Raymond Menezes v. Sengunthar Kaikolar Mahajana Sangamby

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 19.6.2009.CoramTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.No.179 of 2008Raymond MenezesPetitioner/Complaintvs.Sengunthar Kaikolar Mahajana Sangamby its President Mr.M.Mannickam,169 and 170, Kumaran Colony Main Road,Vadapalani, Chennai 600 026. Respondent/AccusedFor petitioner: Mr.N.D.BahetyFor respondent: Mr.V.Parthiban for Mr.N.SrinivasanCriminal Revision case filed under sections 397 and 401 of theCode of Criminal Procedure to set aside the order dated 26.12.2007passed in M.P.No.4122 of 2007 in C.C.No.4616 of 2005 by the learnedXVII Metropolitan Magistrate, Saidapet, Chennai discharging therespondent/accused and to take the same on file. ORDERThe revision is directed against the order passed by thelearned XVII Metropolitan Magistrate, Saidapet, Chennai dischargingthe accused from the criminal proceedings invoking the provisionunder section 245(2) of the Code of Criminal Procedure. 2. The petitioner/complainant has alleged in the complaint asfollows:-The father of the complainant Mr.Nazario Menezes purchased thesubject property from K.M.Lakshmanan under a deed of sale dated11.4.1961. The said Nazario Menezes died on 11.3.1968 leavingbehind nine legal representatives including the complainant and hismother, but, his mother died on 31.1.1995. A partition suit wasfiled in O.S.No.1786 of 2003 on the file of the VI AdditionalJudge, City Civil Court, Chennai. The complainant's undivided 1/8share in the said property was decreed in the judgment and decreedated 30.7.2003 passed in the aforesaid case. Therespondent/accused is a Society formed only in the year 2000. Itis contended by the accused that the said property was purchased bythe Society from the complainant's father who died long long ago. https://hcservices.ecourts.gov.in/hcservices/ The encumbrance certificate for the period from 1.6.1998 to17.4.2003 would disclose that there was nil encumbrance. Theaccused have forged and fabricated the documents. Therefore, thecomplainant prays for prosecution of the accused under sections464, 467, 471 and 474 of the Indian Penal Code. 3. The complainant was examined on his side and Exs.P1 to P22were marked. The respondent/accused, thereafter, filed a petitionunder section 245(2) of the Code of Criminal Procedure praying todischarge. 4. In the discharge petition, the accused has contended thatno proof was produced to substantiate the allegation found in thecomplaint. Only after obtaining legal opinion, the Societypurchased the property and put up marriage hall for the benefit ofthe public. Contending that the present complaint has been givenonly to cause hardship to the Society, the accused prayed fordischarge from the criminal prosecution. 5. The Trial Court has observed that the complaint lodged asagainst the Society, the purchaser of the property withoutimpleading the power of attorney holder, who sold the property tothe Society, is not maintainable. No prima facie case was made outto substantiate the allegations found in the complaint. Observingthus, the Trial Court chose to discharge the accused from thecriminal prosecution. 6. Learned counsel appearing for the petitioner/complainantwould submit that the prosecution initiated against the Societyalone is maintainable inasmuch as the complainant was not aware atthe time of lodging the complaint the exact role of the power ofattorney agent. As per the decision of the Supreme Court, though aSociety cannot be imprisoned, it can be imposed with a fine. Thenon-arraignment of the power of attorney holder, at any rate, isnot fatal to the case of the prosecution inasmuch as the court hasgot power under section 319 of the Code of Criminal Procedure toarray an accused during the course of trial of the case. The TrialCourt has not seriously adverted to the voluminous material onrecord in the background of the specific allegation found in thecomplaint lodged by the complainant, it is submitted.7. Learned counsel appearing for the respondent would contendthat mens rea is required for commission of an offence under theIndian Penal Code. Therefore, the Society, which is not a naturalperson and is only a juridical person cannot have any mens rea tocommit an offence. The power agent was not unfortunately arraignedas one of the accused. The compulsory punishment contemplatedunder the Indian Penal Code cannot be awarded to the Society whichis not a natural person, it is further contended. 