S. D. JHA, J. ( 1 ) APPELLANTS challenge their conviction under S. 3/7 of the Essential Commodities Act, 1955 (for short, 'the Act') read with clause 4 (c) of the Madhya Pradesh Essential Commodities (Exhibition of Prices and Price Control) Order, 1977 (for short, 'the control order') and Madhya Pradesh Pulses, Edible Oilseeds and Edible Oils Dealers Licensing Order, 1977 (for short, The orders) and sentence of three months' rigorous imprisonment and fine of Rs. 2000/-, in default, further one month rigorous imprisonment awarded by Sessions Judge, Indore. Though the Sessions Judge does not say so it appears that he acted as Special Court under S. 12-A of the Essential Commodities Act, 1955 as amended by Essential Commodities (Special Provisions) Act, 1981 read with Govt. of Madhya Pradesh Notification No. A-1105-III-6-7-64-I, Bhopal dated 10/02/1983 by which the Sessions Judges of all the 45 districts of Madhya Pradesh were to be Presiding Officers of the 'special Courts' established under the aforesaid provisions. ( 2 ) PROSECUTION story is that two appellants are partners of the registered Partnership Firm M/s. P. R. Trading Company carrying on business of pulses at 77, Anandnagar, Indore and hold a licence for this purpose under Licensing Order, 1977. On 26-8-1983, Food Inspector Gulabsingh (P. W. 6) checked the premises of the appellants and their accounts and found that the firm had as per three bills purchased 140 quintals 40 kilo Tuwar pulse at rates varying from 329 to 339 Rs. per quintal but had sold the same at the rate of Rs. 449 per quintal. Appellant Rameshchandra was questioned about expenses on the essential commodities and the transaction. After calculation, Gulabsingh was of the view that the appellants could charge up to Rs. 419. 93 per quintal and by selling at the rate of Rs. 449 per quintal had contravened clause 4 (c) of the Control Order, 1977. Report was then submitted to the Collector, who in turn, forwarded it to Bhanwarkua Police Station. Challan was put up against the appellants for offence under Sections as set out in para 1 of the judgment. ( 3 ) APPELLANTS in summary trial before the Sessions Judge, Indore on particulars of offence being explained denied the offence. Appellant Rameshchandra in his examination denied that he had charged more than 2% profit. He submitted that reasonable expenses had been ignored in calculating the price. ( 3 ) APPELLANTS in summary trial before the Sessions Judge, Indore on particulars of offence being explained denied the offence. Appellant Rameshchandra in his examination denied that he had charged more than 2% profit. He submitted that reasonable expenses had been ignored in calculating the price. Appellant Maheshkumar denied any knowledge of raid and checking. He further denied that excess profit as alleged had been made out. Appellants did not examine any witness in defence. Learned Sessions Judge found the appellants guilty and convicted and sentenced them as set out in para 1 above. ( 4 ) IN appeal before this court, Shri S. K. Ukas learned counsel for the appellant has read out relevant provisions and evidence led by the prosecution in this case. He submitted that expression 'reasonable expenses' used in clause 4 of the Control Order, 1977 is not defined in the order. Therefore, the evidence of witnesses as to what constitute reasonable expenses should have been accepted. He submitted that seven items of expenses detailed in para 5 of the memo of appeal (reproduced later in the judgment) were wrongly excluded by the Sessions Judge in computing profit chargeable by the accused in terms of clause 4 (c) of the Price Control Order, 1977, even when the prosecution witnesses themselves supported this part of the defence of the accused. He also submitted that Mahesh Kumar appellant No. 2 was sleeping partner. Of the Firm and was not ill any way connected with the actual working of the same. He should not therefore, have been convicted and sentenced the appellant No. 1. Learned counsel further, submitted that three transactions of purchase of tuwar pulse and one transaction of sale were the only transactions entered into by the appellant No. 1 Rameshchandra from out of insurance funds, received by the appellant after the death of their father. After raid and the prosecution, the appellants have discontinued their business and the appellant No. 1 has joined private service and even if, they be found guilty the sentence may be suitably reduced. In support of his submission Shri S. L. Ukas, besides S. 10 of the Essential Commodities Act, 1955 relied on the following decisions :-1)NARAYANDAS v. State of M. P. (1988) 2 MPWN No. 66: (1987 Cri LJ 434 ). 