There is no dispute that the sale in question took place after Section
3B was introduced in the Act w.e.f. 14-2-2003. There is also no dispute that the
sale of (i) Philip HPT 3 probe Ultra Sound Machine, (ii) Philip Doppler 2 probe
sonos 4500, and (iii) Portable Ultra Sound Machine sonosite 180 plus philips
were sold to Apollo Victor Hospital which at the time of sale was a non registered
hospital under the Act. However, the contention raised on behalf of the Petitioner
who is accused No.2 in the said complaint case is that no process could have been
issued against him for want of any averments in the complaint as well as in the
statement on oath recorded by way of an affidavit that he was in charge of, and
responsible to the Company for the conduct of the business of the Company, as
contemplated by Section 26 of the said Act.
Bombay High Court (Goa Bench)
CRIMINAL WRIT PETITION NO. 6 OF 2009
J. Sunderrajan, Vs. Dr. S. G. Dalvi On 15/4/2009
CORAM : N. A. BRITTO, J.
DATE : 15TH APRIL, 2009
2. Challenge in this petition, filed under Section 482 of the Code of
Criminal Procedure, 1973 is to the Order dated 31-7-2007, issuing process against
the accused under Section 3B of the Pre-Conception and Pre-natal Diagnostic
Techniques(Prohibition of Sex Selection) Act, 1994(Act, for short). The Petitioner
herein, who is accused No.2, in a complaint case filed by Dr. Sanjeev G. Dalvi, is
one of the Directors of Philips Medical Systems India Pvt. Ltd. which is accused
No.1. The Company and the Petitioner, as one of the Directors, have been
prosecuted for violation of Section 3B of the said Act which reads as follows:-
“Prohibition on sale of ultrasound
machine, etc., to persons,
laboratories, clinics, etc., not
registered under the Act.- No person
shall sell any ultrasound machine or
imaging machine or scanner or any
other equipment capable of detecting
sex of foetus to any Genetic
Counselling Centre, Genetic
Laboratory, Genetic Clinic or any other
person not registered under the Act”.
3. There is no dispute that the sale in question took place after Section
3B was introduced in the Act w.e.f. 14-2-2003. There is also no dispute that the
sale of (i) Philip HPT 3 probe Ultra Sound Machine, (ii) Philip Doppler 2 probe
sonos 4500, and (iii) Portable Ultra Sound Machine sonosite 180 plus philips3
were sold to Apollo Victor Hospital which at the time of sale was a non registered
hospital under the Act. However, the contention raised on behalf of the Petitioner
who is accused No.2 in the said complaint case is that no process could have been
issued against him for want of any averments in the complaint as well as in the
statement on oath recorded by way of an affidavit that he was in charge of, and
responsible to the Company for the conduct of the business of the Company, as
contemplated by Section 26 of the said Act.
4. Shri S. M. Singbal, learned Counsel appearing on behalf of the
Petitioner/Accused has submitted that Section 26 of the Act is in para materia, the
same, as Section 141 of the Negotiable Instruments Act, 1881, and therefore the
law laid down by the Apex Court with reference to the Section 141 needs to be
followed in this case as well. Learned Counsel has placed reliance on the
decisions of the Apex Court in a cases of S. M. S. Pharmaceuticals Ltd. v.
Neeta Bhalla and another reported in((2005) 8 SCC 89) as well as ((2007) 4
SCC 70).
5. The only averments which can be seen from the complaint are: “the
accused No.2 is the Director of accused No.1” and “accused No.1 and accused
No.2 have contravened the provisions of Rule 3A of the Pre-natal Diagnostic
Techniques(Regulations and Prevention of Misuse) Rules, 2003, and is therefore
liable for penalty under Section 25 of the said Act”. 4
6. Admittedly, the Petitioner/Accused No.2 is only one of the Directors
of the said Company and it is nobody's case that he is the Managing Director of
the said Company. Presumably, it is the Company/Accused No.1 which has sold
the said ultra sound machines to the said Apollo Victor Hospital, and thus prima
facie, it has committed the offence punishable under Section 3B of the said Act. It
is not the case of the Complainant that the Petitioner/Accused No.2 was in charge
of, and was responsible to, the said Company for the conduct of the business of
the said Company at the time the sale was made and as such was also liable for
punishment.
