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2002 DIGILAW 266 (GAU)

Chandmal Jain v. State of Assam

2002-06-17

I.A.ANSARI

body2002
I.A. ANSARI, J.— This is an. appeal against the judgment and order, dated 25.4.94, passed by learned Sessions Judge, Kamrup, in Special Case No. 21/98, convicting the accused-appellant under Section 7(l)(a)(ii) of the Essential. Commodities Act, 1955 (hereinafter referred to as "the said Act") for violation of Clause 10 of the Assam Trade Articles (Licensing and Control) Order, 1982 (hereinafter referred to as "the said Order of 1982") and sentencing him to suffer simple imprisonment for a period of three months and in default, to suffer simple imprisonment for a further period of seven days. 2, The case of the accused appellant, as unfolded at the trial, may, in brief, be stated as follows: On 22.9,89 at about 5 P.M., at Goreswar, Sri U.C. Bharali, Inspector, Food and Civil Supplies (F&C.S) along with a team from Bureau of Investigation, Economic Offences (known as B.I.E.O), visited the shop of M/S Dharamchand Mahendra Kumar, a wholesale dealer of rice, which is a registered firm comprising of Chandmal Jain, (i.e. the appellant) and Dharam Chand Jain (who stands acquitted) as partners. As per stock register (M.Ex.1) and Display Board (Ext. 3), there should have been 55 quintals of rice available at the shop, but on physical verification, only 45 quintals of rice were found indicating thereby a shortage of 10 quintals of rice without any supporting essential documents, viz., cash memo or invoice showing sale of the said 10 quintals of rice. The rice was seized, vide seizure list (Ext. 1), along with stock register, etc. from the possession of the accused-appellant. On the basis of a complaint made in this regard, after obtaining of required sanction (Ext.4), the accused-appellant along with Dharam­chand Jain aforementioned were sent for trial as partners of M/s Dharamchand Mahendrakumar aforementioned for alleged violation of the terms and conditions mentioned in paragraphs 3 (a) and 7 of the licence (M. Ext. 4) and for contravening thereby Clauses 3 and 10 of the said Order of 1982 punishable under Section 7 (1) of the said Act. 3. During trial, particulars of offences alleged to have been committed by the two accused aforementioned were explained to them, but both the accused pleaded not ;guilty thereto. 4. In all, prosecution examined three witnesses including Sri U.C. Bharali aforementioned. 3. During trial, particulars of offences alleged to have been committed by the two accused aforementioned were explained to them, but both the accused pleaded not ;guilty thereto. 4. In all, prosecution examined three witnesses including Sri U.C. Bharali aforementioned. The accused were, then, examined under Section 313 Cr.P.C. In his examination aforementioned, accused Dharamchand pleaded that he was not present at the shop at the relevant time and he was, therefore, not responsible for what transpired on 22.9.99. As far as the appellant, namely, Chandmal Jain is concerned, he, while admitting the visit of the Food and Civil Supply Officials at their shop and the seizure of 45 quintals of rice along with stock register, etc., having taken place from his possession, pleaded innocence by saying that he had sold "10 quintals" of rice to two customers and while he was about to make cash memos ready for them, F&C.S. Officials appeared and prevented him from preparing the cash memos. No evidence was, however, adduced by the defence. At the conclusion of the trial, learned trial Court found accused Dharamchand not guilty of any offence and acquitted him accordingly. The present appellant was, however, found guilty of the offence under Section 7 (l)(ii) (a) of the said Act read with Clause 10 of the said Order of 1982 for violating the terms and conditions contained in paragraph 7 of the licence. The appellant was accordingly convicted and sentenced as mentioned hereinabove. 5. The moot points, which have been raised in the present appeal, are as follows:- (i) Whether the accused-appellant could have been convicted under Section 7 (l)(ii)(a) of the said Act without making the firm; namely, M/s. Dharamchand Mahendra Kumar an accused in the ease ? (ii) Whether the finding of guilt arrived at by the learned trial Court is justified on the basis of the evidence on record and the law relevant thereto? 6.1 have carefully perused the relevant records including the impugned judgment and order. I have heard Mr. S.L. Jain, learned counsel for the appellant; and Mrs. B. Rajkhowa, learned Addl. Public Prosecutor, who appeared on behalf of the respondent. 7. Assailing the impugned judgment, Mr. lain has submitted that the language of Section 10 of the said Act shows that if a firm is hot made accused, then, its partners, too, can not be proceeded against and tried as accused. B. Rajkhowa, learned Addl. Public Prosecutor, who appeared on behalf of the respondent. 