JUDGMENT 1. - By this petition, under Section 482 Criminal Procedure Code the petitioner has prayed to quash the criminal proceedings pending against him in the court of Chief Judicial Magistrate (Economic Offences) Jaipur in Criminal case No. 14/85. 2. In brief, the facts of the case are that on 27.11.1982, the Central Excise, Anti Evasion Staff conducted Physical stock verification of the finished exciseable good stored in non-duty paid store room in the factory premises of M/s Modern Syntex (India) Limited. As a result of stock taking, 131 cases weighing 6019.600 kgs. were found in excess of the balance in statutory RGI register and one case weighing 50 Kg. of cellulosic spun yarn falling order TI No. 18 III (ii) was not found in stock against the recorded balance of RG-I register. The 131 cases of yarn found in excess were seized on the belief that, the same were liable for confiscation for contraventions of provision of Rule 53 read with Rules 226 of the Central Excise Rules, 1944. The test result of two samples of yarn drawn from the 131 seized cases revealed that good packed inside were not the same as declared by party on the top of the seized case, in as much as, that while the said goods were declared to be 2/40s PV 48/52 blended yarn, the goods were actually found to be of single ply having P/V blend of 13.1/86.9 and 12.9/87.1. 3. A notice to show cause was served upon by the Collector, Central Excise, Jaipur on Feb. 28, 1983 calling upon the Company as to why a penalty be not imposed on it for the alleged violation of the provisions of the Central Excise and Salt Act, 1944 (hereinafter to be referred as 'the Act') and the Rules framed there-under. Thereafter, a departmental proceeding was initiated by the Collector, Central Excise, Jaipur. In the departmental proceeding, the Collector held that the seized 131 cases were of excess goods produced but not accounted for in the statutory RGI register and the plea of the Company that the goods were duty paid and were received back from the parties was not sustainable. Consequently, the Collector held that there was contravention of Rule 9(i), 52-A, 53 read with Rule 226 of the Central Excise Rules, 1944, as such, he ordered the Company to pay a sum of Rs. Consequently, the Collector held that there was contravention of Rule 9(i), 52-A, 53 read with Rule 226 of the Central Excise Rules, 1944, as such, he ordered the Company to pay a sum of Rs. 1,26,293.25 as Central Excise Duty on the goods found unaccounted for and a sum of Rs. 562.50 as Central Excise Duty in respect of 50 Kgs of cellulosic spun yarn removed from the factory without payment of duty. The goods were ordered to be confiscated redeemable on payment of a fine of Rs. 10,000/- Rs. 15,000/- were also Imposed as penalty on the Company for violation and contravention of the Central Excise Rules mentioned above vide adjudication order dated July 6, 1984. 4. A prosecution was also launched for the aforesaid violation against the accused persons, including the petitioner and a complaint was filed by the Asstt. Collector, Central Excise Division, Jaipur after obtaining necessary sanction. The learned Magistrate took cognizance vide impugned order dated March 1, 1985 against all the accused persons, Including the petitioner. Hence, the petitioner has approached before this Court being aggrieved against the said order of cognizance. 5. Mr. Paras Kuhad and Mr. Mahendra Singh, appearing for the petitioner, made two fold submissions. Firstly, that the Appellate Tribunal in its judgment held that there was no evasion of the amount of duty, as such, the criminal proceedings against the petitioner should be quashed on that finding. Secondly, the petitioner was the Chairman of the Board of Directors and there is no allegation or evidence that he was incharge or responsible for the affairs of the Company. On the other hand, Mr. Sudhir Gupta, learned Counsel for the Department contended that the prosecution of the petitioner cannot be said an abuse of the process of the court and on the basis of any finding in the departmental proceedings, the criminal proceedings cannot be quashed. 6. I have considered the rival contentions made by the learned Counsel for the parties. I have also perused the record and the various decisions cited before me. 6. I have considered the rival contentions made by the learned Counsel for the parties. I have also perused the record and the various decisions cited before me. Under Section-9 of the Act penalties have been provided for the commission of the offence for evasion of the payment of any duty payable under the Act and for attempt to commit, or abetting the aforesaid offences in the case of an offence relating to any excisable goods, if the duty leviable thereon under this Act exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine and in other case, with imprisonment for a term which may extend to three years with fine or with both. The allegations made in the complaint do make out the aforesaid offences is not in dispute. The first contention of the learned Counsel for the petitioner is based on the judgment of the Appellate Tribunal in appeal filed under Section-35-B of the Act against the order of the Collector, Central Excise, Jaipur dated 6.7.1984. It is no doubt true that the Appellate Tribunal has recorded a finding that 131 cases of yarn which were found in the premises of the Company were cleared by the Company on payment of duty and were returned to the Company by customers for some defect. This finding has been recorded on the basis of some correspondence etc. and because there was no evidence or allegation that the Company had made a duplicate numbering of cases of yarn. It is note-worthy that in the departmental proceedings, the matter was decided on the basis of some correspondence without recording any evidence. The question still remains as to whether on the basis of the finding of the Appellate Tribunal, the criminal proceedings must be dropped and quashed. 