Case: Pranav Kumar Sharma and Another Vs. The State of Maharashtra and Others

3. In the light of the limited nature of controversy, which the petition presents, it would be superfuous to note the factual backdrop which led to lodging of the said prosecution except to record that the accused No. 10 company and the co-accused allegedly caused wrongful loss of Rs. 73 Crores to Andhra Bank and corresponding wrongful gain to themselves and in the process allegedly committed the offences of criminal conspiracy, cheating, forgery, forgery for the purpose of cheating, using false documents as genuine and criminal misconduct punishable under section 120B read with 420, 467, 468 and 471 of the Indian Penal Code, 1860 (the Penal Code) and section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.4. In the chargesheet, accused No. 10 has been arrayed as under:						(i)			Name						Update Marketings Private Ltd. (A-10) Represented by            			Shri Pranav Kumar Sharma, Director, Shri Siddhesh Kumar Sharma, Director.            						5. The petitioners take exception to their impleadment as the representative of accused No. 10 Update Marketings Private Ltd.Shri Pranav Kumar Sharma, Director, Shri Siddhesh Kumar Sharma, Director.

Reasoning:
10. We have perused the order passed by the learned Special Judge on the application (Exhibit 20) whereby the application of accused No. 10 to appear through its above named representative came to be allowed. We have also perused the order dated 15th February, 2021 whereby and whereunder the petitioners were directed to be released on bail on executing bail bonds and furnishing sureties. The said situation, from the perusal of the report under 173 of the Code, appears to have been driven by the fact that while impleading accused No. 10, it was shown to have been represented by the petitioners-Directors thereof.11. We fnd considerable substance in the submission of Mr. Ponda that such per force impleadment of the representative, which, for all intent and purpose, partakes the character of arraigning such representative as an accused in individual capacity, is not legally sustainable.13. On a plain reading of section 305(2) of the Code, it becomes evident that it empowers a corporate entity, which is arraigned as an accused, to appoint a representative for the purpose of inquiry or trial. Indisputably, where a corporate entity is impleaded as an accused, of necessity, it is required to be represented through a human agency. Section 305(2) thus authorizes the corporation to appoint a representative for the purpose of inquiry or trial. Sub section (3) further provides that the requirement of presence, explanation to and examination of the corporation shall be deemed to have been complied with the presence of, explanation to and examination of such representative.15. We do not fnd that the apprehension is well founded. At this juncture, neither there is any occasion nor this Court professes to delve into the aspect of complicity of the petitioners in their individual capacity for the alleged offences. The controversy revolves around the legality and correctness of the process of their impleadment per force, as representative of accused No. 10 company. Nonetheless to allay the apprehension, we deem it appropriate to clarify the position by recording that there are adequate provisions in the Code which take care of a contingency where the persons who are not sent up for trial initially, can be impleaded as an accused, provided a case is made out for the same. We observe no more.