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Madras High Court · body

1989 DIGILAW 585 (MAD)

Raja v. State

1989-12-11

ARUNACHALAM

body1989
Judgment : The third accused in C.C.No.233 of 1987 on the file of the VIII Metropolitan Magistrate, George Town, Madras, is the petitioner. He along with eight others were arrayed as accused in the said calendar case, on a prosecution initiated by the State, on the complaint of the Tamil Nadu Electricity Board for offences under Secs.39(1) and 44(1)(c) of the Indian Electricity Act and Secs.120-B, 484 and 473, I.P.C., read with Sec.109, I.P.C. 2. In this petition under Sec.482, Cr.P.C., the prayer of the petitioner is to direct the VIII Metropolitan Magistrate, to exclude the petitioner from representing the first accused. Messrs. Victory Industries, in the said calendar case, in the interests of justice. The facts which led to this prosecution need narration. 3. Thepetitioner and the fourth accused are the sons of the second accused, Thangavelu, who is now dead. Thangavelu appears to have died on 14.1.1988, when the prosecution was pending. It is not in dispute that the first accused, Messrs Victory Industries was a sole proprietory concern the proprietor being the deceased Thangavelu father of the petitioner. After the death of Thangavelu, the respondent filed an application before the Court below, that the petitioner must be shown as the representative of Messrs Victory Industries for the conduct of further proceeding against the first accused. This prayer made by the respondent was objected to by the petitioner on the ground that the deceased second accused was the sole proprietor of the first accused and he had no part to play in the said organisation. He along with the others, were the legal heirs of the deceased Thangavelu and nothing further. 4. The trial Magistrate held that the petitioner and his brother, the fourth accused had not placed any material to indicate that the first accused Messrs. Victory Industries, was the sole proprietory concern. On the contrary, the evidence disclosed that the third accused was also helping his father, the second accused. Further, the Magistrate was of opinion, that when the proprietor and the fourth accused, were admittedly the legal heirs of the deceased second accused, they cannot say that they had no share in the proprietory concern. On the contrary, the evidence disclosed that the third accused was also helping his father, the second accused. Further, the Magistrate was of opinion, that when the proprietor and the fourth accused, were admittedly the legal heirs of the deceased second accused, they cannot say that they had no share in the proprietory concern. Since the first accused has been shown as the principal accused necessarily some one must be shown as a representative of the first accused and it was permissible under Sec.305(6), Cr.P.C., to decide this issue and therefore, there was nothing wrong in including the petitioner as the representative of the first accused, Messrs. Victory Industries. The petition filed by the respondent was thus allowed. 5. Mr.A.Natarajan, learned counsel for the petitioner contends that the first accused was a sole proprietory concern and the petitioner’s father was sole proprietor. The petitioner and his brother did not have any control over the day to day administration and affairs of the said Victory Industries. The petitioner and his brother do not also have any shares in the said concern. Further, Victory Industries is not a partnership firm, attracting Sec.4 of the Indian Partnership Act and it is also not a ‘Company’ under the Indian Companies Act. In the absence of the above legal requirements, Victory Industries cannot be sued in its own name. He further contends that under Sec.49(A) of the Indian Electricity Act, 1910, prosecution can be only of the company, which meant any body corporate and includes a firm or other association of individuals. It did not include a proprietory concern. According to the learned counsel, when the legal position is clear, there appears to be no power to prosecute the sole proprietory concern as has been done in this case and in any event, after the death of the second accused, there is no scope whatsoever, to permit the prosecution to implead the petitioner as the representative of the first accused. Finally, he submits that the Magistrate, has misconceived the scope of Sec.305(6), Cr.P.C. 6. I have heard Mr.R.Shanmughasundaram, learned Additional Public Prosecutor, for the respondent. He submitted that a sole proprietory concern, will not be attracted by the definition of partnership, partner, firm and firm name, contemplated in Sec.4 of the Indian Partnership Act. He contends that partnership contemplated a minimum of two persons. It is not the case here. I have heard Mr.R.Shanmughasundaram, learned Additional Public Prosecutor, for the respondent. He submitted that a sole proprietory concern, will not be attracted by the definition of partnership, partner, firm and firm name, contemplated in Sec.4 of the Indian Partnership Act. He contends that partnership contemplated a minimum of two persons. It is not the case here. Further, Sec.49(A) relates to offence committed by companies