2) State of Madras v. C. V. Parekh AIR 1971 SC 447 : (1971 Cri LJ 418 ). In support of his submission Shri S. L. Ukas, besides S. 10 of the Essential Commodities Act, 1955 relied on the following decisions :-1)NARAYANDAS v. State of M. P. (1988) 2 MPWN No. 66: (1987 Cri LJ 434 ). 2) State of Madras v. C. V. Parekh AIR 1971 SC 447 : (1971 Cri LJ 418 ). 3) Sheo Ram Choudhary v. State of Bihar 1985 EFR 296 (Patna ). 4)Raghunath Prasad Poddar v. State of West Bengal ( 1988) 2 Crimes No. 289 (Cal ). ( 5 ) IN the particulars of offence explained to the accused appellant on 18-6-1984 violation of the Control Order and the Order as abbreviated in para 1 above and the clause 11 of the Order along with condition No. 6 (iii) of the Licensing Order were alleged. On going through the order, it is seen that it has only four clauses. Reference, therefore to clause 11 of the same appears to be a discrepancy. Reference again to condition No. 6 (iii) reproduced below :-"sell or offer to sell in any locality and kind of pulses and edible oils at a price higher than the price fixed for sale of pulses and edible oils in such locality by the Central Government or by the State Government in pursuance of power conferred by law or by the producer thereof. " of the licence, which is Exhibit 20 in the case also does not appear to be in order. ( 6 ) THE learned Sessions Judge generally discussed the case but has not discussed how breach of each of the two orders is made out. Clause 4, however, of the License enjoins the licensee not to contravene the provisions of the Madhya Pradesh Pulses and Edible Oil Dealers Licensing Order, 1972 or any other order relating to foodstuffs, edible oils, hydrogenated vegetable oil and oilseeds issued under the Essential Commodities Act, 1955 (No. 10 of 1955 ). Breach if any, committed by the appellants of the order would be related to this clause 4. ( 7 ) BEFORE dealing with the arguments it would be useful to reproduce clause 4 (c) of the Control Order :-"4. Charging of prices-A dealer shall not charge in respect of a sale of any essential commodity a price in excess of that calculated :- (a ). . . . . . . . . . . . . . . Charging of prices-A dealer shall not charge in respect of a sale of any essential commodity a price in excess of that calculated :- (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) When there is no controlled price as mentioned in sub-clause (a) and when the rate in respect of sale by such dealer is not fixed by the manufacturer or producer or their distributors as mentioned in sub-clause (b) at a price not exceeding a margin of 2% for the wholesale dealer and 4% for the retail dealer, excluding reasonable expenses and taxes payable on the essential commodity or transaction. " ( 8 ) ACCORDING to the prosecution case as put up before the trial Judge, the accused could charge a price of 2% on the purchase price and reasonable expenditure and taxes on the same. That is how the calculations have been made, whether this would be correct interpretation of the provision would be dealt with later. The present appeal is decided on the premises of the prosecution case as put up before the lower Court. ( 9 ) THE case for prosecution as seen from the FIR and connected papers in the case against the accused is that as per the calculations set out below :-PURCHASE price of 144. 40 quintals of tuwar pulses. Rs. 49,528. 42 expenses as given out by the Partner rs. 9,921. 00 total. . . . . . . . . . . . . Rs. 59,449. 42 2% profit of wholesale dealer rs. 1,189. 00 total of Rs. . . . . . . . . . Rs. 60,638. 42 according to the prosecution per quintal sale-price of tuwar dal on the above calculation works out Rs. Rs. 419. 93 per quintal but the prosecution has alleged that on 23-7-1983 the appellants sold the above quantity of tuwar pulses for Rs. 64,876. 03 which works out to 6. 98% profit. . . . . . . . Rs. 60,638. 42 according to the prosecution per quintal sale-price of tuwar dal on the above calculation works out Rs. Rs. 419. 93 per quintal but the prosecution has alleged that on 23-7-1983 the appellants sold the above quantity of tuwar pulses for Rs. 64,876. 03 which works out to 6. 98% profit. The appellants have thus contravened the provision rendering themselves liable to punishment under S. 3 / 7 of the Essential Commodities Act, 1955. ( 10 ) SHRI S. L. Ukas learned counsel had claimed that following items of reasonable expenses were excluded in computing the profit chargeable by the accused. (I) Salary for 3 months at the rate of Rs. 700/p. m. Rs. 2100. 00 (ii) Shop expenditure for 3 months at the rate of Rs. 100/ -. Rs. 300. 00 (iii) Stationery Expenditure rs. 200. 00 (iv) Bonus rs. 501. 00 (v) Legal Expenditure rs. 375. 00 (vi) Dalali rs. 229. 00 (vii) Telephone expenditure rs. 600. 00 total. . . . . . Rs. 4305. 