I.S. Shrivastava, J.

1. These petitions have been filed under Section 482 of the Code of Criminal Procedure by the Applicants for quashing of proceedings pending before the Special Judicial Magistrate, First Class, Indore presided by Shri D.K. Singh in Criminal Case No. 23417/2010 against the Applicants Rajeev Minocha, Deepak Kaul, Mohamed Akeel, Milind Ramchandra Pingle and Mrs. Shukla Wassan.

2. According to the facts of the case, on 17-4-2009, Shri V.N. Gangrade, Food Inspector, Municipal Corporation, Indore visited the premises of Hindustan Coca-Cola Beverages Pvt. Ltd. situated at Jagdamba Cold Storage, Nemawar Road, Indore which was being operated by Rajesh Goyal as Manager. On demand, Rajesh Goyal submitted a photo copy of the PFA license. During investigation, it was found that product of Hindustan Coca-Cola Beverages Pvt. Ltd., i.e., Coca-Cola, Sprite, Limca, Fenta, Thums-Up etc. were collected there for sale. There 36 carton of sweetened carbonated beverage sprite containing nine bottle 2 litres each were stored for sale, hence he purchased three bottles of each of 2 litres and paid 144/- and received a receipt of it from Rajesh Goyal. Thereafter, he gave the intimation on Form No. VI to Rajesh Goyal about its purchase for investigation. Rajesh Goyal said that he has purchased the above sweetened carbonated beverage sprite from Hindustan Coca-Cola Beverages Pvt. Ltd., Pilukhedi, Rajgarh and he will provide the purchase invoice later on. Thereafter, the Food Inspector, as per procedure prepared three samples and sent one sample to Public Analyst, Municipal Corporation, Indore for analysis and the remaining samples were deposited in the office of the Local Health Authority. Thereafter, the Food Inspector sent a letter on 1-6-2009 to Rajesh Goyal to furnish the information of the firm and copy of the invoices. On 2-6-2009, report of Public Analyst was received; according to which, the details on the bottles was not up to the mark. According to report, on the bottles there was no details regarding the manufacturing date and batch number on the neck of the bottles as claimed on label. Absence of manufacturing date nullifies the date of best for consumption as mentioned on the label. This contravenes the Sub-rules (e), (f) and (i) of Rule 32 of the PFA Rules, 1955, hence the sample of sweetened carbonate Beverage Thums-Up is misbranded as per Section 2(ix), (k) of the PFA Act, 1954. In response to letter dated 1-6-2009, Hindustan Coca-Cola Beverages Pvt. Ltd., Rajgarh on his letter pad sent a copy of the nomination Form VIII and the copy of the license of Hindustan Coca-Cola Beverages Pvt. Ltd., Nemawar Road, Indore, but it was not in conformity with the information which was required.

3. Thereafter, the Food Inspector sent a reminder on 18-7-2009 by registered AD. In reply, copy of PFA license for the year 2009-10 of Hindustan Coca-Cola Beverages Pvt. Ltd. was received which was not in conformity with the information required. Thereafter, the Food Inspector sent a registered letter on 8-9-2009 about the information of the Hindustan Coca-Cola Beverages Pvt. Ltd., Nemawar Road, Indore. In reply, Advocate Harish Kumar, on his letter head, sent the information which was not in conformity with the required information. Thereafter, on 5-12-2009, letter was sent to Rajesh Goyal to furnish the above information. In reply, Advocate Harish Kumar submitted the information which was not also in conformity with the required information.

Thereafter, the Food Inspector on 15-2-2010 sent a letter to Registrar of Company, Madhya Pradesh by registered AD and a letter was sent to Registrar of Company, Delhi and Haryana. New Delhi on 15-3-2010 by registered AD. In reply, an information was sent to him. On 23-3-2010, on personal contact to Rajesh Goyal, he supplied the invoice about the purchase of the bottles, but he did not furnish the other information. On 30-3-2010, an information was received by the Registrar of Company, New Delhi. Thereafter, the Food Inspector filed a challan against the accused Nos. 1 to 10 including the Applicants and the Court vide order dated 11-10-2010 took cognizance against all the Applicants without application of mind and considering the pleadings of the case and issued bailable warrant of Rs. 5000/- each for their appearance.