8. The averment found in the complaint would disclose primafacie that the subject property was purchased by the accused https://hcservices.ecourts.gov.in/hcservices/ Society only after the demise of the father of the complainant.The complainant, having adverted to the encumbrance certificatecovering the period from 1.6.1998 to 17.4.2003, has alleged in thecomplaint that there was no encumbrance from the date of thepurchase made by his father till 17.4.2003. It is not the case ofthe accused that the accused Society purchased the propertydirectly from the father of the complainant even when he was alive.Therefore, the complainant has come out with serious allegation offorgery and fabrication of documents and using the said documentsas genuine for claiming title to the subject property.9. Coming to the documents marked on the side of thecomplainant, the complainant's father had purchased the propertyfrom K.M.Lakshmanan under the sale deed, Ex.P1 dated 11.4.1961.The complainant's father had passed away on 11.3.1968 as foundfrom Ex.P23. Unfortunately, Ex.P14 Deed of power of attorney hascome into existence on 5.6.2000 as though the father of thecomplainant, who passed away as early as 11.3.1968, executed theDeed of power of attorney. Ex.P15 was marked to show that anagreement of sale was entered into between the power of attorneyand the accused. Ex.P19 is the sale deed executed by the power ofattorney in favour of the Accused Society on 13.11.2000 even whenthe legal heirs of the complainant's father were working out theirshare in the partition suit laid by them. The aforesaid documentsin the background of the specific allegations found in thecomplaint and the statement of PW1 would show prima facie that theoffences of forgery and fabrication of documents and usage of thosedocuments as genuine to claim title have been made out. If such amaterial available on record remains unrebutted, the case would endin conviction . In such circumstances, the Trial Judge is calledupon to dismiss the discharge petition filed by the accused. 10. The Trial Judge has made a comment that the complainanthad not chosen to implicate the power of attorney holder. Firstly,it is found that the role of the power of attorney holder was notat all referred to in the complaint. In fact, the complainant hascategorically stated in the complaint that there was no encumbrancein the suit property till the year 2003. The power of attorneyalleged to have been executed by the father of the complainant wasnot reflected in the encumbrance certificate. Therefore, thequestion of arraigning the power of attorney holder in thecomplaint itself as one of the accused does not arise forconsideration. If the Judicial Magistrate, during the course oftaking cognizance of the offence under section 190 of the Code ofCriminal Procedure, comes to the decision that a third party alsois involved , he can very well take cognizance of the offence asagainst such persons also. In fact, a duty is cast upon theJudicial Magistrate under Section 190 of the Code of CriminalProcedure to take cognizance of an offence as against all thepersons involved in the case. If such a course was not adopted bythe Judicial Magistrate, he could very well wait till the evidenceis let in by the parties. If he is convinced that sufficient https://hcservices.ecourts.gov.in/hcservices/ materials are available to arraign any person as an accusedalongwith the accused who is facing trial, he can invoke section319 of the Code of Criminal Procedure and arraign such a personconcerned also as an accused. In the considered opinion of thiscourt, the Trial Court has wrongly exercised the power undersection 245(2) of the Code of Criminal Procedure to discharge anaccused on the ground that the power of attorney holder was notincluded as one of the accused by the complainant. 11. Section 2 of the Indian Penal Code would read that everyperson shall be liable to punishment under the Penal Code and nototherwise for every act or omission contrary to the provisionthereof. Section 11 of the Indian Penal Code defines the word'person' so as to include any Company or Association or Body ofPersons whether incorporated or not. Though the definition is notexhaustive, it includes artificial and juridical person as a whole.The definition of the expression "person" is in pari materia withthe definition of the same expression in General Clauses Act also. 12. The cumulative reading of sections 2 and 11 of the IndianPenal Code would indicate that a person, whether natural orjuridical, is liable to be punished if he or it is found guilty.The Supreme Court has held in STANDARD CHARTERED BANK v.DIRECTORATE OF ENFORCEMENT (2005 AIR SCW 2829) as follows:-"36. Therefore, as regards corporate criminalliability, there is no doubt that a corporation orcompany could be prosecuted for any offencepunishable under law, whether it is coming underthe strict liability or under absoluteliability... 