Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 862 (PNJ)

Madan Mohan Nayar v. State Of Punjab

2008-04-09

HARBANS LAL

body2008
Judgment Harbans Lal, J. 1. This petition has been moved by Madan Mohan Nayar, Rakesh Nayar and Ajay Nayar seeking quashing of criminal complaint bearing No. 424 dated 8.3.2007 (Annexure P-1) pending in the Court of Shri K.S. Cheema, learned Chief Judicial Magistrate, Ludhiana, the summoning order of even date passed in the complaint as well as all the subsequent proceedings taken in pursuance thereof. 2. The brief facts giving rise to this petition are that respondent No. 2 has lodged complaint, Annexure P-1 under Sections 41-43 read with Section 62 of the Standards of Weights and Measures Act, 1976 (hereinafter to be referred as the Act) in the Court of learned Chief Judicial Magistrate, Ludhiana, containing the allegations that after conducting inquiry, the officers of the Legal Metrology Department, Patiala and Jalandhar gave reports to Controller, Legal Metrology Punjab vide letter No. 135 dated 22.3.2004. On the basis of the inquiry, Inspector Legal Metrology, Ludhiana-III, booked a case on 1.4.2004. As per alleged inquiry, it was found that the petitioners Madan Mohan Nayar, Rakesh Nayar and Ajay Nayar of M/s. FMI Ltd, Ferozepur Road, Ludhiana, had supplied/distributed and delivered standard tape measures to various States in the Inter State transaction as per records given by them without verification and stamping by the Weights and Measures Department. On receiving the complaint, Annexure P-1, the above mentioned Court passed order dated 8.3.2007, Annexure P-2 and issued notice without application of mind. A bare perusal of Section 62 of the Act reveals that the punishment prescribed therein is fine, which may extend to Rs. 10,000/- and for the second or subsequent offence, the punishment is imprisonment for a term which may extend to 7 years and also with fine. The alleged offences which the petitioners have otherwise never committed is the first offence meaning thereby that the punishment prescribed for the same is fine. As per the mandatory provisions of Sections 468 and 469 of the Code of Criminal Procedure, the maximum period within which Annexure, P-1 should have been filed, was six months from the date of commission of the alleged offence, which as per the allegations made in the complaint was committed in the year 2004. In this view of the matter, Annexure P-1 is liable to be quashed straightaway on the ground of being barred by limitation. In this view of the matter, Annexure P-1 is liable to be quashed straightaway on the ground of being barred by limitation. As per the provisions of Section 64 of the Act, which is in para materia with that of Section 141 of the Negotiable Instruments Act, in the event of an offence under the Act having been committed by a Company, every person who at the time when the offence was committed, was incharge 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. In the present case, there is not even an iota of allegations in the complaint that the petitioners were incharge and were responsible for the conduct of the business of the Company. Keeping in view the totality of the facts and circumstances mentioned above as well as legal aspect of the matter, the complaint Annexure P-1, the summoning order Annexure P-2 as well as the subsequent proceedings taken in pursuance thereof being patently illegal and e gross abuse of the process of the Court, may be quashed. 3. In reply filed by the respondents, it is admitted that on receiving the complaint Annexure P-1, the Court of learned chief Judicial Magistrate, Ludhiana, passed an order dated 8.3.2007, but it is incorrect that the same was passed without application of mind. If the summoning order is not valid in the eyes of the petitioners, the revision petition could have been filed thereagainst. It was found during inquiry that the Company M/s. Freeman Measures Limited, G.T. Road, Ludhiana had supplied/distributed and delivered standard tapes measures to various States in the Interstate transaction, without verification and stamping by the Weights and Measures Department and, as such, the petitioners have committed the offences under Sections 41, 42 and 43 read with Section 62 of the Act and the Rules. The petitioners were incharge and responsible for the conduct of the business of the said Company. So tar as the provisions of Sections 468 and 469 are concerned, the complaint was required to be filed within the stipulated period of six months, but the complaint has been filed after receiving necessary sanction from the Central Government and after excluding the time taken in getting the sanction from the Government, the complaint is within limitation. As such, this petition may be dismissed. As such, this petition may be dismissed. 