Bombay High Court

Volvo India Pvt. Ltd. ... vs State Of Mah. Thr. Inspector Of ... on 26 September, 2017

Bench: V.M. Deshpande

                                                    1                   appln1860.10.odt

          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

 -------------------------------------------------------------------------------------------
 Mr. K. H. Parekh with Mr. P. Shukla, Advocate for applicant.
 Mr. R. S. Nayak, A.P.P. for non applicant no.1-State.
 -------------------------------------------------------------------------------------------
                               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.

2 appln1860.10.odt

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

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

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

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

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.

7 appln1860.10.odt

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."

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.

9 appln1860.10.odt

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

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."