Full Judgment Text
Crl.A.@S.L.P.(Crl.)No.4102 of 2020
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 749 OF 2021
[Arising out of S.L.P.(Crl.)No.4102 of 2020]
M/s. Cheminova India Ltd. & Anr. …..Appellants
Versus
State of Punjab & Anr. …..Respondents
J U D G M E N T
R. Subhash Reddy, J.
1. Leave granted.
2. This criminal appeal is filed, aggrieved by the order dated
12.05.2020 passed by the High Court of Punjab & Haryana at
Chandigarh. By the aforesaid order, High Court has dismissed the
petition in CRMM No.11622020 (O&M) so far as the appellants are
concerned. Appellants have approached the High Court seeking
quashing of Complaint No.26 dated 25.03.2014 filed by the second
respondent – The Insecticide Inspector, Attari, District Amritsar under
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Section 3(k)(i), 17, 18 and 33 punishable under Section 29 of the
Insecticides Act, 1968 (hereinafter referred to as ‘the Act’) read with
Rule 27(5) of the Insecticides Rules, 1971.
3. On 10.02.2011, Insecticide Inspector, Attari, District
Amritsar, inspected the premises of firm – M/s. Navneet Singh – on
Railway Road, Attari, District Amritsar where its sole proprietor Sh.
Navneet Singh was present. M/s. Navneet Singh is a dealer of the
first appellantcompany which is engaged in the manufacture of
insecticides. On the day of inspection, Inspecting Officer found 60
tins of insecticide, viz., Trizophos 40% E.C. in the premises for sale.
The Inspecting Officer has taken three tins, out of the 60 tins, as test
samples and on the ground that samples sent for analysis were found
to contain active ingredient to the extent of 34.70% only as against the
labelled declaration of 40%, alleging that it amounts to ‘misbranding’
within the meaning of Section 3(k)(i) of the Act and sale of such item is
an offence under Sections 17, 18 and 33 punishable under Section 29
of the Act, the second respondent has lodged the complaint before the
Chief Judicial Magistrate, Amritsar in Complaint No.26 of 2014. In
the said complaint, along with the dealer from whom samples were
seized, the first appellantcompany, second appellantManaging
Director and other persons are sought to be prosecuted.
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4. The appellants and other accused have approached the High
Court seeking quashing of the complaint mainly on the ground that
the complaint was ex facie barred by limitation and procedure
prescribed under Section 24 was not followed. It was the case of the
appellants that there were abnormal delays in testing the samples, as
such the timelines fixed under Section 24 which are mandatory are
breached, thus, the complaint is fit to be quashed. It was also the
case of the appellants that the necessary undertakings were already
filed indicating the responsible officers of the quality control, as such
the appellants herein are not at all liable for prosecution and
complaint was filed in a casual manner without examining the
necessary aspects. It was also the case of the appellants that the
Magistrate has not followed the procedure prescribed under Section
202 of the Code of Criminal Procedure (Cr.PC). The High Court, by
the impugned order, has dismissed the petition so far as the
appellants are concerned while quashing the proceedings so far as the
petitioner no.4 before the High Court, who was Godown Incharge of
the firm.
5. We have heard Sri S. Gurukrishna Kumar, learned senior
counsel assisted by Ms. Jaikriti S. Jadeja for the appellants and Ms.
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Jaspreet Gogia, learned counsel appearing for the State of Punjab, at
length.
