CRM No. M-7399 of 2010 (O&M) v. Regional Officer, Gurgaon Region & Anr.

Present : Mr. Ashim Aggarwal, Advocate, for the petitioners. Mr. Gitish Bhardwaj, Advocate, for Mr. Arun Walia, Advocate, for respondent No. 1. Mr. Madhukar Panday, Advocate, and Mr. Jai Singh Brar, Advocate, for respondent No. 2. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in the present petition is for quashing of Complaint No. 17 of 2009 dated 09.01.2009 (Annexure P-1) filed under Section 15 of the Environment Protection Act, 1986 titled as Regional Officer, Gurgaon Region, Haryana State Pollution Control Board CRM No. M-7399 of 2010 (O&M) 2 vs. M/s Agilent Technologies (International) Pvt. Ltd. and others and the summoning order dated 25.08.2009 (Annexure P-6) passed by the Presiding Officer, Special Environment Court, Faridabad along with all consequential proceedings arising therefrom. It is the contention of the counsel for the petitioners that M/s Agilent Technologies (International) Pvt. Ltd. (hereinafter referred to as 'the Company') was incorporated on 10.10.2001, copy of the certificate of incorporation is Annexure P-4. He contends that both the petitioners were the first Directors of the Company at the time of incorporation. Reference has been made by him to the Articles of Association of the Company (Annexure P-3). The petitioners resigned on 01.11.2001. On such resignation, Form 32 was submitted to the Registrar of Companies, Delhi on 13.11.2001 (Annexure P-5) and thereafter, they were not associated with the Company in any manner. He has referred to the certified copies of the annual returns from the years 2003 to 2009 (Annexures P-7 to P- 13), wherein the names of the petitioners do not find mention as the Directors of the Company. He contends that the violation, which is alleged to have been committed by the petitioners, is of a notification issued by the Ministry of Environment relating to the environment impact assessment dated 14.09.2006, which, according to the respondent-Haryana Pollution Control Board (hereinafter referred to as 'the Board'), had been violated by the Company leading to the initiation of the complaint under Section 15 of the Environment (Protection) Act, 1986 against the Company as also the petitioners. CRM No. M-7399 of 2010 (O&M) 3 He contends that the petitioners having resigned as Directors of the Company in the year 2001 itself, the proceedings against the petitioners could not be initiated as they were not holding any responsibility in the Company when the said notification came into force or at the time when the complaint was filed. His contention is that Form 32 and the annual returns submitted, copies of which have been placed on record, are statutory documents, which can be taken into consideration by this Court while exercising its jurisdiction under Section 482 Cr.P.C. and in support of this contention, reliance has been placed by the counsel on a judgment of the Supreme Court in the case of Mrs. Anita Malhotra vs. Apparel Export Promotion Council and another, Criminal Appeal No. 2033 of 2011 decided on

08.11.2011. He, accordingly, prays for quashing of the complaint and the summoning order issued qua the petitioners. On the other hand, counsel for the respondents submits that at the time of submission of the application for clearance of environment impact assessment from the Board, the memorandum of articles attached with the application mentioned the names of the petitioners as Directors and, therefore, believing the same to be correct, petitioners were arrayed as accused in the complaint and proceedings were initiated against them. He contends that the respondent-Board had proceeded on the information supplied by the Company itself and, therefore, the petitioners have been rightly summoned by the trial Court. As regards the annual returns placed on record as also Form 32, counsel for the respondents has placed CRM No. M-7399 of 2010 (O&M) 4 on record an affidavit in Court, which is taken on record, wherein there is no specific denial of these documents but the same have been denied for want of knowledge. He, accordingly, prays for dismissal of the present petition. I have heard the counsel for the parties and have gone through the records of the case. The Company was incorporated on 10.10.2001 and as per the Articles of Association, petitioners were the first Directors of the Company. As is apparent from Form 32, pursuant to Section 303 (2) of the Companies Act, 1956 (Annexure P-5), Registrar of Companies, Delhi, was duly intimated with regard to the resignation of the petitioners on 01.11.2001 by a communication dated

13.11.2001. This form is a statutory document. Annual Returns for the years 2003-04 to 2008-09, certified copies of which have been placed on record, clearly show that in none of these financial years, petitioners have been shown as Directors of the Company. The notification, which is alleged to have been violated, is dated

14.09.2006, which was the basis for initiating the proceedings against the Company and the petitioners. On the issuance of the said notification, petitioners were not the Directors of the Company nor on the date when approval was granted by the Board for initiating proceedings against the petitioners and the Company i.e.

05.12.2008 or even on the date when Complaint No. 17 of 2009 dated 09.01.2009 (Annexure P-1) was filed against the Company and the petitioners. Since the petitioners ceased to be Directors of the CRM No. M-7399 of 2010 (O&M) 5 Company on their resignation on 01.11.2001, they cannot be held liable for violation of the notification dated 14.09.2006. The petitioners being not involved in the functioning of the Company in any manner, cannot otherwise also be said to have violated the notification, for which the proceedings have been initiated against the petitioners. The Hon'ble Supreme Court in the case of Mrs. Anita Malhotra (supra) has, in para 11 of the said judgment, held as follows: “ A reading of the above provisions make it clear that there is a statutory requirement under Section 159 of the Companies Act that every Company having a share capital shall have to file with the Registrar of Companies an annual return which include details of the existing Directors. The provisions of the Companies Act require annual return to be made available by a company for inspection (S.163) as well as Section 610 which entitles any person to inspect documents kept by the Registrar of Companies. The High Court committed an error in ignoring Section 74 of the Indian Evidence Act, 1872. Sub-section (1) of Section 74 refers to public documents and sub-section (2) provides that public documents include “public records kept in any State of private documents”. A conjoint reading of Sections 159, 163 and 610 (3) of the Companies Act, 1956 read with sub-section CRM No. M-7399 of 2010 (O&M) 6 (2) of Section 74 of the Indian Evidence Act, 1872 make it clear that a certified copy of annual return is a public document and the contrary conclusion arrived at by the High Court cannot be sustained. Annual Return dated

30.09.1999 which provides the details about the existing Directors clearly show that the appellant was not a Director at the relevant time. Had the High Court considered the contents of the certified copy of the annual return dated 30.09.1999 filed by the Company which clearly shows that the appellant herein (A3) has not been shown as Director of the Company, it could have quashed the criminal proceedings insofar as A3 is concerned.” It has further been held in para 16 that the High Court, in the light of the acceptable materials such as certified copy of annual return and Form 32, can exercise its jurisdiction under Section 482 Cr.P.C. and quash the criminal proceedings. In view of the facts and circumstances of the case and in the light of the statutory certified copies placed on record, the proceedings initiated against the petitioners cannot be sustained and, therefore, deserve to be quashed. The present petition is allowed. Complaint No. 17 of 2009 dated 09.01.2009 (Annexure P-1) and the summoning order dated CRM No. M-7399 of 2010 (O&M) 7

25.08.2009 (Annexure P-6) are hereby quashed qua the petitioners only. December 06, 2011 (AUGUSTINE GEORGE MASIH ) JUDGE