IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2605 OF 2013 C/W CRIMINAL PETITION NO.2606 OF 2013 CRIMINAL PETITION NO.2607 OF 2013 CRIMINAL PETITION NO.2608 OF 2013 BETWEEN:
1. KISHORE BIYANI S/O LAXMINARAYAN BIYANI, AGED 53 YEARS, R/AT NO.46, JEEVAN VIHAR, MANAV MANDIR ROAD, MUMBAI-400 006.
2. GOPIKISHAN BIYANI S/O LATE BANSILAL BIYANI, AGED 68 YEARS, R/AT NO.304, JEEVAN VIHAR, MANAV MANDIR ROAD, MUMBAI-400 006.
3. RAKESH BIYANI S/O GOPIKISHAN BIYANI, AGED 41 YEARS, R/AT NO.304, JEEVAN VIHAR, MANAV MANDIR ROAD, MUMBAI-400 006.
4. SHAILESH HARIBHAKTI S/O VISHNUBHAI HARIBHAKTHI, AGED 57 YEARS, R/AT FLAT NO.228M, B WING, KALPATARU HABITAT, DR.S.S. RAO ROAD, PAREL EAST, MUMBAI-400 012.
5. S.DORESWAMY S/O DR.D.V. S RAO, AGED 76 YEARS, R/AT NO.D-1, 503, WHITE HOUSE APARTMENTS, 5TH FLOOR, 6TH MAIN, R.T.NAGAR, BANGALORE-32.
6. DARLIE KOSHY S/O D.M.HARISH, AGED ABOUT 58 YEARS, NO.1407, TOWER NO.2, ARCHID PETALS, SOHNA ROAD, SECTOR-49, GURGOAU, NCR-122 002.
7. ANIL HARISH S/O D.M.HARISH, AGED 59 YEARS, R/AT NO.13, CCI CHAMBERS, 1ST FLOOR, DINSHAM WACHA MARG, CHURCHGATE, MUMBAI-400 020.
8. BALA DESHPANDE W/O CHAITANYA DESHPANDE, AGED 47 YEARS, R/AT NO.FLAT NO.501, 5TH FLOOR, KUKERJA HEIGHTS, NEAR RISHI KAPOORS BUNGLOW, PALI HILL, BHANDRA WEST, MUMBAI-400 050.
9. VIJAY KUMAR CHOPRA S/O KRISHNAN KUMAR, AGED 67 YEARS, R/AT NO.A-4, HARMONY TOWER, DR.E.MASES ROAD, WARLI, MUMBAI-400 018.
10. VIJAY BIYANI S/O LAXMINARAYANA BIYANI, AGED 54 YEARS, R/AT NO.305, JEEVAN VIHAR, MANAV MANDIR ROAD, MUMBAI-400 006.
11. KAILASH BHATIA S/O MAHESHANAD BHATRA, AGED 57 YEARS, RESIDING AT NO.2603, ODYSES II, HIRANANDANI GARDEN, PAWANI, MUMBAI-400 006.
12. PREETH S/O NARAYAN, AGED 35 YEARS, OCC:MANAGER, M/S. FUTURE VALUE RETAIL LTD., R/O SHELTER JUDIKKAL, MANGALORE-578247.
13. M/S. FUTURE VALUE RETAIL LTD., BHARATH MALL, BEJAI, MANGALORE-578247. REPRESENTED BY ITS SECRETARY KULDEEP R SHARMA.
(BY SRI: P PRASANNA KUMAR, ADVOCATE) AND STATE OF KARNATAKA BY INSPECTOR OF LEGAL METROLOGY, SUB DIVISION, MANGALORE REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001.
(BY SRI: NASRULLA KHAN, HCGP) IN CRIMINAL PETITION NO.2605 OF 2013 ... PETITIONERS (COMMON) ... RESPONDENT (COMMON) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 16.02.2012 PASSED BY THE J.M.F.C.(II COURT), MANGALORE IN C.C.NO.527/2012 THEREBY TAKING COGNIZANCE OF OFFENCES PUNISHABLE UNDER SECTIONS 36(1) AND 31 OF LEGAL METROLOGY ACT, 2009 AGAINST THE PETITIONERS AND THE ORDER DATED 04.03.2013 PASSED BY II ADDL. DIST. & S.J., DAKSHINA KANNADA., MANGALORE IN CRL.R.P.NO.75/2012.
IN CRIMINAL PETITION NO.2606 OF 2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 16.02.2012 PASSED BY THE J.M.F.C.(II COURT), MANGALORE IN C.C.NO.525/2012 THEREBY TAKNG COGNIZANCE OF OFFENCES PUNISHABLE UNDER SECTIONS 36(1) AND 31 OF LEGAL METROLOGY ACT, 2009 AGAINST THE PETITIONERS AND THE ORDER DATED 04.03.2013 PASSED BY II ADDL. DIST. & S.J., DAKSHINA KANNADA, MANGALORE IN CRL.R.P.NO.73/2012.
