Allowed

M.Venkata Krishna Rao v. State of Ap.

Andhra Pradesh HC14 Dec 2022CRLP/1597/2018

Case brief

AI extract

What is this about?

This common order quashed the requirement for the petitioner to represent the accused company in criminal proceedings. Relying on Sections 305 and 63 of the Cr.P.C. and a Bombay High Court precedent, the court held that a corporate accused has the discretion to appoint or remove representatives, and the petitioner could not be forced to appear.

What did the court decide?

Directed the Judicial Magistrate to remove the petitioner from representing the accused company in C.C.Nos.679 & 759 of 2016.

M.Venkata Krishna Rao Vs State of Ap. — Civil Procedure and Limitation | Andhra Pradesh HC (2022)

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IN THE HIGH COURT OF ANDHRA PRADESH

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*******

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Crl.P.Nos.1596 & 1597 of 2018

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BETWEEN:

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Sri Mannam Venkata Krishna Rao, S/o. Late Sri Mannam Venkateswararao, R/o. Plot No.20, Yashoda Nagar,

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Sagar X Roads, L.B. Nagar, Hyderabad.

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… Petitioner

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(in both the petitions)

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AND

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$ 1. The State of A.P. rep. by Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh.

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Sri E. Srinivasa Rao, S/o. Sri Raghavendra Rao, R/o. H.No.26-1-20/b, Ameenapeth, Near Kondanda Ramalayam, Eluru, West Godavari District, Andhra Pradesh.

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M/s. Manisha Agri Biotech P. Ltd., registered office at Sy.No.47, 48 & 49, Gandi Mysamma Road, Kandlakoya Village, Medchal Mandal, Ranga Reddy District rep. by its Director.

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... Respondents

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(in both the petitions)

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Date of Judgment pronounced on : 12.12.2022

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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

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Whether Reporters of Local newspapers : Yes/No May be allowed to see the judgments?

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Whether the copies of judgment may be marked to Law Reporters/Journals:

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Whether The Lordship wishes to see the fair copy Of the Judgment?

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: Yes/No

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: Yes/No

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RRR,J 2 Crl.P.Nos.1596 & 1597 of 2018

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*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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*HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

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+ Crl.P.Nos.1596 & 1597 of 2018

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% Dated:02.12.2022

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BETWEEN:

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Sri Mannam Venkata Krishna Rao, S/o. Late Sri Mannam Venkateswararao, R/o. Plot No.20, Yashoda Nagar, Sagar X Roads, L.B. Nagar, Hyderabad.

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… Petitioner

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(in both the petitions)

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AND

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$ 1. The State of A.P. rep. by Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh.

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Sri E. Srinivasa Rao, S/o. Sri Raghavendra Rao, R/o. H.No.26-1-20/b, Ameenapeth, Near Kondanda Ramalayam, Eluru, West Godavari District, Andhra Pradesh.

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M/s. Manisha Agri Biotech P. Ltd., registered office at Sy.No.47, 48 & 49, Gandi Mysamma Road, Kandlakoya Village, Medchal Mandal, Ranga Reddy District rep. by its Director.

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... Respondents

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(in both the petitions)

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! Counsel for Petitioner

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: Sri B. Nalin Kumar representing T.S. Praveen Kumar

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^Counsel for Respondents No.2

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: Sri Madhava Rao Nalluri

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<GIST :

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HEAD NOTE:

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? Cases referred:

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RRR,J 3 Crl.P.Nos.1596 & 1597 of 2018

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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

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Crl.P.Nos.1596 & 1597 of 2018

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COMMON ORDER:

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The petitioner herein is said to have been the Managing Director of a company, which is sole accused in C.C.Nos.679 & 759 of 2016 on the file of the Judicial Magistrate of I Class, Special Mobile Court, Eluru, West Godavari District, for the offences punishable under Section 138 of the Negotiable Instruments Act.

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The complaint of the petitioner is that the complainant in the said cases had named him as the representative of the accused-company and is insisting on his appearance on behalf of the accused-company.

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It is the case of the petitioner that he had resigned as the Managing Director of the company even prior to filing of the complaint and cannot be forced to appear on behalf of the company on that count also.