00 learned counsel further submitted that out of the above items item Nos. (ii), (iii) and (v) were shown as incurred in the cash book, but the Food Inspector did not take into account. ( 11 ) FROM the statements of Balkishan (P. W. 3), Shivnaryan (P. W. 4), Gulab Singh Food Inspector (P. W. 6 ). Gotulal Jain (P. W. 7) none of whom has been declared hostile, made in cross-examination, it appears that according to the practice followed wholesale dealer on purchase price adds shop expenses, salary expenses licence expenses, essential expenses, telephone expenses, shop rent, deevali expenses, stationery expenses, postal expenses, bank commission, Gadi Bhada, Mandi tax, brokerage, interest on capital to the price and then works out 2% profit to the same. While according to Balkishan (P. W. 3) Shivnaryan (P. W. 4) bonus could also be added, Gulabsingh (P. W. 6) says bonus is not includible in working out profit because it is not business expenses. Gulab Singh (P. W. 6) in paras 16- 17 of the cross-examination stated that he did not know that the expenses of Rs. 4306/- as reproduced above was incurred within three months. (on price of pulses and sale of the same ). He added that he did not add them as reasonable expenditure. Gulab Singh (P. W. 6) in paras 16- 17 of the cross-examination stated that he did not know that the expenses of Rs. 4306/- as reproduced above was incurred within three months. (on price of pulses and sale of the same ). He added that he did not add them as reasonable expenditure. The reason given by him for not including the items that they are not entered into cash book. ( 12 ) LEARNED Sessions Judge dealing with arguments observed that "in my opinion, I cannot bear with Mr. Ukas to say that if all these expenses i. e. future expenses are allowed to be deducted, no person can be brought to book for, any amount of expenses can be added without being spent and if that is so, blackmarketing can never be stopped. As such, if the accused failed to show the expenses that he calculated while taking the profit, he cannot adjust it by invoking the ex post facto expenses. The statement furnished by the accused relates to the post inspection period which cannot be included to be deducted while this amount was never shown in the account books nor was it calculated and shown to the Food Inspector. " ( 13 ) THE cash book maintained by the accused would reflect cash transactions and book transfer transaction as on date of checking. There could still be some items of heads on expenditure, which may be related to the commodity in question and it would not be fair to deny to the accused its inclusion for calculation for profit in terms of Cl. (4) of the order merely on the ground that on the date of checking they were not shown or reflected in the cash book if they are otherwise found credible particularly when the prosecution witnesses have admitted such expenses as incredible under head of reasonable expenses. ( 14 ) THE appellants claimed in all additional deductions of Rs. 4,305/ -. Gulab Singh (P. W. 6) has stated that bonus Rs. 501/- would not be includible. Deducting the same, the balance would be Rs. 3,804/ -. Adding this amount to sum of Rs. 59,449. 42 (total of purchase price and earlier permitted expenses of Rs. 9,921/ -) the total works out to Rs. 63,243. 42. 2% profit on this amount would work out to Rs. 1,265/ -. The total of the two goes to Rs. Deducting the same, the balance would be Rs. 3,804/ -. Adding this amount to sum of Rs. 59,449. 42 (total of purchase price and earlier permitted expenses of Rs. 9,921/ -) the total works out to Rs. 63,243. 42. 2% profit on this amount would work out to Rs. 1,265/ -. The total of the two goes to Rs. 64,508. 42. Pulses were sold for Rs. 64,876. 03. Based on the calculation furnished by the appellants after making due allowance the two per cent of profit is exceeded by Rs. 266. 39. ( 15 ) SHRI S. L. Ucas learned counsel submitted that looking to the statement of Balkishan (P. W. 3) Shivnaryan (P. W. 4) and Gotelal (P. W. 7) bonus of Rs. 501/- should also be held includible as reasonable expenses in working out 2% of the profit by the appellant on the quantity of tuwar pulses. This argument not being one for opinion of witnesses cannot be accepted. In Venkataramiya's Law Lexicon with Legal Maxims. IInd Edition, meaning of 'bonus' based on the decisions referred to therein is inter alia given as under :. . . . . BONUS in the industrial sense as understood in our country does come out of the available surplus of profits, and when paid, it fills the gap, wholly or in part, between the living wage and the actual wage. It is an addition to the wage in that sense, whether it be called contingent and supplementary. " ( 16 ) LOOKING to this meaning the 'bonus' payable by the appellants to the employees would not be includible as reasonable expenses for working out 2 per cent profit. ( 17 ) THE breach thus, of Cl. 4 (c) of the (Control) Order, 1977 read with Cl. (4) of the Order, 1977 punishable under S. 7 of the Madhya Pradesh Essential Commodities Act 1955 is held made out. It is necessary at this stage to point out that calculation of margin of 2 per cent or 4 per cent under sub-clause (c) of Cl. (4) of the Order is being made after adding the expenses and taxes payable on the Essential Commodities or transaction. On a plain reading of the clause reproduced above, such an interpretation or calculation does not appear warranted. (4) of the Order is being made after adding the expenses and taxes payable on the Essential Commodities or transaction. On a plain reading of the clause reproduced above, such an interpretation or calculation does not appear warranted. The margin of 2 per cent and 4 percent respectively by the wholesale dealer or retail dealer should be worked out first and reasonable expenses and taxes on the essential commodities or transaction then added to the same. If the intention be otherwise, and according to the calculation now being made by the authorities, the same should be clearly spelt out by the State Government to avoid any confusion. ( 18 ) TAKING up the next whether appellant Maheshkumar is also responsible for breach and therefore, punishable under S. 3/7 of the Essential Commodities Act, 1955, Shri S. L. Ukas has submitted that he was only a sleeping partner of the Firm and in no way connected with running its business. The learned Sessions Judge in para 5 of the judgment negated this plea holding that whether this appellant (accused No. 2) took part or not, is not the question in the case. He also observed that till he is partner of the firm notionally he will be deemed to have taken part and as such he will be guilty. The First information-report, Ex. P/2 in the case itself shows that the business is conducted by Rameshchandra (Appellant No. 1 ). Besides at the time of raid and seizure this appellant was not present. Looking to all this, contention of Shri S. L. Ukas that the is only a sleeping partner of the firm can safely be accepted. ( 19 ) IT is not necessary to deal with all the decisions as to liability of partners under S. 10 of the Essential Commodities Act, 1955 referred to by Shri S. L. Ukas during arguments in para 4 above. In State of Madras v. C. V. Parekh, (1971 Cri LJ 418) (SC) (supra) - a case relating to Iron and Steel Control Order, 1956 interpreting S. 10 with reference to a company breach was held not made out against the two respondents in charge of and responsible to the company for the conduct of the business of the company in absence of finding of the Magistrate or by the High Court that sale in contravention of Cl. (5) of the Iron and Steel (Control) Order was made by the Company. The decision, however directly in point with reference to partnership firm is the latest decision in Sham Sunder v. State of Haryana, (1989) 4 SCC 630 : (1989 Cri LJ 2201 ). In judging the liability of partners of firm with reference to Ss. 10, 7, and 3 of the Essential Commodities Act, 1955 for alleged contravention of the Provisions of Haryana Rice Procurement (Levy) Order, 1979 the Supreme Court held at under (at p. 2203 of Cri LJ) :-"but we are concerned with a criminal liability under penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. S. 10 does not provide for such liability. It does not make all the partners liable for offence whether they do business or not. It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-sec. (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-sec. (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State. (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State. " ( 20 ) IN the instant case, not only there is no evidence against the appellant Maheshkumar but on the other hand, the first information report says that it is appellant Maheshkumar who is in charge of conducting the business of the Firm. Taking the above observations into consideration, no charge could be held made out against the appellant Maheshkumar and he must be acquitted. ( 21 ) AS for sentence, considering that the breach appears to be technical and the transaction was first venture of appellant Ramesh Chandra and he has now discontinued the business. The substantive sentence of three months' imprisonment is not called for, the same should be set aside. ( 22 ) AS a result about Maheshkumar is acquitted and the sentence of imprisonment and fine imposed against him set aside and his appeal allowed. The conviction of appellant Rameshchandra is maintained but the sentence of three months' R. I. awarded to him is reduced to the imprisonment till rising of the Court. Fine of Rs. 2,000/- and imprisonment in default, are however, maintained. The appeal is disposed of in the foregoing terms and partly allowed. Order accordingly. .