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1978 DIGILAW 215 (PAT)

Mohan Lal Bajoria v. State Of Bihar

1978-09-27

MUNESHWARI SAHAY

body1978
Judgment Muneshwari Sahay, J. 1. -in this application under section 482 of the Code of Criminal Procedure, the petitioners have assailed the validity of the cognizance taken against them by the Chief Judicial Magistrate, Gopalganj, on 1411.1974 for an offence under section 52 of the Bihar Sugarcane (Regulation of Supply and purchase) Ordinance, 1974 (hereinafter to be referred to as the ordinance ). Cognizance against the petitioners was taken on the basis of a complaint filed against them by the Cane Officer, Gopalganj. The Cane Officer alleged in the complaint petition that he had inspected the Gate Purchasing Centre of Vishun sugar Mills Ltd. on 15.1.1974 at 10 a. m. It may be mentioned here that the petitioner No.1 was th3 Managing Director of the aforesaid Sugar Mills. Petitioner nos.2 and 3 are employees of the said Mills. The Cano Officer stated further that a cart load of sugarcane was weighed and the gross weight was found to be 1842 quintals A weighment receipt had been granted earlier to the cane grower for that cart load of sugarcane and the weighment showed that the gross weight was 1817 quintals. Thus there was a difference of 25 Kg. in the weighment The Cane Officer alleged that a short weight was mentioned in the weighment receipt in order to deprive the cane grower of his legitimate price of the sugarcane. This was an offence under section 39 of the Ordinance, which is punishable under section 52 of the same. The Cane Officer prayed that the entire security money of the Manager of the Mills be forfeited and the accused be prosecuted. It was on this complaint that cognizance was taken against the petitioners and one more person who has not come up before this Court to challenge the order of the learned Magistrate. 2. The learned counsel for the petitioners submits that the allegation made in the complaint did not make out any offence against the petitioners and, therefore, the order taking cognizance against them was bad. 2. The learned counsel for the petitioners submits that the allegation made in the complaint did not make out any offence against the petitioners and, therefore, the order taking cognizance against them was bad. For a proper appreciation of the submissions, reference has to be made to section 39 of the ordinance which is as follows : " (1) The occupier of every factory, the owner of every unit, secretary of every co-operative society and every person in charge of weighments shall maintain, subject to such limits of error as is prescribed by the state Government under the law relating to weights and measures, for the time being in force, a record of the correct weight of cane purchased at the place of weighment. (2) No cane shall be purchased without being weighed. " Learned counsel points out that it is not stated in the complaint filed by the Cane officer that the petitioners were in charge of weighments. The complaint also does not alleged that any of the petitioner was the occupier of the factory. The expression "occupier of a factory" has been defined under section 2 (1) of the Ordinance to mean "a person carrying on the business of manufacturing sugar by vacuum pan process in a factory and having the ultimate control over the affairs of the factory". It is not suggested that the petitioner No.2, the general Manager of the Sugar Mills, or petitioner No.3, the Cane Manager, was in the ultimate control over the affairs of the factory. It is, of course, submitted on behalf of the State that petitioner No.1 was described as the managing Director of the Mills and he must be taken to be a person having the ultimate control over the affairs of the factory. I shall deal with the case of petitioner no.1 a little later. For the present I may only point out that petitioner Nos.2 and 3 are neither o;cupier of a factory nor are persons incharge of weighments. Therefore, the submission of the learned counsel for the petitioners that no offence under section 39 of the Ordinance is made out against them must be accepted. 3. For the present I may only point out that petitioner Nos.2 and 3 are neither o;cupier of a factory nor are persons incharge of weighments. Therefore, the submission of the learned counsel for the petitioners that no offence under section 39 of the Ordinance is made out against them must be accepted. 3. The contention of the petitioner No.1, Mohan Lal Bajoria, is that he ceased to be a Managing Director of the Mills with effect from 24.9.1971 by virtue of a resolution passed by the Board of Directors of the Vishun Sugar mills Ltd. held on that date. A copy of the resolution has been annexed as annexure "2" to the application. It contains extract from the minutes of the board meeting dated 24.9.1971 which is as follows : "it is recorded that due to Shri Mohan Lall Bajoria having not attended three consecutive meetings of the Board of the Company held on (1)29th June 1970 (2) 29th September, 1970 and (3) 29th December, 1970 without obtaining leave of absence from the Board the office of director held by Shri Mohan Lall Bajoria has become vacant under section 283 (g) of the Companies Act, 1956. " This Annexure, as stated above, was filed along with the application in March 1975, but the State has not controverted the same before me. The position therefore, is that on the date of the alleged occurrence, petitioner No.1 was not the Managing Director of the Mills in question and consequently, he could not be its occupier. 4. In this connection 1 may also refer to section 61 of the Ordinance which lays down inter alia that where the occupier of a factory is a company any of the Directors thereof may be prosecuted and punished under this Ordinance for any offence for which the occupier of the factory is punishable Therefore in view of this provision, petitioner No.1 could have been prosecuted for an offence under section 39 of the Ordidance, if he has been a Director of the company. The proviso to sub-section (2) of section 61 of the Ordinance is important and it provides that the company may give notice to the Cane Com missioner that it has nominated a Director to be the occupier of the factory for the purposes of this Ordinance and such Director shall be deemed to be the occupier of the factory for the purposes of this Ordinance untill further notice cancelling his nomination is received by the Cane Commissioner or until he ceases to be a Director. The petitioners have not alleged in the application that any notice was given to the cane Commissioner that the company had nominated one of its directors to be the occupier of the factory. But even assuming that the managing Director was formerly the occupier of the factory, he evidently ceased to be occupier when he ceased to be a Director of the Company Thus, in my view, petitioner no.1 as well could not be prosecuted for an offence under section 39 of the Ordinance and the criminal proceeding against him will in the circumstances, be a mere abuse of the process of the court. 5. Learned counsel for the petitioners also submitted that the Cane Officer was not authorised to file a complaint by the State Government under section 53 of the Ordinance. Sec.53 of the Ordinance lays down that no prosecution under this Ordinance shall be instituted except upon a complaint made in writing by an officer authorised in this behalf by the State Government. It may be noticed that the bar is against the institution of the prosecution and therefore the complaint should show on the face of it, that the person making the complaint was duly authorised under section 53 of the Ordinance In the complaint petition, a note to the following effect is found : "prosecution sanctioned (Sd.) K. M. Thakur, 3.9.74. Cane Commissioner, Bihar, Patna. " The original order passed by the Cane Commissioner does not seem to have been produced before the learned Chief Judicial Magistrate. In view of my finding above that the cognizance taken against the petitioners is bad in law it is not necessary to express any opinion as to whether the sanction of the prosecution by the Cane Commissioner was the same thing as authorising the Cane Officer to file a complaint against the petitioners. In view of my finding above that the cognizance taken against the petitioners is bad in law it is not necessary to express any opinion as to whether the sanction of the prosecution by the Cane Commissioner was the same thing as authorising the Cane Officer to file a complaint against the petitioners. If it were to be held that by sanctioning prosecution, the Cane Commissioner was not authorising any particular officer to file the complaint, then that would be another infirmity in the prosecution of the petitioners which would render the cognizance bad. 6 In the result, the application is allowed. The order of the Learned chief Judicial Magistrate, Gopal Ganj, dated 14.11.1974 taking cognizance against the petitioners for an offence under section 52 of the Ordinance is hereby quashed. Application allowed.