6. Sri Gurukrishna Kumar, learned senior counsel for the
appellants, while referring to page 10 of the impugned order, has
submitted that samples were drawn from the dealer on 10.02.2011;
they were sent to the Insecticide Testing Laboratory, Ludhiana on
17.02.2011; and the report of the analysis was received from the
Insecticide Testing Laboratory, Ludhiana on 14.03.2011. Further, it
is submitted that after necessary show cause notice was served on the
appellantmanufacturer and its office bearers, they made a request,
on 15.04.2011 by addressing a letter, for reanalysis of second sample
and after depositing necessary demand draft, second sample was sent
to Central Insecticide Testing Laboratory, Faridabad for reanalysis on
02.05.2011 and reanalysis report was received belatedly on
09.12.2011 which is clearly in contravention of Section 24(4) of the
Act. Learned counsel, by referring to relevant provisions of the Act,
has submitted that for the offence of misbranding, as alleged in the
complaint, the maximum punishment is imprisonment for a term
which may extend to two years or a fine which shall not be less than
ten thousand rupees or with both. It is further submitted that the
limitation for filing the complaint in such cases is three years from the
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date of commission of offence. It is submitted that limitation for
lodging complaint from the date of report of analysis of Insecticide
Testing Laboratory, Ludhiana was only upto 14.03.2014, however, the
complaint was filed on 25.03.2014, which is beyond the period of
limitation. Inspite of the same, the High Court has not considered the
same in proper perspective. Learned counsel, while referring to the
provisions under Section 24 of the Act, has submitted that the
timeline for second report also is fixed, i.e., thirty days from the date
of sending the sample, but, inspite of the same the Central Insecticide
Testing Laboratory, Faridabad has delayed the report by seven
months, which is in clear violation of Section 24(4) of the Act.
Learned counsel also has submitted that while issuing the summons,
the procedure, as contemplated under Section 202, Cr.PC, is not
followed by the Magistrate.
On the other hand, Ms. Jaspreet Gogia, learned counsel
7.
appearing for the State, while refuting the various submissions made
by the learned senior counsel for the appellants, has submitted that
though the first report of analysis from the Insecticide Testing
Laboratory, Ludhiana was received on 14.03.2011, the appellants
have made a request for sending the other sample to the Central
Insecticide Testing Laboratory, Faridabad which was duly sent, after
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deposit of demand draft, on 02.05.2011 and the reanalysis on the
second sample was received from the Central Insecticide Testing
Laboratory, Faridabad on 09.12.2011. While referring to Section 24(4)
of the Act, learned counsel has submitted that the report on such
second sample shall be the conclusive evidence, as such, it cannot be
said, the complaint is barred by limitation. Further, it is the
submission of the learned counsel that the timelines under Section
24(4) of the Act were followed and the complaint filed is not barred by
limitation and is also not in violation of the procedure contemplated
under Section 202, Cr.PC.
8. Having heard the learned counsel for the parties, we have
perused the impugned order and other material placed on record.
9. In view of the undisputed fact that after drawing the sample
from the dealer on 10.02.2011 report of analysis was received from
the Insecticide Testing Laboratory at Ludhiana on 14.03.2011, we are
of the firm view that the complaint filed is barred by limitation. It is
not in dispute that report from Insecticide Testing Laboratory,
Ludhiana was received by the Inspector on 14.03.2011. Section 29 of
the Act deals with the ‘offences and punishment’. The appellants are
sought to be prosecuted on the ground of misbranding of the
insecticide, i.e., Trizophos 40% E.C. It is the allegation in the
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complaint that upon analysis of the sample, same was found to
contain active ingredient to the extent of 34.70% only as against the
labelled declaration of 40%. Thus, it is a case of ‘misbranding’ within
the meaning of Section 3(k)(i) of the Act and selling of such
misbranded item is in violation of Sections 17, 18, and 33 punishable
under Section 29 of the Act. From a reading of Section 29, it is clear
that the maximum punishment for such offence, if it is first offence, is
imprisonment for a term which may extend to two years or with fine
which shall not be less than ten thousand rupees which may extend
to fifty thousand rupees, or with both. For a second and subsequent
offence, the punishment is imprisonment for a term which may extend
to three years or with fine which shall not be less than fifteen
thousand rupees which may extend to seventyfive thousand rupees,
or with both. Section 468 of Cr.PC prohibits taking cognizance of an
offence after the lapse of period of limitation. As per subsection (2)(c)
thereof, the period of limitation is three years, if the offence is
punishable with imprisonment for a term exceeding one year but not
exceeding three years. Section 469 of Cr.PC deals with the
‘commencement of the period of limitation’. As per the said provision,
the period of limitation, in relation to an offender, shall commence on
the date of offence or where the commission of the offence was not
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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
person or to any police officer, whichever is earlier.
