K.A. Puj, J.
1. The petitioner/original accused No. 8 has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the Criminal Complaint No. 325 of 2006 pending in the Court of the learned Judicial Magistrate, First Class, Mundra, Kutch. This Court has admitted the petition on 7-3-2007 and granted ad-interim relief in terms of Para 19(1)(b), thereby staying the further proceedings of the complaint, qua the petitioner.
2. It is the case of the petitioner that the petitioner has served the Indian Administrative Service from the year 1960 to 1995. The petitioner retired as Secretary to Government of India having served in the position in both the Cabinet Secretary and Minister of State. Even after retirement, he served as Chairman of the Standing Conference of Public Enterprise (SCOPE). He was also associated with various social and industrial organizations. He was Chairman of various institutions, a detailed list of which was given in the memo of the petition. The petitioner was also the Director of the accused No. 1-Company, i.e. Jindal Saw Limited, during the period from 30-7-2001 till 13-5-2005. The accused No. 1-company has one pipe plant at Mundra, Kutch. The plant was set up after invitation given by the Gujarat Government in the Vibrant Gujarat programme. The plant was also set up after an assurance given by the State Government under the Single Window Environmental Clearance. Gujarat State Pollution Control Board, under the instructions of State of Gujarat issued No Objection Certificate on 5-12-2004 to Jindal Saw Limited.
3. On 15-2-2007, the petitioner received a summons from the Court of the Judicial Magistrate, First Class, Mundra, Kutch being Criminal Case No. 325 of 2006 in the matter of complaint filed by one Mr. Jaganbhai Khalabhai Patel against Jindal Saw Limited and nine other persons and the petitioner was shown as accused No. 8 in the said complaint. It was alleged in the complaint that the accused No. 1 and its Directors have violated some of the provisions of the Environment Protection Act, 1986 and Water (Prevention and Control of Pollution) Act, 1974. It is the case of the petitioner before this Court that there is no allegation that the petitioner had personally violated any provisions of the Environment Protection Act or the Water Act. It is also stated in the petition that the complaint is relating to the period of time after the petitioner ceased to be Director of the accused No. 1-company. The petitioner is therefore wrongly shown as an accused in the said complaint.
4. Mr. P.M. Thakkar, the learned Senior Counsel appearing for the petitioner has submitted that under Section 16(1) of the Environment Protection Act and Section 47(1) of the Water Act where an offence has committed by only those persons who were in charge of the company and who are responsible to the company for the conduct of its business could be held liable along with the company. He has further submitted that there is no allegation in the entire complaint that the petitioner was in charge of the company and responsible for the conduct of its business. On the contrary, it is expressly clear that the petitioner was the Director of the Company, Jindal Saw Limited and his role was only to attend the meetings of the Board of Directors of the company. He has further submitted that after his retirement from Government service in 1995, the petitioner is associated with various social and industrial organizations and he has accepted the Directorship of the company only with a view to protect the interests of the shareholders of the company. He has further submitted that the learned Judicial Magistrate has issued summons without examining the complainant or witnesses listed in the list of witnesses. He has further submitted that the Courts have taken a consistent view that if the complaint does not disclose the offence or the involvement of the person, the same could not be sustained against such a person. There is nothing in the complaint which indicates anything against the petitioner except the presumption. There is not a single statement or averment in the complaint which even remotely suggests the involvement of the petitioner. He has therefore submitted that the complaint should be quashed and set aside against the petitioner, while exercising the extraordinary Writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India as well as the inherent powers of the Court under Section 482 of the Criminal Procedure Code.
5. In support of his submissions, Mr. Thakkar relied on the decision of the Hon'ble Supreme Court in the case of (i) Nalin Thakor and Ors. v. State of Gujarat and Ors. 2003 (12) SCC 461, (ii) State of Haryana v. Brij Lal Mittal and Ors. : 1998 (5) SCC 343, (iii) R. Banerjee and Ors. v. H.D. Dubey and Ors. : 1992 (2) SCC 552, (iv) S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla : 2005 (8) SCC 89, (v) Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. : 1983 (1) SCC 1, (vi) State of Karnataka v. Pratap Chand and Ors. : 1981 (2) SCC 335, (vii) Nicosulf Industries and Exports Pvt. Ltd. v. State of Gujarat : 2002 (2) GLR 1580 and (viii) Loknath Battacharya, Managing Director v. State of Gujarat Misc. Criminal Application No. 1473 of 1998, decided on 6-2-2009.
