Rani Nougrahiya vs The State Of Andhra Pradesh Rep By ...
2021 Latest Caselaw 744 AP

Citation : 2021 Latest Caselaw 744 AP
Judgement Date : 10 February, 2021

Andhra Pradesh High Court - Amravati

Rani Nougrahiya vs The State Of Andhra Pradesh Rep By ... on 10 February, 2021

Bench: A V Sai

         THE HONOURABLE SRI JUSTICE A.V.SESHA SAI

             CRIMINAL PETITION No.10989 of 2017

ORDER :

Accused No.2, in C.C.No.1021 of 2016 on the file of the

learned II Additional Judicial First Class Magistrate, Tanuku, is

the petitioner in the present Criminal Petition, filed under

Section 482 Cr.P.C.

2. Heard Sri G.Arun Showri, learned counsel representing

Sri Ch.Dhanamjaya, learned counsel for the petitioner on record,

and Sri S.Venkata Sainath, learned Special Assistant Public

Prosecutor appearing for the State, apart from perusing the

entire material available on record.

3. The State of A.P., represented by the Drugs Inspector,

Tanuku, West Godavari District, filed the present complaint on

the file of the Court of the learned II Additional Judicial First

Class Magistrate, Tanuku, West Godavari District under

Section 7 (1) (a) of the Essential Commodities Act, 1955 (for

brevity, 'the Act') against the accused No.1-Firm and accused

Nos.2 and 3 who are the partners of the accused No.1-Firm.

Accused No.2 is the petitioner in the present Criminal Petition.

2 AVSS,J Crl.P.No.10989 of 2017

4. The sum and substance of the complaint is that the

accused had shown the price more than the prescribed

Maximum Retail Price. The essence of the contentions of the

learned counsel for the petitioner is that, in the absence of any

allegation against the petitioner herein that she was in-charge of

and was responsible for the conduct of the business of the

company, at the time of alleged contravention, continuation of

the prosecution against the petitioner herein is impermissible

and is a patent abuse of process of law.

5. On the other hand, learned Special Assistant Public

Prosecutor, while strenuously opposing the Criminal Petition,

contends that the said aspect is required to be gone into at the

time of trial and the present application is not maintainable in

the absence of any one of the contingencies stipulated in

Section 482 Cr.P.C.

6. In order to adjudicate the issue on hand, it may be

appropriate and apposite to refer to the provisions of Section 10

of the Act, which read 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 3 AVSS,J Crl.P.No.10989 of 2017

proceeded against and punished accordingly: Provided that nothing contained in this sub- section 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.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.--For the purposes of this section,--

(a) "company'' means any body corporate, and includes a firm or other association of individuals; and

(b) "director'' in relation to a firm means a partner in the firm".

7. While dealing with the provisions of Section 10 of the Act,

the Hon'ble Apex Court, in the case of Sham Sunder and

others v. State of Haryana1, at paragraph No.10, held as

under:

10. It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefits of partner- ship. They may not know anything about the business of the firm. It would

(1989) 4 SCC 630 4 AVSS,J Crl.P.No.10989 of 2017

be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub- section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub- section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State.

8. A perusal of the complaint reveals that, except stating that

accused No.2 is a partner of the accused No.1-Firm, it is not

stated anywhere in the complaint that she was a person who, at

the time contravention was committed, was in-charge of and was

responsible to the company for the conduct of the business of

the company. In the absence of any such averment in terms of

Section 10 of the Act, and having regard to the law laid down by

the Hon'ble Apex Court in the above referred judgment,

continuation of prosecution launched against the accused No.2-

petitioner herein, is impermissible.

5 AVSS,J Crl.P.No.10989 of 2017

9. For the aforesaid reasons, Criminal Petition is allowed,