nd
10. In the present case, it is not in dispute, the complainant2
respondent has received the report of analysis on 14.03.2011 from the
Insecticide Testing Laboratory, Ludhiana and the complaint was
lodged on 25.03.2014 which is beyond a period of three years from
14.03.2011. The only submission of the learned counsel for the State
is that further report from the Central Insecticide Testing Laboratory
was received on 09.12.2011 which is the conclusive evidence of the
facts, as such, the complaint is within the period of limitation. We are
not convinced with such submission made by learned counsel for the
State. When it is clear from the language of Section 469, Cr.PC that
the period of limitation shall commence on the date of offence, there is
no reason to seek computation of limitation only from the date of
receipt of report of the Central Insecticide Testing Laboratory,
Faridabad. As per the procedure prescribed under the Statute, i.e.,
Insecticide Act, 1968 and the rules made thereunder, the Insecticide
Testing Laboratory, Ludhiana was the competent authority to which
the sample was sent on 17.02.2011, after drawing on 10.02.2011, and
the report of analysis was received on 14.03.2011, as such the said
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date is said to be the crucial date for commencement of period of
limitation. By virtue of the said report received on 14.03.2011 which
states that the active ingredient of the sample was only to the extent
34.70% as against the labelled declaration of 40%, it is clear that it is
the date of offence allegedly committed by the accused. Merely
because a further request is made for sending the sample to the
Central Insecticide Testing Laboratory, as contemplated under Section
24(4) of the Act, which report was received on 09.12.2011, receipt of
such analysis report on 09.12.2011 cannot be the basis for
commencement of limitation. The report of analysis received from the
Insecticide Testing Laboratory, Ludhiana on 14.03.2011 itself
indicates misbranding, as stated in the complaint, thus, the period of
limitation within the meaning of Section 469, Cr.PC commences from
14.03.2011 only. In that view of the matter, we are clearly of the view
that the complaint filed is barred by limitation and allowing the
proceedings to go on, on such complaint, which is ex facie barred by
limitation is nothing but amounts to abuse of process of law. Though
the learned counsel has also raised other grounds in support of
quashing, as we are persuaded to accept his submission that
complaint filed is barred by limitation, it is not necessary to deal with
such other grounds raised.
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11. For the aforesaid reasons, this criminal appeal is allowed.
The impugned order dated 12.05.2020 passed by the High Court of
Punjab & Haryana at Chandigarh in CRMM No.11622020 (O&M) is
set aside. Consequently, Complaint No.26 dated 25.03.2014 filed by
the second respondent before the Chief Judicial Magistrate, Amritsar
stands quashed.
………………………………J.
[Navin Sinha]
………………………………J.
[R. Subhash Reddy]
New Delhi.
August 04, 2021.
10
SLP(Crl.) No. 4144 of 2020
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 750 OF 20 21
(Arising out of SLP (Crl.) No.4144 OF 2020)
M/s. Cheminova India Limited & Anr. ...Appellant(s)
vs.
State of Punjab & Ors. ...Respondent(s)
J U D G M E N T
R.SUBHASH REDDY,J .
1. Leave granted.
2. This Criminal Appeal is filed by the
Petitioners / Accused nos. 3 and 4 in CRM-M-12082-
2016 (O & M) before the High Court of Punjab &
Haryana at Chandigarh, aggrieved by the Order dated
12.05.2020. By the aforesaid order, the Petitioners’
application of quashing of Complaint No. 313 dated
19.08.2015, filed by the Respondent No.2 – The
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SLP(Crl.) No. 4144 of 2020
Quality Control Inspector, Bhikhiwind, District Tarn
Taran, Punjab for offences under Sections 3(k)(i),
17, 18 and 33, punishable under Section 29 of the
Insecticides Act, 1968 (for short, “the Act”), was
dismissed. The petition was allowed by the High Court
for other accused, who was working as Godown
Incharge, and quashed the proceedings.