IN CRIMINAL PETITION NO.2607 OF 2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 16.02.2012 PASSED BY THE J.M.F.C.(II COURT), MANGALORE IN C.C.NO.529/2012 THEREBY TAKNG COGNIZANCE OF OFFENCES PUNISHABLE UNDER SECTIONS 36(1) AND 31 OF LEGAL METROLOGY ACT, 2009 AGAINST THE PETITIONERS AND THE ORDER DATED 04.03.2013 PASSED BY II ADDL. DIST. & S.J., DAKSHINA KANNADA., MANGALORE IN CRL.R.P.NO.76/2012.
IN CRIMINAL PETITION NO.2608 OF 2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ORDER DATED 16.02.2012 PASSED BY THE J.M.F.C.(II COURT), MANGALORE IN C.C.NO.526/2012 THEREBY TAKNG COGNIZANCE OF OFFENCES PUNISHABLE UNDER SECTIONS 36(1) AND 31 OF LEGAL METROLOGY ACT, 2009 AGAINST THE PETITIONERS AND THE ORDER DATED 04.03.2013 PASSED BY II ADDL. DIST. & S.J., DAKSHINA KANNADA., MANGALORE IN CRL.R.P.NO.74/2012.
THESE CRIMINAL PETITIONS ARE COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R As common questions of law and fact are involved in these petitions, these petitions are heard and disposed of by this common order.
2. The Inspector of Legal Metrology Sub Division, Mangaluru Division, Mangaluru inspected the trading premises of M/s. Future Value Retail Limited, Bharath Mall, Bejai, Mangaluru on 09.09.2011 at about 12.30 a.m. and found pre-packed packages containing additional stickers wherein the MRP of the respective items were printed. In respect of these violations, prosecution was instituted against the petitioners seeking action under Section 18(1) and 31 of The Legal Metrology Act, 2009 and Rules 4 and 6(3) of The Legal Metrology (Packaged Commodities) Rules, 2011. The learned Magistrate took cognizance of the alleged offences and issued summons to the petitioners. The petitioners herein challenged the said order by preferring four separate revision petitions viz., Crl.R.P.Nos.75/2012, 73/2012, 74/2012 and 76/2012 before the II Addl. District & Sessions Judge, Dakshina Kannada, Mangalore, respectively. The petitioners took up a plea before the Sessions Court that none of the petitioners were directors of the aforesaid concern at the relevant time and produced proof thereof by way of Annual report of M/s. Future Value Retail Limited for the year 2010-2011. Further they swore to separate affidavits to the effect that they were never the Directors or part of the Board of Directors of M/s. Future Ventures Pvt. Ltd., at any point of time. However, the learned Sessions Judge by observing that at the stage of considering the revision petitions, the Revisional Court cannot hold a mini trial to decide the contentions raised by the petitioners, dismissed the revision petitions and therefore, the petitioners are before this Court.
3. Learned counsel for the petitioners has referred to the above documents and urged that except accused No.4, none of the petitioners were the Directors of M/s. Future Ventures Pvt. Ltd., at the relevant time, and therefore, prosecution of the petitioners for the alleged offences is patently illegal and amounts to abuse of process of Court.
4. In view of the above contention, by order dated 02.04.2019, learned Addl. SPP was directed to produce relevant proof to show that the petitioners herein were the directors of M/s. Future Ventures Pvt. Ltd., as on 09.09.2011.
5. Learned HCGP has not produced any such material, instead during the course of hearing, submitted that several representations were made by respondent to Registrar of Companies to furnish necessary details, but could not elicit any response and hence, respondent is unable to produce the documents called for by this Court. Respondent-State has not filed any statement of objections denying the assertions made in the petitions either.
6. Since the alleged offences are stated to have been committed by M/s. Future Ventures Pvt. Ltd., Mangaluru, a company registered under the companies Act and the petitioners herein are sought to be prosecuted in their capacity as Directors of the said company, in the absence of any material to show that the petitioners herein except accused No.4 were the directors of the said company at the relevant time, it has to be held that the prosecution of the petitioners (except accused No.4) for the alleged offences is illegal and an abuse of process of Court. In that view of the matter, petitions filed by petitioner Nos.1 to 3 and 5 to 13 deserve to be allowed.
Hence, the following order:-
Petitions are allowed-in-part. Proceedings pending on the file of JMFC-II, Mangaluru in C.C.Nos.527/2012, 525/2012, 526/2012 and 529/2012 are quashed only insofar as petitioner Nos.1 to 3 and 5-13 viz., accused Nos.1 to 3 and accused Nos.5 to 13 are concerned. Proceedings shall continue against petitioner No.4-accused No.4 in accordance with law.
Sd/- JUDGE *mn/-