1. IN THE COURT OF HON'BLE SPECIAL JUDGE (CILL SPECIAL
COURT), NAGPUR
Criminal Complaint Case No. 100028 of 2011,
STATE (C.B.L.) -V TARSEN CGOYAL & OTHERS
WRITTEN NOTES OF ARGUMENT
The Applicant/Accused No.5 (Smit. Sangita W/o. Sanjay Jain) submits her written
notes of arguments as under
1. That the Applicant /Accused No.5 has moved an application for discharge under
section 227 of Criminal Procedure Code, The brief facts of the case and arguments
advanced are an under.
2. That the CBI (Complainant) has registered case against Applicant/Accused No:5
along with other accused in the present matter for the offences under Sections 120-B, 409,
420, 468, 471 of IP.C. and 13(2) row See 13(1Xd) of Prevention of Corruption Act, 1988.
3. That the Applicant/Accused No. 5 is a peace loving and law-abiding citizen. She is
one of the Director in the Company, which is a family concern vir. Kasliwal Trading Co.
Pvt. Ltd. The husband of the Applicant/accused No.5 by name Shri Sanjay Jain is also a
Director of Kauliwal Trading Co. Pvt. Ltd. The company undertakes various contracts for
construction of roads, civil
Contd. ..2
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construction, towers, structurals etc. The husband of the Applicant/Accused No.5 is a
promoter as well as looking after the day-to-day affairs of company The
Applicant/Accused No.5 submits that she is not looking after the affairs of the company.
The company being a family concern, she is just a Director and doesn't play any role in the
affairs or business of the company nor in any way involved in the operation of the Bank
Account.
4. That the Applicant/Accused No. 5 submits that the prosecution (CBI) has filed the
charge sheet in the instant case The Applicant/Accused No. 5 has gone through the charge
sheet. It is submitted that as factual and practical position stand with respect to the business
activities and Bank operation, there is no material on record to demonstrate that
Applicant/Accused No.5 is in any manner involved in the instant case Similarly, there
are no specific allegations with regard to her role, in the entire charge sheet thereby
making out any case against her. In the entire Charge Sheet, there is no whisper or
pleading/particulars in respect of her involvement and in what way she is concerned
with the alleged offences. Prima facie, it appears that the prosecution has impleaded
the Applicant/Accused No.5 as she is a Director in the above-named Company. The
Applicant/Accused No.5 submits that when there is on incriminating material
available against her i.e. during or after investigation, the I.O, (prosecution) should
not have included her name in the array of the accused, particularly in the criminal
offence registered with respect to the alleged activities of other accused.
5. That the Applicant/Accused No. 5 is relying on the judgment reported in Pannalal
Sunderlal Choksi and ors. v. State of Maharashtra 2000(4) Mh.L.J. 674 to point out
that when offence is committed by company, only. that person would be responsible,
who is expressly by its resolution was
Contd. ..3
3. - 3 -
declared as nominee to be in charge of and responsible to the business of the company
and not any other person merely because such person or persons were Directors of
the Company.
6. That the Applicant/Accused No. 5 is also relying on the ruling in Municipal
Corporation of Delhi v. Ram Kishan Rohtagi and ors, reported in AIR 1981 SC 67 in
order to argue that in the absence of clear accusation pleaded against Director that
he was responsible to the company and was in-charge of the Company when offence
was committed, such person cannot be prosecuted merely because he was Director of
the Company.
7. That the Applicant/Accused No. 5 is also relying on the ruling in Pepsico India
Holdings Pvt. Ltd. v. Food Inspector and Anr., reported in 2011 Cri.LJ. 1012 to argue
that mere bald statement in the complaint that accused is Director of the Company
against whom allegations have been made, cannot be sufficient to hold such Director
liable for offence company in the absence of specific allegations in the complaint the
3/5 in the management of the Company, i.e. in-charge of and responsion company for
its business when offence was committed.
8. That the Applicant/Accused No. 5 further submits that she has not signed the
Account Opening Form of State Bank of Patiala (complainant) and the banking
operations were also looked after by her husband. The complainant might have
obtained signatures on some documents as she being a Director of the company and
in view of mandatory provisions. However, such formal documentation of the initial
stage seeking financial assistances does not make her liable to any criminal
consequences, during the operation of the said bank account, wherein she admittedly
have not authority or power to operate. Therefore, the Applicant/Accused No.5 is no
Contd. ..4
4. - 4 -
way concerned with the alleged offence. It is submitted that she is a household lady. So
also from reputed family having responsibilities of the kids and old mother-in-law and the
pendency of the present matter is putting her in embarrassing position, on the ground of
technical aspect of her Director of the Company.
9. That the Applicant/Accused No. 5 further submits that being a Director of
Company, she cannot be held vicariously liable for a criminal act unless specifically
provided for by statute. Offences contained under the Indian Penal Code 1860,
including that of cheating do not provide for vicarious liability. A criminal complaint
must subscribe a specific role to each and every accused. The prosecution has failed to
bring out the specific acts of commission or omission attributed to the individual accused
persons in order to bring out the criminal conspiracy entered into in between them. Besides
there are no averments in the charge sheet as to how and in what manner the Applicant
Accused No. 5 was responsible for the conduct of the business of the Company or otherwise
responsible to it in regard to its functioning.
10. In one of the judgment, the honourable Apex Court held that in absence of any
provision laid down under the statute, a director of a company, or a employee thereof
cannot be held to be vicariously liable for an offence committed by the company itself. In
another judgment, the honourable Apex Court held that even in case falling under section
406 of the Indian Penal Code vicarious liability cannot be extendable to the directors or
officers of the company. In another reported case, the honourable Supreme Court held that
the object of providing an opportunity to the accused of making submissions as envisaged
in Section 227 of the Code of Criminal Procedure, 1973, is the court to decide whether it
is necessary to proceed to conduct the trial.
Contd. ..5
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In view of the aforesaid facts, circumstances and submissions, it is humbly prayed
that the Applicant/Accused No.5 may kindly be discharged under Section-227 of the
Criminal Procedure Code, in the interest of justice.
NAGPUR
DATED:
CF APPLICANT/ACCUSED NO. 5