7. Assailing the impugned judgment, Mr. lain has submitted that the language of Section 10 of the said Act shows that if a firm is hot made accused, then, its partners, too, can not be proceeded against and tried as accused. It is also submitted by Mr. Jain that the learned trial Court has assigned no cogent and satisfactory reasons for not believing the evidences of PW 1 and PW 2, whose evidence demolished the case of the prosecution, that the accused had sold the rice weighing 10 quintals without giving cash memo or invoice. The conviction of the accused appellant, thus, contends, Mr. Jain, suffers from misreading of evidence and relevant provisions Of law. 8. Controverting the above submissions made on behalf of the appellant, Mrs. Rajkhowa has submitted that the learned trial Court acted, within the ambit of law and in accordance with the evidence on record, in holding the accused-appellant guilty of having committed offences punishable under Section 7 (lXa)(ii) of the said Act. 9. Let me, first, deal with the contention of Mr. Jain that for not making the firm aforementioned an accused in the case, trial of the accused-appellant suffered from lack of jurisdiction as per Section 10 (1) of the said Act. 10. For the sake of brevity, let me quote sub-section (1) of Section 10, which runs as follows:-' "(1) If the person contravening an order made under Section 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." (Emphasis is added) 11. Explanation (a) appended to Section 10 reads as under :- "Company" means any body corporate, and includes a firm or other association of individuals. 12. Drawing strength from the expression used "Company" in Section 10, Mr. Jain has submitted that since a company includes firm, the company or the firm, as the case may be, must be made an accused if the partners are to be proceeded against. 13. 12. Drawing strength from the expression used "Company" in Section 10, Mr. Jain has submitted that since a company includes firm, the company or the firm, as the case may be, must be made an accused if the partners are to be proceeded against. 13. A bare reading of the provisions of Section 10(1) shows that what sub-section (1) of Section 10 lays down is that in addition to the firm, the person, who, at the time when the contravention was committed, was in-charge of, and was responsible to, the firm for the conduct of the business of the firm, shall also be guilty of contravention. 14. In other words, what Section 10(1) lays down is that apart from the partner, who is in charge of, and is responsible to, the firm for conduct of the business of the firm, the firm shall also be liable to be proceeded against. This, in no way, means that if the firm is not made an accused, the partners too can not be proceeded against. In fact, the matter stands settled by the Apex Court's decision in Shewratan Agarwalla Vs. State of Madhya Pradesh ( AIR 1984 SC 1824 ), wherein it has been held as follows :- "Section 10 indicates the persons, who may be prosecuted when the contravention, is made by the company. It does not lay down any condition that the person in charge or an Officer of the Company may not be separately prosecuted if the Company itself is not prosecuted." 15. In view of the Apex Court's decision in Shewratan Agarwalla, (supra), the matter does not remain in doubt that a partner may be prosecuted under Section 7 of the said Act even if his firm has not been made an accused. 16. Coming to the second leg of the arguments of Mr. Jain that the evidence on record was not adequate to hold that the appellant had contravened the conditions of paragraph 7 of the licence, in question, let me quote for effective determination of the question involved in this appeal paragraph 7, which reads as follows ;: "The licensee shall issue to every customer of such trade articles a cash memo or invoice ......................... giving his own name................................ the date of transaction, the quantity sold and the price charged. He shall keep a duplicate of the same to be available for inspection. 17. giving his own name................................ the date of transaction, the quantity sold and the price charged. He shall keep a duplicate of the same to be available for inspection. 17. There is, I find, nothing in the language of paragraph 7 to show that before the delivery of the article sold is given to the purchaser, cash memo or invoice has to be issued. What paragraph 7 lays down is that far every sale that takes place, either a cash memo or an invoice has to be issued, but it does not state that the cash memo or invoice has to be issued prior to, or simultaneously with, the sale. The condition mentioned in paragraph 7 may, therefore, be safely interpreted to mean that for every sale of the article (which the licence covers), the licensee shall issue a cash memo or invoice, but such cash memo or invoice may be issued at any time before the transactions for the day stand concluded. This becomes clear if paragraph 7 is read in conjunction with the conditions contained in paragraph 3 (a) of the licence inasmuch as paragraph 3 (a) reads as follows :- "3(a) The licensee shall maintain a stock register of daily accounts showing correctly (i) the opening stock on each day; (ii) x x x x x, (iii) the quantities delivered or otherwise removed on each day (iv) the closing