IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Transcription

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE BETWEEN : Dated the 7 th day of August 2012 : B E F O R E : HON BLE MR.JUSTICE : V.JAGANNATHAN CRIMINAL PETITION No / M/S ORCLE FINANCIAL SERVICES SOFTWARE LIMITED, A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT 1956, PLOT NO. 152, EPIP ZONE, HOODI VILLAGE, BANGALORE 2. CHAITANYA M KAMATH MANAGING DIRECTOR & CEO, M/S ORCLE FINANCIAL SERVICES SOFTWARE LIMITED, SOFTWARE LIMITED, PLOT NO. 152, EPIP ZONE HOODI VILLAGE, BANGALORE 2. MR. SAJAN MATHAI DIRECTOR, HUMAN RESOURCES CUSTOMER SERVICES ORGANIZATION COMPLIANCE OFFICER, ORACLE INDIA PVT LTD ORACLE TECHNOLOGY PARK 3, BANNERGHATTA ROAD, BANGALORE K K DAVIS VICE PRESIDENT, HUMAN RESOURCES & TRAINING, M/S ORACLE FINANCIAL SERVICES SOFTWARE LIMITED, PLOT NO. 152, EPIP ZONE, HOODI VILLAGE, BANGALORE 5. FRANK BRIENZI SR. VICE PRESIDENT AND GEN. MANAGER, ORACLE AMERICA INC, 500 ORACLE PARKWAY, REDWOOD SHORES, CALIFORNIA

2 2 6. TONY HOLCK H.R.BUSINESS PARTNER ORACLE AMERICA INC 500 ORACLE PARKWAY REDWOOD SHORES, CALIFORNIA VIVEK GOVILKAR 502, OCTAVIOUS, HIGH STREET, HIRANANDANI GARDENS, POWAI, MUMBAI PETITIONERS ( By Sri Udaya Holla, Senior Advocate, along with Cyril Prasad Pais, Advocate. ) A N D : 1. STATE BY MAHADEVPURA POLICE STATION, BANGALORE SHARAN DESAI, S/O LATE HANUMANTHA RAO DESAI, NO. 20/29, GROUND FLOOR, 3RD CROSS, 4TH BLOCK, KUMARA PARK WEST, BANGALORE-20. RESPONDENTS ( By Sri P.Karunakar, H.C.G.P. for R-1. Smt. Manjula Tejaswi, Advocate for R-2. ) CRL.P. FILED U/S 482 CR.P.C. PRAYING TO SET ASIDE THE CHARGE SHEET FILED BY THE RESPONDENT NO.1 ON FOR AN ALLEGED OFFENCE P/U/SEC.112 OF THE KARNATAKA POLICE ACT AND QUASH THE ENTIRE PROCEEDINGS IN C.C.NO. 222/12 (CRIME NO. 522/11) PENDING ON THE FILE OF MMTC-I, MAYO HALL, BANGALORE.

3 3 THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING : O R D E R The petitioners seek quashing of the charge sheet filed against them in respect of an offence under Section 112 of the Karnataka Police Act ( the Act for short). 2. The case against the petitioners as per the charge sheet in Crime No. 522/2011, in short, is that the first petitioner company M/s Oracle Financial Services Software Limited is being run in site No.458 of S.No. 133 of Kundalahalli in the building Millennium Towers owned by M/s Gopalan Enterprises and after the visit of R-1 police to the said company, they noticed that fire extinguishment apparatus had not been installed in the company and no N.O.C. had been obtained by the company and, therefore, it is alleged in the charge sheet that on account of these two lapses, there is likelihood of fire occurring in the building and, therefore, the offence under Section 112 of the Act is alleged in the charge sheet.

