Judgment S.K. Gum, J. 1. IN Criminal Revision No. 1202 of 1986 the petitioners have prayed for quashing the proceeding being case. No. C/488 of 1986 pending in the 4th Court of Metropolitan Magistrate, Calcutta and in Criminal Revision No. 1203 of 1986 the petitioners have prayed for quashing the proceeding being case No. C/1165 of 1985 pending in the 4th Court of the Metropolitan Magistrate, Calcutta. 2. ONE Sri Nirmalendu Banerjee, Income-Tax Officer Central Circle-XX, Calcutta filed a petition of complaint before the learned Chief Metropolitan Magistrate, Calcutta alleging that the accused No.1 a company named as M/s. Shree Hanuman Sugar and Industries Limited during the accounting year ending on 30/6/1991 without any reasonable cause or excuse failed to deduct Rs.17,023.00 on income-Tax at the source from the amount of interest i.e. Rs.79, 178.08 p. credited to the account of the payee- M/s. Gobinda Sugar Mills Ltd. as required under Section 194A(I) of the Income-Tax Act (hereinafter referred to as the said Act) and failed to pay the tax to the credit of the Central Government within time as required under Section 200 of the said Act read with rule 30 of the Income-tax Rules and thus committed an offence punishable under Section 276B (ii) read with Section 278B of the said Act and that the accused Nos. 2 to 9, the directors of the accused Nos. 1 being at material time In charge of and responsible to the company for conduct of its business also committed the said offence. This petition of complaint gave rise to case No. C/488 of 1986. Sri N.K. Biwas then acting as Chief Metropolitan Magistrate took cognizance upon such petition of complaint, directed issuance of summons upon the accused persons and transferred the case to his file for disposal. As the accused persons failed to appear in obedience to the summons issued, the learned Metropolitan Magistrate, 4th Court issued warrant of arrest against all the accused persons by his order dated 27/3/1986. Thereupon the accused persons moved this Court against the aforesaid proceeding and obtained a rule. As the accused persons failed to appear in obedience to the summons issued, the learned Metropolitan Magistrate, 4th Court issued warrant of arrest against all the accused persons by his order dated 27/3/1986. Thereupon the accused persons moved this Court against the aforesaid proceeding and obtained a rule. One Sri Amalendu Chatterjee, Income-tax Officer, Central Circle-XX, Calcutta filed a petition of complaint before the learned Chief Metropolitan Magistrate, Calcutta alleging that the accused No. 1 a company named as M/s. Nopany Investment Private Limited during the year ending on 1/12/1980 without any reasonable cause or excuse failed to deduct Rs.63,5291- as the Income-tax at the source from the amount of interest i.e. Rs.3,01,205/- paid/credited to the payee, as required under Section 194A(1) of the said Act and failed to pay the tax to the credit of the Central Government within the time as required under Section 2(X) of the said Act read with rule 30 of the Income- Tax Rules and thus committed the offence punishable under Section 275B(i) read with Section 278B of the said Act and that the accused Nos. 2 to 4 the directors of accused Nos. 1 being at the material time in charge of and responsible to the company for conduct of its business also committed the said offence. This petition of complaint gave rise to Case No. C/1165, of 1985. The learned Chief Judicial Magistrate by his order dated 22/3/1985 took cognizance of, such petition of complaint, directed issuance of, summons upon the accused persons and transferred the case to the 4th Court of Metropolitan Magistrate. Calcutta for disposal. The accused persons appeared before the learned Metropolitan Magistrate and were released on bail. As on subsequent date they failed, to appear before the learned Metropolitan Magistrate, warrant of arrest was directed to be issued against them. Thereupon the accused persons moved this Court against the aforesaid proceeding and obtained a rule as in the earlier case on 14/8/1986 when both the rules were directed to be heard together. 3. NONE appeared for the opposite party to resist the instant rules. Mr. Thereupon the accused persons moved this Court against the aforesaid proceeding and obtained a rule as in the earlier case on 14/8/1986 when both the rules were directed to be heard together. 3. NONE appeared for the opposite party to resist the instant rules. Mr. Amit Bhattacharjee, learned Advocate appearing for the petitioners has argued that as per prosecution case the accused-company com milled the offence under Section 276B(ii) read with Section 278B of the said Act and other accused persons being its directors were vicariously liable inasmuch as they were at the material time in charge of and responsible to the company for the conduct of its business and that section 276B(ii) has prescribed punishment of compulsory imprisonment. So, he has further argued that the accused No.1 being a juristic person cannot be subjected to imprisonment on conviction under Section 176B(ii) of the said Act and that as such initiation and continuation of the instant proceeding against the accused-company amount to an abuse of the process of the Court and that the instant proceeding against the accused-company should, therefore, be quashed. In support of his argument he has referred to and relied upon a decision of the Division Bench of this Court in the case of Miss. Kusum Products Ltd. v. SK Singha, I.T.O. Central Circle-X, Calcutta1, a decision of a Division Bench of Allahabad High Court in the case of Modi Industries Limited v. B.C. Goel and decision of an another Division Bench of this Court in the case of the East India Jute and Hessian Exchange Limited v. Amulya Krishna Mondal3. He also argued that mens rea is an essential ingredient of an offence