CRM-M-39703-2018 (O&M) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CRM-M-39703-2018 (O&M)
Reserved on: 09th 0ctober, 2018
Decided on:30th October, 2018

William Scott Pinckney ..Petitioner

versus

Union Territory of Chandigarh ..Respondent

CORAM: HON'BLE MR JUSTICE RAMENDRA JAIN

Present: Mr. Amrinder Sharma, Senior Advocate

Ms. Ashima Mor, APP, Union Territory,

RAMENDRA JAIN, J.

1. Through this instant petition under Section 482, Code of

Criminal Procedure, the petitioner has assailed the legality and validity of

the impugned order dated 13.7.2018 (Annexure P-1) of revisional court,

affirming order dated 07.01.2017 (Annexure P-2) of trial court, framing

charge-sheet against him and further order dated 11.1.2017 (Annexure P-3),

whereby trial court ordered, clubbing of three supplementary challans for

conducting joint trial in case FIR no.280 dated 02.12.2002, registered under

sections 3 and 4 of the Prize Chits and Money Circulation Schemes

(Banning), Act, 1978 ( in short “PCMCS Act”) coupled with Section 420

IPC at Police Station, Sector 26,Chandigarh.

2. Put pithily, petitioner is ex-employee and former

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Director/Managing Director of M/s Amway India Enterprises Private

Limited ( in short “Amway Company”), incorporated under the Companies

Act, 1956.

3. Complainant Shri S.P. Negi, Deputy General Manager, Reserve

Bank of India, Chandigarh, made a complaint to Deputy Superintendent of

Police (Crime), Economic Offences, Wing, Chandigarh Police, Chandigarh,

for registration of a case against petitioner, alleging that the business being

carried out by M/s Amway company is violative and banned, being

infringement of provision 2(c) of Section 3 of the PCMCS Act. On the basis

of above referred allegations, FIR in question was registered way back in

the year 2002 under sections 3 and 4 of the PCMCS Act. Subsequently,

vide letter dated 01.02.2003, addressed to Chief Secretaries of all the States

and Union Territories, Reserve Bank of India informed that its officials

have no power to opine that the business run by M/s Amway company was

not a prize chit or money circulation and that no legal proceedings may be

initiated against it. On 27.11.2009 Sub Inspector Ashok Kumar, the

Investigating Officer, after around seven years, filed a status report before

this court in a petition filed by M/s Amway Company that on investigation,

no evidence had come against it.

4. Thereafter, Sub Inspector Ashok Kumar, Investigating Officer,

conscious of the fact that, by now any action against M/s Amway

Company in alleged offence under PCMCS Act, has become time barred, on

1.12.2012, almost after 10 years, filed three supplementary challans against

the petitioner, wherein he was, for the first time, arraigned as accused by

deliberately adding offence under section 420 IPC, without assigning any

cogent reason on the basis of a report dated 21.12.2011, with a view to

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revive the time barred action against the petitioner under PCMCS Act.

5. The trial court, vide order dated 11.1.2017 (Annexure P-3),

clubbed supplementary challans for conducting joint trial. Vide order dated

07.1.2017 (Annexure P-2), charges under sections 3 and 4 of the PCMCS

Act and section 420 IPC were framed against the petitioner.

6. Being aggrieved against the said order dated 07.1.2017 of the

trial court, the petitioner preferred revision, which too was dismissed vide

order dated 13.7.2018 (Annexure P-1) of the revisional court.

7. Learned counsel for the petitioner has assiduously argued that

the learned trial court erred in taking cognizance and framing charges

against the petitioner under sections 3 and 4 of the PCMCS Act, losing

sight of the fact that under provisions of Sections 468 and 469, Code of

Criminal Procedure, maximum sentence prescribed is 3 years from the date

of registration of FIR, i.e., 02.12.2002, which stood expired on 01.12.2005

and ignoring the status report filed before this court in the year 2009 that no

offence is made out against the petitioner under the aforesaid sections of the

PCMCS Act. It was only on expiry of limitation period of 03 years and

after a lapse of more than 10 years, statements of some of the selected

witnesses, for the first time, were recorded under section 161, Code of

Criminal Procedure, to add offence under section 420 IPC.