4 4 3. The case against the petitioners, in short, is that petitioners-2 and 4 are the employees of the first petitioner company and petitioners-5 and 6 are the Senior Vice President and General Manager and H.R. Business Partner respectively in Oracle America Inc, San Francisco, U.S.A., and the said petitioners are not involved in the day-to-day affairs of the first petitioner company. Petitioner-7 is an ex-employee of the first petitioner company and the third petitioner had worked earlier in Oracle India Pvt. Ltd. It is the case of the petitioners that the charge sheet that is filed has its origin in the complaint filed by R-2, who himself was an employee of the first petitioner company at Bangalore. 4. On account of the repeated complaints filed by R-2 raising the issue of fire safety standards, R-1 police sought reply from the company and pursuant thereto, the third petitioner appeared before the police and gave satisfactory explanation on But, however, R-2 continued to harass the first petitioner company by repeatedly filing complaint after complaint and finally,

5 5 R-1 issued a notice dated under Section 17 of the Act calling upon the petitioners to furnish the required documents and the documents were, in fact, produced except the N.O.C. which was not available at that point of time. 5. It is also the case of the petitioners that the entire building is owned by M/s Gopalan Enterprises and the first petitioner company is a lessee as per the lease agreement that is produced to this petition at Annexure- D. It is also contended in the petition that, apart from the first petitioner company, there are other offices belonging to others in the same premises and as far as the requirement of N.O.C. is concerned, it is contended in the petition that the concerned department has issued a letter to the effect that, as the petitioners occupation comprises of three floors apart from the ground floor, the question of issuing N.O.C. does not arise. Therefore, the first petitioner company responded to the police notice by giving the required information. Despite the reply given, R-1 has proceeded to file the

6 6 charge sheet and the allegations in the complaint are entirely different from the allegations made in the charge sheet and even the notice issued to the first petitioner company. 6. It is also contended in the petition that the entire complaint filed by R-2 is nothing but abuse of the process of court and the first petitioner company also has now moved on to a new premises. Moreover, the complaint does not refer to the other occupiers in the same premises nor have they been made the accused in the charge sheet and so also is the case with the lessor viz., M/s Gopalan Enterprises. Therefore, only singling out the first petitioner company when the company had complied with the requirement of Section 70 notice, the question of Section 112 of the Act coming into application does not arise. 7. Learned senior counsel Shri Udaya Holla for the petitioners, referring to the aforesaid grounds in the petition, also submitted that petitioners-5, 6 and 7 are in no way connected with the day-to-day affairs of the

7 7 company and the question of vicarious liability also is unknown to criminal law. Apart from the aforesaid grounds, the learned senior counsel also referred to Section 91 of the Act to contend that it is only in respect of an offence under Sections 78, 79 or 80, the company as well as every other person in charge and responsible to the company shall be deemed to have been guilty of the offence and, therefore, involving the company and its business partners as well as the Directors is also contrary to the aforesaid provision of law. For this reason also, the charge sheet is liable to be quashed. 8. Another contention put forward is that, the entire complaint is a malafide one only to harass the petitioners and, therefore, the learned senior counsel sought for quashing of the charge sheet. To support the aforesaid contentions, reliance is placed on the decisions reported in (1977)1 SCC 505, (2010)10 SCC 479, (2010)10 SCC 673, (2009)1 SCC 516, (1998)5 SCC 343, (2010)11 SCC 469, AIR 1992 SC 1815, AIR 1992 SC 604, (2010)1 SCC 322, (2011)3 SCC 351 and (2012)1 SCC 520.

8 8 9. On the other hand, learned counsel Manjula Tejaswi for R-2 complainant, referring to the documents, argued that the first petitioner company did not give the correct information which was sought from it and though it is contended by the petitioners that no DVD or video taping of the Town Hall meeting is available with them as could be seen from the reply given by the petitioner-company. The photographs produced by R-2 along with his objections would go to show that a meeting was held in fact in the Town Hall and the programme was videographed. Therefore, the petitioner-company did not furnish the required information as sought for by the police and consequently, Section 112 of the Act gets attracted. It is also argued that the premises in occupation of the petitioner-company is a high-raised building having four floors and at the top is a restaurant and, as such, No Objection Certificate ought to have been obtained by the petitioner-company.