55. .... All penal provisions like all otherstatutes are to be fairly construed according tothe legislative intent as expressed in theenactment. Here, the legislative intent toprosecute corporate bodies for the offencecommitted by them is clear and explicit and thestatute never intended to exonerate them frombeing prosecuted. It is sheer violence tocommonsense that the legislature intended topunish the corporate bodies for minor and sillyoffences and extended immunity of prosecution tomajor and grave economic crimes."As regards awarding custodial sentence to the Company or Society,the Supreme Court, in the aforesaid decision, observes as follows:-"61. ... If the custodial sentence is the onlypunishment prescribed for the offence, this pleais acceptable, but when the custodial sentence andfine are the prescribed mode of punishment, the https://hcservices.ecourts.gov.in/hcservices/ court can impose the sentence of fine on a companywhich is found guilty as the sentence ofimprisonment is impossible to be carried out. Itis an acceptable legal maxim that law does notcompel a man to do that which cannot possibly beperformed (impotentia excusat legem). .... 63. ... As the company cannot be sentenced toimprisonment, the court cannot impose thatpunishment, but when imprisonment and fine is theprescribed punishment the court can impose thepunishment of fine which could be enforced againstthe company. Such a discretion is to be read intothe Section so far as the juristic person isconcerned."13. The Supreme Court has held in the above ratio that aCompany or a Society or an Association can be prosecuted for theoffences, either minor or major, contemplated under the IndianPenal Code and can also be punished with fine and not withcustodial sentence. 14. As regards the question whether a Corporation or a Societyor an Association could be attributed with requisite mens rea toprove the guilt, no opinion was expressed by the Supreme Court inthe aforesaid judgment. Coming to the case on hand, the TrialJudge will have to decide after the trial was over whether anoffence requires the establishment of mens rea and whether suchmens rea was established to prove the offence concerned.Therefore, in the discharge application, the question as to whetherthe Society can have a mens rea to prove the guilt as against itdoes not arise, as the scheme of the Indian Penal Codecontemplates punishing the Society also considering it as a personwho would be lawfully prosecuted.15. In view of the above facts and circumstances, the courtfinds that the Trial Court has misdirected itself and has come to awrong decision that the non-arraignment of the power of attorneyholder is fatal to the prosecution launched by the complainant.The submission made at this stage of revision before this court bythe learned counsel appearing for the respondent/accused that theSangam cannot be prosecuted as it cannot have mens rea and it alsocannot be convicted to undergo imprisonment do not have any leg tostand upon in the light of the aforesaid decision of the SupremeCourt. 16. Therefore, finding that a patent illegality has beencommitted by the Trial Judge, the order passed by the Trial Judgein M.P.No.4122 of 2007 discharging the accused is set aside and theTrial Judge is directed to take up the case in C.C.No.4616 of 2005on file and proceed with the case in accordance with law. Bothparties shall appear on 30.6.2009. As the case in C.C.No.4616 of https://hcservices.ecourts.gov.in/hcservices/ 2005 is pending for the past about 3-1/2 years, the Trial Judge isdirected to dispose of the matter as expeditiously as possible.The revision stands allowed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.Ssk.To1. The XVII Metropolitan Magistrate, Saidapet, Chennai.2. -do- Thro' The Chief Metropolitan Magistrate, Chennai.+ 1 CC To Mr.N.Srinivasan, Advocate SR NO.24349+ 1 CC To M/s.N.D.Bahety, Advocate SR NO.24332Crl.R.C.No.179 of 2008TEJ {CO}TP/19.6.2009.