7. The Apex Court in the first case of S. M. S. Pharmaceuticals Ltd.
v. Neeta Bhalla and another(supra) has categorically stated that there is almost
unanimous judicial opinion that necessary averments ought to be contained in a
complaint before a person can be subjected to criminal process. A liability under
Section 141 of the Act(Negotiable Instruments Act, 1881) is said to be fastened
vicariously on a person connected with a company, the principal accused being
the company itself. It is a departure from the rule in criminal law against vicarious
liability. A clear case should be spelled out in the complaint against the person
sought to be made liable. Section 141 of the Act contains the requirements for
making a person liable under the said provision. That the respondent falls within
the parameters of Section 141 has to be spelled out. A complaint has to be
examined by the Magistrate in the first instance on the basis of averments
contained therein. If the Magistrate is satisfied that there are averments which5
bring the case within Section 141, he would issue the process. We have seen that
merely being described as a director in a company is not sufficient to satisfy the
requirement of Section 141. Even a non-director can be liable under Section 141
of the Act. The averments in the complaint would also serve the purpose that the
person sought to be made liable would know what is the case which is alleged
against him. This will enable him to meet the case at the trial. The Apex Court
thereafter proceeded to lay down the law as thus:-
“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”.
8. The same view has been reiterated in the second case of S. M. S.
Pharmaceuticals Ltd. v. Neeta Bhalla and another((2007) 4 SCC 70) which
reads thus:-
“The learned counsel brought to our
notice the well-settled principle of law
that for the purpose of attracting the
provisions of Section 141 of the Act, it
is not necessary to reproduce the exact
wordings of the statute and submitted
that the involvement of an accused as a
Director of a company being in charge6
of or responsible for the conduct of the
Company must be gathered from the
other averments made in the complaint
petition as also the documents
appended thereto”.
9. In the absence of necessary averments being made against the
Petitioner/Accused No.2 that he was a person who was in charge of for the
conduct of the business of the Company, no process could have been issued as
against him.
10. Consequently, the petition, which has already been admitted,
deserves to succeed. The impugned Order to the extent the Petitioner/Accused
No.2 has been summoned to answer the charge under Section 3B of the said Act is
hereby quashed and set aside.
N. A. BRITTO, J.
RD
Print Page
3B was introduced in the Act w.e.f. 14-2-2003. There is also no dispute that the
sale of (i) Philip HPT 3 probe Ultra Sound Machine, (ii) Philip Doppler 2 probe
sonos 4500, and (iii) Portable Ultra Sound Machine sonosite 180 plus philips
were sold to Apollo Victor Hospital which at the time of sale was a non registered
hospital under the Act. However, the contention raised on behalf of the Petitioner
who is accused No.2 in the said complaint case is that no process could have been
issued against him for want of any averments in the complaint as well as in the
statement on oath recorded by way of an affidavit that he was in charge of, and
responsible to the Company for the conduct of the business of the Company, as
contemplated by Section 26 of the said Act.
Bombay High Court (Goa Bench)
CRIMINAL WRIT PETITION NO. 6 OF 2009
J. Sunderrajan, Vs. Dr. S. G. Dalvi On 15/4/2009
CORAM : N. A. BRITTO, J.
DATE : 15TH APRIL, 2009
2. Challenge in this petition, filed under Section 482 of the Code of
Criminal Procedure, 1973 is to the Order dated 31-7-2007, issuing process against
the accused under Section 3B of the Pre-Conception and Pre-natal Diagnostic
Techniques(Prohibition of Sex Selection) Act, 1994(Act, for short). The Petitioner
herein, who is accused No.2, in a complaint case filed by Dr. Sanjeev G. Dalvi, is
one of the Directors of Philips Medical Systems India Pvt. Ltd. which is accused
No.1. The Company and the Petitioner, as one of the Directors, have been
prosecuted for violation of Section 3B of the said Act which reads as follows:-
“Prohibition on sale of ultrasound
machine, etc., to persons,
laboratories, clinics, etc., not
registered under the Act.- No person
shall sell any ultrasound machine or
imaging machine or scanner or any
other equipment capable of detecting
sex of foetus to any Genetic
Counselling Centre, Genetic
Laboratory, Genetic Clinic or any other
person not registered under the Act”.
