1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 6 OF 2009 J. Sunderrajan, working at Technopolis Knowledge Park, 2nd Floor, Mahakali Caves Road, Chakala, Andheri-East, Mumbai – 400 093. ... Petitioner versus 1. Dr. S. G. Dalvi, Appropriate Authority of South Goa appointed under Section 17 of the Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse Amendments Act, 2002) having its office at Hospicio Hospital, Margao, Goa. 2. State of Goa Through Public Prosecutor, High Court of Bombay, Panaji Bench, Panaji, Goa. ... Respondents Shri S. M. Singbal, Advocate for the Petitioner. Ms. Winnie Coutinho, Public Prosecutor for the Respondents. CORAM : N. A. BRITTO, J. DATE : 15TH APRIL, 2009. 2 ORAL JUDGMENT Heard. 2. Challenge in this petition, filed under Section 482 of the Code of Criminal Procedure, 1973 is to the Order dated 31-7-2007, issuing process against the accused under Section 3B of the Pre-Conception and Pre-natal Diagnostic Techniques(Prohibition of Sex Selection) Act, 1994(Act, for short). The Petitioner herein, who is accused No.2, in a complaint case filed by Dr. Sanjeev G. Dalvi, is one of the Directors of Philips Medical Systems India Pvt. Ltd. which is accused No.1. The Company and the Petitioner, as one of the Directors, have been prosecuted for violation of Section 3B of the said Act which reads as follows:- “Prohibition on sale of ultrasound machine, etc., to persons, laboratories, clinics, etc., not registered under the Act.- No person shall sell any ultrasound machine or imaging machine or scanner or any other equipment capable of detecting sex of foetus to any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other person not registered under the Act”. 3. There is no dispute that the sale in question took place after Section 3B was introduced in the Act w.e.f. 14-2-2003. There is also no dispute that the sale of (i) Philip HPT 3 probe Ultra Sound Machine, (ii) Philip Doppler 2 probe sonos 4500, and (iii) Portable Ultra Sound Machine sonosite 180 plus philips 3 were sold to Apollo Victor Hospital which at the time of sale was a non registered hospital under the Act. However, the contention raised on behalf of the Petitioner who is accused No.2 in the said complaint case is that no process could have been issued against him for want of any averments in the complaint as well as in the statement on oath recorded by way of an affidavit that he was in charge of, and responsible to the Company for the conduct of the business of the Company, as contemplated by Section 26 of the said Act. 4. Shri S. M. Singbal, learned Counsel appearing on behalf of the Petitioner/Accused has submitted that Section 26 of the Act is in para materia, the same, as Section 141 of the Negotiable Instruments Act, 1881, and therefore the law laid down by the Apex Court with reference to the Section 141 needs to be followed in this case as well. Learned Counsel has placed reliance on the decisions of the Apex Court in a cases of S. M. S. Pharmaceuticals Ltd. v. Neeta Bhalla and another reported in((2005) 8 SCC 89) as well as ((2007) 4 SCC 70). 5. The only averments which can be seen from the complaint are: “the accused No.2 is the Director of accused No.1” and “accused No.1 and accused No.2 have contravened the provisions of Rule 3A of the Pre-natal Diagnostic Techniques(Regulations and Prevention of Misuse) Rules, 2003, and is therefore liable for penalty under Section 25 of the said Act”. 4 6. Admittedly, the Petitioner/Accused No.2 is only one of the Directors of the said Company and it is nobody's case that he is the Managing Director of the said Company. Presumably, it is the Company/Accused No.1 which has sold the said ultra sound machines to the said Apollo Victor Hospital, and thus prima facie, it has committed the offence punishable under Section 3B of the said Act. It is not the case of the Complainant that the Petitioner/Accused No.2 was in charge of, and was responsible to, the said Company for the conduct of the business of the said Company at the time the sale was made and as such was also liable for punishment. 7. The Apex Court in the first case of S. M. S. Pharmaceuticals Ltd. v. Neeta Bhalla and another(supra) has categorically stated that there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act(Negotiable Instruments Act, 1881) is said to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 of the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which 5 bring the case within Section 141, he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial. The Apex Court thereafter proceeded to lay down the law as thus:- “It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied”. 8. The same view has been reiterated in the second case of S. M. S. Pharmaceuticals Ltd. v. Neeta Bhalla and another((2007) 4 SCC 70) which reads thus:- “The learned counsel brought to our notice the well-settled principle of law that for the purpose of attracting the provisions of Section 141 of the Act, it is not necessary to reproduce the exact wordings of the statute and submitted that the involvement of an accused as a Director of a company being in charge 6 of or responsible for the conduct of the Company must be gathered from the other averments made in the complaint petition as also the documents appended thereto”. 9. In the absence of necessary averments being made against the Petitioner/Accused No.2 that he was a person who was in charge of for the conduct of the business of the Company, no process could have been issued as against him. 10. Consequently, the petition, which has already been admitted, deserves to succeed. The impugned Order to the extent the Petitioner/Accused No.2 has been summoned to answer the charge under Section 3B of the said Act is hereby quashed and set aside. N. A. BRITTO, J. RD