st
3. The 1 Appellant is a Company, having its office
in Mumbai, which is engaged in manufacturing of
nd
insecticides. The 2 Appellant was the Ex-Managing
Director of the Company. On 31.12.2013, Quality
Control Inspector, Bhikhiwind, District Tarn Taran,
Punjab inspected the premises of M/s. Dhillon Kheti
Store in the presence of its sole Proprietor, Shri
Nishan Singh. The said Nishan Singh was the
st
authorised dealer for 1 Appellant – Company, to sell
its insecticides. At the time of inspection, the
inspecting officer found six boxes containing 25
packets each, of Piroxofop Propanyl (Clodinafop
Propargyl 15% WP) , with each packet weighing 160
grams, stocked in the premises. From the abovesaid
stock, samples were drawn and one of the samples was
sent to Senior Analyst, Insecticide Testing
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Laboratory, Amritsar. When the report dated
15.01.2014 was received, active ingredient of
Piroxofop Propanyl was found only to the extent of
11.72% as against the labelled declaration of 15%. A
copy of the report was sent to the dealer at Amritsar
along with a Show Cause Notice. On production of copy
of the invoice by the dealer, indicating that he had
st
purchased the insecticides in question from the 1
Appellant – Company, Show Cause Notice was also
st
issued to the 1 Appellant – Company, which is having
its manufacturing unit in Bharuch, Gujarat and to
other responsible officers of the Company. On receipt
nd
of the report, the 2 Appellant herein, on behalf of
the Company, also made a request to send another
sample to Central Insecticide Testing Laboratory at
Faridabad vide letter dated 27.03.2014 and after
depositing necessary charges, another sample was sent
to Central Insecticide Testing Laboratory, which has
reported that the sample was misbranded as the same
was found to contain 10.09% of active ingredient only
as against 15%, as labelled on the packet. After
obtaining necessary sanction from the competent
authority, a complaint was lodged before the Judicial
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SLP(Crl.) No. 4144 of 2020
Magistrate to prosecute the appellants and other
accused for offences under Sections 3(k)(i), 17, 18
and 33, punishable under Section 29 of the Act.
4. The appellants and other accused approached the
High Court, seeking quashing of the said complaint on
various grounds. By impugned order, High Court has
dismissed the petition, so far as appellants are
concerned, and allowed the application for the Godown
Watchman.
5. Heard Mr. Sidharth Luthra, learned Senior
Counsel, appearing for the Appellants and Ms.
Jaspreet Gogia, learned Counsel appearing for the
Respondents.
6. Learned Counsel for the appellants by referring
to Section 33 of the Act has submitted that
appellants have already filed an undertaking dated
22.01.2013 before the respondents, nominating the
incharge and responsible officers of the Company to
maintain quality of the pesticides manufactured by
the Company along with the resolution of the
Company’s meeting held on 28.12.2012. Learned Counsel
has submitted that by making vague and bald
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SLP(Crl.) No. 4144 of 2020
allegations, the appellants, who were the Company and
the Managing Director, are also sought to be
prosecuted.
6(a). It is submitted that unless there is a clear
and categorical averment in the complaint, indicating
the role played by the appellants, there cannot be
st
any vicarious liability on the 1 Appellant – Company
nd
and the 2 Appellant–Managing Director for commission
of the alleged offence. In support of his arguments,
learned Senior Counsel has placed reliance on the
judgment of this Court in the case of Managing
Director, Castrol India Limited vs. State of
1
Karnataka & Anr. , and also another judgment of this
Court in the case of Shiv Kumar Jatia vs. State of
2
NCT of Delhi .
6(b). It is also further contended by the learned
Counsel that before taking cognizance of the offence
on the complaint, learned Magistrate has not followed
the procedure, contemplated under Section 24 (4) of
the Act and Section 202 of the Code of Criminal
Procedure. It is submitted that though, the
1
2018 (17) SCC 275
2
2019 (17) SCC 193
5
SLP(Crl.) No. 4144 of 2020
appellants are not residing within the jurisdiction
of the Magistrate, without making proper inquiry and
ordering investigation, cognizance of the offence is
taken. Further, it is submitted that the prosecution
against the appellants, is nothing but abuse of the
process of law. The High Court has not considered
various grounds raised by the appellants in proper
perspective and dismissed their application for
quashing the complaint. In support of his argument
that the Magistrate has not followed the procedure
under Section 202 of the Code of Criminal Procedure,
learned Senior Counsel has placed reliance on the
judgment of this Court in Re: Expeditious Trial of
Cases under Section 138 of N.I. Act, 1881 ( Suo Motu
3
Writ Petition (Crl.) No.2 of 2020) .