6. Mr. Rituraj M. Meena, the learned Advocate appearing for the original complainant on the other hand has submitted that the petitioner was the Director of the accused No. 1-company at the time when the offence was committed, and hence, he has to be held liable for the offence committed by the company. He has further submitted that the complaint prima facie discusses that all the Directors are jointly and severally liable for the day-to-day management and administration of the accused No. 1-company. Whether the petitioner was participating in the day-to-day business of the company or whether offence was committed with or without his knowledge or connivance can be decided only at the time, of trial. Since, there being continuous offence and the petitioner was very much a Director of the company, complaint cannot be quashed and set aside even qua him. In support of his submissions, he relied on the decision of the Hon'ble Supreme Court in the case of (i) U.P. Pollution Control Board v. Mohan Meakins Ltd. : 2000 Cri.LJ 1799; (ii) N. Rangachari v. Bharat Sanchar Nigam Ltd. : 2007 (5) SCC 108; (iii) Vardhman Stamping Pvt. Ltd. v. Imp Power Ltd. and Ors. 2007 (2) GLR 1629, (iv) Dwarka Cement Works Ltd. and Ors. v. State of Gujarat and Anr. 1992 (1) GLH 9; (v) J.S. Huja and Ors. v. State and Ors. : 1989 Cri.LJ 1334; (vi) Azim Hashan Premji v. State of Gujarat, (Misc. Criminal Application No. 839 of 1990, decided on 7-4-2000) and (vii) U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and Anr. : 2009 (2) SCC 147.
7. Mr. L. R. Pujari, the learned Additional Public Prosecutor has submitted that as per the provisions contained in Section 16 of the Environment Protection Act, all the persons who are the Directors at the time of commission of crime are held to be liable. Proviso to this Section casts burden on the person to prove before the Court that the offence was committed without his knowledge and connivance. This burden can be discharged only at the time of trial, and hence, the complaint should not be quashed at this stage.
8. Having heard the learned Counsels for the parties and having considered their rival submissions in light of the statutory provisions as well as the decided case-law on the subject, the Court is of the view that there is no averment in the complaint which shows the deemed involvement of the petitioner in the day-to-day affairs or business transactions of the company. Section 16(1) of the Act makes it clear that where the offence was committed by every person who at the time of offence committed was directly in-charge or was responsible to the company for the conduct of the business of the company. If one reads the complaint and takes into consideration the averments made in the complaint, it is abundantly clear that the ingredients of Section 16(1) are not found in the complaint and simply because the petitioner was a Director of the company, he could not be presumed to be in-charge of the affairs of the company. This is not the requirement of Section 16(1). A positive averment should have been made in the complaint to hold the petitioner liable.
9. Apart from this, the facts clearly reveal that at the time when the offence was committed, the petitioner was not the Director of the company. In the complaint, it is specifically stated that the period under consideration was the period from 9-11-2005 to 11-11-2005. Admittedly, the petitioner was not the Director during this period. Form 32 is placed on record which shows that the petitioner has tendered his resignation on 13-5-2005 and Form 32 was filed with the Registrar of Companies on 9-7-2005. As per the complaint, the Environment Engineer, Vigilance Deptt. of the Board visited the company premises on 9-11-2005 to 11-11-2005 and formed prima facie opinion that the company has committed breach of provisions of Environmental laws. Complaint, was thereafter, filed in 2006. Thus, at the time of commission offence for which complaint was filed, the petitioner was not a Director.