9 9 10. As far as the harassment ground urged by the petitioners counsel is concerned, by way of reply, the learned counsel for R-2 argued that R-2 has been fighting for fire safety standards to be installed in the petitioner-company and on account of his continued efforts, the police have now commenced the proceedings and have filed the charge sheet. R-2, however, has been removed from the services of the company for the good cause, which he had taken up viz., to ensure fire safety standards in the premises considering the fact that there are more than 1,300 employees. Apart from this, the contentions put forward by the learned senior counsel for the petitioners are all in the realm of evidence and, in the petition under Section 482 of the Cr.P.C., this court cannot go into the evidence aspect of the matter and the petitioners are at liberty to take up their contentions before the trial court. 11. As far as the owner of the building viz., Gopalan Enterprises, having not been made an accused is concerned, it is submitted by the learned counsel for

10 10 R-2 that, additional charge sheet has been filed roping in the owner as well. Under these circumstances and also referring to the documents produced forming part of the objections filed, it is argued that all the petitioners are aware of the nature of the complaint given by R-2 and, therefore, no interference by this court under Section 482 of the Cr.P.C. is called for. To support her submissions, reliance is placed on the Apex Court decisions reported in (2009)13 SCC 241, (2009)12 SCC 466, (2009)12 SCC 583, (2009)16 SCC 757, (2010)11 SCC 226 and (2011)12 SCC In the light of the aforesaid contentions put forward and the material placed on record at this juncture, whether the petitioners have made out a case for quashing of the charge sheet is the point for consideration. 13. The offence that is alleged in the charge sheet is under Section 112 of the Act. The said section reads as under:

11 Penalty for contravening directions under Section 70. Whoever opposes or fails to conform to any direction given by a police officer under section 70 or abets the opposition or failure to do so, shall, on conviction, be punished with fine which may extend to fifty rupees. It is, therefore, clear from the aforesaid provision of law that it is only contravention of Section 70 of the Act that gives rise to Section 112 being invoked. Section 70 of the Act, in turn, is as under: 70. Persons bound to confirm to reasonable directions of police. All persons shall be bound to confirm to the reasonable directions of a police officer given in fulfillment of any of his duties under this Act. It is, therefore, clear that the direction given by a police officer will have to be fulfilled by all persons. Section 70 notice that was given to the petitioner-company on , after referring to the complaint allegations of

12 12 R-2, has called upon the petitioners-2, 3, 5, 6 and 7 to furnish the documents as follows: You are directed to furnish the following documents on Sept. 20, NOC and clearance certificate from the Fire and Emergency Department. - Building investing report by FirePro and CRN Architects. - DVD, Video taping of Town Hall Meeting conducted on May 04, Failing to provide the above information, appropriate action will be taken as per law. 14. In response to the said information sought, the petitioner-company had given its reply on furnishing the information. 15. As far as clearance certificate from the Fire and Emergency Department is concerned, the Director General of Police and Director, Karnataka Fire and Emergency Services, has written to M/s Gopalan Enterprises in the matter of issuance of No Objection

13 13 Certificate on and the contents of the said letter are as under: Sub: Issue of No Objection Certificate for the low rise building at No.148/43, Mysore Road, Bangalore reg. Ref: Your letter dated Please refer to your letter, cited above. As per the details furnished by you and as per the layout plans the building in question comprising basement, ground and 3 upper floors is of mtrs. height and accordingly, it has to be categorized as low rise building. Further BMP authorities have already cleared the building for both construction and also for occupation. As such, at this juncture, NOC from the Fire and Emergency Services Department cannot be issued. 16. As per the correspondent between lessor viz., M/s Gopalan Enterprises, with the Director General of Police, Karnataka Fire and Emergency Services, dated , the lessor has referred to various

14 14 observations made and the compliance on its part. The complainant also refers to the portable fire extinguishers, fire safety plan among other things. Therefore, it is clear from the correspondence between the owner and lessor M/s Gopalan Enterprises and the Director General of Police that the lessor has given the detailed information sought from the lessor by the D.G.P. and D.G., Karnataka Fire and Emergency Services. 17. As far as the petitioners are concerned, the notice issued to them under Section 70 of the Act has been responded to by them by their letter dated , wherein reference is also made to various complaints filed earlier by R-2 and the company having complied with the request on , the company s officials having also visited the Mahadevapura Police Station and a detailed letter also being given by the company. It is also made clear in the reply by the company that as the Fire Department itself has not issued any N.O.C., the question of producing the same does not arise.

