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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION NO.1860/2010
Volvo India Private Limited,
Yalachachally Village, Tavarakere Post,
Ta. Hosakote, Bangalore-562122. .....APPLICANT
...V E R S U S...
1. State of Maharashtra through
Inspector of Legal Metrology Division,
Hingna-1, Dist. Nagpur.
2. Shri Umesh Chotelalji Gour,
Inspector of Legal Metrology Division,
Hingna-1, C/o N.R. Bang Hingna (Raipur),
Tq. Hingna, Dist. Nagpur. ...NON APPLICANTS
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Mr. K. H. Parekh with Mr. P. Shukla, Advocate for applicant.
Mr. R. S. Nayak, A.P.P. for non applicant no.1-State.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 26.09.2017 ORAL JUDGMENT
1. Heard Mr. K. H. Parekh with Mr. P. Shukla, Advocate for applicant and Mr. R. S. Nayak, A.P.P. for non applicant no.1-State.
2. The present application under Section 482 of the Criminal Procedure Code is filed by the applicant to challenge the order of issuance of process passed by learned Judicial Magistrate First Class, Hingna, Nagpur dated 14.10.2010 in Summary Criminal Case No.531/2010.
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3. At the outset, the learned A.P.P. for the State raised an issue of maintainability. He also invited my attention to the order passed by this Court on 07.10.2015 by which this Court has ordered that the issue in regard to the maintainability of the present proceeding is kept open as prima facie opinion of the Court is that the order is revisable one.
4. This Court had on 08.03.2011 issued Rule and confirmed the ad interim relief granted on the earlier occasion. The law in respect of the alternate remedy, after the matter is admitted, is well settled. In 1971 the Hon'ble Apex Court in L. Hirday Narain Vs. Income Tax Officer, Bareilly reported in AIR 1971 SC 33, in paragraph 12, ruled thus:
"12. An order under Section 35 of the Income-Tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income- tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by s. 33A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under s. 35, but was not moved, the ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:36:54 ::: 3 appln1860.10.odt High Court would be justified in dismissing as not maintainable the petition which was entertained and was heard on the merits.
The High Court observed that under s. 35 of the Indian Income-tax Act, 1922, the jurisdiction of the Income-tax Officer is, discretionary. If thereby it is intended that the Income-tax Officer has discretion to exercise or not to exercise the power to rectify, the view is in our judgment erroneous. Section 35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income-tax Officer may rectify any mistake apparent from the record. If a statute invests a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are 'shown to exist. Even if the words used in the statute are prima facie enabling the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right
-public or private-of a citizen."
The Division Bench of this Court in Costa and Co. Private Ltd. Goa Vs. Sales Tax Officer, Margao and anr.; reported in 2001 (2) Mh.L.J. 103, has found as under:
"8. The learned Advocate General Mr. A. N. S. Nadkarni has raised a preliminary objection before us that the Writ Petition is one which is challenging a show cause notice, Annexure P-5, is not maintainable as laid down by the ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:36:55 ::: 4 appln1860.10.odt Supreme Court in various decisions being C.A. Abraham v. Income-Tax Officer, Kottayam and Anr.; Thansingh Nathmal v. The Superintendent of Taxes, Dhubri and Ors.; Champalal Binani v. The Commissioner of Income-Tax, West Bengal and Ors., and Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors., . In all these decisions the Supreme Court has deprecated the tendency of the Courts to grant interim orders and the clients to approach the High Courts under Article 226 when there is an efficacious and alternate remedy available. Here in this case, according to the Advocate General, the petitioner could very well show cause and even if it was aggrieved by the assessment order after showing cause, it could have filed an appeal and then a revision. Without availing those opportunities and rushing to the High Court is deprecable. We have no quarrel with the proposition advanced by the learned Advocate General. As we pointed out in the earlier part of the Judgment, since 1992 this Writ Petition was pending before this Court and this Court has granted stay. If we accept the argument of the learned Advocate General and dismiss the petition directing the petitioner to show cause and proceed with the matter as provided, in the Statute, we feel that we are doing a grave injustice to the petitioner as well as towards the State. We feel if we do so we are abdicating ourselves of our duties by throwing the Writ Petition on technical ground after keeping the matter over a period of time. Of course this matter could be disposed of on that technical plea by the High Court at the time of ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:36:55 ::: 5 appln1860.10.odt entertaining the petition; but having entertained the petition, granted stay and kept it dormant for 8 years, it is unfair to say to the party to go to the proper authority under the Statute. That will amount to gross miscarriage of justice. Therefore, we are constrained to overrule the objection raised by the learned Advocate General."
In the backdrop of the aforesaid, when this Court has admitted this application on 08.03.2011 and from then it was waiting for its turn for final hearing and it is taken up now in the year 2017. In my considered view, the objection raised by the learned A.P.P. is required to be overruled.