punishable under Section 276B(ii) of the said Act and that as mens rea cannot be attributed to the petitioner-company, the instant proceeding against the petitioner-company cannot and should not be allowed to proceed any further. In support of his argument, he has again referred to the decision in the case of Miss. In support of his argument, he has again referred to the decision in the case of Miss. Kusum Products Ltd. v. S.K. Singha, I.T.O. Central Circle- Calcutta (supra), His further argument is that as the principal offender the company cannot be prosecuted and convicted under Section 276B (ii), it directors who arc only vicariously liable for being in charge of and responsible to the company for the conduct of its business cannot be deemed to have committed the alleged offence and that the prosecution against them, therefore, should not be allowed to proceed any further. In support of his argument he has referred to a decision of the Division Bench of Delhi High Court in the case of M.C.D. v. Kishan Chand and another4Tl and also to a decision of the said High Court by the learned Judge silting singly in the case of Chandar Bhan v. States5. He has also argued that the directors of the company were not the persons reasonable for paying within the meaning of section 194A and 204 of the said Act and arc not the principal officers within the meaning of section 235, of the said Act and that as such the said directors cannot be held responsible and prosecuted for non-deduction of income-tax at the source or for non, payment of the same to the Central Investment. In support of his argument he has referred to a decision of Madras High Court in the case of M.R. Pratap v. V.M. Muthuramalingam. 4. IN both the petitions of complaint it has been alleged by the complainant that it is the company- accused who had committed the offence punishable under Section 276B(ii) of the said Act and that its directors being the persons at the material time in charge of and responsible to the company for the conduct of its business would, by virtue of section 278B to deemed to be the guilty of the said offence. Or in other words according to the prosecution, the directors were vicariously liable for the offence committed by the company. It will be convenient for better appreciation of the position if section 276B is reproduced here. 276B. Or in other words according to the prosecution, the directors were vicariously liable for the offence committed by the company. It will be convenient for better appreciation of the position if section 276B is reproduced here. 276B. If a person, without reasonable cause or excuse fails to deduct or after deducting fails to pay the Lax as required by or under the provision of sub-section (9) of section 60E or Chapter X V JIB he shall be punishable, (i) in a case where the amount of Lax which he has failed to deduct or pay exceeds one hundred thousand rupees with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine; (ii) in any other case with rigorous imprisonment for a term which shall not be less than three months but which may extent to three years and with fine. From the above mentioned provision of section 276B, it is very much clear that offence under the said section has been made punishable with compulsory imprisonment. Undoubtedly, the company is a person within the meaning of section 2(31) of the said Act but it is a juristic person. Such a juristic person cannot be subjected to imprisonment on conviction for any offence. The question whether a juristic person like a company can be subjected to imprisonment for conviction under section 277 of the said Act which also prescribe compulsory imprisonment came up for consideration before a Division Bench of the court in the case of M/s. Kusmu Products Limited v. S.K. Singha, I.T.O. Central Circle - X. Calcutta (supra). In that case the said Division Bench has held that a company or a juristic person cannot possibly be sent to prison and that it is not open to a Court to impose a sentence of fine or not to award any punishment if the court finds a company guilty under the said section. It has further been held that if the court docs so, it would be altering the very scheme of the Act and usurping the legislative function. That decision of the Division Bench of our High Court was considered and followed by the Division Bench of the Allahabad High Court in the case of Modi Industries Limited v. B.C. Goel (supra). It has further been held that if the court docs so, it would be altering the very scheme of the Act and usurping the legislative function. That decision of the Division Bench of our High Court was considered and followed by the Division Bench of the Allahabad High Court in the case of Modi Industries Limited v. B.C. Goel (supra). It has been held therein that a company registered under the Companies Act, 1956 is a juristic person and cannot be awarded any punishment of imprisonment I and hence cannot be prosecuted for breach of sections 277 and 278 of the said Act. The same question again came up for consideration before another Division Bench of this Court in the case of the East India Jute and Hessien Exchange Limited v. Amulya Krishna Mondal (Supra). It has also been held therein that punishment of imprisonment could not be imposed upon a company or a juristic person and that the company or a juristic person could not be liable for such an offence. Thus from the provision of the section 276B it is perfectly clear that for conviction under the Section a punishment of compulsory imprisonment has been prescribed. From the aforesaid decisions it is very much clear that the company accused being a juristic person cannot be punished with imprisonment or in other words, the punishment of compulsory imprisonment as provided under Section 276B cannot be imposed upon the accused petitioner who is a juristic person. As no such compulsory imprisonment could be imposed upon the company- accused, the continuation of the instant proceeding under Section 276B of the said Act amounts to an abuse of the process of the Court and the instant proceeding cannot and should not be allowed to continue so far as the company accused is concerned. So, I accept the contention as raised by Mr. Bhuwcharjee in this regard and hold that the instant proceeding against the company accused cannot and should not be allowed to continue any further. The impugned proceeding so far as it is against the company-petitioner must be quashed. 