4. I have heard Mr. Sunil Chadha, Advocate appearing on behalf of the petitioners as well as Ms. Manjari Nehru, Deputy Advocate General, Punjab, for the State of Punjab besides going through the record with due care and circumspection. 5. Mr. Sunil Chadha appearing on behalf of the petitioners urged with a good deal of force that in view of the provisions as enshrined in Sections 468 and 469 of the Code of Criminal Procedure, the complaint Annexure P-1 was required to be filed within six months from the date of commission of the offence. As per the allegations in the complaint, the offence took place in 2004, whereas the complaint was filed on 8.3.2007. Thus, obviously the same is barred by limitation. He further puts that a careful delving into the summoning order dated 8.3.2007. Annexure P-2 would reveal that the same has been passed without application of mind. Consequently, the same is also liable to be quashed. To buttress this stance, he has sought to place abundant reliance upon the observations made in re : Kimberly Clark Liver Limited v. State, 2006(4) RCR(Criminal) 432, Nagar Panchayat, Handiaya District Sangrur v. Gallu Singh and others, 2006(4) RCR(Criminal) 571 : 2006(4) RCR(Civil) 678 (P&H), Saroj Kumar Poddar v. State (NCT of Delhi) and another, 2007(1) RCR(Criminal) 741 : 2007(1) RAJ 205 (SC) and Anil Kumar v. State and another, 2007(1) Recent Criminal Reports(Criminal) 649. 6. To overcome this submission, Ms. Manjari Nehru, on behalf of the respondents, maintained that of course the complaint, as per law, was required to be instituted within a period of six months from the date of commission of the offence, but much time was lost in obtaining sanction from the Central Government. That being so, such period has to be excluded in reckoning the limitation period. She further pressed into service that the impugned summoning order indicates application of mind by the learned Chief Judicial Magistrate. The contentions raised by her merit rejection. 7. I have given a deep and thoughtful consideration to the rival contentions. 8. There is no gain-saying the fact that this complaint could be lodged within six d months from the date of commission of the offence. As revealed by the complaint, Annexure P-1, the occurrence took place in 2004. whereas the same has been filed on 8.3.2007. 7. I have given a deep and thoughtful consideration to the rival contentions. 8. There is no gain-saying the fact that this complaint could be lodged within six d months from the date of commission of the offence. As revealed by the complaint, Annexure P-1, the occurrence took place in 2004. whereas the same has been filed on 8.3.2007. The learned State Counsel has not referred to any provision of law or case law warranting that the time spent in getting the sanction from the Government has to be excluded in reckoning the limitation period. In re : Nagar Panchayat Handyaya District Sangrur (supra), the complaint was filed after six years, whereas the limitation period was six months. The complaint was dismissed being barred by limitation by the learned Magistrate. The jurisdiction of this Court was invoked under Section 482 of the Code of Criminal Procedure for setting aside the order passed by the learned Magistrate. The same was dismissed. In re : Kimberly Clark Labour Limited (supra), the complaint was instituted for the offences under the Weights and Measures Act within the period of limitation, but the Magistrate took cognizance after expiry of the period of limitation. The proceedings were held illegal and quashed. 