused. The complainant had brought an application immediately, in 2008 itself, to make suitable correction. By the time, the said application came up for consideration, the summoning order had already been passed. Since the Magistrate did not have the power of review, there was some difficulty in entertaining the said request at that stage. This is why liberty was granted while permitting the first application under Section 319 CrPC to be withdrawn for such application to be moved again. The application on which the order was passed by the Metropolitan Magistrate which was set aside by the revisional Court, was an application moved in exercise of such liberty. ....
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....he principles laid down by the Apex Court in the case of HARDEEP SINGH and that of the High Court of Delhi in the case of SARABJIT SINGH, what would unmistakably emerge is that the order passed by the learned Magistrate was tenable in law. 16. The reason to arrive at this conclusion is that the petitioner had business with the proprietorship concern. Cheques are issued by the proprietorship concern. The proceedings are instituted against the proprietorship concern added with person whom the petitioner was in contact to be the proprietor. The plea now put up is that the complainant has, shot an arrow to a wrong target is untenable. If it were to be a Company, then the Managing Director or the Directors would have been responsible if they had any role to play in the transaction. If it were to be a partnership concern, it would have been a circumstance altogether different, as there would be more than one person in a partnership concern, but the case at hand is a proprietorship concern. There can only be one proprietor or proprietrix, as the case would be. The accused is the proprietorship concern but who the proprietor or proprietrix would become immaterial, more so, in the light ....
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....h only one person is responsible either the proprietor or the proprietrix. The accused have handed over cheques in furtherance of the transaction to the petitioner/Company and those transactions are close to 42 in number and the amount involved is close to Rs. 66.00 lakhs. The details of the transactions are as follows: Sl. No. CRL.P No. C.C. No. Cheque Number Signatory to Cheque Party arraigned in the Lower Court proceedings (Accused) 1 7518/ 2018 10975/ 2017 216284 P.K. Majumdar RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji 2 6413/ 2018 10975/ 2017 216284 P.K. Majumdar RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 3 6414/ 2018 3672/ 2017 165487 Rupa Banerji RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji 4 6415/ 2018 3691/ 2017 251112 P.K. Majumdar RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 5 7500/ 2018 10981/ 2017 165482 Jolly Banerji RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 6 7501/ 2018 3692/ 2017 251143 P.K. M....
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....ted by its sole proprietor - Jolly Banerji. 24 7481/ 2018 10981/ 2017 165482 Jolly Banerji RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 25 7482/ 2018 27124/ 2016 216283 P.K. Majumdar RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 26 7483/ 2018 3677/ 2017 251096 P.K. Majumdar RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 27 7484/ 2018 3675/ 2017 251085 P.K. Majumdar RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 28 7485/ 2018 3692/ 2017 251143 P.K. Majumdar RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 29 7486/ 2018 10981/ 2017 165482 Jolly Banerji RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 30 7487/ 2018 3671/ 2017 251113 Rupa Banerji RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 31 7488/ 2018 3674/ 2017 251083 P.K. Majumdar RNB Design Arc Systems represented by its sole proprietor - Jolly Banerji. 32 7489/ 2018 3690/ 2017 25113....