15 When the aforesaid documents have been produced by the petitioner-company, it therefore becomes clear that there has been a response to the direction given by the police and the only information that was sought and not given is said to be the D.V.D. and videotaping of the Town Hall meeting. The petitioner-company, in its reply in the letter dated at paragraph-6, has stated about there being no recording of the Town Hall meeting held on and no video tape being available. 19. If at all, as contended by the learned counsel for R-2, the photographs produced along with the objections do indicate recording of the proceedings, it has also to be kept in view that the said meeting that was held in the Town Hall was a meeting attended by several companies and employees of different companies. The allegation in the charge sheet is altogether different inasmuch, as mentioned earlier, all that is alleged in the charge sheet is that, the company had not taken precautionary measures with regard to

16 16 fire extinguishing apparatus and N.O.C. being not obtained from the Fire Department. 20. As far as the N.O.C. is concerned, in view of the letter addressed by the Fire Department itself, the question of producing the N.O.C. will not arise. As regards fire extinguishing apparatus is concerned, Section 17 notice does not call upon the petitionercompany to give any information with regard to the equipment or apparatus but, on the other hand, what was sought was the building investing report and the company has furnished the report to the police not on one occasion, but from the correspondence that is placed on record, there have been number of correspondence between the company and the police and one such report is produced at Annexure-H dated addressed to the Assistant Commissioner of Police, Bangalore, wherein the company has provided a brief report on the fire and safety for the OFSSL MT- Bangalore. In the said report, among other things, it is also mentioned thus:

17 17 xxx xxx xxx - Fire detection systems and other suppression systems are well maintained. Regular service and maintenance checks are carried out as per requirement. (Periodic audits are done by our clients and customers as well as the OFSS internal audit team). - Fire and safety audits were conducted by internal as well as external teams. - In the MT office we have a total of 159 fire extinguishers; they are periodically checked and maintained. (Audited frequently by our clients and customers as well as the internal audit team of OFSS. xxx xxx xxx 21. In the light of the aforesaid correspondence between the petitioner-company and the police and the nature of the information sought under Section 70 notice by the police, it cannot be said that the offence alleged under Section 112 of the Act is even remotely made out on a bare perusal of the said material.

18 In view of Section 90 making out clear that only in respect of an offence punishable under Sections 78, 79 or 90 that the company as well as the persons responsible for the conduct of the business can be proceeded against and as none of the offences mentioned in Section 91 forming the present charge sheet, the question of vicarious liability on the part of the business partners and the Directors of the company, therefore, cannot arise. 23. The Apex Court, in the case of R.Kalyani Vs. Janak C.Mehta, reported in (2009)1 SCC 516, has held that vicarious liability can be fastened only by reason of a provision of a statute and not otherwise. It was further held in the said case that even under a special statute, when the vicarious liability is fastened on a person on the premise that he was in charge of the affairs of the company and responsible to it, all the ingredients laid down under the statute must be fulfilled. The Apex Court also held in the said case that, R-1 and R-2 before it were charged in their individual capacity for the

19 19 commission of the offence of cheating, criminal breach of trust and forgery and as there had never been any interaction between the appellant and them, the question of any representation which is one of the main ingredients for constituting an offence of cheating, would not arise. Quashing of the F.I.R., therefore, was not interfered with by the Apex Court. In the same case, the Apex Court has also observed that one of the paramount duties of the superior court is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint. 24. In the case of Maharashtra State Electricity Distribution Company Limited Vs. Datar Switchgear Limited, reported in (2010)10 SCC 479, the very same principles with regard to vicarious liability came to be laid down by the Apex Court by observing that presumption cannot be drawn that a Chairman of a company is responsible for all acts committed by or on behalf of the company and wherever by a legal fiction,