9. Coming to the facts of the instant case, there is a delay of as many as three days in launching this complaint. It does not stand to the logic that so long period would have been consumed in obtaining the sanction. The respondents have not produced any documentary evidence in the nature of correspondence etc. to justify this delay. In the absence thereof, it is very difficult to presume that such a long time was lost in the process of securing sanction. Thus, to say the least of it, this complaint is hopelessly time barred. A glance through Annexure P-1 would reveal that M/s. FMI Limited, Ferozepur Road, Ludhiana, has not been arraigned as an accused. Only the petitioners Madan Mohan Nayar, Rakesh Nayar and Ajay Nayar have been arrayed as accused. Still worse, as per Annexure P-3. the Assistant Controller, Legal Metrology, Patiala, has been authorized to initiate the proceedings only against M/s. FMI Limited, Ferozepur Road, Ludhiana, and not the Directors thereof. The complaint does not disclose the status of the petitioners Madan Mohan Nayar, Rakesh Nayar and Ajay Nayar in M/s. FMI Ltd., Ferozepur Road, Ludhiana. Still worse, as per Annexure P-3. the Assistant Controller, Legal Metrology, Patiala, has been authorized to initiate the proceedings only against M/s. FMI Limited, Ferozepur Road, Ludhiana, and not the Directors thereof. The complaint does not disclose the status of the petitioners Madan Mohan Nayar, Rakesh Nayar and Ajay Nayar in M/s. FMI Ltd., Ferozepur Road, Ludhiana. The complaint has been lodged against those qua whom sanction is lacking to initiate the proceedings. In other words, there is no authorization for prosecution of the petitioners. The complaint is further silent as to how and in what manner the petitioners were responsible for the conduct of the business of the company. In Anil Kumars case (supra), the petitioner was arrayed as one of the accused, but it was not stated in the complaint that he was incharge and responsible to the firm in the conduct of the business. The complaint was quashed. The complaint is also silent about the fact that the petitioner was vicariously liable for the acts of others. In re : M.P. Singh v. State of Punjab and others, 2006(4) Recent Criminal Reports(Criminal) 146, it was not shown that on the date of seizure of the sample, the petitioners were incharge of the production unit of the Company. The complaint was quashed. In re : M/s. Merind Limited v. State of H.P. and others, 2006(4) Recent Criminal Reports(Criminal) 802, the Sales Manager of the Company was prosecuted. There was no allegation in the complaint that he was incharge and responsible to the Company for the conduct of business or had any role with respect to the affairs of the company. The proceedings were quashed. In re : R.K. Jain and another v. State of Haryana, 2006(1) Recent Criminal Reports (Criminal) 466, prosecution was launched against the Limited Company and its Directors. There was no specific averment in the complaint that the said Director was incharge and responsible to the Company if the conduct of day-to-day business of the company. It was held that in the absence of these averments, the said Director cannot be proceeded against. The proceedings were quashed. There was no specific averment in the complaint that the said Director was incharge and responsible to the Company if the conduct of day-to-day business of the company. It was held that in the absence of these averments, the said Director cannot be proceeded against. The proceedings were quashed. In re : S.M.S. Pharmaceuticals Limited v. Neeta Bhalla and another, 2005(4) RCR(Criminal) 141 : 2005(3) Apex Criminal 229, it was held by the Apex Court that it is necessary to specifically aver in the complaint that the Directors were incharge or responsible for conduct of the business of the Company, 10. Reverting back to the facts of the present case, as is borne out from the complaint, there is not even a remote reference to the role played by the petitioners in the management of the affairs of the Company though the concept of judicial precedent as emerges out of the afore-quoted plethora of rulings is that it is incumbent upon the complainant to specify the role of the accused and it must be indicated as to whether he or she was managing the affairs of the company and was responsible to the Company Adverting to the impugned summoning order, the same reads in the following terms : "In the Court of Shri K.S. Cheema, Chief Judicial Magistrate, Ludhiana. State versus M.M. Nayar and others Present : Complainant in person. Complaint presented today. It be registered. Now, its notice to the accused be issued for 20.4.2007. (K.S. Cheema) Dated : 8.3.2007 Chief Judicial Magistrate, Ludhiana" 11. Axiomatically, this order is laconic and non-reasoned. This is quite cryptic. It clearly indicates non-application of mind. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. As is well settled, the accused can approach the High Court under Section 482 of the Code of Criminal Procedure or under Article 227 of the Constitution to have the proceedings quashed when the complaint does not make out any case against him. The complaint, Annexure P-1 reads in the following terms :- "In the Court of C.J.M., Ludhiana No. 424/8/3/2007 State vs. 1. Sh. M.M. Nayar 2. Sh. Rakesh Nayar 3. Sh. Ajay Nayar of M/s. FMI Ltd., G.T. Road, Ludhiana Complaint under Sections 41-43 read with 62 of the Standards of Weights and Measures Act, 1976. 1. The complaint, Annexure P-1 reads in the following terms :- "In the Court of C.J.M., Ludhiana No. 424/8/3/2007 State vs. 1. Sh. M.M. Nayar 2. Sh. Rakesh Nayar 3. Sh. Ajay Nayar of M/s. FMI Ltd., G.T. Road, Ludhiana Complaint under Sections 41-43 read with 62 of the Standards of Weights and Measures Act, 1976. 1. It is respectfully prayed that after conducting inquiry Sh. Harpal Singh, Assistant Controller Legal Metrology Patiala and Sh. Ravinder Singh, Assistant Controller Metrology Jalandhar given reports to Controller Legal Metrology Pb. Vide letter No. 135 dated 22.3.04. 2. On the basis of inquiry Sh. Charanjit Singh, Inspector Legal Metrology Ludhiana-3 booked the case No. PB-Ldh-5/11 Dated 1.4.04. 3. The Report of Offence was sent to Assistant Controller Legal Metrology Patiala for onwards submission to Director Legal Metrology New Delhi through Controller Legal Metrology Pb. 4. The Director Legal Metrology has authorized me vide his letter No. WM-20(5) 2000 (Govt. of India) Krishi Bhawan, New Delhi dated 13.10.2006 to initiate legal action in the court of law (copy enclosed). 5. It is respectfully prayed that (1) Sh. M.M. Nayar (2) Sh. Rakesh Nayar (3) Sh. Ajay Nayar of M/s. FMI Ltd. Ferozepur Road, Ludhiana violated Sections 41-43 of the Standards of Weights and Measures Act, 1976. 6. That the offence is punishable under Section 62. The accused may kindly be punished in accordance with the law. 7. List of witnesses 1. Sh. Satwinder Singh the then area Inspector Legal Metrology Ludhiana-5 now at Sarhand. 2. Sh. Harpal Singh the then Assistant Controller Legal Metrology, Patiala now at (H.Q.) Jeevandeep Building, Sector 17, Chandigarh. 3. Sh. Ravinder Singh the then Assistant Controller Legal Metrology Jalandhar now at Ferozepur. Sd/- Assistant Controller Legal Metrology, (Weights and Measures) Patiala Div. Patiala " Apparently there are no allegations that the petitioners Madan Mohan Nayar, Rakesh Nayar and Ajay Nayar of M/s. FMI Limited, Ferozepur Road, Ludhiana had supplied/distributed and delivered Standard Tape Measures to various States in the Inter State Trade Transaction, without verification and stamping by the Weights and Measures Department. Ostensibly, the reference has been made merely to the inquiry report. It also does not reveal that the copy of such inquiry report was supplied to the accused to enable them to know about the substance of accusation against them. Ostensibly, the reference has been made merely to the inquiry report. It also does not reveal that the copy of such inquiry report was supplied to the accused to enable them to know about the substance of accusation against them. The complaint is too cryptic about the actual date of occurrence and the bundle of allegations constituting the offence. In the face of such circumstances, it would amount to an abuse of process of the Court as well as law, if the proceedings in the complaint are allowed to continue. As a sequel of the above discussion, this petition is accepted and the complaint (Annexure P-1) bearing No. 424 dated 8.3.2007 pending in the Court of learned Chief Judicial Magistrate, Ludhiana, the summoning order dated 8.3.2007 (Annexure P-2) passed in the said complaint, and all the subsequent proceedings taken in pursuance thereof are hereby quashed.