8. The basic requirement for the commission of offence under section

420 IPC, i.e., intention to deceive is completely missing. That apart, M/s

Amway company was not arraigned as accused in the FIR. It was registered

against the petitioner only, who was former Director of the company.

Therefore, no vicarious liability could be fastened upon the petitioner in the

absence of the company, not being made as accused. Consequently, FIR and

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consequential proceedings arising therefrom are liable to be quashed being

not maintainable and hopelessly time barred.

9. On the other hand, learned counsel for Union Territory refuting

submissions of learned counsel for the petitioner submits that learned

revisional court has rightly affirmed order dated 07.01.2017 of the trial

court, framing charges under sections 3, 4 of the PCMCS Act, and Section

420 IPC against the petitioner, on the basis of material available on the

record holding that he, being the Director of the Company, at the relevant

time and responsible for the conduct of its business, which amounted to

money circulation scheme for the distributors as also the company, was

liable to be charge sheeted as such.

10. Having given thoughtful consideration to the rival submissions,

this court finds the instant petition merits acceptance for the reasons to

follow:-

11. Before proceeding in the matter, it would be relevant to

minutely scan the contents of FIR No.280 dated 2.12.2002 (Annexure P-5),

registered against the petitioner alone. The prosecution did not bother to

arraign M/s Amway company as accused for the reasons best known to it.

There are no specific allegations against the Director of the Company. The

business is conducted by the company only. Therefore, in the absence of

arraigning M/s Amway company as accused, no vicarious liability could be

fastened upon the Director of the Company.

12. Faced with this situation, the question that arises for

consideration is – whether a complaint against a Director of the Company

without arraigning the company as accused was maintainable? Obviously,

the answer is in the negative. A similar controversy came up for

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consideration before the Apex Court, due to divergence of opinion between

the two Judges. The same was resolved in Aneeta Hada versus Godfather

Travels and Tours Private Limited and three other connected petitions

(2012) 5 Supreme Court Cases 661, wherein their Lordships quashed

proceedings initiated against the appellants as well as the company. For the

facility of reference, their Lordships of three-Judge Bench of the Apex

Court in paras 58 and 59 of their judgment made following specific

observations:-

“58 Applying the doctrine of strict construction, we are of the

considered opinion that commission of offence by the company

is an express condition precedent to attract the vicarious

liability of others. Thus the words “as well as the company”

appearing in the section make it absolutely unmistakably clear

that when the company can be prosecuted, then only the persons

mentioned in the other categories could be vicariously liable for

the offence subject to the averments in the petition and proof

thereof. One cannot be oblivious of the fact that the company is

a juristic person and it has its own respectability. If a finding is

recorded against it, it would create a concavity in its reputation.

There can be situations when the corporate reputation is

affected, when a Director is indicted.”

“59 In view of our aforesaid analysis, we arrive at the

irresistible conclusion that for maintaining the prosecution

under section 141 of the Act, arraigning of a company as an

accused is imperative. The other categories of offenders can

only be brought in the drag-net on the touchstone of vicarious

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liability as the same has been stipulated in the provision itself.

We say so on the basis of the ratio laid down in C.V. Parekh,

which is a three-Judge Bench decision. Thus, the view

expressed in Sheoratan Agarwal does not correctly lay down the

law and accordingly, is hereby overruled. The decision in Anil

Hada is overruled with the qualifier as stated in para 51. The

decision in Modi Distillery has to be treated to be restricted to

its own facts as has been explained by us hereinabove.