3. There is no dispute that the sale in question took place after Section
3B was introduced in the Act w.e.f. 14-2-2003. There is also no dispute that the
sale of (i) Philip HPT 3 probe Ultra Sound Machine, (ii) Philip Doppler 2 probe
sonos 4500, and (iii) Portable Ultra Sound Machine sonosite 180 plus philips3
were sold to Apollo Victor Hospital which at the time of sale was a non registered
hospital under the Act. However, the contention raised on behalf of the Petitioner
who is accused No.2 in the said complaint case is that no process could have been
issued against him for want of any averments in the complaint as well as in the
statement on oath recorded by way of an affidavit that he was in charge of, and
responsible to the Company for the conduct of the business of the Company, as
contemplated by Section 26 of the said Act.
4. Shri S. M. Singbal, learned Counsel appearing on behalf of the
Petitioner/Accused has submitted that Section 26 of the Act is in para materia, the
same, as Section 141 of the Negotiable Instruments Act, 1881, and therefore the
law laid down by the Apex Court with reference to the Section 141 needs to be
followed in this case as well. Learned Counsel has placed reliance on the
decisions of the Apex Court in a cases of S. M. S. Pharmaceuticals Ltd. v.
Neeta Bhalla and another reported in((2005) 8 SCC 89) as well as ((2007) 4
SCC 70).
5. The only averments which can be seen from the complaint are: “the
accused No.2 is the Director of accused No.1” and “accused No.1 and accused
No.2 have contravened the provisions of Rule 3A of the Pre-natal Diagnostic
Techniques(Regulations and Prevention of Misuse) Rules, 2003, and is therefore
liable for penalty under Section 25 of the said Act”. 4
6. Admittedly, the Petitioner/Accused No.2 is only one of the Directors
of the said Company and it is nobody's case that he is the Managing Director of
the said Company. Presumably, it is the Company/Accused No.1 which has sold
the said ultra sound machines to the said Apollo Victor Hospital, and thus prima
facie, it has committed the offence punishable under Section 3B of the said Act. It
is not the case of the Complainant that the Petitioner/Accused No.2 was in charge
of, and was responsible to, the said Company for the conduct of the business of
the said Company at the time the sale was made and as such was also liable for
punishment.
7. The Apex Court in the first case of S. M. S. Pharmaceuticals Ltd.
v. Neeta Bhalla and another(supra) has categorically stated that there is almost
unanimous judicial opinion that necessary averments ought to be contained in a
complaint before a person can be subjected to criminal process. A liability under
Section 141 of the Act(Negotiable Instruments Act, 1881) is said to be fastened
vicariously on a person connected with a company, the principal accused being
the company itself. It is a departure from the rule in criminal law against vicarious
liability. A clear case should be spelled out in the complaint against the person
sought to be made liable. Section 141 of the Act contains the requirements for
making a person liable under the said provision. That the respondent falls within
the parameters of Section 141 has to be spelled out. A complaint has to be
examined by the Magistrate in the first instance on the basis of averments
contained therein. If the Magistrate is satisfied that there are averments which5
bring the case within Section 141, he would issue the process. We have seen that
merely being described as a director in a company is not sufficient to satisfy the
requirement of Section 141. Even a non-director can be liable under Section 141
of the Act. The averments in the complaint would also serve the purpose that the
person sought to be made liable would know what is the case which is alleged
against him. This will enable him to meet the case at the trial. The Apex Court
thereafter proceeded to lay down the law as thus:-
“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”.
8. The same view has been reiterated in the second case of S. M. S.
Pharmaceuticals Ltd. v. Neeta Bhalla and another((2007) 4 SCC 70) which
reads thus:-
“The learned counsel brought to our
notice the well-settled principle of law
that for the purpose of attracting the
provisions of Section 141 of the Act, it
is not necessary to reproduce the exact
wordings of the statute and submitted
that the involvement of an accused as a
Director of a company being in charge6
of or responsible for the conduct of the
Company must be gathered from the
other averments made in the complaint
petition as also the documents
appended thereto”.
9. In the absence of necessary averments being made against the
Petitioner/Accused No.2 that he was a person who was in charge of for the
conduct of the business of the Company, no process could have been issued as
against him.
10. Consequently, the petition, which has already been admitted,
deserves to succeed. The impugned Order to the extent the Petitioner/Accused
No.2 has been summoned to answer the charge under Section 3B of the said Act is
hereby quashed and set aside.
N. A. BRITTO, J.
RD
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