20 20 principle of vicarious liability is attracted, it has to be specifically provided in the statute concerned and the court went on to hold further that neither Section 192 nor Section 199 of the I.P.C. incorporate the principle of vicarious liability and, therefore, it was incumbent on the complainant to specifically aver the role of each of the accused in the complaint. 25. In the instant case also, in view of Section 90 confining the vicarious liability only in respect of the offences which are punishable under Sections 78, 79 or 90, the question of all the petitioners being held vicariously liable in respect of the offence under Section 112 of the Act also cannot arise and when the petitioner-company has responded to the notice issued to it under Section 70 of the Act, that itself will not give rise to Section 112 being invoked unless material is placed to show that there has been non-compliance by the petitioners in respect of any particular direction given to the petitioner-company by virtue of notice under Section 70 of the Act.

21 Though the learned counsel for R-2 also has placed reliance on several decisions, the applicability of them would depend upon the facts of each case. The Apex Court, in the case of Rajiv Modi Vs. Sanjay Jain, reported in (2009)13 SCC 241, has held that there is no need to ascertain that the allegations made are true in fact and the court, on the basis of the averments made in the complaint, if prima facie is of the opinion that whole or a part of cause of action has arisen, can certainly take cognizance of the complaint. 27. In the decision in the case of Padal Venkata Rama Ramu Vs. Kovvuri Satyanarayana Reddy, reported in (2011)12 SCC 437, referred to by the learned counsel for R-2, it has been held that the inherent powers can be exercised to quash the proceedings only in a case when the complaint does not disclose any offence or is frivolous, vexatious or oppressive. 28. In the instant case, in the light of the material placed by the petitioner-company indicating its reply

22 22 and response to the notice given to it under Section 70 of the Act and the charge sheet that is filed altogether referring to only the N.O.C. and the fire extinguishing apparatus, the petitioner-company also having placed on record the very letter written to it by the Fire Department mentioning that N.O.C. is not required, and in the police notice given under Section 70, there being no information sought with regard to fire extinguishing apparatus but, on the other hand, the petitionercompany has given all the information to the police through several of the correspondence by it with the police, the petitioners, therefore, made out a case for this court to interfere with the charge sheet that is filed against them as no offences as such can be said to have been made out, even from a bare perusal of the information sought by the police under Section 70 of the Act. 29. For the aforementioned reasons, this is a case where the inherent powers will have to be invoked as it is a case of abuse of the process of the court and,

23 23 therefore, in the light of the law laid down by the Apex Court in the case of State of Haryana Vs. Bhajanlal, reported in AIR 1992 SC 604, and the Apex Court also holding in the case of Punjab National Bank Vs. Surendra Sinha, reported in AIR 1992 SC 1815, that the judicial process should not be an instrument of oppression and needless harassment and the court should take into consideration all the relevant facts and before issuing the process, the court should also ensure that judicial process should not become an instrument in the hands of a private complainant as vendetta to harass the persons needlessly. 30. For the aforesaid reasons, the petition is allowed and the charge sheet that is filed against the petitioners is quashed. ckc/- Sd/- JUDGE

24 24 ORDER ON BEING SPOKEN TO VJJ : At the instance of learned counsel for the 2 nd respondent, the matter is being listed for Being Spoken to today. The Court dictated the final order on and even before the draft of the order is ready, the matter is being heard today under the above said circumstance. 2. The submission made by the learned counsel Smt.Manjula Tejaswi for the 2 nd respondent is that this Court while dictating the final order had taken note of the letter dated issued by the Karnataka Fire and Emergency Services to take the view that the premises which was in occupation of the petitioner- Company being a low rise building and of the height meters required no NOC from the Fire Department. It is now submitted by the learned counsel for 2 nd respondent that the said letter pertains to the building situated at No.148/43, Mysore Road, and was

