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2017 Supreme(Guj) 101
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.J. Shastri, J.
Hiren D. Padharia – Appellant
Vs.
State of Gujarat and Ors. – Respondents
Criminal Misc. Application (for Quashing & Set Aside FIR/Order) No. 6962 of 2009
Decided On : 20-01-2017
Advocate Appeared:
For the Appellant :Saurin Mehta, S.I. Nanavati, Sr. Adv. and V.D. Nanavati, Advocate
For the Respondents: L.R. Poojari, APP
Headnote:
Companies Act, 1956 – Code of Criminal Procedure, 1973 – Section 482 – Apprentice Act, 1961 – Scheme of Amalgamation – Seeking quashment of Complaint/Criminal Case – Agreement – Alleged offence is stated to have been committed by Global Oil and Fats Limited which has subsequently been amalgamated with Cargill India Private Limited under a Scheme of Amalgamation – Applicant-Manager of Cargill India Private Limited and at relevant time, when the alleged offence is stated to have been committed was not in charge of the affairs of Global Oil and Fats Limited – Global Oil & Fats Ltd. is a company established and incorporated under the provisions of Act, 1956 engaged in business of refining, packaging, manufacturing and trading of branded edible oils. One of its units is situated at Anjar, Kachchh. The said company was amalgamated with three other companies namely (i) Cargill Foods India Limited, (ii) Duckworth Flavours (India) Pvt. Ltd. and (iii) Cargill Matrix Feeds Pvt. Ltd. and thereafter merged with Cargill India Pvt. Ltd. under the scheme of amalgamation – Honble Delhi High Court was pleased to allow merger/amalgamation by order – Held, Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when accused is the Company – Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate – Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities – Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability – Even as regards the availability of the remedy of filing an application for discharge, same would not mean that although the allegations made in [pic] the complaint petition even if given face value and taken to be correct in its entirety, do not disclose an offence or it is found to be otherwise an abuse of the process of the court, still the High Court would refuse to exercise its discretionary jurisdiction under Section 482 of Code – Complaint being Criminal Case pending before Court of learned Judicial Magistrate petitioner is quashed and set aside – Petition allowed.
A.J. Shastri, J.
1. The present petition is filed seeking quashment of Criminal Case No. 904 of 2008 pending before Court of learned Judicial Magistrate (First Class), Anjar, and consequent issuance of process thereupon.
2. The facts of the prosecution in the background are as under:
"2.1 Global Oil & Fats Ltd. is a company established and incorporated under the provisions of Companies Act, 1956 engaged in the business of refining, packaging, manufacturing and trading of branded edible oils. One of its units is situated at Anjar, Kachchh. The said company was amalgamated with three other companies namely (i) Cargill Foods India Limited, (ii) Duckworth Flavours (India) Pvt. Ltd. and (iii) Cargill Matrix Feeds Pvt. Ltd. and thereafter merged with Cargill India Pvt. Ltd. under the scheme of amalgamation. The Hon'ble Delhi High Court was pleased to allow merger/amalgamation by order dated 13.8.2008 by which, accused No. 1 company has attained a "Civil Death" and has lost its legal existence in the eye of law.
2.2 Further facts are that prior to the said merger, there was a job work/toll manufacturing agreement entered into on 1.11.2005 between Cargill India Private Limited and Global Oil and Fats Limited valid till the merger dated 13.8.2008. The said agreement provided that Cargill India Pvt. Ltd. would supply to Kandla Plant of the then GOFL different types of crude oil and then would manufacture refined branded and packed edible oils. For the said purpose, GOFL would raise invoices to Cargill India Pvt. Ltd. for labour and equipment charges for all processing activities for the job work done. It was also provided that Cargill India Pvt. Ltd. shall have a right to depute to GOFL any time during the period of agreement for supervision of job work and for other processes. Under clause 24 of the agreement, the then GOFL was responsible for all statutory permission and would indemnify Cargill for all liabilities including state and local laws. Officer of the complainant when visited the unit of the then GOFL reported that during the months of February to April, 2008, no apprentice was recruited. Hence, a notice was issued by the complainant on 22.1.2008 to the then GOFL to comply with the provisions of Apprentice Act, 1961. As per section 6 of the Apprentice Act, the Central Government shall determine for each designated trade in the ratio of trade apprentices to workers other than unskilled workers in that trade and the Apprenticeship Advisor shall inform the employer to engage such number of trade apprentices within the ratio determined by the Central Government and to undergo apprenticeship training in the trade. For non-compliance of the said provisions, penal provisions as contemplated under section 30 of the Act would be attracted. As the company has failed to comply with aforesaid provisions of the Apprentice Act, a complaint was filed by the Apprentice Advisor on 13.10.2008 before the learned Judicial Magistrate First Class, Anjar, Kachchh, who issued summons on 13.10.2008 which is registered as Criminal Case No. 904 of 2008. It is this complaint and the process issued therein which is made the subject matter of the present petition filed under section 482 of the Cr.P.C.
2.3 In view of the aforesaid situation prevailing on record, this Court while entertaining the petition has passed the following order on 19-6-2009:
"Heard Mr. Devang Nanavati, learned advocate for Mrs. V.D. Nanavati, learned advocate for the applicant.
2. It is submitted that the alleged offence is stated to have been committed by Global Oil and Fats Limited which has subsequently been amalgamated with Cargill India Private Limited under a Scheme of Amalgamation. It is submitted that the applicant herein is the Manager of Cargill India Private Limited and at the relevant time, when the alleged offence is stated to have been committed was not in charge of the affairs of Global Oil and Fats Limited. It is accordingly submitted that the applicant can, in no m