10. The legal position is also very clear on this aspect. In the case of Nalin Thakor and Ors. (supra), the Hon'ble Supreme Court has clearly held that the issue of summons to the appellants was without any application of mind as nothing was said in the complaint or in the statement recorded by the 5th Joint Judicial Magistrate before issue of summons that the offence was committed with the consent or connivance of or was attributable to any negligence on the part of the appellants. The Court further held that Sub-section (2) of Section 47 requires that where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of any Director, Manager, Secretary or other officer of the company, such Director, Manager, Secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. There being no allegation as regards the requirement of Sub-section (2) of Section 47, the 5th Joint Judicial Magistrate committed an error in issuing summons.
11. In the case of State of Haryana v. Brij Lal Mittal and Ors. (supra), the Hon'ble Supreme Court has held that the vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was in charge of and was also responsible to the company for the conduct of its business. Simply because a person is a Director of the company, it does not necessarily mean that he fulfills both the above requirements so as to make him liable. Conversely, without being a Director a person can be in charge of and responsible to the company for the conduct of its business. In the case before the Hon'ble Supreme Court, except a bald statement in the complaint that the respondents were Directors of the manufacturer company, there is no other allegation to indicate, even prima facie, that they were in charge of the company and also responsible to the company for the conduct of its business. Therefore, the complaint was liable to be quashed.
12. In the case of R. Banerjee and Ors. v. H.B. Dubey and Ors. (supra), it is held by the Hon'ble Supreme Court that it is clear from the Scheme of Section 17 that where a company has committed an offence under the Act, the person nominated under Sub-section (2) 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. If the company succeeds in showing that it had made valid nomination and had duly intimated the concerned Local (Health) Authority about the same as required under Sub-section (2) of Section 17 before commission of the alleged offence, the case would fall within the ambit of Sub-clause (i) of Clause (a) of Sub-section (1) of Section 17 of the Act and not under Sub-clause (ii) thereof. It would then be necessary for the prosecuting agency to show from the averments made in the complaints that the case falls within Sub-section (4) of Section 17 of the Act. If the prosecuting agency fails to show that the offence was committed with the consent or connivance of any particular Director, Manager, Secretary or other officer of the company or on account of the negligence of any one or more of them, the case set up against the Director, Manager etc. (appellants) cannot be allowed to proceed. In the case before the Court, it was held that there is no allegation in the complaint that the offence was committed with the consent/ connivance/negligence of the Directors, other than the nominated person, who were impleaded as co-accused. Therefore, the allegations in the complaint did not make out a case under Sub-section (4) of Section 17 of the Act. That being so, the inclusion of the co-accused other than the company and the nominated person as the persons liable to be proceeded against and punished cannot be justified.
13. In the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. : 1983 (1) SCC 1, it is held by the Hon'ble Supreme Court that as regards the Directors, there was no evidence to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstance, therefore, no case against the Directors had been made out ex-facie on the allegations made in the complaint and the proceedings against them were rightly quashed. In this case, the Hon'ble Supreme Court has further observed that Section 319 is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. If the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence, the Court can take cognizance against them and try them along with the other accused. The mere fact that the proceedings have been quashed under Section 482 against some of the accused persons (respondents 2 to 5) will not prevent the Court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out.
14. In the case of State of Karnataka v. Pratap Chand and Ors. : 1981 (2) SCC 335, while dealing with the provisions contained in Drugs and Cosmetics Act, 1940, the Hon'ble Supreme Court has held that a person 'in-charge of' and 'responsible to the company for the conduct of the business of the company', contemplated in Section 34(1) of the Act, must be a person in overall control of the day-to-day business of the company or firm. If a partner of a firm is not in such overall control, he cannot be liable to be convicted merely because he had the right to participate in the business of the firm under the terms of the partnership deed.
15. In the case of Nicosulf Industries and Exports Pvt. Ltd. v. State of Gujarat : 2002 (2) GLR 1580, this Court has held that from Section 47(1) of the Act, it is clear that along with the company a person who was in-charge of the company and was responsible to the company for the conduct of the business of the company shall be liable for the offence committed by the company. This vicarious criminal liability can be fastened only when it is proved by the prosecution that the revisionist No. 2 was in-charge of the company and was responsible to the company for the conduct of the business of the company. He was only one Director and there were two other Directors who were acquitted by the lower appellate Court on the ground that the ingredients of Section 47(1) of the Act could not be established against those two Directors. However, the initial burden lay upon the prosecution to prove that the revisionist No. 2 was in-charge of the company and was responsible to the company for the conduct of the business of the company. The Court further held that the Director cannot be said to be responsible to the company for the conduct of the business of the company. In absence of evidence, the revisionist No. 2 was not required to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such an offence as contained in proviso to Section 47(1) of the Act.