13. Further, His Lordship Hon'ble the Chief Justice of the Apex

Court, while resolving the same controversy, as is involved in the case in

hand, relying upon the dictum laid down by three-Judge Bench of the Apex

Court in Aneeta Hada's case (supra) in the case of Sharad Kumar Sanghi

versus Sangita Rane 2015(2) RCR (Criminal) 120 has made the following

observations in its para 9, 11 and 13.

14. “9 The allegations which find place against the Managing

Director in his personal capacity, as we notice, are absolutely vague. When

a complainant intends to proceed against Managing Director or any officer

of a company, it is essential to make requisite allegations to constitute the

vicarious liability. In Maksud Sajyad v. State of Gujarat

MANU/SC/7923/2007 : (2008) 5 SCC 668, it has been held, thus:-

“ Where a jurisdiction is exercised on a complaint petition filed

in terms of section 156(3) or Section 200 of the Code of

Criminal Procedure, the Magistrate is required to apply his

mind. The Penal Code does not contain any provision for

attaching vicarious liability on the part of the Managing

Director or the Directors of the Company, when the accused is

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the Company. The learned Magistrate failed to pose unto

himself the correct question viz., as to whether the complaint

petition, even if given face value and taken to be correct in its

entirety, would lead to the conclusion that the Respondents

herein were personally liable for any offence. The Bank is a

body corporate. Vicarious liability of the Managing Director

and Director would arise provided any provision exists in that

behalf in the statute. Statutes indisputably must contain

provision fixing such vicarious liabilities. Even for the said

purpose, it is obligatory on the part of the complainant to make

requisite allegations which would attract the provisions

constituting vicarious liability.”

“ In this regard, reference to a three-Judge Bench decision in S.M.S.

Pharmaceuticals Limited versus Neeta Bhalla and another.

MANU/SC/0622/2005 : (2005) 8 SCC 89 would be apposite. While dealing

with an offence under section 138 of the Negotiable Instruments Act, 1881,

the Court explaining the duty of a Magistrate, while issuing process and his

power to dismiss a complaint under section 203 without even issuing

process observed thus:

“ ... a complaint must contain material to enable the Magistrate

to make up his mind for issuing process. If this were not the

requirement, consequences could be far-reaching. If a

Magistrate had to issue process in every case, the burden of

work before the Magistrate as well as the harassment caused to

the Respondents to whom process is issued would be

tremendous. Even section 204 of the Code starts with the words

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“ if in the opinion of the Magistrate taking cognizance of an

offence there is sufficient ground for proceeding”. The words

“sufficient ground for proceeding” again suggest that ground

should be made out in the complaint for proceeding against the

respondent. It is settled law that at the time of issuing of the

process the Magistrate is required to see only the allegations in

the complaint and where allegations in the complaint or the

charge-sheet do not constitute an offence against a person, the

complaint is liable to be dismissed.”

After stating so, the Court analysed Section 141 of the Act and after

referring to certain other authorities answered a reference. The relevant part

of the answer reads as follows:-

“ It is necessary to specifically aver in a complaint under

section 141 that at the time the offence was committed, the

person accused was in charge of and responsible for the

conduct of business of the company. This averment is an

essential requirement of section 141 and has to be made in a

complaint. Without this averment being made in a complaint,

the requirements of section 141 cannot be said to be satisfied.”

“10 XX XX XX XX

“11 In the case at hand as the complainant's initial statement

would reflect, the allegations are against the company, but the

company has not been made arrayed as a party. Therefore, the

allegations have to be restricted to the Managing Director. As

we have noted earlier, allegations are vague and in fact,

principally the allegations are against the company. There is no

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specific allegation against the Managing Director. When a

company has not been arrayed as a party, no proceeding can be

initiated against it even where vicarious liability is fastened on

certain statutes. It has been so held by a three-Judge Bench in

Aneeta Hada v. Godfather Travels and Tours Private Ltd.

MANU/SC/0335/2012 : (2012) 5 SCC 661 in the context of

Negotiable Instruments Act, 1881.”