7. The learned Counsel for the petitioner has placed strong reliance on a judgment of the apex court of the country in Uttam Chand v. Income Tax Officer ITR 1982 Vol. 133, 909 . That was a case where the partners were prosecuting for filing false return on the basis of the assessment made by the Income Tax Officer. However, the finding of the I.T.O. was set-aside in an appeal by the Income Tax Appellate Tribunal. 133, 909 . That was a case where the partners were prosecuting for filing false return on the basis of the assessment made by the Income Tax Officer. However, the finding of the I.T.O. was set-aside in an appeal by the Income Tax Appellate Tribunal. The criminal prosecution was ordered to be quashed by the Supreme Court observing as under: In view of the finding recorded by the Income-tax Appellate Tribunal that it was clear on the appraisal of the entire material on the record that Shrimati Janak Rani was a partner of the assessee-firm and that the firm was a genuine firm, we do not see how the assesses can be prosecuted for filing false returns. We accordingly, allow this appeal and quash the prosecution. In Rajinder Nath v. M.L. Khosla I.T.O. ITR 1982 Vol. 134 397 , a complaint was filed on the basis of the finding recorded by the I.T.O. in the assessment order that the explanation furnished by the assessee and the partner was false. However, the said finding was set-aside by the Appellate Income-tax Commissioner which was confirmed by the Income-tax Appellate Tribunal. The Delhi High Court, on the basis of the said finding, quashed the complaint and the proceedings filed against the petitioner under Section 277 of the Income-tax Act. On the basis of the Uttam Chand's case (supra), the proceedings were quashed. In Balaji Oil Traders v. Income Tax Officer IRT 1984 (Vol.150) 128 , the Karnataka High Court quashed the proceedings under Section 276(C) and 277 of the I.T. Act against the accused persons following Uttam Chand's case. It was observed as under: It is thus clear from Uttam Chand that in a case like this, the finding arrived at by the Appellate authority will make all the difference regarding the complaint filed by the Revenue against the assessee. The very basis of foundation on which the prosecution rests disappear. In the case on hand, if these accused-assessees succeed before the Appellate Tribunal, the result would be as in Uttam Chand. Is it not fair or proper to proceed with the prosecution in the meanwhile or to allow it in the court below to be pending till the findings in the assessment order, on the basis of which this prosecution has been launched, reaches a finality? Is it not fair or proper to proceed with the prosecution in the meanwhile or to allow it in the court below to be pending till the findings in the assessment order, on the basis of which this prosecution has been launched, reaches a finality? To pursue the prosecution in the criminal court during the pendency of such proceedings on the Revenue side would amount to prosecuting on uncertain facts which cannot even be countenanced under our system of administration of justice. Even to allow that complaint pending in the court below awaiting the decision in the appeals, revision, etc., if any, filed and pending, would, according to me, amount to an abuse of the process of the court. 8. The aforesaid judgments no doubt support the contention made by the learned Counsel for the petitioner. But, a deep probe in those judgments would show that the prosecution of the accused persons were made on the basis of the finding recorded by the Income Tax Officer which stood set-aside by the Appellate or Revisional Tribunals. The reason for quashing the proceedings was based on the ground that after the finding of the I.T.O. stood reversed by the Appellate or Revisional Tribunal, the basis of the prosecution also disappeared. However, in the instant case, the prosecution of the accused persons is based on the search/physical verification of the goods, lying in the factory premises of the Company, made by the Anti Evasion Staff where excisable goods were stored in non-duty paid store room and were in excess of the balance in statutory RGI register. 9. The question then arises whether in such case also the criminal proceedings should be quashed on the basis of any finding recorded in a departmental proceedings. The Supreme Court had an occasion to examine the legal position in P.Jayappan v. S.K. Perumal First I.T.O. ITR 1984(Vol. 149)696 . In that case, the petitioner had filed his return under the I.T. Act for the assessment year 1977-78 which was accepted. Thereafter, on Aug. 20 and 21, 1981, a search was conducted at his residence, which resulted in the seizure of several documents and account books which revealed suppression of certain income. 149)696 . In that case, the petitioner had filed his return under the I.T. Act for the assessment year 1977-78 which was accepted. Thereafter, on Aug. 20 and 21, 1981, a search was conducted at his residence, which resulted in the seizure of several documents and account books which revealed suppression of certain income. On the basis of the allegation that the petitioner had deliberately filed a false return and had kept false accounts with the intention of using them as genuine evidence in the assessment proceedings, a complaint was filed against him in the court of the Additional Chief Judicial Magistrate (Economic Offences) for taking action against him for offences punishable under Section-276(C) and 277 of the IT Act and under Sections 193 and 196 of the Indian Penal Code. Similarly, three more complaints were filed in respect of three succeeding assessment years. The petitioner approached to the High Court for quashing the proceedings under Section-482 Criminal Procedure Code, but the