5. So, I accept the contention as raised by Mr. Bhuwcharjee in this regard and hold that the instant proceeding against the company accused cannot and should not be allowed to continue any further. The impugned proceeding so far as it is against the company-petitioner must be quashed. 5. SINCE the company-petitioner is going to succeed on the basis of the finding on the first point as mentioned above, I am not going to consider whether mens rea is an essential ingredient of the offence under Section 276B of the said Act or whether the petitioner-company can be attributed with the requisite mens rea. 6. NEXT let me consider whether the directors of the Company-petitioner can be proceeded with in the instant proceeding. As per prosecution case, it is the petitioner-company who committed the offence punishable under Section 276B of the said act and that its directors are vicariously liable and shall be deemed to have committed the offence inasmuch as they were the persons in charge of and responsible to the company for the conduct of its business. Actually they have been roped in by virtue of the provision of Section 278B which, inter alia provides them where an offence under the said Act has been committed by a company, every person who, at that time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. So, the company-petitioner is the principal offender and the directors are only vicariously liable by virtue of their position in connection with the petitioner-company. Mr. Bhauacharjee has argued that as the company- petitioner-the principal offender cannot be proceeded with and convicted under section 276B(ii) of the said Act, the persons who are vicariously liable cannot be proceeded against and convicted in the instant proceeding. In support of his argument he has referred to a decision of a Division Bench of Delhi High Court in the case of M.CD. v. Kishan Chand and another (supra). In that case for adulteration of chocolate ice cream, the firm/company, its partner and its salesman were prosecuted under Sections 7 and 16 of the Prevention of Food Adulteration Act. In support of his argument he has referred to a decision of a Division Bench of Delhi High Court in the case of M.CD. v. Kishan Chand and another (supra). In that case for adulteration of chocolate ice cream, the firm/company, its partner and its salesman were prosecuted under Sections 7 and 16 of the Prevention of Food Adulteration Act. In the trial court, the firm/company was acquitted but other accused were convicted. In appeal the partner and the salesman were also acquitted by the Addl. Sessions Judge and no appeal was tiled against the order of acquittal of the firm/company. In that case it was alleged that the firm/company committed the offence and other accused persons were roped in by virtue of Section 17 of the Prevention of Food Adulteration Act. Language of Section 17 is almost identical with the language as used in Section 278B. In an appeal against acquittal of the partner and the salesman, it was held that since the company had been acquired of the charge, as an inevitable concomitant thereof it was not possible to deem any person to be guilty of the offence because of his being in charge of the business of the company/firm at the material time. It follows there from that where the principal offender- the company had been acquired or could not be proceeded with, then any other person shall not be deemed to be guilty of the offence because of his being in charge of the business of the company at the material time. In the case of Chander Bhan v. Slate (supra), a partner of a firm was being prosecuted under sections 7 and 16 of the Prevention of Food Adulteration Act for manufacturing and selling adulterated ice cream and the firm itself was nm being prosecuted for the offence. It was held therein that a partner of a firm could not be prosecuted under Section 17 of the Prevention of Found Adulteration Act unless the partnership Finn itself was prosecuted and that the liability of partner could arose only when the offence had been committed by the partnership firm. It was held therein that a partner of a firm could not be prosecuted under Section 17 of the Prevention of Found Adulteration Act unless the partnership Finn itself was prosecuted and that the liability of partner could arose only when the offence had been committed by the partnership firm. In the instant proceeding the company-petitioner is the principal offender inasmuch as it has been alleged to have com milled the offence under Section 276B of the said Act and the directors were roped in because of their being in charge of or responsible to the company for the conduct of its business. Since the principal of fender cannot be proceeded against and convened in the instant proceeding, its, directors who arc only vicariously liable by virtue of their position in relation to the petitioner-company cannot also be proceeded against and convicted in the instant proceeding. In coming to this conclusion I have also relied upon the aforesaid two decisions. In that view of the matter, the instant proceeding cannot be allowed to continue against the directors as well. For another reason it also appears that the directors or the petitioner-company cannot be held responsible