A.K. Mukherjee vs State and Another

R.L. Gupta, J.

(1) This petition has been filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (Code for short) for setting aside and quashing the order dated24.3.1990 of the learned M.M. and the order dated 21.10.1992 of the learned ASJ, New Delhi.

(2) I have heard learned Counsel for the petitioner. The petitioner had filed a complaint under Sections 63 to 70 of the Copyright Act. 1957(Act for short) against the second respondent M/s. S. Chand & Co. Ltd. and its Managing Director S.L. Gupta for infringement of his copyright. Along with the complaint he also appended a decision of the Copyright Board in which a finding was given by the Board that without doubt the respondents were guilty of infringing the petitioner''s copyright and that the claim of the petitioner was just and rightful. It appears that S.L. Gupta expired later on. Therefore the petitioner filed an application u/s 319 of the Code read with Section 69 of the Act to summon the other two Directors, namely, Rajinder Kumar Gupta and Ravinder Kumar Gupta because they were fulltime Directors. It may be noted that they were not parties to the proceedings before the Copyright Board. In this application, it appears that the petitioner did not make any allegation that those two Directors were in charge of and responsible to the Company for the conduct of its business. Learned Magistrate, Therefore dismissed the application holding that there was nothing on record to show that they were party to the Commission of the offences. That order was upheld by the learned ASJ.

(3) Even now the petitioner has not made any allegation that those two persons were in charge of and responsible to the Company for the conduct of its business. I am of the view that in the absence of these allegations in the complaint, it could not be said that Rajinder Kumar Gupta and Ravinder Kumar Gupta were guilty of any offences. For making them liable, the petitioner should have alleged in the complaint that they were also in charge of, and responsible to the Company for, the conduct of the business of the Company, and without such allegation and proof/criminal liability cannot be inferred.

(4) Moreover, it may further be noted that Hon''ble Supreme Court in the case of Rajan Kumar Machananda Vs. State of Karnataka, has held that, "Where a revision petition is dismissed by the Sessions Court, a second revision would not lie to the High Court. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397(3) of the Code could be labelled as one u/s 482."

(5) Learned Counsel for the petitioner then contended that he had referred Article 227 of the Constitution also under which this petition has been filed. I have perused that Article. In the facts and circumstances of the case, I am of the view that this Article has no application. Petition is, therefore, dismiss in liming.