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Madhya Pradesh High Court · body

2019 DIGILAW 793 (MP)

Fulkaria Ekka v. State of M. P.

2019-11-14

VISHAL MISHRA

body2019
ORDER 1. With the consent of the parties, the matter is finally heard. 2. The present petition has been filed by the petitioner under section 482 of CrPC for quashing the proceedings which are pending before the Judicial Magistrate First Class, Radhogarh, District Guna in Case No. 1480/2008 (State of M. P. v. Anand Singh Solanki and Others) and also for quashing the impugned order dated 16.12.2008, whereby the learned trial Court has taken a cognizance against the petitioner in pursuance of FIR which has been registered at Crime No. 98/2008 for the offence registered under section 3/7 of the Essential Commodities Act, 1955 (hereinafter referred to as “the Act, 1955”). 3. It is alleged by counsel for the petitioner that the petitioner is assailing the impugned order mainly on the two grounds that the authority who has done the investigation in the matter, is not the competent authority in terms of under section 10 of the Act, 1955. The Tahsildar who inspected and investigated the matter, is not the competent authority and has not been notified in Gazette notification which has not been issued by the State authority authorizing the Tehsildar as a Special Officer to inspect the gas agency as under provision of the Act, 1955. It is further submitted that the petitioner was only president of the Society in question and she was not looking after the gas agency and was not the in-charge of the gas agency and the co-accused Anand Singh Solanki is the main culprit in the matter. The gas agency in question was under the control of the co-accused Anand Singh Solanki who was taking care of distribution of the gas cylinders and was responsible for all the transactions with respect to gas agency. He was responsible for conducting the business, in the matter. 4. Learned counsel for the petitioner has drawn attention of this Court to section 10 of the Act, 1955 which reads as under: “10. Offences by companies. He was responsible for conducting the business, in the matter. 4. Learned counsel for the petitioner has drawn attention of this Court to section 10 of the Act, 1955 which reads as under: “10. Offences by companies. (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 proceed against and punished accordingly : Provided that nothing contained in this subsection 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.” 5. It is further argued that it is covered by proviso of section 10 (1) of the Act, 1955. The petitioner was president of the Society and not having any knowledge regarding the commission of offence made by the co-accused Anand Singh Solanki in the matter, as the petitioner was not in charge of conduct of the business of the company. 6. Learned counsel for the petitioner has relied upon the judgment passed by the coordinate Bench of this Court in the case of Vimla Devi (Smt.) v. State of M. P., reported as 2009 (1) EFR 603 and the judgment passed by the Hon’ble Supreme Court in the case of Shyam Sunder & Others v. State of Haryana, reported as 1990 (1) EFR 1 and has argued that in Explanation to section 10 of the Act, 1955 the company includes a firm and other association of the persons and section 10 of the Act, 1955 provides that the person shall be deemed to be guilty of contravention of an order made under section 3, if he was in charge of and responsible to the firm for the conduct of the business. The important aspect is that the person who was entrusted with the business of the firm was responsible for conduct of business of the firm, could alone be prosecuted for the offence complained of under provision of the Act, 1955. The important aspect is that the person who was entrusted with the business of the firm was responsible for conduct of business of the firm, could alone be prosecuted for the offence complained of under provision of the Act, 1955. In the present case, the petitioner was only president of the Society, who was not the person who was responsible for the conduct of the business. The entire business was under the control of the co-accused Anand Singh Solanki in the matter. He has prayed for quashment of entire proceedings on two grounds – first, the fact that the Investigating Officer was not competent to conduct an inquiry and look into the matter; secondly, as the petitioner was not responsible for the conduct of business because the same was under control of co-accused. 7. Learned counsel has further relied upon the judgment passed by the coordinate Bench of this Court in the case of State of M. P. v. Shiv Prasad, in Criminal Appeal No. 304 of 1992 decided on 21.1.2003, where, in the similar circumstances, the State appeal was rejected by the Court. He has further drawn attention of this Court to the statements recorded during the investigation by the Investigating Authority and has also read over the inquiry report submitted by the Tehsildar on 10.5.2008. It is further argued that from the perusal of the aforesaid report, it is apparently clear that the co-accused Anand Singh Solanki was the director of gas agency in question but there is specific finding given by the Investigating Officer in the report that ^^xSl flysUMj ds forj.k ,oa ysu nsu gsrq Jh vkuan flag lksyadh iw.kZ :i ls ftEesnkj gSA** Thus, he has submitted that the president of the Society is not responsible and is not having control over the distribution of gas agency. Therefore, she was not entitled to be prosecuted and has prayed for quashment of entire proceedings. 