4. It has been argued by the Applicants Counsel that Mrs. Shukla Wassan is the Company Secretary of Hindustan Coca-Cola Beverages Pvt. Ltd. (in short referred as the Company) and Rajeev Minocha, Deepak Kaul Mohamed Akeel and Milind Pingle are the Directors of the Hindustan Coca-Cola Beverages Pvt. Ltd. Rajeev Minocha was the Director at the relevant time and is based out of Gurgaon in the State of Haryana. Deepak Kaul is the Director and is based out of Hyderabad in the State of Andhra Pradesh. Mohamed Akeel is the Director and is based out of Gurgaon in the State of Haryana and Milind Pingle is the Director and is based out of Mumbai in the State of Maharashtra. Shri Rajkumar Tinker is the nominee of the Company in accordance with Section 17(2) of the PFA Act, who has been also prosecuted as accused No. 9 in the complaint.

5. It has been further argued that the learned Trial Court had taken cognizance vide order dated 11-10-2010 against the Applicants and Ors. in a mechanical manner and without application of mind and issued bailable warrants against the Applicants along with other persons. As per Section 17(2) of the PFA Act, when the complaint has been filed against the nominee of the Company, the prosecution of the Directors is an abuse of the process of Court. The learned Trial Court failed to understand the legal position of law and hence the continuance of the proceedings against the Applicants is an abuse of the process of Court and as such the order taking cognizance dated 25-10-2010 and the entire proceedings is bad in law, which should be set aside.

Prosecution of the Directors of the Company, even in the absence of nomination papers as per PFA Act, is not maintainable, unless there is clear allegation to the effect that the officials were in charge and responsible to the Company for the conduct of the business of the Company or the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any officials. However, in the present case, in spite of making nominee of the Company as the accused the complainant without any averment in the complaint has impleaded the Applicants and other officials of the Company in the present complaint. The complaint is silent and there is general allegation in the complaint that accused Nos. 1 to 8 have committed an offence by selling misbranded beverages and hence in view of the fact that here is no averment in the complaint as against the Applicants, the continuance of the proceedings against the Applicants is an abuse of the process of Court and liable to be set aside.

Merely because, the Applicants are the Directors of the Company, the Applicants cannot be held vicariously liable for the offence alleged to have been committed by the Company, if at the material time, the Applicants were not in charge and responsible to day to day affairs of the Company.

6. It has been further argued that it is settled law that the complaint must prima facie demonstrate nexus between the accused and the alleged crime committed within the parameters of Section 17(1)(a)(ii) and Section 17(4) of the PFA Act in order to prosecute any officials and Directors of the Company other than the nominee under the PFA Act. The word "in-charge" means the person who effectively exercises all controls of day to day business of the depot of the Company at Indore. Unless the same is alleged, the Applicants do not become amenable to the provisions of Section 17(1)(a)(ii) and Section 17(4) of the PFA Act. In the present case, there is no averment in the complaint that the Applicants were incharge of and was also responsible to the Company for the conduct of the business of the Company. The Food Inspector has drawn a presumption with regard to involvement of the Applicants without any averment with regard to the control of day to day business of the company by the Applicants and hence the cognizance order is bad in law and liable to be set aside.

Mrs. Shukla Wassan is the Company Secretary of the Company and she cannot be said to be involved in day to day affairs of the Company relating to the present alleged offence. Merely because, she is a Company Secretary, she does not attract vicarious liability for offence alleged to have been committed by the Company, if at the material time, she was not incharge and responsible to day to day affairs of the Company. There is no averments in the complaint that she was also incharge of and was also responsible to the company for the conduct of the business of the Company.

7. Therefore, it has been argued that the order dated 25-10-2010 by which cognizance under Section 7/16 of the PFA Act has been taken against the Applicants be set aside or quashed.

