IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 Crl.MC.No. 2185 of 2011(C) --------------------------------- CC. NO.681/2006 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI ........................................................................................................................................... PETITIONER(S): ----------------------- 1. M/S. INDUSIND BANK LTD., SHALLOM TOWERS, 34/138 D, BYEPASS NORTH END, EDAPPALLY, COCHIN-24, NOW FUNCTIONING AT RAMABHAVAN,NO.26,NEAR PARUTHELI PALAM,TOLL JUNCTION, EDAPPALLY, KOCHI-24, NOW REP.BY ONE OF THE AUTHORISED OFFICERS FOR THE PURPOSE OF SECURITISATION PROCEEDINGS, SHRI. PARTHEESH, AGED 36, S/O. SANKARA PILLAI, LEGAL EXECUTIVE. 2. PARTHEESH, AGED 36, S/O. SANKARA PILLAI, LEGAL EXECUTIVE, M/S.INDUSIND BANK LTD., SHALLOM TOWERS, BYEPASS NORTH END, EDAPPALLY, COCHIN-24. 3. JAYASEELAN B., MANAGER, INDUSIND BANK LTD., THIRUVALLA BRANCH, KURISUKAVALA, M.C.ROAD, THIRUVALLA, PATHANAMTHITTA DISTRICT, NOW WORKING AT INDUSIND BANK, TRIVANDRUM BRANCH. BY ADV. SRI. VARGHESE C. KURIAKOSE RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. THOMAS MATHEW, AGED 54, S/O.MATHUKUTT, MUNDAPLACKAL HOUSE, MADAMON THEKKEKKARA MURI PERUNADU VILLAGE, RANNI TALUK, ERNAKULAM DISTRICT, PIN - 681 149. R1 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- Crl.MC.No. 2185 of 2011(C) APPENDIX PETITIONERS' ANNEXURES: ANNEXURE 1: COPY OF THE COMPLAINT IN C.C.NO.681/2006 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, RANNI. ANNEXURE 2: COPY OF THE ENGLISH TRANSLATION. ANNEXURE 3: COPY OF THE PETITION FILED AS CRIMINAL M.P.NO.1310/2010 SEEKING DISCHARGE. ANNEXURE 4: COPY OF THE ORDER IN CRIMINAL M.P.NO.1310/2010 DATED 06.04.2010 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, RANNI. RESPONDENTS' ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE DSV/- N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 2185 OF 2011 (C) ------------------------------------------ Dated this the 10th day of November, 2011 O R D E R The petitioners are accused 1 and 2 in C.C.No:681/06 of Judicial First Class Magistrate Court, Ranni. A complaint was filed by the second respondent against the accused alleging commission of offences under sections 420 and 120(b) r/w section 34 of IPC. It was taken cognizance by the learned Magistrate and process was issued. According to the complainant he was running a metal crushing unit. For the purchase of one tipper lorry for crushing unit he contacted the branch office of the petitioner company. A loan agreement was executed by the complainant for Rs.5,30,000/-. The amount was disbursed. The tipper lorry was purchased by the complainant. As per the agreement, complainant was to remit the amount due to the first petitioner company in 34 monthly installments. Crl. M.C. No: 2185 OF 2011 (C) 2 According to the complainant, he had remitted the installments to a total of Rs.2,51,000/-. Petitioners contended that as the complainant was a defaulter, the vehicle was re-possessed from the custody of the complainant. The complainant contends that as there was default in remittance of the installments, he had received a notice to remit the amount. But on 20.9.2005, at night, the petitioners, through their hired goondas forcibly took away the vehicle. It was contended that the complainant had remitted the amounts due to the first petitioner as per Receipt No:1111/2005 and accordingly the first petitioner agreed to return the vehicle. Though he went to the office of the first petitioner company on 12.11.2005 and requested for return of the vehicle, again a sum of Rs.16,500/- was demanded by the 2nd accused. Reluctantly the said amount was also paid by the complainant. Even thereafter, inspite of the repeated request, the vehicle was not returned to the Crl. M.C. No: 2185 OF 2011 (C) 3 complainant. Thus the complainant contends that the accused cheated the complainant and for that purpose they had entered into a criminal conspiracy also. The second petitioner contends that he was not the officer at the time of commission of the offence. The offence was stated to have been committed in the year 2005. The complaint was filed in the year 2006. The second petitioner was stated to have taken charge in the company only on 3.9.2008. But it is pointed out by the learned counsel for the complainant that when the summons was issued from the Court, summons sent to the company was received by the second petitioner. The second petitioner executed the bond also. It is further pointed out that though the sustainability of the charge, framed by the Court below, is also canvassed before this Court, the petitioners did not challenge the lower Court's order by filing Crl. M.C. No: 2185 OF 2011 (C) 4 a revision against that Order. As such petitioners are not entitled to raise that plea by filing a petition under section 482 of the Code. Annexure 4 is the order passed by the learned Magistrate which shows that the charge against the petitioner is not groundless so