and the Explanation to the said section clearly postulates that the company meant a body corporate and included a firm or other association of individuals and therefore the proprietory concern, was outside the scope of Sec.49-A of the Indian Electricity Act. 7. I have carefully considered the contentions put forward by the learned counsel for the petitioner as well as the Additional Public Prosecutor. The trial Magistrate was under a misconception, when he observed that the petitioner had not produced any material before him to show that the first accused was a proprietory concern and the second accused was its sole proprietor. The prosecution case itself was that the first accused, Victory Industries was a proprietory concern and Thangavelu, the deceased second accused, was its sole proprietor. Sec.49-A of the Indian Electricity Act does not appear to take within its fold a proprietory concern. A proprietory firm has no separate legal entity apart from its proprietor, the firm name being another name of the proprietor himself. The company as explained in Sec.49-A of the Indian Electricity Act can only mean any body corporate, a firm or other association of individuals. The section contemplates prosecution of a person who at the time when the offence was committed was in charge of, or was responsible to, the company as well as the company, being liable for prosecution, since both shall be deemed to be guilty of the offences. As stated earlier, a proprietory concern cannot fit in with the Explanation of ‘company’ appended to Sec.49-A of the Indian Electricity Act. There appears to be no provision in the Indian Electricity Act which makes a proprietory concern, liable for the offence committed under the Act. The only provision under the Indian Electricity Act in this regard is Sec.49-A which concerns itself with companies and body corporates which include a firm or association of individuals. There appears to be no provision in the Indian Electricity Act which makes a proprietory concern, liable for the offence committed under the Act. The only provision under the Indian Electricity Act in this regard is Sec.49-A which concerns itself with companies and body corporates which include a firm or association of individuals. The definition of ‘partnership’ in the Indian Partnership Act taken along with the definition of ‘an act of a firm’ which means any act or omission by all the partners, or by any partner or agent of the firm, which gives rise to a right enforceable by or against the firm, clearly excludes a proprietory concern from the purview of Sec.49-A of the Indian Electricity Act. Persons, who have entered into partnership with one another are called individually partners and collectively ‘a firm’ and the name under which their business is carried on is called the ‘firm name’. The view, I have taken is also reflected in the decisions of the Calcutta High Court reported in Ratna Patodi and others v. Corporation of Calcutta, A.I.R. 1967 Cal. 150, and Corporation of Calcutta v. M/s.Unite Oil Mills and another, A.I.R. 1968 Cal. 342. 8. I am satisfied that a proprietory concern is not a company within the meaning of Sec.49-A of the Indian Electricity Act. If that be so, on the death of the sole proprietor Thangavelu, the second accused the prosecution abated as far as the second accused was concerned and since the prosecution cannot be maintained against a proprietory concern, the first accused, the question of inclusion of a representative for the first accused, does not at all appear to arise. Further the invoking of the provisions of Sec.305(6), Cr.P.C., by the trial Magistrate does not appear to be sustainable. The heading of that section itself reads ‘procedure when corporation or registered society is an accused’. In that section, ‘corporation’ means, an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860. The first accused is neither a corporation nor a society registered under the Societies Registration Act. This factor alone will be sufficient to hold that invoking of Sec.305(6), Cr.P.C., will not be permissible. In that section, ‘corporation’ means, an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860. The first accused is neither a corporation nor a society registered under the Societies Registration Act. This factor alone will be sufficient to hold that invoking of Sec.305(6), Cr.P.C., will not be permissible. Further, Sec.49-A of the Indian Electricity Act explains a body corporate as a company and therefore, if Sec.49.-A of the said Act does not take in a proprietory concern, Sec.305, Cr.P.C., cannot redeem that position. Recourse to Sec.305(6), Cr.P.C., is not at all in consonance with law. The order of the trial Magistrate impleading the petitioner as the representative of the proprietory concern the first accused has to be necessarily set aside on the reasoning aforementioned and is, accordingly set aside. The prosecution against the first accused is also not maintainable as discussed earlier. Therefore, while setting aside the impugned order of the trial Magistrate I quash the proceedings in C.C.No.223 of 1987 against, the first accused. The prosecution can proceed individually against the petitioner (third accused) and accused 4 to 9.