16. In the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Anr. (supra), while dealing with the provisions contained in Negotiable Instruments Act, 1881 the Hon'ble Supreme Court has held 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 N.I. Act is sought 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. Under Section 141 what is required is that the persons who are sought to be made criminally liable should be, at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for the conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. The liability arises on account of conduct, act or omission on the part of a person and not merely on account of holding an office or a position in a company. Therefore, in order to bring a case within Section 141 of the Act the complaint must disclose the necessary facts which make a person liable. It is necessary to specifically aver in a complaint 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. Thus, merely being a Director of a company is not sufficient to make the person liable under Section 141. A Director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in-charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases. A Director who was not in-charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision.
17. Similar issue arose in the case of N. Rangachari v. Bharat Sanchar Nigam Ltd. : 2007 (5) SCC 108, wherein it is held in Paragraph 19 of the judgment, that a person in the commercial world having a transaction with a company is entitled to presume that the Directors of the company are in-charge of the affairs of the company. If any restrictions on their powers are placed by the Memorandum of Articles of the company, it is for the Directors to establish it at the trial. It is in that context that Section 141 of the Negotiable Instruments Act provides that when the offender is a company, every person, who at the time when the offence was committed was in-charge of and was responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty of the offence along with the company. The Court further held that the allegation in the complaint that the named accused are Directors of the company itself would usher in the element of their acting for and on behalf of the company and of their being in-charge of the company. However in the subsequent Paragraph, the Hon'ble Supreme Court has clarified that the decision in S.M.S. Pharmaceuticals Ltd. binding on us, postulated that a Director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of his business in the context of Section 141 of the Act. Bound by that decision, it is held that no further discussion on this aspect appears to be warranted. Thus, this decision would not render any assistance to the respondent No. 2.
18. In the case of Vardhman Stamping Pvt. Ltd. v. Imp Power Ltd. and Ors. 2007 (2) GLR 1629, this Court has held that the Chairman, Managing Director and Joint Managing Directors by virtue of their office can be said to be in charge of and responsible for the conduct of the business of the company. Therefore, they get covered under Section 141. The same way the signatory of the cheque which is dishonoured is also clearly responsible for the incriminating act and will be covered under Section 141. The basis for issue of process must be complaint as a whole. If the complaint discloses commission of offence on part of accused, then process cannot be quashed merely on account of infirmity in recording verification. This was the case of Chairman, Managing Director and Joint Managing Director who were actively associated with the Company. The petitioner, being only a Director, cannot be put at par with them.
19. In the case of Dwarka Cement Works Ltd. and Ors. v. State of Gujarat and Anr. 1992 (1) GLH 9, this Court has held that, merely because, it is held that there is no provision in the Pollution Act to the effect that in a given case the petitioners are also expected to disclose the names of the persons who were directly in-charge of and were responsible to the company for the conduct of the business of the company, it cannot absolve them from common sense discharge of the duty to the Court in disclosing the names of the persons who are vicariously liable for the offences committed by petitioner No. 1-Company. Though, prima facie the averments made in the complaint do disclose the offence against petitioner Nos. 2 to 6, yet the petitioner No. 1-company and its Directors would be at liberty to place the relevant material available on record of the company before the trial Court showing as to who in fact were the real persons who can be ultimately prosecuted and tried for their vicarious liability for the alleged offences committed by the company, and the trial Court in its turn after duly verifying the genuineness of the same, shall issue the notice to so newly named persons liable to be prosecuted and tried and decide the question after hearing all concerned. This decision has no bearing on the issue involved in the present petition. Firstly, the Court, as a matter of fact found that prima facie, the averments made in the complaint did disclose the offence against the Directors. Secondly, the names of the persons who were vicariously liable for the offences committed by the company were not disclosed to the Court. In the present case, one of the Directors has been described as a whole-time Director in the complaint. Moreover, at the time of applying for a licence under the Factories Act, the accused No. 1-company had appointed/nominated one Mr. H. S. Chaudhary, as the occupier of the factory. Hence, even as per the respondent No. 2, the petitioner did not have any official duties or powers with the company except to attend the meeting of the Board of Directors and to protect the interest he was representing.
