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2019 DIGILAW 662 (GAU)

Kishore Kumar Agarwala v. State of Assam

2019-05-28

RUMI KUMARI PHUKAN

body2019
JUDGMENT : 1. This Revision is preferred against the judgment and order dated 30.04.2010 passed by the District Judge, Kamrup, Guwahati in Criminal Appeal No.64/2009, whereby the appellate court has upheld the order and judgment of learned Chief Judicial Magistrate, Kamrup, Guwahati dated 19.08.2009 in CR Case No.331C/2005 convicted the accused petitioner to suffer SI for a period of 2(two) months and also to pay a fine of Rs.10,000/- (Rupees ten thousand) under Section 92 of the Factories Act in default SI for another 2(two) months. 2. I have heard Mr. AK Gupta, learned Amicus Curiae and also heard Mr. BJ Dutta, learned Additional Public Prosecutor, Assam. 3. The prosecution case in brief is that on 18.11.2004 the complainant, Sri Somiran Das, Senior Inspector of Factories I/C Zonal Factory Officer, Bhangagarh, Guwahati-5 inspected M/S Mahalaxmi Stone crusher of accused KK Agarwala situated at Gauripur NH 31 Amingaon and found running the Mahalaxmi Stone Crusher Factory without having licence and registration as required under Section 6 of the Factories Act 1948 and Rules 3 and 4 of Assam Factories Rules 1950. Notice was issued to the accused occupier but in spite of receiving the notice the accused did not comply the same and hence the Inspector of the Factories, Sri Somiran Das on 14.03.2005 filed a complaint before the learned CJM, Kamrup Guwahati to prosecute the accused Kishore Kumar Agarwala under Section 92 of the Factories Act. On receipt of the complaint, the learned Chief Judicial Magistrate, Kamrup, Guwahati registered it as CR Case No.331/2005; took cognizance of the case under Section 92 of the Factories Act against the accused and issued summon to the accused to stand trial under the said Section of law. 4. Upon appearance of the accused person particular of offence under Section 92 of the Factories Act was explained to the accused to which he pleaded not guilty and claimed to be tried. The prosecution has examined only one witness to bring home the charge under Section 92 of the Factories Act. Statement of the accused person was recorded under Section 313 of Cr.P.C. The accused adduced no evidence on his defence and his plea is of denial. The prosecution has examined only one witness to bring home the charge under Section 92 of the Factories Act. Statement of the accused person was recorded under Section 313 of Cr.P.C. The accused adduced no evidence on his defence and his plea is of denial. After hearing argument from both sides and considering the evidence available on record the learned court below delivered the judgment convicting the accused under Section 92 of the Factories Act and sentenced him SI for two months and also to pay fine of Rs.10,000/- in default SI for another two months. On being aggrieved against the judgment and order of conviction passed by the learned Court below the accused appellant preferred an appeal which is also dismissed by the appellate court by its order dated 30.04.2010. Challenging said order this revision petition is preferred. 5. Considered the submission of the learned counsel for the petitioner that in the present case cognizance of the offence is barred under Section 106 of the Factories Act but same is not considered by the learned court below. It is contended that the limitation will run from the date of inspection that is from 18.11.2004 and the complaint was filed on 14.03.2005 which is beyond the prescribed period of three months. 6. On the next, it is contended that the petitioner herein was never running the aforesaid query to necessitate the registration of the same or getting licence etc. under the Act and that apart no notice was served personally upon the petitioner and the court below has failed to appreciate the aforesaid aspect and has convicted the petitioner solely on the basis of the evidence of Factory Inspector/PW-1, there being nothing to show that the query was running by the petitioner. 7. The learned State respondent has however, submitted that all the contention of the petitioner has been appreciated by both the court below and there being concurrent finding of the issue, the same cannot be re-appreciated by way of revision by this Court. 8. I have also gone through the materials on record and the impugned judgment and order as well as gone through the evidence on record. 9. It is the case of the petitioner that the said query was not established or in operation and no manufacturing process was started in the said premises. 8. I have also gone through the materials on record and the impugned judgment and order as well as gone through the evidence on record. 9. It is the case of the petitioner that the said query was not established or in operation and no manufacturing process was started in the said premises. The petitioner has only procured the stone crushing machine which was not even installed and he merely applied for permission from the authorised department for supporting the said unit. It is also the defence of the petitioner that there is no such employee namely, Subhash Singh under him nor any other employee engage in the query. 