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

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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

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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

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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.

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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