stock on each day. (b) x x x (c) x x x (d) The licensee shall complete the entries in this stock register for each day latest by the beginning of the transactions on the following day............... 18. A bare reading of paragraph 3 shows that under Clause (a) the licensee shall display his opening stock everyday, before the transaction's for the day commences and 3 (d) allows the licensee to complete the entries of the transactions for the day, latest, by the beginning of the transactions on the following day. It, therefore, logically follows that any checking of stock by inspecting authorities has to be made with reference to the opening stock of the day and not the stock found during the course of the day. It is for this reason that paragraph 7 nowhere states that the cash memo or invoice shall be issued prior to, or simultaneously with, the transaction of sale. 19. It is for this reason that paragraph 7 nowhere states that the cash memo or invoice shall be issued prior to, or simultaneously with, the transaction of sale. 19. Keeping the above aspects of the appeal, let me, now, briefly, analyze the evidence on record. According to PW 1 (B. Bhuyan) and PW 2 (P. Deka), both of whom are contractors of Goreswar, they were present when F&C.S. Officials visited the shop of the accused and seized 45 bags of rice along with stock register, cash memo book, licence, etc., by seizure list Ext.l, Ext.l (1) and Ext.l (2) being their signatures. PW 1 has also deposed that when he was present at the shop, two customers were about to receive the Cash Memo by paying price, but they went out at the sight of the Police coming to the shop. PW 1 has also deposed that the customers could not pay the price as F&C.S. officers came into the shop for inspection. It is in the evidence of PW 1 that accused Chandmal Jain (i.e. the appellant) told the F&C.S. officials that the customers had lifted the rice from the godown, the price was yet to be paid and that he would prepare the cash memo on payment. Broadly in tune with the evidence of PW 1, PW 2 has deposed that a few persons wanted to pay the prices for the rice that they had purchased and sought cash memo, when the F&C.S. officials appeared and seized the cash memos, etc., and the accused could not give cash memo to the customers. 20. What, therefore, emerges from the evidence of PW 1 and PW 2 is that customers were present inside the shop in question, they had purchased rice and they wanted to take cash memo on making payment for the rice purchased, but on arrival of the F&C.S. officials, the customers left. 21. 20. What, therefore, emerges from the evidence of PW 1 and PW 2 is that customers were present inside the shop in question, they had purchased rice and they wanted to take cash memo on making payment for the rice purchased, but on arrival of the F&C.S. officials, the customers left. 21. As against the above evidence given by PW 1 & 2, PW 3 has deposed that when he visited the shop on 22.9.89, he found that as per stock register and display board, there should have been 55 quintals of rice, but on physical verification, he found only 45 quintals and the accused could not show any document in respect of shortage of 10 quintals and when he (PW 3) checked up his cash memo books, he found nothing to show any sale, whereupon he seized the rice along with the stock register (M.Ext. 1), the cash memo books (M.Ext. 2 and 3) and licence (M. Ext. 4) by seizure list Ext. 1, PW 3 has asserted in his evidence that no customer was present inside the shop, when he had visited the same, but the accused was present inside the shop. PW 3 denied the defence suggestion that the accused was, at the relevant time, selling 10 quintals of rice and before he could issue cash memos, PW3 seized the cash memo books and while cash memos were to be issued by the accused Chandmal Jain to them, the customers, on arrival of F&C.S. officials, left the shop. 22. Thus, according to the evidence of PW 3, as per stock register and display board, there should have been 55 quintals of rice, but on physical verification, he found only 45 quintals and the accused could not show any document in respect of shortage of 10 quintals of rice and when he checked up the cash memo books (M. Exts. 2 and 3), he did not find any evidence of sale on that day. 23. Relying on the evidence of PW 3 entirely and ignoring completely the evidence of PWs. 1 and 2, learned trial Court came to the conclusion that the explanation offered by the accused that he was about to write the cash memos and hand over the same to the customers concerned, when the F.&.C.S Officials arrived there is not satisfactory. 23. Relying on the evidence of PW 3 entirely and ignoring completely the evidence of PWs. 1 and 2, learned trial Court came to the conclusion that the explanation offered by the accused that he was about to write the cash memos and hand over the same to the customers concerned, when the F.