for the alleged non-deduction and non-payment inasmuch as they are not the persons responsible for paying within the meaning of section 194A(1) or within the meaning of Section 204 of the said Act and as such they cannot be prosecuted for such non-deduction and non-payment. It is the definite case of the prosecution that the petitioner-company without any reasonable cause and excuse failed to deduct any amount as income-tax at the source from the amount of interest paid credited to the payee, as required under section 194A(1) and failed to pay the tax to the credit of the Central Government within the time as required under Section 200 of the said Act read with rule 30 of the said Rules. Section 194A(1), inter alia provides that any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident any income by way of interest other than income chargeable under head interest on securities, shall, at the time of credit of such income to the account of the payee or at the time of payment there of in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rate in force. Section 200, inter alia. provides that any person deducting any sum in accordance with the aforesaid provision shall pay within the prescribed time, the sum so deducted to the credit of the Central Government or as the Board directs. Section 204 of the said Act, inter alia, provides that the expression Tperson responsible for paying means in the case of credit, or, as the case may be, payment of any other sum chargeable under the provision of the said Act, the payer himself, or, if the payer is a company, the company itself including the principal officer thereof. So, in the instant case the petitioner-company itself including its principal officer was the person responsible for paying. Now the question arises whether the directors of the petitioner- company are its principal officers. For that we may now refer to Section 2(35) of the said Act which provides that principal officer, used reference to a local authority or a company or any other public body or any association of persons pr any body of individuals, means - the Secretary, Treasurer Manager or Agent of the authority, company, association or body. It also provides that the principal officer also means any person connected with the management or administration of the local authority, company, association or body upon whom, the Income-tax Officer has served a notice of his intention of treating him as the principal officer thereof. Undoubtedly, the directors of the petitioners-company are hot its Secretary, or Treasurer or Manager or Agent nor has it been alleged in the petition of complaint that they arc so. Nor is there any averment in the petition of complaint that the concerned Income-tax officer had served any notice of his intention of treating them as the principal officer of the company. Nor is there any averment in the petition of complaint that the concerned Income-tax officer had served any notice of his intention of treating them as the principal officer of the company. So, from the abovementioned provision of law, it is clear that unless the directors are the principal officers of the company, they cannot be held responsible for non-deduction and non-payment of tax at the source. In this connection my attention has been drawn to the decision in the case of M.R. Pratap v. V.M. Muthuramalingam (supra). In that case Income-tax Officer filed a complaint against the company and its managing directors for non-payment within the prescribed time of income-tax amount deducted from the salaries of the employees of the company and the question arose whether the managing director could be held liable for prosecution under section 276B of the said Act in his capacity as a managing director and whether he could be treated as principal officer of the company. It has been held therein that the managing director of a company cannot be held liable under section 276B of the Income-tax Act, 1961 unless the Income-tax Officer has served a notice on him under section 2 (35)(b) of the said Act and informed him of his intention to treat him as the principal officer of the company. As in this reported case no such notice was served on the managing director, it has been held that he cannot be proceeded against for delayed payment of tax amount by the company. With due respect I accept this decision and rely upon it Since the directors of the company petitioner are not its principal officers and since the Income-tax Officer docs not appear to have served any notice upon them under Section 2(35)(b) of the said ACL These directors cannot be proceeded against for the alleged non-deduction of the lax at the source and non-payment of the same to the Central Government. 7. SO in any view of the matter the directors of the company-petitioner cannot be proceeded against and convicted in the proceeding. 8. SINCE the petitioners cannot be proceeded against and convicted in the impugned proceeding, any further continuation of the same amounts to an abuse of the process of the Court. That being so the instant proceeding cannot be allowed to stand and must be quashed. In the result revisional applications arc allowed. 8. SINCE the petitioners cannot be proceeded against and convicted in the impugned proceeding, any further continuation of the same amounts to an abuse of the process of the Court. That being so the instant proceeding cannot be allowed to stand and must be quashed. In the result revisional applications arc allowed. The impugned proceedings being case No. C/488 of 1986 and Case No. C/1165 of 1985 pending in the 4th Court or the Metropolitan Magistrate, Calcutta are hereby quashed. Rules are made absolute. Let the case record together with the copy of this order go down as expeditiously as possible. This order shall govern Criminal Revision No. 1202 of 1986 and 1203 of 1986. Revision allowed.