8. Per contra, learned Govt. Advocate for the State has opposed the arguments advanced by the counsel for the petitioner and has stated that the challenge is being raised mainly on the ground that first is the competency of the authority to conduct an inquiry into the matter which is a curable defect. He has relied upon the judgment passed by the coordinate Bench of this Court in the case Dr. Usha Mishra v. State of M. P., in M. Cr. He has relied upon the judgment passed by the coordinate Bench of this Court in the case Dr. Usha Mishra v. State of M. P., in M. Cr. C. No. 34370/2018 decided on 3.9.2019 [ed.- reported as 2019 (4) JLJ 154 ], wherein the coordinate Bench of this Court has considered the aspect of incompetency of the investigating officer and has held as under : “Therefore, this Court is of the considered opinion, that in case if the complaint is filed by a person, who is not properly authorized under the Act, 1994, then it is merely an irregularity, which would not result in dismissal of the complaint. On the contrary, the appropriate authority may join the complaint at any stage. Thus, this Court is of the considered opinion, that although the complaint filed by SDO (Revenue) cannot be said to be filled by an appropriate authority, but the said defect would not result in dismissal of complaint, but the appropriate authority can join the complaint at a later stage.” 9. It is stated that even it is presumed that the Tahsildar was not the competent authority, he can very well join in the proceedings at a later stage. As far as the arguments of the petitioner regarding the fact that the petitioner being president of the Society is not responsible for the conduct of the business, it is contended that even from the perusal of the inquiry report, it is seen that the Investigating Officer has categorically observed that as the petitioner being president of the Society of the NFL Employees Prathmik UpbhoktaBhandar, is responsible for the conduct of the business and in collusion with Anand Singh Solanki has committed the offence in the matter. 10. Learned Govt. Advocate has further drawn attention of this Court to the statements of the witnesses who have been recorded by the authorities and has argued that the active participation of the present petitioner is being reflected by the each of statements of the witnesses. It is further submitted that the case is an old one, i.e., year 2012 and the proceeding of criminal case is being stayed by the Hon’ble Court. It is further submitted that the case is an old one, i.e., year 2012 and the proceeding of criminal case is being stayed by the Hon’ble Court. It is further submitted that the petitioner was found responsible for conduct of the business by the authorities even by the Investigating Officer who has filed the report, and therefore, for the want of technicalities, the entire proceeding against the petitioner cannot be quashed. Hence, he prayed for dismissal of the application. 11. Learned counsel for the petitioner submits that the order passed in the case of Dr. Usha Mishra is not applicable in the facts and circumstances of the case as there was a provision of delegation of power in that case. The aforesaid aspect was taken into consideration by the Hon’ble Court, therefore, order was passed. In the present case there is no provision regarding the delegation of power to the authorities. There has to be order notifying the competent authority to take necessary action. 12. Heard the learned counsel for the parties and perused the record. 13. From the perusal of the record, it is seen that when the Tehsildar went on 7.1.2008 for inspection in NFL and his team has found some discrepancies in the stock register and physical quantity of the stock. The discrepancies which were found in comparison of the stock register are as under : “ a- 22 domestic gas cylinder were found short. b- 10 empty domestic gas cylinder were found in excess. c- 2 filled commercial gas cylinder were found short. d- 5 empty commercial gas cylinder were found short.” 14. After inquiry in the matter, learned Tehsildar submitted its inquiry report on 10.1.2008, on the basis of which, the case was registered as Case No. 44/08. 15. On the aforesaid report submitted by the Tahsildar and on the directions given by the Collector that the FIR was got registered against Anand Singh Sikarwar, Manager of NFL and the present petitioner, president of the Society in question. Two main grounds have been raised by the petitioner with respect to the competency of the authority to investigate the matter and whether the petitioner was not responsible for conduct of the business or not? 16. Two main grounds have been raised by the petitioner with respect to the competency of the authority to investigate the matter and whether the petitioner was not responsible for conduct of the business or not? 16. As far as the first argument of the petitioner is concerned, as has been held by the coordinate Bench of this Court, the investigation done by an incompetent authority is a curable defect and can be cured at the subsequent stage. The arguments advanced by the counsel for the petitioner and as far as the aspect of the case is concerned that whether the petitioner was responsible for conduct of the business concerned. The aforesaid aspect was taken into consideration by the Hon’ble Supreme Court in the case of Shyam Sunder’s case (supra), and the Hon’ble Supreme Court has held as under : “7. From Explanation to section 10 it will be seen that the Company includes a firm and other association of persons. Section 10 provides that the person shall be deemed to be guilty of contravention of an order made under section 3, if he was in charge of and was responsible to the firm for the conduct