“ 12 XX XX XX XX

“13 When the company has not been arraigned as an accused,

such an order could not have been passed. We have said so for

the sake of completeness. In the ultimate analysis, we are of the

considered opinion that the High Court should have been well

advised to quash the criminal proceedings initiated against the

appellant and that having not been done, the order is sensitively

vulnerable and accordingly we set aside the same and quash the

criminal proceedings initiated by the respondent against the

appellant.”

15 In view of the dictum laid down by the Apex Court, in the

judgments referred to above, this court is of the considered opinion that

without the company being arraigned as accused, no vicarious liability

could be fastened upon the petitioner. Therefore, the FIR and the

consequential proceedings arising therefrom qua the petitioner alone, being

not maintainable, are liable to be quashed.

16 The next question that arises for consideration is – whether

offence under section 420 IPC can be added after 10 years, especially when

limitation to take cognizance or to submit final report under section 173(2)

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Code of Criminal Procedure, for prosecuting the petitioner under sections 3

and 4 of the Act, had expired in the year 2005, i.e., after lapse of three years

from the date of receipt of the complaint. According to the contention of

learned counsel for the petitioner, a time barred criminal action cannot be

revived by adding Section 420 IPC, by filing supplementary challans by the

prosecution before the trial court.

17 A perusal of the record (in connected petition no.CRM-M-

33432-2018) spells out that prosecution was launched on the complaint

dated 28.11.2002 of Deputy General Manager, Reserve Bank of India,

Chandigarh, lodging FIR No.280 of 2002 under sections 3 and 4 of the Act

against the petitioner, a former Managing Director and CEO of M/s Amway

India Enterprises Private Limited (a American Company), running a

business network in India, by sponsoring distributors, sub-distributors and

so on. The police carried on investigating the matter for around 5 years.

Finally, on 27.11.2009 (Annexure P-7), the police filed a status report

observing that “......the said case may be investigated thoroughly to bring

out all available evidednce. After that the investigation had been carried

out, but no evidence came to light against M/s Amway India Enterprises.

The investigation is going on.” Similarly, on 27.11.2009, the police also

submitted status report before this court in CRM-M-50975-2002 filed by

M/s Amway India Enterprises Private Limited mentioning that no evidence

had come forward against the said Company.

18 However, on 01.12.2012, after spanning over 10 years of the

registration of FIR, police filed a final report (Annexure P-9) under section

173 (2) Cr.P.C against the petitioner, who was Director of the said

Company at the relevant time, under sections 3 and 4 of the Act, coupled

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with section 420 IPC.

19 The prosecution, with a view to revive the time barred criminal

action, initially lodged under sections 3 and 4 of the Act, deliberately added

Section 420 IPC to launch prosecution against the petitioner on the basis of

the statements of some hand-picked witnesses, namely, S/Shri Gurnam

Singh, Varun Sharma, Baljit Singh, Smt. Sudesh Kaur, Rajan Khera,

Ramesh Dubey, Narinder Kumar, Smt. Inderjeet Kaur, and Vikrant Sihotra

recorded under section 161 Code of Criminal Procedure. They made almost

similar statements to the effect that they joined the company in the year

2002. They had to pay Rs.1800/- as joining fee and Rs.2600/- for the

products, total amounting to Rs.4400/-. They were told that by selling

products of the company, they would get incentives on the points value

gained. Besides this, they would also earn more profits by getting joined

more and more members in the company. Thus, they were induced by the

company. Though they sold products assigned to them as kits, but could not

get any benefit, inasmuch as the their products were costly. At the time of

joining the company, ID numbers were issued to them, but the same were

kept somewhere at home. Whenever, they asked officials of the company to

refund their amount of Rs.1800/-, they used to hush up the matter on one

pretext or the other. Therefore, the company had committed a fraud with

them. On the basis of the statements of these witnesses, the prosecution

submitted supplementary challans against the petitioner, making out a case

of cheating and forgery adding Section 420 IPC.

