Case: R. Kalyani Vs. Janak C. Mehta

to follow the statutory provisions and once there is a breach or contravention, such persons become liable to be punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed." In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257] , it has been held : "32. Likewise the ingredients of Section 420 of the Indian Penal Code are also not made out. There is no reason as to why the appellants must be made to undergo the agony of a criminal trial as has been held by this Court in the case of G. Sagar Suri and Anr. v. State of U.P. and Ors. [(2000) 2 SCC 636] . In this, this Court held that. "Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused, it is a serious matter." 39. It is settled law, by catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise of representation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed." {[See also Vir Prakash Sharma v. Anil Kumar Agarwal & Anr. [(2007) 7 SCC 373] . 26. Although the legal principle that a penal statute must receive strict construction, it is not in doubt or dispute, we may notice some authorities in this behalf. In Section 263 of the Francis Bennions Statutory Interpretation it is stated : "A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The Court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can therefore be described as a principle of legal policy formulated as a guide to legislative intention." Maxwell in The Interpretation of Statutes (12th Edn) says: "The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfillment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction." In Craies and Statute Law (7th Edn. At p. 529) it is said that penal statutes must be construed strictly. At page 530 of the said treatise, referring to U.S. v. Wiltberger, [(1820) 2 Wheat (US) 76], it is observed, thus : "The distinction between a strict construction and a more free one has, no doubt, in modern times almost disappeared, and the question now is, what is the true construction of the statute? I should say that in a criminal statute you must be quite sure that the offence charged is within the letter of the law. This rule is said to be founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the Legislature, and not in the judicial department, for it is the Legislature, not the Court, which is to define a crime and ordain its punishment." In Tuck v. Priester, [(1887)] 19 QBD 629] which is followed in London and County Commercial Properties Investments v. Attn Gen., [(1953) 1 WLR 312], it is stated: "We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms they are not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive." Blackburn, J. in Wills v. Thorp said [(1875) LR 10 QB 383]: "When the Legislature imposes a penalty, the words imposing it must be clear and distinct." 27. If a person, thus, has to be proceeded with as being variously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company.28. For the reasons aforementioned, we do not find any legal infirmity in the impugned judgment. Before parting with this case, however, we must clarify one aspect of the matter. Respondent No.3, arrayed as accused No.3 in the First Information Report, did not file any application under Section 482 of the Code of Criminal Procedure. We do not know under what circumstances, the High Court directed service of the notice on him. Nowhere in the impugned judgment, High Court found that the allegations contained in the First Information Report against the respondent No.3 also do not disclose commission of any cognizable offence. It is one thing to say that he has not committed the same but it is another thing that the High Courts jurisdiction under Section 482 of the Code of Criminal Procedure could have been invoked at this stage.29. In view of our findings aforementioned, we have no other option but to hold that the High Court in its judgment cannot be said to have covered the case of the respondent No.3.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]27. If a person, thus, has to be proceeded with as being variously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company.28. For the reasons aforementioned, we do not find any legal infirmity in the impugned judgment. Before parting with this case, however, we must clarify one aspect of the matter. Respondent No.3, arrayed as accused No.3 in the First Information Report, did not file any application under Section 482 of the Code of Criminal Procedure. We do not know under what circumstances, the High Court directed service of the notice on him. Nowhere in the impugned judgment, High Court found that the allegations contained in the First Information Report against the respondent No.3 also do not disclose commission of any cognizable offence. It is one thing to say that he has not committed the same but it is another thing that the High Courts jurisdiction under Section 482 of the Code of Criminal Procedure could have been invoked at this stage.29. In view of our findings aforementioned, we have no other option but to hold that the High Court in its judgment cannot be said to have covered the case of the respondent No.3.