Judgment : This appeal is directed against a judgment in S.T.C.Case No.26 of 1987 on the file of Special District and Sessions Judge (Essential Commodities Act), Madurai, convicting the appellants for the offences under Sec.21(2) of the Textile Control (Order, 1986 read with Secs.3 and 7(1)(a)(ii) of the Essential Commodities Act read with Sec. 10 of the Essential Commodities Act, and sentencing the first accused/company to pay a fine of Rs. 1,000 and releasing accused 2 to 4 under the Probation of Offenders Act and sentencing the fifth accused to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.500 in default to undergo Rigorous imprisonment for a further period of one month. 2. The prosecution case is as follows: The first accused in M/s. Om Sakthi Textiles who is lessee of M/s Sreenivasa Spinners, Karur Road, Dindigul. Accused 2 to 4 are the partners of the said company. By the notification dated 33. 1985, the Textile Commissioner has issued a direction that every producer of yarn under the Cotton Textiles (Control) Order, 1948 shall furnish to the concerned Regional Office of the Textile Commissioner on or before the 10th of the second month after each quarter and each half-yearly period commencing from 4. 1985 in the form at Annexure -‘A’ appended thereto full details of quantities of yarn packed by them for civil consumption and quantities packed in hank Form. This notification was issued by the Textile Commissioner in pursuance of Clause 31(1)(a) of the Cotton Textiles (Control) Order, 1948, which was issued under Sec.3 of the Essential Commodities Act. 1955. Clause 21(2) of the Textiles (Control) Order, 1986 stipulates that every person who is required to give any information or furnish sample or produce any book or other documents under Clause 21(1) shall comply with such requisition. The failure to comply with the provision attracts the penal provision under Sec.7 of the Essential Commodities Act. The first accused/company is a producer of yarn which is subjected to the provisions of the Textile Commissioner’s notification dated 33. 1985. As per the said notification, the company did not furnish the details of quantities of yarn packed by them for civil consumption and quantities in hank form for the quarter ending 30.6.1986 and half-year ending 30.9.1986 as required under the above notification, despite the letters of reminders dated 28. 1985 and 11. 1985 and 110. 1985. As per the said notification, the company did not furnish the details of quantities of yarn packed by them for civil consumption and quantities in hank form for the quarter ending 30.6.1986 and half-year ending 30.9.1986 as required under the above notification, despite the letters of reminders dated 28. 1985 and 11. 1985 and 110. 1986 asking them for submission of returns. Since the company has contravened the provision of Clause 21(2) of the Textiles (Control) Order, 1986 and the said contravention is being a cognizable offence in terms of the punishment provided in Sec.7(1) of the Essential Commodities Act. The Assistant Director of Regional Officer, Textiles Commissioner, P.W.1 lodged a complaint before the Police, District Crime Branch, Dindigul, for the offence under Clause 21(2) of the Textiles (Control) Order, 1986 read with Secs.3 and 7 of the Essential Commodities Act, 1955. On receipt of this complaint, on 25. 1987 P.W.2 Inspector of Police registered the case in Crime No. 10 of 1987 and conducted investigation and filed a charge-sheet against the company and the partners. 3. On behalf of prosecution P.W. 1 and P.W.2 were examined and Exhibits P. 1 to P.6 were marked. On behalf of the accused Exs.D. 1 to D.5 were marked. 4. After the evidence on the side of the prosecution is over, the appellants were questioned under Sec.313, Cr.P.C. Accused 2 to 4 appeared on behalf of the company as well as for themselves and answered the questions stating that they are innocent. The fifth accused filed a petition before the lower court requesting for dispensing with his appearance for answering the questions under Sec.313, Cr.P.C. and stating that he would waive the right of being questioned under Sec.313, Cr.P.C. On that basis his application was allowed. 5. After trial, the trial court on a perusal of evidence both oral and documentary, found the appellants guilty under the above referred sections and convicted and dealt with them as referred earlier. 6. As against this judgment, the appellants have presented this appeal before this Court. 7. Mr.K.V.Sridharan, learned counsel for the appellants took me through the entire evidence and the Judgment of the court below and strenuously contended that the prosecution has miserably failed to prove its case. 6. As against this judgment, the appellants have presented this appeal before this Court. 7. Mr.K.V.Sridharan, learned counsel for the appellants took me through the entire evidence and the Judgment of the court below and strenuously contended that the prosecution has miserably failed to prove its case. The submissions made by learned counsel for the appellants could be summarised as follows: .