Z.A. Haq, J. - Heard Mr. L.D. Vakil, Advocate for the petitioner, Mr. S.V. Kshirsagar, Advocate h/f. Mrs. Manjusha Deshpande, Advocate for respondent No.1 and Mr. P.N. Kutti, A.P.P. for respondent No.2/State.

2. Respondent No.1 - Aurangabad Municipal Corporation filed complaint against the present petitioner and two others contending that they are liable for prosecution and conviction under section 420 and 468 of the Indian Penal Code read with section 378 of the Bombay Provincial Municipal Corporations Act (hereinafter referred as "the Municipal Corporations Act"). The accusations in the complaint are that the accused have imported goods/items in the limits of city evading octroi and misrepresenting that the goods/items which were imported was Sodium and not "Sefatoxin Acid I.P." for which octroi duty at the rate of 2.75% should have been paid. It is alleged in the complaint that other two accused i.e. Sudhir Pandharinath Tipre and R.V. Nagendra fabricated the documents and the present petitioner was the Managing Director and Chairman of Concept Pharmaceuticals Limited and the activities of the company were managed under his supervision.

The learned Magistrate passed an order on 29th September, 2002 directing issuance of summons to the petitioner and other two accused for prosecution under section 398 of the Municipal Corporations Act and under sections 420 and 468 of the Indian Penal Code. The petitioner filed an application praying for recall of the order directing issuance of process against him. This application was rejected by the learned Magistrate by order dated 31st March, 2003.

The petitioner filed revision application before the Sessions Court, which is dismissed by the impugned order.

3. The order passed by the learned Magistrate directing issuance of process against the petitioner and the order passed by the Sessions Court dismissing the revision filed by the petitioner are challenged in this writ petition, substantially on the following grounds :-

(i) That the tenor of the complaint shows that the allegations of evasion of octroi and commission of offence are against the company and therefore the company should have been shown as accused in the complaint and because of failure on the part of the complainant to file complaint against the company, the prosecution of the petitioner is unsustainable. In support of this submission, the learned Advocate for the petitioner has relied on the following judgments:-

The judgments given by the Hon'ble Supreme Court in the cases of :-

(a) Aneeta Hada v. M/s. Godfather Travels and Tours Pvt. Ltd., (2012) 5 SCC 661.

(b) R. Kalyani v. Janak C. Mehta & Ors., (2009) 1 SCC 516.

(c) Pepsico India Holdings Pvt. Ltd. v. Food Inspector & Anr., (2011) 1 SCC 176.

(ii) That in view of the provisions of section 481 of the Municipal Corporations Act, the complaint should have been filed by the Commissioner and as the complaint is not filed by the Commissioner but the Octroi Superintendent, the complaint is liable to be dismissed as untenable.

(iii) That there are no specific allegations against the petitioner attributing any role by him in the commission of the alleged offence.

4. Per contra, the learned Advocate for respondent No.1 has submitted that there is ample material on record which shows the involvement of the petitioner in the affairs and administration of the company, that undisputedly the petitioner had been the Managing Director and Chairman of the company and that there are specific averments in the complaint that the complaint is filed by the Municipal Corporation and therefore the provisions of Section 481 of the Corporations Act will not be attracted. It is submitted that in paragraph No.1 of the complaint, it is stated that the Octroi Superintendent is authorised by the Municipal Corporation to file the complaint and therefore, it cannot be said that the complaint is not maintainable.

5. With the assistance of the learned Advocates for the respective parties, I have examined th