7. On the other hand, learned Counsel, appearing for
the Respondents, has submitted that the High Court
has considered all the grounds raised by the
petitioners and rejected the petition to quash the
nd
proceedings. It is submitted that the 2 Appellant,
st
being the Managing Director of the 1 Appellant –
Company, which is the manufacturer of the product in
3
2021 SCC ONLINE SC 325
6
SLP(Crl.) No. 4144 of 2020
nd
question, was rightly prosecuted by the 2 Respondent
– Quality Control Inspector, Bhikhiwind, District
Tarn Taran, Punjab. Learned Counsel has submitted
that there is no violation of provision under Section
24 (4) of the Act and Section 202 of the Code of
Criminal Procedure and there are no grounds to
interfere with the order of the High Court. It is
submitted that the Appellant No.2 was the Managing
Director of the Company at the relevant point of
time, as such, he is overall responsible person for
quality control of the products of the Company, as
such, he is also liable for prosecution.
8. Having heard the learned Counsels on both sides,
we have perused the impugned Order and other material
placed on record.
9. Section 33 of the Act deals with ‘offences by
companies’. A reading of Section 33(1) of the Act,
makes it clear that whenever an offence under this
Act has been committed by a company, every person who
at the time the offence was committed, was in charge
of, or was responsible to the company for the conduct
of the business of, the company, as well as the
company, shall be deemed to be guilty of the offence
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SLP(Crl.) No. 4144 of 2020
and shall be liable to be proceeded against and
punished accordingly. In the case on hand, it is not
st
in dispute that on behalf of the 1 Appellant –
nd
Company, 2 Appellant – Managing Director has
furnished an undertaking dated 22.01.2013, indicating
that Shri Madhukar R. Gite, Manager of the Company,
has been nominated in the resolution passed by the
Company on 28.12.2012 to be in charge of and
responsible to the said Company, to maintain the
quality of the pesticides manufactured by the said
Company and he was authorized to exercise all such
powers and to take all such steps, as may be
necessary or expedient to prevent the commission of
any offence under the Act. Filing of such undertaking
with the respondent is not disputed. Even, at Para
5.10 in the counter affidavit filed before this
Court, it is pleaded by the Respondents that by
appointing persons responsible for affairs of the
nd
Company, quality control, etc., 2 Appellant –
Managing Director cannot escape his liability from
st
offences committed by 1 Appellant – Company. In view
of the specific provision in the Act dealing with the
offences by companies, which fixes the responsibility
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SLP(Crl.) No. 4144 of 2020
and the responsible person of the Company for conduct
of its business, by making bald and vague
nd
allegations, 2 Appellant – Managing Director cannot
be prosecuted on vague allegation that he being the
st
Managing Director of the 1 Appellant – Company, is
overall responsible person for the conduct of the
business of the Company and of quality control, etc.
In the instant case, the Company has passed a
resolution, fixing responsibility of one of the
Managers namely Mr. Madhukar R. Gite by way of a
resolution and the same was furnished to the
nd
respondents by the 2 Appellant in shape of an
undertaking on 22.01.2013. When furnishing of such
undertaking fixing the responsibility of the quality
control of the products is not in dispute, there is
nd
no reason or justification for prosecuting the 2
Appellant – Managing Director, on the vague and
spacious plea that he was the Managing Director of
the Company at the relevant time. A reading of
Section 33 of the Act also makes it clear that only
responsible person of the Company, as well as the
Company alone shall be deemed to be guilty of the
offence and shall be liable to be proceeded against.
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SLP(Crl.) No. 4144 of 2020
Though, the Managing Director is overall incharge of
the affairs of the company, whether such officer is
to be prosecuted or not, depends on the facts and
circumstances of each case and the relevant
provisions of law. Having regard to specific
provision under Section 33 of the Act, and the
undertaking filed in the present case, respondent
nd
cannot prosecute the 2 Appellant herein. Thus, we
find force in the contention of Mr. Sidharth Luthra,
learned Senior Counsel, that allowing the prosecution
nd
against 2 Appellant – Managing Director is nothing
but, abuse of the process of law. At the same time,
we do not find any ground at this stage to quash the
st
proceedings against the 1 Appellant – Company.