&.C.S Officials arrived there is not satisfactory. For placing such heavy reliance on the evidence of PAW 3, learned trial Court has, I find, observed that his evidence cannot be discarded merely because he is a Government Official investigating the offence. Learned trial Court has also observed that there is no Rule of Law that conviction can not be based on the evidence of such a witness, as PW 3 is, if his evidence is found trustworthy. With the proposition of law so propounded, there can be really no dispute, but when the prosecution itself adduced two contradictory sets of evidence, which not only contradicted each other, but, in fact, mutually destroyed each other's credibility, the evidence which goes against the accused can not be adopted in preference to the one, which goes in his favour unless the evidence which goes against him, is found to be entirely true and trustworthy. 24. In the case at hand, the evidence of PWs 1 & 2 collectively bellied the evidence of PW 3, but while assigning reason as to why it must believe PW 3, learned trial Court has assigned no reason as to why it had to disbelieve PW 1 and PW 2. 25. Coupled with the above, we have to also bear in mind that when prosecution adduces two sets of witnesses, one contradicting the other, and the Court is not a position to hold confidently as to which set of witnesses has told the truth, then, both sets of witnesses have to be discarded or, at lease, the set of evidence, which goes in favour of the accused shall be adopted by the Court. Reference may be made to Harchand Singh and another vs State of Haryana ( AIR 1974 SC 344 ). 26. In view of the fact that the evidence of PWs. Reference may be made to Harchand Singh and another vs State of Haryana ( AIR 1974 SC 344 ). 26. In view of the fact that the evidence of PWs. 1 and 2, on the one hand, and PW 3, on the other hand, are, as indicated above, inconsistent with each other on the material aspect of the case, that is, whether the accused could not issue cash memo to the customers concerned due to arrival of F&C.S. Officials, the evidence of PW 1 and PW 2 could not have been simply brushed aside and implicit reliance could not have been legally placed on the evidence of PW 3 without testing the veracity of his evidence in the light of the other evidence on record. 27. My quest for an answer to the above question brings me to M.Ext. 3 (Cash Memo Book), which, I notice, shows that non-issued cash memos start from the Sl. No. 901 with date given as 22.9.89. This is the date on which PW3 had visited the shop. This incomplete and unfinished cash memo lends to my mind, great strength to the defence taken by the appellant that when the cash memo was in the process of being made, the same was seized. 28. Situated thus, I find it wholly impossible to ignore what I notice in M.Ext. 3, particularly, when learned Addl. Public Prosecutor has not been able to offer any explanation on this aspect of the evidence on record. Hence, when M.Ext. 3 is considered, in the light of the evidence of PWs 1 and 2, it becomes well-neigh impossible to place implicit reliance on the evidence of PW 3 alone excluding completely from the purview of consideration the evidence of PWs 1 and 2. 29.1 may pause here to point out that the learned trial Court has observed that the defence did not examine any of its customers nor did it explain as to why it could not examine them. While considering these aspects of the matter, it needs to be born in mind that burden of proof in a criminal trial rests with the prosecution and that the criminal cases are not decided on preponderance of evidence. Until the time prosecution proves beyond all reasonable doubt the facts constituting the offence, the accused have no responsibility to offer, far less prove, their innocence and/or the plea that the defence takes. 30. Until the time prosecution proves beyond all reasonable doubt the facts constituting the offence, the accused have no responsibility to offer, far less prove, their innocence and/or the plea that the defence takes. 30. In the case at hand, when PWs 1 and 2 themselves supported the case of the defence, non-examination of the customers by the defence could not have led to the drawing of adverse inference against the accused-appellant. 31. What, thus, crystallizes from the above discussion is that in tune with the evidence of PWs 1 & 2, Ext. 3 shows that the cash memo was in the process of being completed and in the face of such evidence, mere assertion of PW 3 that no customer was present inside the shop, when his team arrived there for inspection cannot be wholly relied upon. 32. Situated thus, I am firmly of the view that in the face of the facts and circumstance of the case as available from the evidence on record, the accused-appellant was entitled to be accorded, at least, benefit of doubt. 33. In the result and for the reasons discussed above, this appeal succeeds. The impugned order of conviction and sentence shall stand set aside. The accused-appellant is held not guilty of the offence for which he stood convicted and is accordingly acquitted of the same under benefit of doubt. The accused-appellant, who is on bail, need not surrender to his bail bond. His bail bond shall stand cancelled and his surety too shall stand discharged. 34. Send back the case record along with a copy of this judgment and order.