5. The applicant is a company. The complainant is Umesh Gour, Inspector of Weights and Measures Department. He filed complaint against the petitioner in the Court of Judicial Magistrate First Class, Hingna by which it is alleged that the applicant and the other accused persons have breached the provisions of Section 39 of the Standards of Weights and Measures Act, 1976 and Rules 6 (1B) and 23 (7) of the Rules made thereunder and therefore they are liable for prosecution under Section 63 of the Act.
6. According to Section 74 of the Standards of Weights and Measures Act, 1976, a company can be prosecuted for the offences ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:36:55 ::: 6 appln1860.10.odt committed by it. The complaint filed by the complainant Umesh Gour was registered as Criminal Complaint Case No.531/2010. According to the complaint, the complainant made surprise visit on 21.04.2010 to the premises of M/s. V.E. Commercial Vehicles Limited situated at Khasra No.88/1, Waddhamna, Amravati Road, Nagpur. According to complaint, at the time of the said visit, complainant inspected spare part division of M/s.V.E. Commercial Vehicles Limited and that time he noticed that three spare parts i.e.(i) Break Chamber, part No.V020533210 (ii)Fuel Level Sensor part No.V020375007, and
(iii) Differential Housing Part No.V01524854, were found to have price stickers covering the original price. According to the complaint present company has committed breach as alleged in the complaint.
Mr. Parekh, learned counsel for the applicant, invited my attention to the communication dated 23.04.2010 by which M/s.V.E. Commercial Vehicles Limited has submitted to the authority for compounding of the offence. Compounding of offence is permissible under Section 73 of the Act. He further submitted that the application for compounding of the offence filed by M/s.V.E. Commercial Vehicles Limited was accepted by Deputy Commissioner of Weights and Measures Department by passing order dated 30.04.2010 and accordingly M/s. V.E. Commercial Vehicles Limited, paid Rs.35,000/- to the department.
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7. According to the learned counsel though compounding notice was also received by the present applicant, the present applicant did not opt for compounding for the reason that at no point of time, the applicant had committed any act by which it could be said that they have committed any wrong as envisaged under the Act.
8. The learned counsel invited my attention to the reported case in the matter of Johnson & Johnson Ltd Vs. Weights & Measures Department and anr; reported in 2016 (2) FAC 246. Paragraph 10 of the said judgment is reproduced as under:
"10. This Court is of the view that it was incumbent upon the department to have carried out an investigation to find out whether the alteration has been carried out by the manufacturer/ importer or the shopkeeper, which was not at all difficult. In the present case, the Inspector, Legal Metrology could have visited the shops in the vicinity to find out the alteration on the packages of the same batch number. If the alteration of the MRP was found in all the packages of the same batch in other shops also, the department would have been justified in prosecuting the manufacturer/importer of the packages. On the other hand, if no alteration in the MRP was found on the packages of the same batch number in other shops, the presumption could be drawn that the shopkeeper had done the alteration and the manufacturer could not be prosecuted."
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8 appln1860.10.odt By putting reliance on the aforesaid, the learned counsel for the applicant submitted that the present application is required to be allowed.
9. Admittedly, the complainant paid surprise visit on 21.04.2010 to the premises of M/s. V.E. Commercial Vehicles Limited situated at Waddhamna, Amravati Road, Nagpur. It is also an admitted position that the company is having its office at Bangalore. It is not stated in the complaint that the present applicant is having any control over the day-to-day activities of M/s. V.E. Commercial Vehicles Limited. Even according to the complaint, the inspection was done at Nagpur and there it was found by the Inspector that additional price sticker was fixed over the original price sticker of the spare part. In the complaint, it is not the case of the complainant that at any point of time, the present applicant has given or extended any consent to M/s. V.E. Commercial Vehicles Limited to do the same. Further, it is also not the case of the complainant that the said price tag was affixed at Bangalore from where the said spare parts were dispatched to its dealer M/s. V.E. Commercial Vehicles Limited, Nagpur.
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10. The order impugned is the oder passed by the learned Magistrate. The said order reads as under:
"Issue summons to the accused.
Sd/-"
Summoning of an accused in a criminal case is a very serious matter. The order impugned, in my view, shows that it is passed in the most mechanical manner. The law in that behalf is well settled by the Hon'ble Apex Court in Pepsi Foods Ltd. and anr. Vs. Special Judicial Magistrate and others; reported in (1998) 5 SCC 749 and in particular paragraph 28, which reads thus:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. 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. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:36:55 ::: 10 appln1860.10.odt complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
The order impugned completely fails to show what weighed in the mind of the learned Magistrate to issue the process against the applicant.
11. In view of the law laid down by the Hon'ble Apex Court, in view of the reasoning given in the preceding paragraphs, the order impugned cannot stand to the scrutiny of law. Consequently, the order passed by the learned Judicial Magistrate First Class, Hingna dated 14.10.2010 in Summary Criminal Case No.531/2010 is hereby quashed and set aside. Summary Criminal Complaint Case No.531/2010 is hereby quashed and dismissed qua present applicant only.
Rule is made absolute in the above terms.
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