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Sri B. Nalin Kumar, learned counsel appearing for the petitioner submits that Section 305 Cr.P.C., sets out the manner in which the company, which is arrayed as an accused in a criminal case is to be represented. He submits that the provisions of Section 305 Cr.P.C., would not give discretion to the complainant to name the person who should represent the company. He further submits that Section 305 Cr.P.C., in fact provides discretion to the company to decide whether any person should represent it or whether a particular person should represent it

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RRR,J 4 Crl.P.Nos.1596 & 1597 of 2018

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before the Court. In the circumstances, the insistence that the petitioner should represent the accused company before the trial Court is not in accordance with Section 305 Cr.P.C.

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Sri Madhava Rao Nalluri, learned counsel appearing for the respondent/complainant, contends that the petitioner is very much the Managing Director of the company and had only set up documentation to claim that he had ceased to be the Managing Director of the company even before the filing of the criminal complaint. This issue is a question of fact, which is not being considered by this court and this judgment is proceeding on the basis of the petitioner continuing to be the managing director of the company.

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Consideration of the Court :

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The method and procedure of service of summons on a company is contained in section 63 of Criminal Procedure Code, which reads as follows:

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Section 63: Service of summons on corporate bodies and societies :

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Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed, to have been effected when the letter would arrive in ordinary course of post.

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The above provision permits service of summons on a

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company by serving the said summons on any of the principal officers of

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RRR,J 5 Crl.P.Nos.1596 & 1597 of 2018

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the company mentioned in the Section 63. However, the manner in which the company is to be represented before a court, after service of summons, is contained in section 305 of the criminal procedure code which reads as follows:

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Procedure when corporation or registered society is an accused.

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(1) In this section," corporation" means an incorporated company or other body corporate, and includes a society registered under the Societies Registration Act, 1860 (21 of 1860 ).

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(2) Where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the corporation.

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(3) 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.

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(4) Where a representative of a corporation does not appear, any such requirement as is referred to in subsection (3) shall not apply.

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(5) Where a statement in writing purporting to be signed by the managing director of the corporation or by any person (by whatever name called) having, or being one of the persons having the management of the affairs of the corporation to the effect that the person named in the

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RRR,J 6 Crl.P.Nos.1596 & 1597 of 2018

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statement has been appointed as the representative of the corporation for the purposes of this section, is filed, the Court shall, unless the contrary is proved, presume that such person has been so appointed.

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(6) If a question arises as to whether any person, appearing as the representative of a corporation in an inquiry or trial before a Court is or is not such representative, the question shall be determined by the Court.

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A reading of the above provision would make it clear that,

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after receipt of the notice, it would be open to the company to decide whether the person named in the notice would continue to represent the company or not. It would also be open to the person named as the representative of the company to decline to represent the company. In both the situations, applications may be made before the trial Court under Section 305 Cr.P.C., to remove the name of the person who is arrayed as

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the representative of the said accused-company. This view is fortified by the judgement of the Hon’ble High Court at Bombay, dated 14.01.2020, in criminal Writ Petition No.4942 of 2019, in the case of Sanjeev S. Malhotra vs. the State of Maharashtra.

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In such circumstances, the contention of the petitioner herein that he cannot be forced to represent the company irrespective of whether he continues to be a Director or not of the company, has to be accepted.

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It is also necessary to mention that the provisions of Section 305 Cr.P.C., also provide for a situation where the company may refuse to

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RRR,J Crl.P.Nos.1596 & 1597 of 2018

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name any person as its representative. In such circumstances, Section 305 (4) Cr.P.C., provides that the trial Court may take up trial of the matter without having to insist upon any person representing the company and all the requirements that are set out in the Code of Criminal Procedure for doing certain acts in the presence of the accused will stand waived.

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Consequently, these criminal petitions are allowed directing the Judicial Magistrate of I Class, Special Mobile Court, Eluru, West Godavari District, to remove the name of the petitioner as the person representing the company, in C.C.Nos.679 & 759 of 2016.

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As a sequel, pending miscellaneous petitions, if any, shall stand closed.

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_________________________ R. RAGHUNANDAN RAO, J.

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14^th December, 2022 Js.

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RRR,J 8 Crl.P.Nos.1596 & 1597 of 2018

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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO

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Crl.P.Nos.1596 & 1597 of 2018

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14^th December, 2022

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Js.

M.Venkata Krishna Rao v. State of Ap.

Case brief

What is this about?

What did the court decide?

M.Venkata Krishna Rao v. State of Ap.

Case brief

What is this about?

What did the court decide?

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