10. Further, from the averments in the counter
affidavit filed on behalf of Respondents 1 & 2 and
other material placed on record, we are of the view
that no case is made out to quash the proceedings at
this stage, by accepting the plea of the appellants
that the procedure contemplated under Section 24 (4)
of the Act and Section 202 of the Code of Criminal
Procedure, is not followed. With regard to the
procedure under Section 24 (4) of the Act, we are
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SLP(Crl.) No. 4144 of 2020
st
satisfied that after the 1 Appellant – Company has
nd
deposited necessary Demand Draft for sending 2
sample to the Central Insecticide Testing Laboratory,
steps were taken promptly and report was also sent by
the Central Insecticide Testing Laboratory within the
prescribed period of 30 days. Similarly, with regard
to the procedure contemplated under Section 202 of
the Code of Criminal Procedure, the same is to be
viewed, keeping in mind that the complainant is a
public servant who has filed the complaint in
discharge of his official duty. The legislature in
its wisdom has itself placed the public servant on a
different pedestal, as would be evident from a
perusal of proviso to Section 200 of the Code of
Criminal Procedure. Object of holding an inquiry /
investigation before taking cognizance, in cases
where accused resides outside the territorial
jurisdiction of such Magistrate, is to ensure that
innocents are not harassed unnecessarily. By virtue
of proviso to Section 200 of Code of Criminal
Procedure, the Magistrate, while taking cognizance,
need not record statement of such public servant, who
has filed the complaint in discharge of his official
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SLP(Crl.) No. 4144 of 2020
duty. Further, by virtue of Section 293 of Code of
Criminal Procedure, report of the Government
Scientific Expert is, per se, admissible in evidence.
The Code of Criminal Procedure itself provides for
exemption from examination of such witnesses, when
the complaint is filed by a public servant. In the
nd
present case, 2 Respondent / Public Servant, in
exercise of powers under provisions of the
Insecticides Act, 1968, has filed complaint,
enclosing several documents including reports of the
Government Laboratories, it is always open for the
Magistrate to issue process on such complaint which
is supported by documents. In any event, we do not
find any merit in the submissions of the learned
Counsel that proceedings are to be quashed only on
the ground that, the Magistrate has taken cognizance
without conducting inquiry and ordering
investigation. In absence of showing any prejudice
caused to the appellant at this stage, the same is no
ground to quash the proceedings in exercise of power
under Section 482 of the Code of Criminal Procedure.
11. As all other nominated / responsible persons of
the Company are already accused in the Complaint, we
12
SLP(Crl.) No. 4144 of 2020
are of the view that there is no basis to proceed
nd
against the 2 Appellant – Managing Director to
prosecute him for the alleged offences. The judgment
of this Court relied on by Mr. Sidharth Luthra,
learned Senior Counsel, which is with reference to
provisions under Negotiable Instruments Act, 1881 in
Re: Expeditious Trial of Cases under Section 138 of
N.I. Act, 1881 (Suo Motu Writ Petition (Crl.) No.2 of
3
2020) , is also of not much help to the Appellants at
this stage, having regard to the facts and
circumstances of the present case.
12. For the aforesaid reasons this Criminal Appeal is
partly allowed, so far as the Appellant No.2 –
Managing Director is concerned and the impugned Order
of the High Court dated 12.05.2020, passed by the
High Court of Punjab & Haryana at Chandigarh in CRM-
M-12082-2016 (O & M), is set aside. Consequently,
nd
Complaint No. 313 dated 19.08.2015, filed by the 2
Respondent – Quality Control Inspector, Bhikhiwind
District Tarn Taran, Punjab, pending before the
learned Judicial Magistrate First Class, Patti stands
quashed qua the Appellant No.2 namely Mr. Pramod N.
Karlekar / Accused No.4. Further, it is made clear
13
SLP(Crl.) No. 4144 of 2020
that the observations and findings recorded in this
order are made only for the purpose of disposal of
this Appeal arising out of quash petition and it is
open for the Trial Court to record its own findings,
based on the evidence on record, and take such other
steps, in accordance with law.
……………………………………………………………………J
(NAVIN SINHA)
……………………………………………………………………J
(R.SUBHASH REDDY)
NEW DELHI;
August 4, 2021
14