ORDER 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 30.6.91 without any reasonable cause or excuse failed to deduct Rs. 17,023/- 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 Mill, Ltd. as required under s. 194A(1) 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 s. 200 of the said Act read with rule 30 of the Income-tax Rules and thus committed an offence punishable under s. 276B(ii) read with s. 278B of the said Act and that the accused nos. 2 to 9, the directors of the accused no. 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. Biswas 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 27.3.86. Thereupon the accused persons moved this Court against the aforesaid proceeding and obtained a rule. 3. 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 31.12.80 without any reasonable cause of excuse failed to deduct Rs. 3. 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 31.12.80 without any reasonable cause of excuse failed to deduct Rs. 63,529/- 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 s. 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 s. 200 of the said Act read with rule 30 of the Income tax Rules and thus committed the offence punishable under s. 275B(i) read with s. 278B of the said Act and that the accused no. 2 to 4 the directors of accused no. 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 22.2.85, took cognizance on 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 14.8.16, when both the rules were directed to be heard together. 4. None appeared for the opposite party to resist the instant rules. 5. Mr. Amit Bhattacharjee, learned Advocate appearing for the petitioners argued that as per prosecution case the accused company committed the offence under section 278B(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 s. 278B(ii) has prescribed punishment of compulsory imprisonment. So, he has further argued that the accused no. So, he has further argued that the accused no. 1 being 8 juristic person cannot be subjected to imprisonment on conviction under s. l78B(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 M/s. Kusum Products Ltd Vs. S.K. Singha, I. T O. Central Circle-X Calcutta reported in 1980(II) CHN 326 , a decision of a Division Bench of Allahabad High Court in the case of Modi Industries Limited vs. B.C. Goel ?) reported in (1983) 54 Company Cases 835 and a decision of an another Division Bench of this Court in the case of the East India Jute and Hessian Exchange Limited vs. Amulya Krishna Mondal reported in 1989 C Cr. LR (Cal) 171. He also argued that 'mens rea' is an essential ingredient of an offence punishable under s. 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 M/s. Kusum Products Limited Vs. S. K. Sinha ITO Central Circle-X Calcutta (supra). His further argument is that as the principal offender the company cannot be prosecuted and convicted under s. 276B(ii), its directors who are 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. vs. Kishan Chand & anr reported in 1975(1) Prevention of Food Adulteration Case 347 and also to a decision of the said High Court by the learned Judge sitting singly in the case of Chandar Bhan vs. State reported in 1975(2) Prevention of Food Adulteration Cases 77. He has also argued that the directors of the company were not the persons responsible for paying within the meaning of Ss. 194A and 204 of the said Act and are not the principal officers within the meaning of s. 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 nonpayment 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 reported in (1984 2 Company Law Journal 172 (Mad). 6. 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 s. 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 s. 278B to be deemed to be 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 s. 276B is reproduced here. "276B. If a person, without reasonable cause or excuse fails to deduct or after deducting fails to pay the tax as required by or under the provision of sub-section (9) of section 80B or Chapter XVIIB, he shall be punishable,–– i) in a case where the amount of tax 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 extend to three years and with fine. 7. From the abovementioned provision of s. 376B, 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 s. 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. Undoubtedly, the company is a person within the meaning of s. 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 s. 217 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. Kusum Products Limited v. S.K. Sinha, 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 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 does 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 on the case of Madi 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 and hence cannot be prosecuted for breach of Ss. 277 and 27& 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 Hessian Exchange Limited v. Amulya Krishna Mondal (supra). It has also been held therein that punishment 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 s. 276B it is perfectly clear that for conviction under the section and 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. Thus from the provision of the s. 276B it is perfectly clear that for conviction under the section and 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 s. 276B can not 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 s. 376B 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 is raised by Mr. Bhattacharjee 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. 8. 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 s. 176B of the said Act or whether petitioner company can be attributed with the requisite 'mens rea'. 9. Next let me consider whether the directors of the Company-petitioner it is the petitioner-company who committed the offence punishable under s. 276B of the said Act and that its directors are vicariously liable and shall be deemed to have committed the offence in as much 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 s. 2768 which, inter alia, provides that 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. Bhattacharjee has argued that as the company-petitioner the, principal offender cannot be proceeded with and convicted under s. 376B(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.C.D. v. Kishan Chand & Anr. (supra). In that case for adulteration of chocolate ice-cream, the firm's company, its partner and its salesman were prosecuted under Ss. 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 filed 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 s. 17 of the Prevention of Food Adulteration Act. Language of s. 17 is almost identical with the language as used in s. 278B. In an appeal against acquittal of the partner and the salesman, it was held that since the company had been acquitted 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 therefrom that where the principle offender, the company had been acquitted or could not be proceeded with, then any other person shall not be deemed to be guilty of the offence because of this being in charge of the business of the company at, the material time. In the case of Chandar Bhan v. State (supra), a partner of a firm was being prosecuted under ss. 7 and 16 of the Prevention of Food Adulteration Act for manufacturing and selling adulterated ice-cream and the firm itself was not being prosecuted for the offence. In the case of Chandar Bhan v. State (supra), a partner of a firm was being prosecuted under ss. 7 and 16 of the Prevention of Food Adulteration Act for manufacturing and selling adulterated ice-cream and the firm itself was not being prosecuted for the offence. It was held therein that a partner of a firm could not be prosecuted under s. 17 of the Prevention of Food Adulteration Act unless the partnership Firm itself was prosecuted and that the liability of a 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 committed the offence under s. 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 offender cannot be proceeded against and convicted in the instant proceeding, its directors who are 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. 10. For another reason it also appears that the directors of the petitioner company cannot be held responsible for the alleged non-deduction and non-payment in as much as they are not the persons responsible for paying within the meaning of s. 194A (1) or within the meaning of s. 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 s. 194A (1) and failed to pay the tax to the credit of the Central Government within the time as required under s. 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 8 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 thereof 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 'person 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 s. 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 or 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 petitioner company are not its Secretary, or Treasurer or Manager or Agent nor has it been alleged in the petition of complaint that they are 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 principle 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 principle 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 nonpayment of tax at the source. In this connection my intention 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 s. 278B 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 s. 278B of the Income-tax Act, 1961 unless the Income-tax Officer has served a notice on him under s. 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 does not appear to have served a notice upon them, under s. 2(35)(b) of the said Act, these directors cannot be proceeded against for the alleged non-deduction of the tax at the source and non-payment of the same to the Central Government. 11. So in my view of the matter the Directors of the company-petitioner cannot be proceeded against and convicted in the proceeding. 12. 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. 13. In the result, revisional applications are allowed. 12. 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. 13. In the result, revisional applications are allowed. The impugned proceedings being case no. C/488 of 1986 and Case no. C/1165 of 1985 pending in the 4th Court of 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. Impugned proceedings quashed.