20. In the case of J.S. Huja and Ors. v. State and Ors. : 1989 Cri.LJ 1334, the Court observed that it has been stated in the complaint a copy of which has been filed by the applicant, that the accused persons are knowingly and intentionally discharging their polluted trade effluent without obtaining the consent of the Board and they are Directors and Secretary of the company and they are responsible for the conduct of day-to-day business of the company and responsible for not obtaining the consent of the Board and discharging the trade effluents without obtaining consent. It has further been said that they are in-charge of the business of the company and they are responsible for day-to-day working of the company and also conducting business of the company and continuous commissioning of the offence. Thus, there is a clear allegation against them that they are responsible for conduct of the work of the company. So, they can be prosecuted unless they prove that the offence was committed without their knowledge or that they exercised all due diligence to prevent the commissioning of such offence. In this decision, the Court held the Directors liable on the basis of averments and allegations made in the complaint, which are lacking in the present case.
21. While considering the question regarding retirement of Director, the Court observed even if they have retired, it will be seen as to when they have retired. From the complaint, it appears that the offence was committed in the year 1983 initially and there is nothing to show as to when they retired. Even if they have retired, it will be a question of fact to be examined, the Court below as to when they ceased to be responsible for the conduct of the business of the company irrespective of the fact whether they were Directors or not. This disputed question of fact cannot be gone into in proceedings under Section 482 of Cr.P.C. Since, the Court had no evidence to decide as to when a concerned Director retired, the Court took the view that such disputed question of fact can be decided at the time of trial. In the present case, date of commission of offence as well as date of retirement of the petitioner from the directorship of the company along with supporting documents are available on record, which clearly establish that he is not responsible for the alleged offence committed by the company.
22. In the case of Azim Hashan Premji v. State of Gujarat Misc. Criminal Application No. 839 of 1990, decided on 7-4-2000, this Court has held that there are clear averments in the complaint alleging that the accused including the petitioners are in-charge of and responsible for the conduct of the business of the company. It was also alleged that while the treatment plants of the company were never working at the time of the monitoring inspection visits and the accused used to take shelter under one or the other fabricated pretexts. That despite the repeated follow-up actions, the accused failed to provide effective functioning of the treatment plants which resulted into hazardous and dangerous water pollution harmful to human beings, creatures and plants. It is alleged in the complaint that the accused had violated the terms and conditions prescribed in the consent order, and for a considerable time, the accused had been evading implementation of the conditions violating the provisions of Section 25 of the Act. Under these circumstances, the Court held that it cannot be said that no case is made out or there is no material in the complaint implicating the petitioners to which the learned Magistrate could have averted to before issuing the process nor can it be said that the process has been issued against the petitioners mechanically or without application of mind. The Court therefore took the view after considering the averments made in the complaint and the statement recorded before it, it would be reasonable that the case is proceeded for a full-fledged trial. The Court did not find any fundamental legal defect or an absolute lack of material against the petitioners. This is also a case of Chairman and/or Managing Director of the Company and the complaint contains necessary averments connecting the said petitioner with the offence alleged. The facts of the petitioner's case are totally different and distinguishable.
23. In its recent decision of this Court in the case of Loknath Battacharya, Managing Director v. State of Gujarat Misc. Criminal Application No. 1473 of 1998 decided on 6-2-2009, it is held that there are no specific averments in the complaint qua the Managing Director and Director that they were in-charge of day-to-day conduct of the business and responsible for alleged commission of crime under the Act. The Court therefore did not see any justification to permit the concerned Magistrate to proceed further with the proceedings impugned in this petition. The Court further observed that a case was made out by the petitioners to exercise powers under Section 482 of the Code of Criminal Procedure, 1973 since the complaint and the process issued subsequently do not contain allegations prima facie if examined on the face value attracting ingredients of the offences, and hence, the impugned complaint is required to be quashed and set aside.