20 The period of limitation for taking cognizance of alleged

offence under sections 3 and 4 of the PCMCS Act is three years from the

date of registration of the FIR under sections 468 and 469, Code of Criminal

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Procedure. For the facility of reference, it would be relevant to refer to

provisions of Sections 468 and 469, Code of Criminal Procedure, which

read as under:-

“468. Bar to taking cognizance after lapse of the period of

limitation (1) Except as otherwise provided elsewhere in this

Code, no Court shall take cognizance of an offence of the

category specified in sub-section (2), after the expiry of the

period of limitation.

(2) The period of limitation shall be-----

(a) six months, if the offence is punishable with fine only,

(b) one year, if the offence is punishable with imprisonment

for a term not exceeding one year.

(c) three years if the offence is punishable with imprisonment

for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation,

in relation to offences which may be tried together, shall be

determined with reference to the offence which is punishable

with the more severe punishment or, as the case may be, the

most severe punishment.”

“469. Commencement of the period of limitation ------(1) The

period of limitation, in relation to an offender, shall

commence,- --------

(a) on the date of the offence; or

(b) where the commission of the offence was not known to

the person aggrieved by the offence or to any police officer, the

first day on which such offence comes to the knowledge of such

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person or to any police officer, whichever is earlier, or

(c) where it is not known by whom the offence was

committed, the first day on which the identity of the offender is

known to the person aggrieved by the offence or to the police

officer making investigation into the offence, whichever is

earlier.

(2) In computing the said period, the day from which such

period is to be computed shall be excluded.”

21 On perusal of Sections, quoted above, it is abundantly

manifest that both the learned courts below did not appreciate that once the

limitation starts, qua a particular offence, the same could not have been tried

by them after expiry of period of limitation, which in the instant case,

expired on 2.12.2005. Therefore, no challan under the provisions of PCMCS

Act could have been filed beyond the period of limitation. Even the

prosecution did not file any application for condonation of delay, explaining

plausible reason for not filing the challan against the petitioner within the

time limit prescribed under the statute.

22. The learned counsel appearing for the Union territory has not

been able to dispel the contention raised by the learned counsel for the

petitioner that it was a time barred criminal action launched by the

prosecution under the garb of adding Section 420 IPC in the supplementary

challans submitted before the trial court. Therefore, the impugned order

passed by the trial court framing charge-sheet against the petitioner after a

long period, despite there being not sufficient material on record, to my

mind, is cryptic in nature. This court finds support from the judgment

rendered in State of Punjab versus Sarwan Singh, (1981) 3 Supreme Court

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Cases 34, wherein their Lordships of the Apex Court have held as under:-

“........The object of Criminal Procedure Code in putting a bar of

limitation on prosecutions was clearly to prevent the parties

from filing cases after a long time, as a result of which material

evidence may disappear and also to prevent abuse of the

process of the court by filing vexatious and belated

prosecutions long after the date of the offence. The object

which the statutes seek to subserve is clearly in consonance

with the concept of fairness of trial as enshrined in Article 21 of

the Constitution of India. It is, therefore, of the utmost

importance that any prosecution, whether by the State or a

private complainant must abide by the letter of law or take the

risk of the prosecution failing on the ground of limitation. The

prosecution against the respondent being barred by limitation,

the conviction as also the sentence of the respondent as also the

entire proceedings culminating in the conviction of the

respondent herein become non-est. For these reasons given

above, we hold that the point of law regarding the applicability

of section 468 of the Code of the Criminal Procedure has been

correctly decided by the Punjab and Haryana High Court. This

court has also taken the same view in a number of decisions.

The result is that the appeal fails and is dismissed. The

respondent will now be discharged from his bail bonds.”