of the business of the firm. What is of importance to note is, that the person who was entrusted with the business of the firm and was responsible to the firm for the conduct of the business, could alone be prosecuted for the offence complained of. 8. Counsel for the State, however, relied upon the legal liability of partners and he argued that it would be for the accused partners to prove that the offence was committed without their knowledge or in spite of exercising due diligence on their part. He relied upon the proviso to sub-section (1) of section 10. It is true that under the Indian Partnership Act, 1932, a ‘Firm’ or ‘Partnership’ is not a legal entity but is merely an association of persons agreed to carry on business. It is only a collective name for individuals, carrying on business in partnership. The essential characteristic of a Firm is that each partner is a representative of other partners. Each of the partners is an agent as well as a principal. He is an agent in so far as he can bind the other partners by his acts within the scope of the partnership agreement. The essential characteristic of a Firm is that each partner is a representative of other partners. Each of the partners is an agent as well as a principal. He is an agent in so far as he can bind the other partners by his acts within the scope of the partnership agreement. He is a principal to the extent that he is bound by acts of other partners. In fact, every partner is liable for an act of the Firm. Section 2 (a) of the Partnership Act defines an “act of firm” to mean any act or omission by all the partners, or by any partner or agent of the Firm which gives rise to a right enforceable by or against the Firm. 9. But we are concerned with a criminal liability under penal provision and not a civil liability. The provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not.” 17. This High Court in the case of Vimla Devi (supra), has held as under : “8. On perusal of the copy of the statement of petitioner dt. 24th November, 2005, it appears that Priyadarshini, Mahila Prathmik 145, Upbhokta Bhandar is a government ration shop. Previously it was situated in her house and run by her. Although, she is President of the shop, yet presently this shop has been transferred in the house of co-accused Vishnu Agrawal, who is running it. If any irregularity has been committed with regard to this shop, he himself is responsible for that. 9. Apart from the aforementioned statements, three panchnamas dt. 8th August, 2005, have also been filed on behalf of the petitioner. Even in these three panchnamas, there appears no involvement of the petitioner. The main contention of Shri Bahirani is that there is no evidence against the petitioner on record. It is also rightly contended by him that merely being a President of that institution, she cannot be held responsible for the offence. Unless it is averred that she was in charge or responsible of the shop concerned with its day-to-day business. Nothing of that sort is available against her on record. It is also rightly contended by him that merely being a President of that institution, she cannot be held responsible for the offence. Unless it is averred that she was in charge or responsible of the shop concerned with its day-to-day business. Nothing of that sort is available against her on record. On this ground alone, the impugned order appears erroneous and an abuse of the process of the Court, so far as the petitioner is concerned. There appears no need to deal with other legal points as the case presently is pending against three other co-accused persons.” 18. In view of the aforesaid ratio laid down by the Hon’ble Supreme Court, if the Tehsildar’s report be taken into consideration it is seen that in the entire report he has pointed out the fact that the co-accused Anand Singh Solanki was the director of the gas agency and in subsequent para, i.e., 4 it is observed that the entire work of gas agency was under the control of Anand Singh Solanki and he was the person who was authorized to sign the documents and was responsible for distribution of all the gas cylinders and for conduct of business Anand Singh Solanki was solely responsible. In the subsequent para 4 it is observed that Anand Singh Solanki was doing the black marketing of the gas cylinders. It is further observed that the tenure of the petitioner was completed on July, 2007 and thereafter, no action could have been taken against the petitioner in the matter.Thus, from the perusal of the report, it is apparent that it was Anand Singh Solanki who was solely responsible for conduct of the business and for distribution of the gas cylinders. The petitioner has been roped in the case on the basis of the fact that she is president of the society but the fact remains that there is nothing on record to show that she was having any knowledge regarding the conduct of Anand Singh Solanki and the manner in which the business was being operated by Anand Singh Solanki. The aforesaid aspects were not in the knowledge of the president of the Society, therefore, she could not be held responsible for the conduct of the business of the company/firm. The aforesaid aspects were not in the knowledge of the president of the Society, therefore, she could not be held responsible for the conduct of the business of the company/firm. Accordingly, the present petition under section 482 of CrPC filed by the petitioner is allowed and the FIR registered against the petitioner at Crime No. 98/2008 for the offence under section 3/7 of the Essential Commodities Act, 1955 is hereby quashed. 19. Accordingly, the present petition is allowed and disposed of. No order as to cost.