24. In the case of U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and Anr. : 2009 (2) SCC 147, the Hon'ble Supreme Court has observed that the only point for consideration in this Appeal is whether the complaint of the U.P. Pollution Control Board discloses any material against first respondent, i.e. Dr. Bhupendra Kumar Modi, Joint Managing Director, particularly, his control over the decision making process of the company and whether the High Court was justified in quashing the same insofar as Dr. Bhupendra Kumar Modi in a petition under Section 482 of the Cr.P.C.? The Court further observed that the High Court quashed the complaint against the first respondent who was the Joint Managing Director of the company. The Court was concerned about the averments/allegations against him in respect his concern in the day-to-day affairs and in the decision-making process. The Court has referred to the relevant averments/materials adverted to in the complaint. The complaint specifically contains the averment that at the time of commission of the offence all the persons were in-charge of the business of the company and responsible for the day-to-day working of the company and also for conducting the business of the company and continuous commissioning of offence under Section 44 and the construction of the effluent treatment plant could be taken up only when these senior authorities resolved to do so. The complaint further contains an averment that, the Chairman, Directors and Secretaries are the brain and nerve centre of Modi Carpets and conducting the business of the company which has been discharging its trade effluents into the stream for which they are to be punished under Section 44 read with Section 47 of the Act. Apart from specific averments in the complaint, the Board has also placed a letter dated 22-1-1993 granting conditional consent to respondent No. 1, copies of the inspection reports, various letters/communications and their reply. It is in this background, the Court allowed the appeal and set aside the impugned judgment of the High Court and directed Divisional Magistrate (Pollution) to proceed with the case in accordance with law. While doing so, it is observed by the Court that it is true that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. While exercising inherent powers either on civil or criminal jurisdiction, the Court does not function as a Court of appeal or revision. The inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution. It should be exercised to do real and substantial justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. When no offence is disclosed by the complaint, the Court may examine the question of fact. When complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant had alleged and whether any offence is made out even if the allegations are accepted in toto. If one applies these principles to the facts of the present case, it is clear that the petitioner is not the Joint Managing Director of the company. He is simply a professional Director. There are no averments in the complaint as were found and recorded by the Hon'ble Supreme Court in this judgment. The petitioner has already tendered his resignation and during the period for which the inspection was carried out, the petitioner was no more a Director of the company. Even when he was a Director, he was not taking any active participation in the day-to-day affairs or Management of the company. In this view of the matter, the reliance placed by Mr. Meena on this judgment of the Hon'ble Supreme Court does not render any assistance. The Court is therefore of the view that the exercise of inherent powers under Section 482 of the Cr.P.C. should invariably be exercised by the High Court in such a case so as to prevent abuse of the process of the Court and render substantial justice in the matter.
25. Considering all the aforesaid judgments of this Court as well as the Hon'ble Supreme Court in light of the facts found in this case and the averments made in the complaint, this Court is of the view that there is nothing in the complaint to allege any offence against the petitioner or there is nothing to point out that the petitioner was involved in day-to-day business of the Company. It cannot be said that the petitioner was responsible for the affairs of the company. Since, the complaint is absolutely silent on the role of the petitioner and merely on the basis of a general statement made in the complaint that the petitioner is the Director, and hence, he is deemed to have been liable for the offence committed by the company is not enough for the prosecution to proceed against the petitioner.
26. Taking any view of the matter and looking to the outstanding track record of the petitioner and even considering the fact that the petitioner retired much prior to the commission of the offence and even considering the fact that he was not actively associated with day-to-day affairs of the company, this Court.. is of the view that no case is made out against the petitioner to proceed with the criminal case, and hence, considering the peculiar facts of the present case, the complaint against the petitioner cannot be sustained, and hence, it is required to be quashed and set aside. Accordingly the complaint filed against the petitioner is hereby quashed and set aside. The petition is accordingly allowed. Rule made absolute.