(i) Though the prosecution has filed the case as against the company (A-1) and the Partners (A-2 to A-5) there is no material to show that accused 2 to 5 were in-charge and responsible for the conduct and affairs of the company. As such, criminal liability cannot be fastened against accused 2 to 5. .(ii) Accused 1 and 5 were not questioned under Sec.313, Cr.P.C. which is being a mandatory procedure. The lower Court ought to have followed the procedures required under Sec.313, Cr.P.C. and ought not to have permitted the fifth accused to waive his right in view of the decision in Sri Arunagirinatha Sri Gnanasambhanda Desika Paramacharya Swamigal, Madurai Adheena Karthar, Madurai v. State Etc., (1995)1 L.W. (Crl.) 186. 8. On the contra, Mr.Manimaran, learned Government Advocate, contended that the case of the prosecution is that inspite of reminders sent to the company, asking them to file returns in time, they failed to file returns within the stipulated time. As such, the prosecution has proved the non-compliance of the direction issued under notification in exercise of Sec.3 of the Essential Commodities Act. He also further contended that the decision reported in Sri Arunagirinatha Sri Gnanasambhanda Desika Paramacharya Swamigal, Madurai Adheena Karthar, Madurai v. State Etc., (1995)1 L.W. (Crl.) 186 with reference to the mandatory procedure which had been followed for the questioning under Sec.313, Cr.P.C. would not be applicable to this case because this is a summons case. He would further contend that Sec.313(b), Cr.P.C. provides in respect of summons case the questioning could be dispensed with only on the application filed by the accused. He also contended that though the first accused was not questioned separately, the very fact that all the other accused except the fifth accused, represented as partners of the first accused and answered to the questions under Sec.313, Cr.P.C. it must be taken that the questions were put to the company as well. 9. He also contended that though the first accused was not questioned separately, the very fact that all the other accused except the fifth accused, represented as partners of the first accused and answered to the questions under Sec.313, Cr.P.C. it must be taken that the questions were put to the company as well. 9. At this stage Mr.K.V.Sridharan brought to my notice that he filed Crl.M.P.No.1083 of 1988 along with the appeal, to permit him to file additional documents, under Sec.391, Cr.P.C. With this application, an affidavit has been filed by one Gajendran the Supervisor of first accused-company at the relevant time and he has stated that the returns have been filed on 17. 1986 and 210. 1986 even before the due date was expired in respect of the quarterly period and half-yearly period, for which the original receipt of ‘Certificate of Posting’ was also filed. With reference to this submission Mr.Manimaran, Government Advocate contended that this document cannot be accepted here since there is no cross-examination in the trial with reference to this document and as such this document cannot be admitted here and that there can be no finding with regard to this document while deciding the issue raised in this case. 10. I have heard learned counsel on either side and gone through the records and the documents including the typed-set of papers. The appeal has to be allowed on a short point in so far as appellants 2 to 5 are concerned. According to the prosecution, the offence was committed by the company by not filing the quarterly returns and half-yearly returns in time. If a company is prosecuted under Sec. 10 of the Essential Commodities Act, the prosecution has to establish that the partners of the said company are in charge and responsible for the conduct and affairs of the company. Mr.K.V.Sridharan, learned counsel for the appellants urged that there is no evidence adduced by the prosecution that appellants 2 to 5 were in charge of the business of the company when the offence was committed and in the absence of any such evidence the conviction cannot be sustained. Sec. 10 of the Essential Commodities Act provides as follows: “10. Mr.K.V.Sridharan, learned counsel for the appellants urged that there is no evidence adduced by the prosecution that appellants 2 to 5 were in charge of the business of the company when the offence was committed and in the absence of any such evidence the conviction cannot be sustained. Sec. 10 of the Essential Commodities Act provides as follows: “10. Offences by companies- (1) If the person contravening an order made under Sec.3 is a company, every person who, at the time the contravention 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 contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub-Sec. (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.” A plain reading of the above section shows that the person who was entrusted with the business of the firm and responsible to the firm or company for the conduct of the business could alone be prosecuted for the offence complained of. Of course, each partners is representative of other partners. Each of the partners is an agent as well as a