10. For proper appreciation of the submission this Court has examine the evidence and document on record. It has been specifically stated by the PW-1/Factory Inspector that on 18.11.2004 he visited the Mahalaxmi Stone Crusher Factory situated at Amingaon at 11.12 am and he found Moharar Subhash Singh and 16 labourer working in the factory and they disclose that the present petitioner is the proprietor of the Factory. On demand, no document regarding registration and licence of the factory could be produced to run the same. He has exhibited the notice vide exhibit-1 and 2 and the postal receipt and A/D card vide exhibit- 3 and 4 regarding sending of notice to the accused petitioner. In his cross-examination he has stated that he has reaffirmed that at the time of his visit, the factory was found running with electricity. 11. The above evidence could not be rebutted by the petitioner, save and except mere denial. Defence plea that the notice was not served holds no good in view of the evidence of PW-1, who has proved the service of notice. The plea of defence is peculiar as because one time he stated that the stone was accumulated in the premises and he applied for registration and licence but no such document is produced or proved. The plea that the query was not operating at the relevant time also not at all proved as the PW-1 found that machine was operating with electrification. 12. The plea that the query was not operating at the relevant time also not at all proved as the PW-1 found that machine was operating with electrification. 12. So far as regard the matter of limitation, it is to be noted that the Section 106 of Factories Act provides that for the purpose of taking cognizance the complaint is to be filed within three months from the date of the commission of the offence provided when the offence consist of disobeying a written order made by Inspector, the complaint thereof may be made within six months from the date of commission of the alleged offence. The Section 106 read as follows: "106. Limitation of prosecutions-No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector. Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed. Explanation- For the purpose of this section- (a) In the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues; (b) Where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expired." 13. Now so far as the contention of the petitioner that as the present complaint was filed beyond three months so the cognizance is barred. We have to consider the date of commission of the offence and the filing of the complaint. It would reveal that inspection was made on 18.11.2004 and two notices were issued to the petitioner on 20.11.2004 and 19.01.2005 with a necessary direction to the petitioner to get the premises registered with necessary licence and as there was no compliance the complaint was filed on 14.03.2005. As such a complaint has been filed for disobeying the written order made by the Inspector so the complaint can be filed within the six months period from the date of the alleged commission of offence. As such a complaint has been filed for disobeying the written order made by the Inspector so the complaint can be filed within the six months period from the date of the alleged commission of offence. And in that view the present complaint was filed during the validity period of six months. Hence, there remains no substance in the contention that the cognizance is barred by limitation. 14. It is not an absolute proposition of law that the evidence of a public servant cannot be acted upon unless corroborated by independent witness. The factory Inspector by producing official documents has given clear evidence supporting the allegation and there appears nothing to disbelieve his evidence. On the contrary, the accused petitioner failed to shake the case of the prosecution by adducing necessary evidence that there was no such Mohorar and other employees working in his premises, that he applied for registration of the said factory, that the process for crushing stone was not operating, that no notice was ever received by him and has simply try to resist the prosecution case by way of inconsistent plea which is not at all maintainable. 15. It is discernable that the learned trial court as well as the appellate court has appreciated the entire contention of the petitioner in proper perspective of fact and law which called for no interference by way revisional jurisdiction. There being no any illegality or irregularity in the findings of the court below the revision is liable to be dismissed. At this stage the learned Amicus Curiae for the petitioner has submitted that the petitioner is an old aged man and the incident is of 2004, the petitioner should be dealt with some leniency, to which the learned counsel for the State respondent also raised no objection. 16. Having regard to the submission so made and the incident is far back of 15 years (approx), while maintaining the conviction sentence is converted to fine of Rs.30,000/- (Rupees thirty thousand) only in default RI for three months, with a direction to deposit the amount before the trial court within a period of three months from today. 17. Appreciating the assistance rendered by learned Amicus Curiae Mr. AK Gupta in conducting the case, Gauhati Legal Service Authority is hereby directed to provide him a sum of Rs.7,000/- (Rupees seven thousand) only as his professional fees. 18. 17. Appreciating the assistance rendered by learned Amicus Curiae Mr. AK Gupta in conducting the case, Gauhati Legal Service Authority is hereby directed to provide him a sum of Rs.7,000/- (Rupees seven thousand) only as his professional fees. 18. Send down the LCR along with the copy of this judgment.