8. It has been argued by the Respondents Counsel that the information submitted by the Company was different as was required, therefore, the complaint was filed against all the accused persons. The Applicants were not supplying required information. The Applicants must have approached the Trial Court and raised objections there, but they have preferred this petition directly without going to trial hence these petitions are premature and it should be dismissed.

9. Considered the arguments.

As regard to the objection that these petitions are pre-mature, in the case of Adalatprasad v. Rooplal Jindal and Ors. AIR 2004 SC 4674, it has been held by the Apex Court that "the order of taking cognizance by the Trial Court cannot be reviewed by it. The remedy to accused lies in invoking Section 482 of the Code of Criminal Procedure", therefore, the objection that these petitions filed under Section 482 of the Code of Criminal Procedure are premature, is baseless.

10. From perusal of the complaint filed by the Food Inspector before the Trial Court, it reveals that there is no averment in the complaint that how the Directors and the Company Secretary of the Company are responsible for the day to day management of the Company or incharge of or responsible for misbranding of the seized items. He has simply stated that the accused persons has sold the misbranded sweetened carbonated beverage, hence they are responsible, but this is not the required point of law.

In the case of Pepsico India Holdings Private Limited v. Food Inspector and Anr. : (2011) 1 SCC 176 , it has been held that:

It is now well established that in complaint case against the Company and his Director, the complainant has to indicate in the complaint itself as to whether the directors concerned were either in charge of or responsible to the company for its day to day management, or whether they were responsible to the company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made, is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company.

In the case of State of NCT of Delhi through Prosecuting Officer v. Rajiv Khurana : AIR 2010 SC 2986 , it has been held that:

legal position which emerges from a series of judgments is clear and consistent that it is imperative to specifically aver in the complaint that the accused was in charge of and was responsible for the conduct of business of the company. Unless clear averments are specifically incorporated in the complaint, the Respondent cannot be compelled to face the rigmarole of a criminal trial.

In the case of Central Bank of India v. Asian Global Ltd. and Ors. : AIR 2010 SC 2835 , it has been held that--

in absence of specific charges against the Respondent, the complaint was liable to be quashed and the Respondents were liable to be discharged.

In the case of R. Banerjee and Ors. v. H.D. Dubey and Ors. : AIR 1992 SC 1168 , it has been held that--

from the scheme of Section 17, it is clear that where a company has committed an offence under the Act, the person nominated by the company under Sub-section (2) of Section 17 to be in charge of and responsible to the company for the conduct of its business shall be proceeded against unless it is shown that the offence was committed with the consent/connivance/negligence of any other Director, Manager, Secretary or Officer of the Company in which case the said person can also be proceeded against and punished for the commission of the said offence. It is only where no person has been nominated under Sub-section (2) of Section 17 that every person who at the time of the commission of the offence was in charge of and was responsible to the company for the conduct of its business can be proceeded against and punished under the law.

This Court in M. Cri. C. No. 4455/2009, vide order dated 21-5-2010 has adopted the same view. Therefore, on the basis of the above discussions, I am of the view that in this case the company has nominated Rajkumar Tinker as its nominee who is added as accused No. 9 in the complaint filed by the Food Inspector and since there was no averment in the complaint presented by the complainant that how the Directors and other officers and other persons had any nexus with the day to day working of the company with respect to seized articles, therefore, there was no ground to proceed against them. Hence, the impugned order is not sustainable in the eye of law.

11. Therefore, in view of the above discussions, Applicant Mrs. Shukla Wassan in M. Cri. C. No. 7113/2010 and Applicants Rajeev Minocha, Deepak Kaul, Mohamed Akeel, Milind Ramchandra Pingle in M. Cri. C. No. 7190/2010 are not liable to be prosecuted, therefore, these petitions deserve to be allowed.

12. Accordingly, both these petitions are allowed and the proceedings against the Applicants Rajeev Minocha, Deepak Kaul, Mohamed Akeel, Milind Ramchandra Pingle and Mrs. Shukla Wassan in Complaint Case No. 23417/2010 pending in the Court of Shri D.K. Singh, Special Judicial Magistrate First Class, Indore are quashed.