23. Now coming to section 420 IPC, which was added in the

supplementary challans clearly is an after-thought attempt, just to revive the

alleged offences of the PCMCS Act only on the basis of the statements of

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the above said persons, who had made almost similar statements (cut and

paste). Having gone through the statements of the above-referred

witnesses/persons recorded under section 161, Code of Criminal Procedure,

it clearly reveals that no case is made out under section 420 IPC, inasmuch

as the basic ingredient of the offence of alleged cheating, i.e., the element

of deception, and misrepresentation, as enumerated therein, is completely

missing in the instant case. The so-called witnesses, referred to above, did

not produce any distributor ID numbers, which were, allegedly, issued to

them at the time of joining the company, providing them kits of sale

products for an amount of Rs.2600/- along with joining fee of Rs.1800/-,

making them aware of refund of the amount within 90 days from their

enrollment as distributors in the event of the products of the company being

not sold out by such indolent /passive members, who are quite reluctant in

not making any endeavour to join new members under them, that too finding

fault with the products being costly by investing a paltry sum of Rs.4400/-

in the company, therefore, did not make out a case against the petitioner

under section 420 IPC. In fact, this business, on the face of it, is a smart

one, of such distributors who are, in reality, keen to gain extra monetary

benefits by joining new distributors and selling their qualitative products in

the market, enabling them to earn points assigned to each product and

determine their incentives on the basis thereof. This business is so

transparent that seminars are organised by the company under the able

guidance of their highly experienced distributors, who give tips of the

business, how to carry out, to new entrant distributors, desirous of

flourishing their business and with their able assistance, they earn extra-

incentives on the strength of their ability.

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24. Only on the basis of few of the alleged witnesses, who were

idle and indolent, having in mind to earn easy money, without doing hard

work in their life, lowered down the reputation of the company, stating that

the amount of Rs.1800/- as subscription fee was not refunded to them. The

statements of the witnesses do not disclose as to whether they ever applied

for the refund of money. It is not a money circulation scheme. Rather, the

entire concept of the company is based on selling products directly in the

market through distributors or sub-distributors. None of the witnesses had

stated that despite demand, money was not paid to them by the company.

No material has been brought on the record on the basis of which, it could

be determined that there was any allurement on the part of the company to

constitute an offence of cheating against it or its functionaries by not

providing products to the distributors to sell them in the market. In the

considered opinion of this court, this court does not find any deception or

misrepresentation, which is essential for making out an offence under

section 420 IPC against the petitioner.

25 It is not the case of the prosecution that kits of the sale products

were not supplied to the distributors, in lieu of the meagre amount of

Rs.2600/- paid by any of the above persons, referred to above, to the

company. If the above-referred persons could not sell products of the

company on account of their inability or otherwise, there was a provision in

the scheme to return kits of products to the company within 90 days of their

enrollment as members/distributors and get the amount refunded back. But

surprisingly enough, they did not produce on record even a single

application in writing to the company for return of their subscription

charges. Therefore, on the basis of bald allegations, without any supportive

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documents, in my considered opinion, offence under section 420 IPC is not

made out in any manner. Moreso, no specific allegations have been levelled

against the petitioner, who was a Director of the Company at the relevant

time, for cheating any of the distributors. The alleged allegations with

respect to nature of business were related to the company only, which, as

discussed above, was not made as accused in the FIR.

26. The contention of the learned counsel for the Union Territory

that it was a money circulation scheme and there was allurement on the part

of the company by organising seminars with the sole motive to attract more

customers for joining more and more members earning huge profits and not

on account of sale of products showing them a path of green pasture, so as

to make them millionaires in a night, does not find force and the same, being

bereft of merit, is not sustainable in law.

27 In view of the discussion made above, this petition succeeds

and is accepted qua the petitioner only. Accordingly, FIR No.280 dated

02.12.2002 and consequential proceedings arising therefrom, including that

of impugned orders dated 13.7.2018 (Annexure P-1), dated 07.01.2017

(Annexure P-2) and dated 11.01.2017 (Annexure P-3) passed by the courts

below are set aside.

30th October, 2018 ( RAMENDRA JAIN )

1. Whether speaking/reasoned Yes/No

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