25 25 not issued in respect of the building which was in occupation of the petitioner-company at Kundalahalli Village. Secondly, it is submitted that even in the letter written to the owner of the building by the Department of Fire and Emergency Services, there is a note to the effect that the building at Kundalahalli being 15 meters and above is a high rise building and NOC has not been obtained from the Fire Department. Referring to these two aspects, submission now made is that the petitioner had not complied with the requirement of Section 70 notice insofar as NOC and Clearance Certificate having not been obtained from the Fire and Emergency Department and as such, the view taken by this Court requires reconsideration. 3. Learned senior counsel Sri Udaya Holla for the petitioners, on the other hand, submitted that though Section 70 notice was issued to the petitioner-company on (annexure-k), the petitioner-company has replied to the said notice by its letter dated (annexure-l) and it has been mentioned in the reply

26 26 that as no NOC was issued to it, it was not in a position to produce the same and further in the very same letter, the Company had informed the Inspector of Police that with effect from November 12, 2001, OFSS had vacated the premises and moved on to a new premises. 4. Apart from the aforesaid submission, learned Senior Counsel also referred to the endorsement issued to the 2 nd respondent-complainant by the BBMP on to the effect that the total height of the building at Kundalahalli Village is meters and in view of the said endorsement issued on , submission made by referring to the BBMP Building Bye-laws, 2003, is that in respect of building having height of more than 15 meters only, Clearance requires be obtained from the Director of Fire Services. Also referring to provisions of Building Bye-laws of 1983 which also mentioned that only in respect of building having more than 15 meters height, Clearance has to be obtained from the Director of Fire Services, therefore, it is submitted by the learned Senior Counsel that as the

27 27 petitioner-company had moved on to a new premises and had mentioned the same in the reply given to the Inspector of Police, the question of petitioner-company not complying with the notice issued does not arise. More over, the entire exercise by the 2 nd respondent is a malafide one, only to harass the petitioner-company and the fact that the other Companies which are situated in the same premises are not called upon to produce the NOC and that only the petitioner-company was singled out also goes to show that the instant complaint is ill-motivated. 5. Having thus heard both sides, insofar as document dated is concerned, learned counsel for 2 nd respondent is right in submitting that the said notice was given by the Fire Department in respect of the building situated at Mysore Road and not in respect of the building at Kundalahalli Village. However, other material placed by the petitioner- Company also cannot be lost sight of. Subsequent to the letter dated issued by the Director of Fire

28 28 Services to the lessor, namely Gopalan Enterprises, at the instance of the 2 nd respondent, the BBMP has issued an endorsement dated , that is almost after four months of the letter dated and in the said endorsement, the BBMP has specifically mentioned that in response to the information sought by the 2 nd respondent, it is informed that the total height of the building is meters. This information furnished by the BBMP to the 2 nd respondent read in the light of the Building Bye-laws of 2003 and of 1983 would make it clear that only in respect of building having height of 15 meters and above, clearance is required from the Director of Fire Services. In fact, the Bye-law of 2003 By-laws reads as under: For buildings with ground floor + four floors and above (or height of 15 mtrs and above), clearance of the Director of Fire Services shall be obtained regarding the Fire Protection Provision in building. Like-wise, Building By-laws of 1983 provides at thus:

29 29 For buildings more than 15 m. in height/(i.e. Ground floor + three floors and above), the Clearance of the Director of fire services may also be obtained regarding the Fire Protection Provisions in buildings. 6. The cumulative effect of the endorsement issued by the BBMP dated in the light of the aforesaid Bye-laws and the Occupancy Certificate issued by the Commissioner, CMC, Mahadevapura, to the lessor Sri.C.Gopalan, mentioning that the building at Kundalahalli conforms in all respects to the requirements of the Bye-laws in respect of US group, structural safety, fire safety, hygienic and sanitary conditions in side and in the surroundings and fit for occupation, is that the question of the petitioner- Company producing the NOC in response to Section 70 notice does not arise. 7. The last of the aspect which also has to be considered in favour of the petitioner-company is that in the letter to the Police Inspector by way of reply to

30 30 Section 70 notice, the Company had made it clear that it had vacated the Millennium Towers with effect from and has moved on to a new premises. Therefore, as on the date of the petitioner-company having replied to Section 70 notice, that is on , the petitioner-company was no longer the tenant in occupation of the Millennium Towers. 8. For the aforesaid reasons, the view taken by the court does not require any modification. KM Sd/- JUDGE