IMPORTANT POINT
Clear averments are required to be specifically incorporated in the complaint to fasten liability u/s 33 of the Insecticide Act or section 138 of the N.I. Act.

Headnote:Insecticides Act, 1968 – Section 33 – Complainant is required to state how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of company’s business – In the case of non-Director officers, there is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable – Unless clear averments are specifically incorporated in the complaint, the respondent cannot be compelled to face the rigmarole of a criminal trial. (Paras 18 and 22)
        (2005) 8 SCC 89; (2004) 7 SCC 15; (1983) 1 SCC 1; (1998) 5 SCC 343; (2001) 10 SCC 218; (2002) 7 SCC 655; (2006) 10 SCC 581; (2009) 10 SCC 48 – Relied upon
       Facts of the case:
        This case raises question of vicarious liability in corporate affairs.
       Finding of the Court:
        There is no infirmity in the impugned judgment.
       Result : Appeal dismissed.

JUDGMENT

Dalveer Bhandari, J. —

1. Leave granted.

2. This appeal has been filed by the appellant State of National Capital Territory of Delhi against the judgment of the High Court of Delhi dated 2.1.2008 in Criminal Miscellaneous Case No. 2639 of 2006 whereby the High Court has quashed the summons issued by the trial court.

3. The appellant submitted that the Company had specifically stated in its letter dated 19.1.2000 that respondent Rajiv Khurana was the Regional Technical Director handling the quality control in the company. The relevant portion of the said letter is reproduced as under:

“We shall be happy to cooperate with you in all such quality issues about our Mortem product range. Our quality control is handled by Mr. Rajeev Khurana, Regional Technical Director.”

4. It is submitted that section 33 of the Insecticides Act, 1968 provides that:

“33.Offences by companies.-(1)Whenever an offence under this Act has been committed by a company, every person who at the time of the offence was committed was in charge of, or 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:

Provided that nothing contained in this sub- section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect, on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation - For the purpose of this section:-

(a) “company” means any body corporate and includes a firm or other association of individuals; and

(b)”director”, in relation to a form, means a partner in the firm.”

5. The appellant also submitted that the respondent was the person responsible for the quality of the product which has not been found conformed to the prescribed ISI specification. The appellant further submitted that the company communicated to the appellant that the respondent was responsible for the quality of the product. In this view of the matter, the High Court was not justified in allowing the petition filed by the respondent under section 482 of the Code of Criminal Procedure.

6. According to the respondent, under section 33 of the Insecticides Act, 1968 the liability cannot be fastened on the respondent. According to him, the offence, if any, was committed by the Company M/s. Reckitt & Colman of India Limited. The Company continues to face the prosecution but according to the facts of this case the respondent cannot be summoned by the court because he was not responsible or in charge of the affairs of the company. It was also submitted by the respondent that it was the bounden duty of the Magistrate to ensure that the process was issued only against whom there were specific allegations in the complaint.

7. The respondent placed reliance on the judgment of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Another,1 (2005) 8 SCC 89.

8. The respondent further submitted that the complaint filed by the appellant before the trial court was sought to make the respondent vicariously liable under section 33 of the Insecticides Act, 1968 for the alleged offence under section 29 of the Act, whereas no role has been ascribed to the respondent by the appellant towards the commission of the alleged offence. It was also submitted that the appellant has also failed to establish that the respondent was the Director or the Manag

Click Here to Read the rest of this document

2010 Supreme(SC) 651

IMPORTANT POINT Clear averments are required to be specifically incorporated in the complaint to fasten liability u/s 33 of the Insecticide Act or section 138 of the N.I. Act.

Cases Referred (7)

IMPORTANT POINT
Clear averments are required to be specifically incorporated in the complaint to fasten liability u/s 33 of the Insecticide Act or section 138 of the N.I. Act.