same was dismissed. Then, the petitioner approached to the Supreme Court under Article 136 of the Constitution. The special leave petition was dismissed. The following observations which are relevant for the decision of the present petition are reproduced as under: In the criminal case all the ingredients of the offence in question have to be established in order to secure the conviction of the accused. The criminal court no doubt has to give due regard to the result of any proceeding under the Act having a bearing on the question in issue and in an appropriate case it may drop the proceedings in the light of an order passed under the Act it does not, however, mean that the result of a proceeding under the Act would be binding on the criminal court. The criminal court has to judge the case independently on the evidence placed before it. Otherwise, there is a danger of a contention being advanced that whenever an assessee or any other person liable under the Act had failed to convince the authorities in the proceedings under the Act that he has not deliberately made any false statement or that he has not fabricated any material evidence, the conviction of such person should invariably follow in the criminal court. The High Court of Punjab and Haryana has correctly applied the rule regarding the maintainability of a prosecution in such circumstances in Telu Ram Raungi Ram v. Income Tax Officer . (emphasis provided) 10. Section 40 to 44 of the Evidence Act deal with relevancy of the judgments of courts of justice. These provisions do not empower a criminal court to treat as res judicata the findings of a civil court on a given point. Only judgments in rem as defined in Section-41 of the Evidence Act have a binding effect on criminal courts. A finding on certain facts by a civil court in an action in personam is not relevant in criminal cases to give a finding on the same facts. The criminal court has to arrive at his Own independent finding on the basis of the evidence adduced before it and there is nothing in law to make a judgment of civil court conclusive. In Emperor v. Nazir Ahmad AIR 1945 Privy Council 18 , it has been held that findings in civil proceeding are not binding In subsequent prosecution founded upon similar allegations.It is a settled principle that whatever adverse has been observed in the orders in assessment or penalty proceedings, that is not binding on the criminal court while determining the guilt of the assessee. But, the criminal court may take into account the findings of the Tribunal and on this basis Uttam Chand's case (supra) has been decided in the facts and circumstances of that case. As stated above, the prosecution in the instant case has been launched not on the basis of the findings of the Collector, Central Excise, Jaipur, but on the basis of search and physical verification of the goods which were lying in the factory premises of the Company. In P. Jayappan's case (supra), the same view has been taken by the Supreme Court. The accused has not put his defence as yet. Whether the defence should be accepted or not in the criminal proceedings would depend on the evidence to be recorded in the court where the department will have an opportunity to cross-examine the witnesses to be produced by the accused. Hence, the first contention made by the learned Counsel for the petitioner is repelled. 11. Whether the defence should be accepted or not in the criminal proceedings would depend on the evidence to be recorded in the court where the department will have an opportunity to cross-examine the witnesses to be produced by the accused. Hence, the first contention made by the learned Counsel for the petitioner is repelled. 11. The second limb of the argument of the learned Counsel for the petitioner may also be examined.Under Section-9(1) of the Act, a person is made personally liable for an offence committed under the Act and the liability cannot be extended to any other person merely by virtue of any office or position he holds in a company or firm. The petitioner, at the relevant time, was the Chairman of the Board of Directors and there is no averment in the complaint that he was guilty of any specific act of omission or commission which would tantamount to an offence. There is also no allegation that he at the 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. It may be stated here that Section-9AA has been inserted by the Central Excise and Salt (Amendment) Act, 1985 and, as such, the said provision cannot be attracted in the present case as the offence relates to the year 1982 when the search/physical verification of the goods was made.In Municipal Corporation of Delhi v. Ram Kishan Rohtagi 1983(1)SCC 1 , a complaint was filed for violating the provisions of the Prevention of Food Adulteration Act against the Manager of the Company, as well as, Directors of the Company, including the Company also under Section-7/16 of the Act. The High Court quashed the proceedings in exercise of powers under Section 482 Criminal Procedure Code. The matter was taken to the Supreme Court by the Municipal Corporation of Delhi. The Supreme Court dismissed the contention of the Municipal Corporation against the Directors with the following observations: So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused 4 to 71 has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed. 12. In the absence of any allegation in the complaint against the petitioner or any evidence on the record that he was personally guilty of any act of omission or commission tantamounting an offence punishable under the Act, the prosecution against him deserves to be quashed. No help can be taken from Section-9AA of the Act which has been introduced in the year 1985. 13. . Consequently, the petition succeeds on the second ground and the criminal proceedings against the petitioner' are hereby quashed.Petition Allowed. *******