as to pass an order of discharge under section 245 (2) Cr.P.C. That was not challenged by filing revision. The case was actually taken on file in 2006. Though summons was issued to the first accused Company, the second accused, who is the petitioner herein, did not appear through the authorized representative for nearly four years. It was only on 27.3.2010 vakalath was filed on behalf of A1. It is not disputed that it was A2 who appeared on behalf of A1. It was also pointed out that A2, the petitioner herein, was the Power of Attorney holder of A1 Crl. M.C. No: 2185 OF 2011 (C) 5 Company. The fact that he was not the Managing Director or the person in charge of or responsible for the conduct of the business of the Company cannot in any way affect the proceedings against the Company. Since the Company is a juristic person it has to be represented by the Managing Director or their representative. The contention that the Company cannot be sentenced to imprisonment, even if it is accepted to be so, is not a reason to say that Company should not be represented in Court. It is pertinent to note that after 27.3.2010, the Company as well as the petitioner herein, who was separately arrayed as the second accused, did not appear in Court at all. Hence, the learned Magistrate had to issue warrant against A1 and A2. Again, the second accused appeared before Court on 6.10.2010 and represented the Company (A1) also. The contention that the petitioner was compelled to appear before the Court and execute the bond is totally untenable. Even on Crl. M.C. No: 2185 OF 2011 (C) 6 27.3.2010 he appeared before the Court as a person representing the Company. After 6.10.2010 also the accused was consecutively absent. Since the Court could not proceed with the trial, to record evidence in the case, again warrant had to be issued against the petitioner. It is important to note that there was no representation at all on earlier dates, i.e., on 5.3.2011 and on subsequent dates. Learned counsel for the respondents would submit that the Court had to lift the veil and look at the conspectus of factors to find whether corporate structure was used as a device or facade to conceal the criminal activities. It is argued that by making use of the corporate veil the persons who are in charge of the affairs of such a Company cannot conceal criminal activities. Crl. M.C. No: 2185 OF 2011 (C) 7 But the learned counsel for the petitioner would submit that the question of lifting corporate veil does not arise in this case, since there is no material to hold that A1 company was indulged in such criminal activities. It is also argued that the bail bond is to be executed by a person and not by a Company. That argument also cannot be accepted. Section 305(3) of Cr.P.C. reads as follows: "Where a representative of a corporation appears, any requirement of this Code that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that, that thing shall be done in the presence of the representative or read or stated or explained to the representative, and any requirement that the accused shall be examined shall be construed as a requirement that the representative shall be examined.” The contention that the representative of a Corporation need only give statements or explanations etc., and need Crl. M.C. No: 2185 OF 2011 (C) 8 not execute a bond, cannot be a reasonable interpretation. Presence of the accused is required for trial unless the personal attendance is totally dispensed with. There is no case for the petitioner that the petitioners were exempted from personal attendance before Court at the time of trial. To secure and ensure the presence of the accused at the time of trial and for the other proceedings to be taken by Court, the Court has to get a bond executed by the accused persons. For all practical purposes, the Company should also be treated as an accused person. Section 2(42) of the General Clauses Act says that: “ 'person' shall include any company or association or body of individuals, whether incorporated or not;” Therefore, inorder to ensure the presence of the accused, the execution of the bond becomes a must. It is rightly pointed out, by the learned counsel for the respondents, that if the Managing Director or a Crl. M.C. No: 2185 OF 2011 (C) 9 representative of the Company is not insisted or required to execute a bond, and if the Company is let free to do what ever they like, to stall the trial, the trial cannot be proceeded at all, since the Company can go on changing the representative on one pretext or other and would try to befool the complainant, if not, to beguile the Court. As such the contention raised by the petitioner cannot be sustained at all. The learned counsel for the petitioner submits that petitioner shall appear before the learned Magistrate within 10 days. Hence, 10 days' time is granted to enable the petitioner to appear before the learned Magistrate to seek bail. This petition is dismissed. N.K. BALAKRISHNAN, JUDGE jjj