principal. He is a principal to the extent that he is bound by acts of other partners. But when the question of criminal liability comes under penal provision, the penal provision must be strictly construed in the first place. There is no vicarious liability in criminal law unless the statute takes that also within its fold. Sec. 10 does not provide such liability. But when the question of criminal liability comes under penal provision, the penal provision must be strictly construed in the first place. There is no vicarious liability in criminal law unless the statute takes that also within its fold. Sec. 10 does not provide such liability. When this Section was analysed with regard to the similar question, the Apex Court in Sham Sundar v. State of Haryana, A.I.R. 1989 S.C. 1982 observed as follows: "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 the 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.(l) 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." On the basis of this submission along with the decision of the Supreme court, this Court has to conclude "that there is no evidence available in this case on against A-2 to A-5 P.W. 1 the Officer who lodged the complaint to the Police when he was confronted with this aspect in cross-examination says: He further deposes even in the Chief-Examination as follows: P.W.2 Investigation Officer also says in the cross-examination as follows: In the light of the above admission by P.Ws. 1 and 2 the submission made by Mr.K.V.Sridharan has to be accepted and consequently the case of the prosecution fails in proving the initial burden of establishing the main ingredient of the offence under Sec. 10 of the Essential Commodities Act as against the accused 2 to 5. On this point, the appeal is allowed and accused 2 to 5 are acquitted in respect of the above charges. If any fine is paid by the fifth accused, it must be refunded forthwith. 11. Regarding the first accused, appellants counsel submitted that the first accused has not been questioned under Sec.313, Cr.P.C. Further the additional document filed into court shows that as early as on 17. 1986 and 210. 1986 the quarterly returns and half-yearly returns have already been submitted before the prosecuting agency. I feel that there is no basis for the above submission because accused 2 to 5 when they appeared before the court for questioning at the initial stage as partners, they being the partner represented 2 to 4 were questioned under Sec.313, Cr.P.C. it has to be understood that there answers were not only put to themselves but also for the company. As such, the submission with regard to the failure to question the company does not impress this Court much as it lacks substance. Of course, Mr.K.V.Sridharan has effectively and strenuously submitted that the documents filed into court would prove that there is no offence committed in view of the fact that the reports (returns) have been filed in time. I am afraid that this argument cannot also be accepted because the genuineness of the document could be confronted only in cross-examination while witnesses were examined before the trial court. As such I do not propose to decide the question on the basis of this document. Mr.Manimaran, appearing for the respondent, is not able to say whether actually this document had been received by the department in time or not. However I am not deciding about the genuineness of the document at present because it is irrelevant for deciding the question raised in the appeal since I am only concerned with the legality of the judgment rendered by the trial court. 12. However I am not deciding about the genuineness of the document at present because it is irrelevant for deciding the question raised in the appeal since I am only concerned with the legality of the judgment rendered by the trial court. 12. As regards the failure to put question to the first accused-company under Sec.313, Cr.P.C. Mr.K.V.Sridharan cited a judgment in Sri Arunagirinatha Sri Gnannsambhanda Desika Paramacharya Swamigal, Madurai Adheena Karthar, Madurai v. State Etc., (1995)1 L.W. (Crl.) 186 wherein it has been held by this Court, that “in a warrant case” the petitioner-accused who had been tried for offence under Sec.505(b), I.P.C., inasmuch as such an offence punishable with imprisonment for three years, cannot be dispensed with for questioning under Sec.313, Cr.P.C. But as referred to earlier and as pointed out by Mr.Manimaran, since this relates to the summons case, the proviso to Sec. 313(b), Cr.P.C, provides the court to dispense with the personal attendance and examination. 13. In view of the above reasons, the conviction for the above offences and the sentence imposed upon the 1st accused/company to pay a fine Rs. 1,000 are valid and in accordance with law. The appeal as far as the 1st accused is concerned has no merit and is liable to be dismissed. 14. The appeal as regard the 1st accused is dismissed and the appeal as regards the accused 2 to 5 is allowed. Accused 2 to 5 are acquitted in respect of the above charges. If any fine was paid by the fifth accused, it must be refunded forthwith.